/- 1 ^, ?.-ss° lNTHEHON^esHl^tWttiiiOI:^^^C^^ TO.A. (<;) No.- ^^^^ /2010 DivisionBencb APPE1/LANT Y )RIENTAK INSURANCE GOMPANY LIMITED, CONSITITUTED AND REGISTERED OFFICE- .-•' QRIENTAL HOUSE, POST BOX N0.- 7037, A-2S/27, <^ .^Cy'AASAF ALI ROAD, NEW DELHI, 110002, DIVISIONAL OFFICE THROUGH- DIVISIONAL MANAGER, PARMANAND BUILDING, DR. RAJENDRAPRASAD CHOWK, DURG, TEHSILAND DISTRICT DURG ( C.G.) Vrs. REg'X^NDENTS/CLAIMANTS :- ^^^.^^^^^ ^^^ ^^ ^ ^ ^ ____ SMT.SHOBHANA VADAV WIDOW, MANNULAL ty-->-- YADAV, AGE ABOUT 36 YRS. 'MONENDRA KUMAR VADAV, S/0 MANNULAL YADAV, AGE ABOUT 13 YRS. 3-^KUMARI HEMLATA, D/0 MANNULAL YADAV AGE ABOUT10 YRS. RESPONDENTS N0. 2 AND 3 ARE MINOR THROUGH GUARDIAN, NEXT FRIEND MOTHER RESPONDENT N0.1, SMT. SHOBHANAYADAV, ALL RESIDENT CIVIL QUARTER 1-2, BY THE SIDE OF CIVIL COTIRT, (KAWARDHA) KABEERDHAM, TEHSIL AND DISTRICT KABEERDHAM (KAWARDHA) (C.G.) I/'' SMT. BHUKHI BAI,W/0 NARAYANLALYADAV, AGE ABOUT 56 YRS. NARAYANLAL YADAV,S/0 NANDLAL YADAV, AGE ABOUT60YRS. RESPONDENT N0. 4 AND S, RESIDENT OF VILLAGE PHULJHAR, TEHSIL AND DISTRICT RAJNANDGAON, (C.G.) RESPONDENTS/NON-APPLICANTS 6-/ RANJir KUMAR NIRMALKAR S/0 PURANIK NIRMALKAR, AGEABOUT 27, OCCUPATION DRIVER, RESIDENT KASARIDIH, AZAD CHOWK,STREET N0. 4, DURG, TEHSIL AND DISTRICT DURG (C.G.) ..2.. .flfi ®KHti + ^ ..2.. VIRENDRA KUMAR NIRMALKAR S/0 SUKHIRAM NIRMALKAR, VEHICLE OWNER, RESIDENT HOTJSE N0. 26, FLAT 47,SUBHASH NAGAR, DURG, TEHSIL AND DISTRICT DURG (C.G.) APPEALUNDERSECTIQN 173 aFMQT^RJ^HICL^ACT 1988 ./r" APPEALVALUEDRs. 18,'8l,680/- (APPEALBYINSURANCE) ^ GOMPENSATION CLAIMED BEFORE TRIBUNALRs. 24,07,0007- 1__AWARDED AMOUNT BY TRIBUNAL Rs. l8,6i,680/- HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH: HON'BLE MR. I.M.QUDDUSI & HON'BLE MR. G. MINHAJUDDIN. JJ. Apoellant M.A. rcl No. 1204/2010 Oriental tnsurance Company Limited, Distt. D.urg (CG) Resoondents/ Claimants Vs Smt. Shobhana Yadav and others QRDER FOR CONSIDERATtON Sd/- G. Minhajuddin Judge HON'BLE SHRI I.M. QUDDUSI. J ^5 Sd/- I-M.Quddusi Judge POST FOR ORDER QN 2V OCTOBER.2011 Sd/- G-Minhajuddin Judge .-5^ ^"^: ^y ^s-^^ ^, ifii^' .-•^,. ti jfwlS-ais g ^ '^s^y" v ^ 1. •,:^-// '%<5. ^•Sy^ "^^saS^*' HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH: HON'BLE MR. I.M.QUDDUSI & HON'BLE MR. G. MINHAJUDDIN. JJ. Appellant Respondents/ Claimants M.A. Fcl No. 1204/2010 Vs Oriental Insurance Company Limited, Distt. Durg (CG) Smt. Shobhana Yadav and others Present: Mr. Sudhir Agrawal, counsel for the appetlant/insurance company. Mr. Gautam Khetrapal, counsel for res(»ndentsNo. 1 to 5. Mr. HB Agrawat, Sr. Advocate with Mrs. Meera Jaiswal and Mr. Pankaj Agrawal, counsel for respondents No. 6 & 7. ORDER (Passed on ^.O October, 2011) Per G. Minhaiuddin. J; 1. This appeal has been filed by the appellant/insurance company under Section 173 of the Motor Vehicles Act, 1988 against the award of the Additional Motor Accident Claims Tribunal, Khairagarh, Distt. Rajnandgaon (in short "the Tribunal") dated 26"* July, 2010 passed in Claim Case No.91/09 whereby and whereunder liability to pay the amount of compensation to respondents No.1 to 5/claimants has been fastened upon the' appeltant/insurance ' company. -2. Brief facts of the case, as per averments made in the claim petition, are that on 26.7.2009 Mannulal Yadav was riding motorcycle Platina bearing registration No. CG 07 LM/3302 and when he reached Mahratoal main road, at that time respondent No. 6 by driving Tata Scorpio bearing registration No. CG 07/2312 (hereinafter referred to as "the offending vehicle") rashly and negligently dashed the motorcycle of Mannulal Yadav, as a result of which Mannulal sustained grievous injuries and succumtedjtp the same on the spot. Respondent No.7 is the owner of the offending vehicle, which was insured with the appellant/insurance company at the relevant time. 3. At the time of accident, the deceased was 38 years of age and was earning Rs.9720/- per month by working as peon in the Civil Court, Pandaria. Therefore, the claimants, who are widow, children and parents of the deceased, being his legal heirs filed a claim petition under Section 166 ofthe Motor Vehicles Act, 1988 (in short "the Act, 1988") for a total compensation of Rs.24,07,000/- against the death of Mannulal Yadav under various heads. 4. However, learned Tribunal, after hearing counsel for respective parties, after close scrutiny of the evidence adduced by the parties before it, awarded a total compensation of Rs.18,62,680/- in favour ofthe claimants, fastening the liability uponthe appelianblnsurance company, jointly and severally, along with driver and ovmer of the offending vehicte. 5. We have heard learned counsel for the parties, perused the LCR as also the impugned award. 6. !n addition to oral arguments, teamed counsel for the appellant/insurance company has submitted written arguments as welt as photocopies of the judgments of the Hon'ble Supreme Court passed in the matters of Natimial Insurance Co. Ltd. Vs. Indlra Srivastava & ottiers, 2008 Aff? SCW 143; Bftatoa Beas Management Board Vs. Kanta Aggarwal (Smt) and others, 2008 (3) TAC 661 (SC) and Ramprasad Balmiki Vs. Anil Kumar Jain and others, 2008 AIR SCW 7362. 7. The main contention of learned counsel for the appellant/insurance company is that as per report of the District Judge, Kabirdham, respondents No. 1 to 5/claimants are getting Rs.4,380/- per month as pension and the same ought to have been deducted while computing just compensation by the Tribunal, but the same has not been done. He further contends that 50% promotional prospects have also been taken into consideration while computing the amount of Compensation, and as such according to Mm, double benefrt cannot be given to respondents No. 1 to 5/ctaimants. The c[ amounts, from whatever source, have become due to the claimants onaccount of accidental death of deceased Mannulal Yadav are liable to be deducted while computing the amount of compensation. 8. He has further contended that as the deceased, at the time of accident, was in a drunken state and there had been head-on collision between the motorcycle driven by the deceased and the offending vehicle, therefore, there was contributory negligence of 50% on the part of the deceased and as such, in computing the compensation, 50% amount should have been deducted. 9. The core question to be decided in this appeal is - whether after the death of deceased Mannulal Yadav, the family pension amount, which is being paid to his widow Smt. Shobhana Yadav, has to be deducted from the amount of compensation? 10. In this connection, learned counsel for the appellant/insurance company has submitted photocopies of the judgments of the Hon'ble Supreme Court in the matters of Indira Shrivastava (supra), Bhakra Beas Management Board (supra) and Ramprasad Balmiki (supra). 11.0n the other hand, learned counsel for respondents No.1 to 5/claimants has supported the impugned award and submitted that it is quite legal and proper and calls for no interference. 12. As to what amounts are to be deducted in computing the amount of compensation has been exhaustively dealt with by the Hon'ble Supreme Court in the case of Helen C. Rebello (Mrs) and athei's .: Vs. Maharashtra State Road Transport Corpomtion and another, (1999) 1 SCC 90 and United India Insurance Co. Ltd. aocf others Vs. Palrlcia Jean Mahajan and ottiers, (2002) 6 SCC 281. 13. The Hon'ble Supreme Court in the case of Wefen C. Rebello (supra), in paras 32 to 36, has observed thus: 32. So far as the general principle of estimating damages under the common law is concerned, it is settled that the pecuniary loss can be ascertained only by balancing on one hand, the ^ loss to the claimant of the future pecuniary benefits that would have accrued to him but for the death with the 'pecuniary advantage which from whatever source comes to him by reason of the death. In other words, it is the balancing of loss and galn of the claimant occasioned by the death. But this has to change its colour to the extent a statute intends to do. Thus, this has to be interpreted in the light of the provisions of the Motor Vehicles Act, 1939. It is very clear, to which there could be ho doubt that this Act delivers compensation to the claimant only on account of accidental injury or death, not on account of any other death. Thus, the pecuniary advantage accruing under this Act has to be deciphered, co- relating with the accidental death. The compensation payable under the Motor Vehteles Act is on account of the pecuniary loss to the Glaimant by accidental injury or death and not other forms of death. If there is natural death or death by suicide, serious illness, inctuding even death by accident., through train, air flight not involving motor vehicle, it would not be covered under the Motor Vehicles Act. Thus, the application of general principle under the common law of loss and gain for the computation of compensation under this Act must co-relate to this type of injury or deaths, viz, accidental. If the words "pecuniary advantage' from whatever source are to be interpreted to mean any form of death under this Act it would dilute alt possible benefrts conferred on the claimant and would be contrary to the spirit ofthe law. Ifthe 'pecuniary advantage' resulting from death means pecuniary advantage coming under all forms of death then it include all the asspts movable, immovable, ^" shares, bank accounts, cash and every amount receivable under any contract. In ofher words, all heritable assets including what is willed by the deceased etc. This would obliterate both, all possible conferment of economic security to the claimant by the deceased and the intentions of the legislature. By such an interpretation the tortfeasor in spite of his wrongful act or negligence, which contributes to the death, woutd have in many cases no liability or meager liability. 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 form of death. The constitution of the Motor Accidents Claims Tribunal itself under Section 110 is, as the Section states; "....for the purpose of adjudicating upon claims for compensation in respect of accidents involving the death of, or bodily injuryto, ,...." 33, Thus, it would not include that which the claimant receives on account of other form of deaths, which he would have received even apart from accidental death. Thus, such pecuniary advantage would have no correlation to the accidental death for which compensation is computed. Any amount received or receivable not onty on account of the accidental death but that which would have come to the claimant even otherwise, could not be construed to be the ;sa>^\ •^ '^ BS<i-^ ^.^ 'g "pecuniary advantage", liable for deduction. However, where the employer insures his employee, as against injury or death arising out of an accident, any amount received out of such insurance on the happening of such incidence may be an amount liable for deduction. However, our legislature has taken note of such contingency, through the proviso of Section 95. Under it the liability of the insurer is excluded in respect of injury or death, arising out of, and in the course of employmentof an employee. 34. This is based on the principle that the claimant for the happening of the same incidence may not gain twice from two sources. This, it is excluded thus, either through the wisdom of legislature or through the principle of loss and gain through deduction not to give gain to the claimant twice arising from the same transaction, viz., same accident. It is significant to record here in both the sources, viz., either under the Motor Vehictes Act or from the employer, the compensation receivable by the claimant is either statutory or through the security of the employer securing for his employee but in both cases he receives the amount without his coptribution. How thus an amount earned out of one's labour or contribution towards one's wealth, savings, etc. either for himsetf or for his family, which such person knows, under the law, has to go to his heirs after his death either by succe^ion or under a will could be said to be the 'pecuniary gain' only on account of one's accidental death. This, of course, is pecuniary gain but how this is equitable or could be balanced out of the amount to be reeeived as compensation under the Motor Vehicles Act. There is no co-relation between the ^iv'i ^ '':^^::?f:w;^"'\ ^ two amounts. Not even remotefy. How can an amount of loss and gain of one contract be made applicable to the loss and gain of another contract. Similarly, how an amount receivable under a statute has any co-relation with an amount earned by an individual. Principle of loss and gain has to be on the same plane within the same sphere, of course, subject to the contract to the contrary or any provisions of law. 35. Broadly, we may examine the receipt of the provident fund which is 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 on!y on the happening of the event viz., accident which may not take place at all. Similarly, famity 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 accidentai death. No co- relation between the two. 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 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 insurer indemnifies to pay the sum to the heire, again in terms of the contracts for the premium paid. Again, this amount is receivable by the claimant not on account of any accidental death but « otherwise on insured's death. Death is only astep or contingency in terms of the contracf, to receive the amount. Simitarly 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 co-relation with the amount receivable under a statute occasioned only on account of accidental death. How could such an amount come within the periphery of the Motor Vehicles Act to be termed as 'pecuniary advantage' liable for deduction. When we seek the principle of loss and gain, it has to be on similar and same plane having nexus inter se between them and not to which, there is no semblance of any co- relation. The insured (deceased) contributes his own money for which he receives the amount has no co-relation to the compensation computed as against tortfeasor for his negligence on account of accident. As aforesaid, the amount receivable as compensation under the Act is on account of the injury or death without making any contribution towards it then how can the fruits of an amount received through contributions of the insured be deducted out of the amount receivable under the Motor Vehicles Act. The amount under this Act, he receives without any contributton. As we have said the compensation payable under the Motor Vehicles Act is statutory while the amount received under the life insurance policy is contractual. 36. As we haveobserved the whole scheme of the Act, in relation to the payment of compensation to the claimant, is a beneflcial tegislation, the intention of the legislature is made more clear by the chaoge of language from what 3 was in Fatal Accidents Act, 1855 and what is brought under Section 110-B of 1939 Act. This is also visible through the provision of Section 168(1) under the Motor Vehictes Act, 1988 and Section 92-A of 1939 Act which fixes the liability on the owner of the vehicle even on no fault. tt provides where the death or permanent disablement of any person has resulted from an accident in spite of no fault of the owner of the vehicle an amount of compensation fixed therein is payable to cfaimant by such owner of the vehfole. Section 92-B ensures that the claim for compensation under Section 92-A is in addition to any other right to claim compensation in respect whereof under any other provision of this Act or of any other law for the time being in force. This clearly indicates the intention of the legistature which is conferring larger benefit to the claimant. Interpretation of such beneficial legislation is also well settled. Whenever there be two possible interpretations in such statute then the one which subserves the object of legislation, viz., benefit to the subject should be accepted. In the present case, two interpretations have been given of this stetute, evidenced by two distinct sets of decisions of the various High Courts. We have no hesitation to conclude that the set of decisions, which applied the principle of no deduction of the life insurance amount should be accepted and the other set, which interpreted to deduct, is to be rejected. For all these consideration we have no hesitation to hold that such High Courts were wrong in deducting the amount paid or payable under the life insurance by giving restricted meaning to the provisions of the Motor Vehlcles Act basing mostly on the language of English /o statutes and not taking into consideration the changed language and intents of the legislature under various provisions of the Motor Vehicles Act, 1939." 14. tn the case of Patricia Jean Mahajan (supra), the Hon'ble Supreme Court, referring to para-33 of its decision in Helec C. Rebello with approval, has further observed in para 35 as under: "Similarly, how can amount receivable under a statute has any correlation with an amount earned by an individual. Principle of loss and gain has to be on the same line within the same sphere, of course, subject to the contract to the contrary or any provisions of law. The Court has further referred to receipts of provident fund which is a deferred payment out of contribution made by an employee during the tenure of his service. Such an amount is payable irrespective of accidental death of the employee. The same is the position relating to family pension. There is no correlation between the compensation payable on account of accidental death and the amounts receivable irrespective of such accidental death, which otherwise in the normal course one would be entitled to receive. This Court for taking the above view has also referred to certain Engtish decision as discussed in para 18 of the judgment." 15. Thus, in view of what has been held by the Hon'ble Supreme Court in He/ec C. Rebello (supra) and Patricia Jean Mahajan (supra), the contention of learned counsel for the appellant that the amount, which is being received by respondents No. 1 to 5/claimants as family pension should be deducted from the amount of compensation, cannot be sustained. 16. So far as contention of learned counsel for the appellant that there had been contributory negligencejm the part of the deceased, is r"^%~*» ss^., "^ s & . „.. • \> S ^^^iX ^s I '^ggy-^l 1 s s // 8 ^yjf concerned, on behalf of respondents No. 1 to 5/claimants, Vijay Joshi has been examined as AW-2, who is an eyewitness of the accident and has, in categorical terms, stated that the accident had occurred on account of rash and negligent driving by driver of the offending vehicle i.e. respondent No. 6 and there had been no negligence on the part of the deceased. In the cross-examination on behalf of the appellant/insurance company, not even a suggestion has been given to this witness in regard to contributory negligence on the part of the dec^ased. As swh, the contention of iearned counsel for the appellant/insurance company in this regard being devoid of substancecannot be accepted. 17. Learned counsel for the appellant/insurance company has also contended that in computing the amount of compensation, a higher multjplier has been adopted by the Tribunal because age of the deceased was 45 years on the date of accident. Further, the Tribunal was not justified in taking into consideration 50% promotionat prospects ofthe deceased as wetl as in deducting 1/4 towards personal and living expenses ofthe deceased. 18. On behalf of respondents No. 1 to 5/claimants, apart from other documents, photocopy of the driving licence (Ex.P/9c) of the deceased has been filed by widow of the deceased namely Shobhana Yadav (AW-1) and the same has been got proved by producing the original driving licence, which has been marked as Ex.P/9. In this driving licence, the date of birth ofthe deceased has been shown as 28.6.1970, as such, age of-the deceased on the ' date of accident was 39 years, and not 45 years, as alleged by learned counsel for the appellant/insurance company. 19. In computing the compensation, the claims Tribunat has taken into acfcount 50% promotional prospects and has applied a multiplier of 15, which is in consonance with the law laid down by the Hon'ble Supreme Court in the matter of Saiia Venna (Smt.) Vs. Delhl Transport Corpwation and another, (2009) 6 SCC 121. So far as deduction of the amount towards personal and living oqienses of the deceased is concemed, total number of dependents are flve and as such, 1/4 has to be deducted towards personal and tiving /-2- »/ ^. ^.••- n '^:^^"""-":'^ -^:'<";T"'"; expenses, which the Tribunal has rightly done. As such, there is no illegality or infirmity in computing the amount of compensation by the Tribunal and the same deserves to be affirmed. 20. In the result, the appeal being devoid of substance deserves to be and is, accordingly, dismissed. The impugned award dated 26^ July, 2010passed bythe Tribunal in Claim Case No.91/C©is hereby affirmed. 2L_(stoj2idgLas^tocosts. 1 Sd/- I.M.Quddusi Judge Sd/- G. Minhajuddin Judge ^