IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS MONDAY, THE 24TH AUGUST 2009 / 2ND BHADRA 1931 MACA.No. 304 of 2007(A) ----------------------------------- (AGAINST THE AWARD DATED 10.8.2006 IN OPMV.548/2003 of MOTOR ACCIDENT CLAIMS TRIBUNAL, PALA) .................... APPELLANT(S): CLAIMANTS IN OP(MV): ------------------------------------------------------- 1. SRI.MARIAMMA APREM, VETTUVELIL (H) CHERUPALLY, KAVUMBHAGAM P.O., PONKUNNAM. 2. ABI SANTHOSH APREM, -DO- -DO- BY ADV. SRI.THOMAS M.JACOB SRI.G.RAJAGOPAL RESPONDENT(S): RESPONDENTS IN OP(MV): ----------------------------------------------------------------- 1. A.V.ABRAHAM, AMBATTU,VAZHAKKATA BHAGOM, ERUMELI P.O. 2. HYNSE APREM, VETTUVELIL,CHERUPALLY, KAVUMBHAGAOM P.O., PONKUNNAM. 3. THE MANAGER, ORIENTAL INSURANCE CO. LTD., KANJIRAPPALLY. R3 BY ADV. SRI.VPK.PANICKER. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 24/08/2009 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.M.JOSEPH & M.L.JOSEPH FRANCIS, JJ. ------------------------------------------------------ M.A.C.A.No.304 of 2007-A ---------------------------------------------- Dated, this the 24th day of August, 2009 J U D G M E N T K.M.Joseph, J. Appellants are the widow and son of the deceased. Appellants are aggrieved by the quantum of compensation awarded by the Tribunal. 2. We heard the learned counsel for the appellants and learned counsel for the insurance company. The complaint arises from the findings arising from the discussion in paragraph 16 of the award relating to the amount payable towards dependency. We extract paragraph 16 hereunder: “Ext.A5 is the pension payment order. The document indicates that the deceased Aprem was getting an amount of Rs.4,703/- as pension for the month immediately before the accident. After the death of deceased Aprem, first petitioner is getting an amount of Rs.1,844/- as family pension. Therefore, the loss of income is Rs.2,859/- per month. After deducting 1/3 for personal expenses, the monthly dependency comes to Rs. 1,906/-. The annual dependency comes to Rs.22,872/-. As per the averments in the petition, deceased Aprem was aged 67 at the time of his death and the multiplier applicable in this case is 5. Therefore, for loss of dependency, petitioners are awarded an amount of M.A.C.A.No.304/2007 -2- Rs.1,14,360/-. For transport to hospital, ambulance charges and damages to clothing, petitioners are awarded an amount of Rs.2,000/-. Towards funeral expenses, another amount of Rs.3,000/- is awarded. Petitioners are entitled to an amount of Rs.10,000/- towards pain and suffering. For loss of love and affection, petitioners are entitled to an amount of Rs.10,000/-. First petitioner is entitled to an amount of Rs.10,000/- towards loss of consortium. Therefore, petitioners are entitled to an amount of Rs.1,49,360/- as compensation. Issue is answered accordingly. Schedule Part I Transport to hospital Rs.2,000/- Funeral Expenses Rs.3,000/- Pain and suffering Rs.10,000/- Loss of love and affection Rs.10,000/- Loss of consortium Rs.10,000/- Loss of dependency Rs.1,14,360/- ---------------- Total Rs.1,49,360/- ----------------- 3. Learned counsel for the appellants would rely on the judgment of the Apex Court in Helen C. Rebello (Mrs) and others vs. Maharashtra State Road Transport Corporation and another {1999 (1) SCC 90} and in Lal Dei and others v. Himachal Road Transport {2007 (8) SCC 319}. He also relies on the decision of the Delhi High Court in Avon Delux Transport Co. v. Sheelatha Selvamani and others {1982 ACJ M.A.C.A.No.304/2007 -3- 370}. 4. Per contra, learned counsel for the insurance company submits that the decision of the Tribunal is only to be supported. According to him, when compensation is computed on the basis of the income by way of pension which the appellants are deprived of consequent upon the death in an accident of the late husband of the first appellant and father of the second appellant necessarily the Court should not overlook the amount which the appellants would be receiving as a result of the very death consequent upon which the question of determination of compensation arises. He relied on the judgment of the Apex Court in Bhakra Beas Management Board v. Smt.Kanta Aggarwal and others {AIR 2008 SC 3118}. 5. In Helen C. Rebello (Mrs) and others vs. Maharashtra State Road Transport Corporation and another {1999 (1) SCC 90} the question arose under the Motor Vehicles Act, 1939. The Court inter alia held as under: “.....Thus, the pecuniary advantage accruing under this Act has to be deciphered, correlating with the accidental death. The compensation payable under the Motor Vehicles Act is on M.A.C.A.No.304/2007 -4- account of the pecuniary loss to the claimant by accidental injury or death and not other forms of death. ..............In our considered opinion, the general principle of loss and gain takes colour of this statute, viz., the gain has to be interpreted which is as a result of the accidental death and the loss on account of the accidental death. Thus, under the present Act, whatever pecuniary advantage is received by the claimant, from whatever source, would only mean which comes to the claimant on account of the accidental death and not other forms of death........................ Thus, it would not include that which the claimant receives on account of other forms of deaths, which he would have received even apart from accidental death. Thus, such pecuniary advantage would have no corelation to the accidental death for which compensation is computed. Any amount received or receivable not only on account of the accidental death but that which would have come to the claimant even otherwise, could not be construed to be the “pecuniary advantage”, liable for deduction............ Broadly, we may examine the receipt of the provident fund which a deferred payment out of the contribution made by an employee during the tenure of his service. Such employee or his heirs are entitled to receive this amount irrespective of the accidental death. This amount is secured, is certain to be received, while the amount under the Motor Vehicles Act is uncertain and is receivable only on the happening of the event, viz., accident, which may not take place at all. Similarly, family pension is also earned by an employee for the benefit of his family in the form of his contribution in the service in terms of the service conditions receivable by the heirs after his death. The heirs receive family pension even otherwise than the accidental death. No corelation between the two. M.A.C.A.No.304/2007 -5- Similarly, life insurance policy is received either by the insured or the heirs of the insured on account of the contract with the insurer, for which the insured contributes in the form of premium. It is receivable even by the insured if he lives till maturity after paying all the premiums. In the case of death, the insurer indemnifies to pay the sum to the heirs, again in terms of the contract for the premium paid. Again, this amount is receivable by the claimant not on account of any accidental death but otherwise on the insured's death. Death is only a step or contingency in terms of the contract, to receive the amount. Similarly any cash, bank balance, shares, fixed deposits, etc. though are all a pecuniary advantage receivable by the heirs on account of one's death but all these have no corelation with the amount receivable under a statute occasioned only on account of accidental death. 6. In N.Sivammal and others v. Managing Director, Pandian Roadways Corporation and another {1985 ACJ 75} the Court inter alia held as follows: “The High Court next proceeded to evaluate the pensionary benefits which the widow, appellant No.1 would enjoy.......... The High Court evaluated the monetary benefit of pension and reduced the amount of compensation by Rs.10,000/-. We are unable to appreciate this reduction. We find no justification for it. 7. In Avon Delux Transport Co. v. Sheelatha Selvamani and others {1982 ACJ 370} the question arose was whether the amount received under the life insurance contract M.A.C.A.No.304/2007 -6- should be deducted from compensation. The Court also considered the question whether pension received by the deceased wife should be deducted. Therein a Bench of the Delhi High Court held as follows: 3. The next argument was that deduction should also have been made on account of pension receivable by the deceased's wife. We may note that there is no such claim put forward in the petition because we find no such discussion by the Tribunal in its order. We also find that no such specific grievance has been made in the grounds of appeal before us. We, therefore cannot be asked to make a guess as to what amount was received on account of pension. This is apart from the fact that in our view the amount of pension was received on account of services rendered by the employee and on the same grounds as the insurance amount was not to be deducted in assessing the compensation payable. In this connection it may also be noticed that the Tribunal did not take into consideration the prospective increase in the income of the deceased and thereby the prospective increase in the amount of dependency. These things he did because according to him, this would set off some other amount which requires to be deducted. We cannot say that this view is an unreasonable one.” 8. In Lal Dei and others v. Himachal Road Transport {2007 (8) SCC 319} a Bench of two Judges of the Apex Court proceeded to consider the specific question M.A.C.A.No.304/2007 -7- whether the amount of family pension received by the family of the deceased is to be deducted. The Apex Court referring to the decision in Helen C. Rebello's case (supra) held as follows: “4. It is contended by the learned counsel for the appellant that while calculating the dependency, the Motor Accidents Claims Tribunal as well as the High Court committed an error in deducting the family pension amount. We find that the submission made by the counsel for the appellant is correct. The Motor Accidents Claims Tribunal as well as the High Court could not have deducted the amount of family pension given to the family while calculating the dependency of the claimants. In Helen C. Rebello v. Maharashtra SRTC this Court has specifically dealt with this question and said that the family pension is earned by an employee for the benefit of his family in the form of his contribution in the service in terms of the service conditions receivable by the heirs after his death. The heirs receive family pension even otherwise than the accidental death. There is no co-relation between the two and therefore, the family pension amount paid to the family cannot be deducted while calculating the compensation awarded to the claimants. In view of this, the appeal is allowed. The order of deduction of the family pension is set aside. Accordingly, the appellants would be entitled for an amount of Rs.10,27,000 as compensation with interest at the rate of 9% from the date of the filing of the petition.” 9. In Bhakra Beas Management Board v. Smt.Kanta Aggarwal and others {AIR 2008 SC 3118} the M.A.C.A.No.304/2007 -8- appellant contended that the benefits which the claimant received on account of the death of the husband are to be deducted while computing compensation. A perusal of the judgment shows that respondent No.1 had been provided compassionate appointment and she was getting a salary of nearly Rs.4,700/- and residence was also provided to her. In paragraph 4 of the judgment it was held as follows: “ 4. Learned counsel for the appellant submitted that the benefits which claimant has received on account of death of her husband have to be deducted while computing the compensation, if any, payable. With reference to the factual aspects it is submitted that respondent No.1 was getting salary of nearly Rs.4,700/- and therefore she was not entitled to compassionate appointment. It is pointed out that the appeal filed by the claimants is pending adjudication and without considering the relevant factors the High Court has declined to interfere.” Paragraph 6 of the judgment reads as follows: “There are several undisputed factors: (i) the husband of respondent No.1 had received fatal injuries in an accident; (ii) the claimants seem to be facing financial problem; (iii) the concept of just compensation cannot be lost sight of. The High Court does not appear to have considered the effect of amount received on account of compassionate appointment.” 10. Thereafter, the Apex Court referred to M.A.C.A.No.304/2007 -9- various case laws including the decision in Gobald Motors Service Limited v. R.M.K. Veluswami {1962 (1) SCR 929} and Helen C.Rebello v. Maharashtra S.R.T.C {1999 (1) SCC 90} and then proceeded to hold as follows: “10. It is pointed out that the award as made is extremely high and the concept of just compensation has been lost sight of. 12. But we find that the High Court lost sight of the fact that the benefits which the claimant receives on account of the death or injury have to be duly considered while fixing the compensation. It is pointed out that respondent No.1 was getting Rs.4,700/- p.m. and a residence has been provided to her and actually the compassionate appointment was given immediately after the accident.” However, taking the view that the accident took place 14 years back the Court granted Rs.5 lakhs as the compensation in full and final settlement of the claim relatable to the death. 11. Of course, the learned counsel for the insurance company would canvass for the acceptance of judgment in Bhakra Beas Management Board v. Smt.Kanta Aggarwal and others {AIR 2008 SC 3118}, a decision later in point of time. The learned counsel for the appellants on the M.A.C.A.No.304/2007 -10- other hand would point out that in Bhakra Beas Management Board v. Smt.Kanta Aggarwal and others {AIR 2008 SC 3118} specific reference has been made to Helen C.Rebello's case (supra) and it has not been disapproved in any manner. 12. We notice that the judgment in Helen C.Rebello's case (supra), and Lal Dei and others v. Himachal Road Transport {2007 (8) SCC 319} are rendered by Benches consisting two learned Judges. The decision in Bhakra Beas Management Board v. Smt.Kanta Aggarwal and others {AIR 2008 SC 3118} rendered by a Bench of two Judges does not purport to overrule the judgment in Helen C. Rebello (Mrs) and others vs. Maharashtra State Road Transport Corporation and another {1999 (1) SCC 90}. There appears to be some reasoning also in regard to the component of family pension which appears to advance the case of the appellant. Family pension is not something which one gets only in the case of a death by accident. Pension is no bounty. It is essentially earned by the employee. Whether the person died as a result of accident or otherwise the widow would be entitled to family pension. We also find that there is a direct decision in Lal M.A.C.A.No.304/2007 -11- Dei and others v. Himachal Road Transport {2007 (8) SCC 319} which specifically deals with the issue of deductibility of family pension. We notice that the said decision is not referred to by the Apex Court in Bhakra Beas Management Board v. Smt.Kanta Aggarwal and others {AIR 2008 SC 3118}. The argument of the learned counsel for the appellants is that the decision in Bhakra Beas Management Board v. Smt.Kanta Aggarwal and others {AIR 2008 SC 3118} cannot be treated an authority for the proposition that when death arises on account of an accident and family pension becomes payable the family pension is to be deducted from the total pension for arriving at the dependency compensation. We see merit in the contention. In such circumstances we accept the contention of the learned counsel for the appellants that when family pension becomes payable in a case where death follows injuries suffered in a motor accident, it is not liable to be deducted in the determination of payment to the claimants. 13. Though the learned counsel for the appellants would submit that compensation awarded towards love and M.A.C.A.No.304/2007 -12- affection and loss of consortium is inadequate we are not inclined to accept such contention. Rs.10,000/- each has been awarded towards love and affection and also towards loss of consortium. Accordingly, the appeal is allowed in part and we find that the appellants are entitled to Rs.1,88,120/- on the basis that the amount of pension cannot be diluted in the determination of compensation by deducting family pension therefrom. After deducting the amount already granted by the Tribunal the appellants are allowed to realise Rs.73,760/- more with interest at 7.5 percent from the date of the petition till date of realisation from the respondents. (K.M.JOSEPH) JUDGE. (M.L.JOSEPH FRANCIS) JUDGE. MS