l'\ .-.!;;%> 'i ^ii?S^2 ^; ." ti'^^B^"t^! / '•• '.-wSfi^ ':sy o HIGH COURT OF CHHATTISGARH AT BILASPUR APPELLANTS RESPONDNTTS M.A. No. 618/2005 Smt. Mangmati and others Versus Mohammed Ikram Khan and others OP D E R '\ For consideration HON'BLE SHRI RAJEEV GUPTA. CJ <^_^r^^- s '' Sd/- Ouef Justice Judge Sd/- N.K. Agawal Judge Postfor: 2-1 -6-2011 Sd/- N.K. Agrawal Judge -i'. :<«,. \ :SQk, SiS^ ^-y HIGH COITRT OF CHHATTISGARH AT BILASPUR M.A. No. 618/2005 MisceUaaeous appeal under Section 173 of the Motor Vehicles Act, 1988 APPELLANTS RESPONDENTS i:i(Kte Esj 'l. Smt. Mangmati widow of late Dhaneshwar Prasad Patel, aged about 39 years, occupation - House wife 2. Ky. Jayanti D/o Late Dhaneshwar Prasad Patel, aged about 20 years, occupation -student 3. Ku. Hemlata D/o Late Dhaneshwar Prasad Patel, aged about 18 years, occupation student 4. Manoj Kumar s/o Late Dhaneshwar Prasad Patel, aged about 16 years, occupation- student, minor Through His natural guardian mother Smt. Mangmati Patel, widow of Late Dhaneshwar Prasad Patel AU residents of village Dhangar, Post Dhanar^ar TehsU and District Raigarh(CG) Versus 1. Mohammed Ikram Khan s/o Shri Iqbal Mohammed R/o Goushalapara Raigarh (CG) 2. Sunder Kewat, S/o Rambharos Kewat, Occupation Driver, R/o Bajirao Mabrapara Raigarh (CQ) 3. The Oriental Insurance Company Limited, Branch Offiee Itwari Bazar Raigarh, Tahsil and District Ralgarh (CG) :- Hon. Shri Rajeev Gupta, CJ & Hon. Shri N.K. Agarwal, J. PRESENT: Shri Roop Naik, Adyocate, for the appellants. Shri Manish Upadhyay, Advocate, for the respondent No. 1. Shri Sudhir Agrawal, Advocate, for the respondent No. 3. ii:i|fi'1:i'!! !H ua't" = /:... ;.-^J .-, 'sy ; r ^3!^"' ORDER (2.^-06-2011) Per N.K. AsarwaLjJ 1. This is claimant's appeal seeking enhancement in the am.ount of com'pensation awarded by the IInd Motor Accident Claims Tribiinal, Raigarh vide its award dated 24- 3-2005 passed in Clatm Case No.36/2004. 2. On an application under Section 166 of fhe Motor Vehicles Act, 1988 preferred by the claimants/appeUants cls Rs. 26,86,960/- as compensation for the deafh of Dhaaeshwar in the accident dated 1-2-2004 by truck beartng registration No. CG-13/ZC-0356, learned Tribunal has awarded a total sum. of Rs. 4,02,100/- along witfa interest at the rate .of 9% per annum from the date of application till its payment agatnst fhe driver, owner aad tnsiirer of the vehicle. 3. Leanied Tribunal on a close scrutiny of the evidence led held, the deceased died in the said accident on account of rash and negligent driving by respondent No. 2 i.e. driver of the ofiending truck; fhe vehicle was insured wifh the respondent No. 3 at fhe time of accident and as fhe respondent No. 3/0riental Insurance Company could not establish breach of policy conditions is liable to pay compensation to the claunants jouitly and severely alon^ wifh Uie driver and the owner offhe offending vehicle. ,4. Leamed Tribiinal taking uito consideration Rs. 8,120/- as monthlv salarv of the deceased and after deductiag Rs. ^ 850/- [790 GPF + 150 GIS + 64 HRA] and Rs. 2,650/- on accoiint of famUy pension, assessed fhe monfhly dependency as Rs. 2,195/- and yearly dependency as Rs. 26,340/-, after applytng multiplier of 15 assessed ainoimt of compensation as Rs. 3,95,100/-, after adding Rs. 5,000/- for loss of consortiuia and Rs. 2,000/- for funeral expenses, awarded total compensation ofRs. 4,02,100/-. 5 . Shri Roop Naik, leamed counsel for fhe appellants woiild submit, leamed Tribiinal has grossly erred in not calculating the amount of coiapensation by taking gross salary ofRs. 8,120/- per montfa tnto consideration. 6. On fhe other hand, Shri Sudhir Agrawal, learned counsel for the respondent No. 3 and Shri Manish Upadhyay, leamed counsel for fhe respondent No. 1 would support fhe award and would submlt, in tfae facts and circumstances of fhe case, fhe amount awarded by leamed Tribunal is just and reasonable. 7. We have heard learned counsel for the parties and perused the record of fhe Tribunal. 8. The;core question tnvolved in the case for decision making is -. / whefher leamed. Tribunal has erred tn deducting fhe amount of GPF, GIS, HRA and family pension from the salaiy of the deceased for fhe purpose of computation of total tEicoine of the deceased on the basis whereof fhe amount of compensation payable for fhe death of bread earner oftlie clatmants is required to be detemiined. 4 ^> 9. 2^s per fhe statement ofP.R. Sahu (AW-3), gross salary ofthe deceased tn fhe monfh of January, 2004 was 8,120/-. Therefore, fhe assessiaent of gross salary of fhe deceased as Rs. 8,120/- by learned Tribunal cannot be found fault wifh. However, leamed Tribunal has fallen in error in deducting the amount of GPF, GIS, HRA and famUy pension fl-om the income of fhe deceased for the piirpose of computin^ coiapensation. 10. Hon'ble Supreme Court in the case of Helen C. Rebello (Mrs.) and others -v- Mciharashtra State Road Transport Corporation and another reported tn (1999) 1 SCC 90 has observed in para 35 as under:- "35. Broadly, we may examine fhe receipt of fhe provident fund which is a deferred payment out of fhe contribution made by an eniployee during the tenLire 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, whfle fhe aiaount iinder fhe Motor Vehicles Act is uncertain and is receivable only on the happentng ofthe event, viz., accident, which may not take place at aU. Stmilarly, fam.Qy pension is also earaed by an employee for fhe benefit ofhis family m the form ofhis contribution in the service in terias of fhe service conditions receivable by fhe hetrs after his deafh. The heirs receive famUy pension even ofherwise than the accidental death. No corelation between the two. SunUarly, life insuraace policy is received either by the insured or fhe heirs of fhe insiired on account of the contract wifh fhe tnsurer, for wtuch the tnsured contributes in fhe form of premium. It is receivable even by fhe insured tf he lives tfll matiirit}' after paying all the premkuns. In the case of death, the tnsurer indemnt&es to pay fhe sum to the heirs, again m terms of fhe contract for fhe premium paid. Again, fhis amount is receivable by the claimant not on account of any accidental death but othemdse on tfae insured's deafh. Death is only a step or contingency in terms of (he contract, to receive fhe amount. Sunilarly any cash, barik balance, shares, flxed deposits, etc. fhough are all a pecuniary advaatage receivable by the heirs on account of one's deafh but all fhese have no corelation wifh the amount receivable under a statute occasioned only on account of accidental death. How could such an amoi.mt come wifhin the peripher3r of fhe Motor Vehicles Act to be termed as "peciuiiary advantage" liable for deduction. When we seek fhe principle of loss and gain, it has to be on a similar and sam.e plane haviag nexus, inter se, between them and not to which there is no semblance of any corelation. The insured (deceased) contoributes his own nioney for which he receives fhe amount which has no corelation to fhe conipensation computed as against fhe tortfeasor for his negligence on account of fhe accident. As ' /aforesaid, the amount receivable as coinpensation urtder tfae Actj.s on account of fhe injur;' or death without makuig any contribution towards it, then how can the fruits of an amoiint received through contributions of the insured be deducted out of tbe amount receivable under the Motor Vehicles Act. The ainount under fhis Act he receives without aay contribution. As we have sald, fhe ?J // -. ..5^' corapensation payable under the Motor Vehicles Act is statutoty while fhe am.ount receivable under the life insnrance policy is contractual." 11. The above view was reiterated by the Supreme Coiirt in fhe case of United Svlia Insurance Co. Ltd. cmd others -v- Patricia Jean Mahajan and others reported in (2003) 6 SCC 281 wherein the Supreme Court in para 36 of its judgment has observed as under:- "36. We are ui fuU agreement wifh the observations made in fhe case of Helen Rebello (supra) fhat principle of balaacuig between losses aad gatas, by reason of death, to amve at the amount of compensation is a general rule, but what is more important is fhat such receipts by the claimants must have some correlation with tfae accidental death by reason of which alone the claimants have received the aiaounts. We do not thtnk it wouid be necessary for us to go into fhe question of disttaction made between fhe provisions of the Fatal Accidents Act and fhe Motor Vehicles Act. According to fhe decisions referred to in the earlier part of this judgment, it is clear fhat fhe amount on account of social secnrity as may have been received must ha-ve a nexus or relation with fhe accidental nijury or .death, so far to be deductible from the amount of compensation. There must be some correlation between the 'araount received and fhe accidental death or it may be in fhe same sphere, absence (sic) the amount received shall not be deducted from the amoiint of compensation. Thus, tfae amount received on account ofinsurance policy of the deceased cannot be deducted from fhe amount ,~of compensation though no doubt fhe receipt of 7 y the tnsurance amount is accelerated due to premature death of (he insured. So far as other iteias in respect of which leamed counsel for tfae Insurance Company has vehemenfly urged, for example some ailowaace paid to fhe children, and Mrs Patricia Mahajan under the social security system, no correlation of those receipts wifh fhe accidental death has been shown much less established. Apart from fhe fact (hat conMbution comes from dtEFerent sources for constituting the fund out of vvhich payment on account of social security system is raade, one of the constituents of fhe fund is tax which is deducted from tncome for the purpose, We feel fhat fhe High Court has rightly disallowed any deduction on account of receipts under the tnsurance policy and other receipts under fhe social security system which the claiinant would have also othenvise been entitied to receive trrespective of accidental deafh of Dr Mahajan. If the proposition "receipts from whatever source" is interpreted so widely fhat it may cover all the receipts, which may come into the hands of fhe claimants, in view of the mere death of fhe victim, it would only defeat fhe purpose of fhe Act providing for just compensation on account of accidental death. Such gains, maybe on account of savings or ofher tnvestment ete.-made by the deceased, would not go to the / benefit of fhe wrongdoer and fhe clatmant should not be left w.grse off, tf he had never taken an insurance policy or had not made uivestments for futnre returns." 12. Hon'ble Supreme Court in fhe case of Raghuvir Singh Matolya and others -v- Hari Singh Malviya and others reported m (2009) 15 SCC 363 has held, in calculating the amount of coinpensation the deamess aUowance as also the house rent allowance should also be taken tn consideration and obseryed in para 6 of its judgment as under:- "6. Dearness allowance, in oi-ir opinion, should form a part of fhe income. House rent aUowance is paid for fhe benefit of fhe faoaUy members and not for the employee alone. What would constitute an income, albeit in a difierent fact situation, came up for consideration before thls Coiirt in National Sisurance Co. Ltd. v. Indira Srivastava (2008(2) SCC 763) wherein it was held: (SCC p. 772, paras 19-21) "19. The amounts, therefore, which were required to be paid to the deceased by his employer by way of perks, should be included for computation of his monfhly income as that would have been added to his monfhly income by way of contribution to fhe faiaUy as contradistinguished to the ones which were for his benefit. We may, however, hasten to add that from the said amoiint of mcome, the statutoiy amoi-mt of tax payable thereupon must be deducted. 20. The term 'income' in P. Ramanatha Aiyar's Advanced Law Lexicon (3rd Edn.) has been defined as under: <f<; [nij the value of any benefit or perqi-usite whether convertible tnto money or not, obtained from a coiapany either by a director or a person who has substantiaL tnterest tn fhe company, and any sum. paid by such company tn respect of any obligation, which but for such payment would have been payable by fhe director or other person aforesaid, occurring or aristng to a person wifhin fhe State from any profession, trade or calling ofher fhan agriculture.' 9 13. ^ It has also been stated: ' "Income" signi&es "what comes tn" (per Selbome, C., Jones v. Ogle[(1861-73) All ER Rep 918J. "It is as large a word as can be used" to denote a person's receipts (per Jessel, M.R., Huggins, ex p., Re{51 LJ Ch 935]}. Income is not coniined to receipts from bustness only and means periodical receipts from one's work, lands, investDients, etc. Secy. to the Board of Revenue, Income Tax v. Al. Ar. Rm. Arunachalam Chettiar & Bros{AIR 1921 Mad 427] Ref. Vukun hisurcaice Co. Ltd. v. Corpn. of Madras[AIR 1930 Mad 626 (2)f 21. If fhe dictionary meaning of fhe word Income' is taken to its logical conclusion, it should mclude those benefits, eifher in terins of money or othenvise, which are taken tnto consideration for the purpose of payment of income tax or professional tax alfhough some elements fhereof may or may not be taxable or would have been otherwise taxable but for the exemption conferred thereupon iinder the statute." To the same effect is fhe decision of this Court in Oriental Insurance Co. Ltd. v. Ram Prasad Varma [(2009) 2 SCC 712]." HonTile Supreme Court in fhe case of National Iiisurance Co. Ltd. -v- Sidira Shrivastava and others reported in (2008) 2 SCC 763 has observed in para 19 of its judgment as ilnder:- "19. The araounts, tfaerefore, which were required to be paid to the deceased by his employer by way of perks, should be included for coniputation of his monthly incom.e as that would have been added fo his moufhly tncome by way of •"'^ »Sc? 10 33 contribution to fhe famUy as contradisttnguished to the ones which were for his benefit. We may, however, hasten to add fhat from fhe sald aaiount of income, the statutoiy amount of tax payable fhereupon must be deducted." 14. By applying the dicta of Hon'ble Apex Court in the above refenred cases, it is ciystal clear that the amount of GPF, GIS, HRA and faoiily pension are not deductible from the salary of Che deceased for fhe purpose of coiaputation of total tncoiae of fhe deceased on the basis whereof, the amount of compensation payable for the deafh of bread earner of fhe claunants is required to be determined and fhus leamed Tribi-inal has fallen in error in assessing the amount of compensation payable to the claunants. Therefore, we propose to recompute the amozint of compensation by taking salary of the deceased as Rs. 8,120/- i.e 97,440/- per annum. 15. In fhe year 2003-04, approximate amount of 3,000/- was payable as income tax upon fhe salary of Rs. 97,440/- which is deductible from. the salary of fhe deceased in view of fhe judginent of National Insurance Company -v- Indtra S'hrlvastava (supra). Therefore, after deductiag from the above amount Rs."3,000/- on account of Income Tax which was payable tn the year 2003-04, fhe annual income of the deceased comes to Rs. 94,440/-. After deducting l/3Td of it towards personal expenses of the deceased, the loss of anniial dependency would be worked out to 62,960/-. By 11 applying inultiplier of 15 as applled by fhe Tribunal, fhe compensation on account of loss of dependency would be Rs. 9,44,400/-. By adding in it Rs. 7,000/- on other heads as awarded by the Tribunal, fhe total amount of compensation comes to Rs. 9,51,400/-, for which the claimants are entitied. 16. Therefore, the appeal is aUowed tn part. The impugned award is modifled to fhe above extent. The claimants are entitled for Rs. 9,51,400/- instead of Rs. 4,02,100/- as awarded by fhe Tribunal. In ofher wards, fhe claimants are entitied for Rs. 5,49,300/- (Rs. 9,51,400 - 4,02,100) over and above fhe amount awarded by the Tribunal. The enhanced am.ount shall cany interest at fhe rate of 6% per annum from fhe date of application tiU its payment. 17. The Insurance Company is granted fhree monfhs time from today to pay fhe corapensation to the claimants. 18. No order as to costs. Sd/- Chief Justice Judge Sd/- N.K. Agawal Judge