Case: Oriental Insurance Company Limited Vs. Meena Tukaram Jadhav &amp; Others

not include that which claimant receives on account of other forms of death, 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 only on account of the accidental death but that would have come to the claimant even otherwise, could not be construed to be the 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 (sic) 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 (Sic and) in the course of employment of an employee." (underline added)22. Thus, in the case of an ordinary life insurance, if on account of death of person in a motor accident, the legal representatives receive the amount under the policy, the same cannot be excluded as such benefit has no correlation to the accidental death. The said amount would have come to the legal representatives even in the case of natural death. But if the employee is insured by his employer against injury or death arising out of an accident, any amount received under such policy on accidental death would be liable for deduction from compensation. This law laid down in the case of Helen Rebello has not been disturbed by the Apex Court in the subsequent decision in the case of Sunil Sharma and others.23. In the facts of the case, in the cross examination of Mr. Venugopal what is brought on record is that there is a group insurance scheme for the employees of the SCI. The entire premium is paid by SCI which was not recovered from its employees. In the said scheme, a sum of Rs.14,00,000/- was received by the legal representatives of the deceased Pramod. Mr. Venugopal in the cross examination stated that the legal representatives of the deceased received the said amount "Purely on account of his death in accident under the Group Insurance Scheme". Surprisingly, there was no re-examination of the witness made by the Advocate for the claimants for obtaining a clarification whether the insurance was an accident insurance or general insurance. Even the policy of insurance is not placed on record by the claimants. The statement of Mr. Venugopal is that the amount was received purely on account of death of the deceased in accident which may suggest that the policy was an accident policy. In view of this statement, the burden was on the claimants to prove the contents of the policy. However, the claimants did not produce the policy. Hence, the contention of the Appellant that the sum of Rs.14,00,000/- was the pecuniary advantage received by the legal representatives of the deceased on account of accident will have to be accepted. In the circumstances, a sum of Rs.14,00,000/- will have to be deducted from the compensation payable to the deceased. Thus, from the aforesaid amount of Rs.44,35,000/-, a sum of Rs.14,00,000/will have to be deducted. Thus, the total compensation payable will be Rs.30,35,000/-. Though, the cross objection is preferred by the first to third claimants, the benefit of enhancement will be available to the other claimants as well.24. We must note here that in the other appeals, there is no serious challenge to the quantum of compensation and the real challenge is to the apportionment of liability between the two insurance companies. In the claim for compensation filed by Ms Meena Jadhav, Dr. Naresh Khanna, an Orthopaedic Surgeon has duly proved the Disability certificate at Exh.22. He assessed the permanent partial disability at 44%. She required hospitalization in Nanavati Hospital, Bombay. An implant was inserted which was required to be removed after about two years. The details of compensation granted to the said claimant read thus:1) Pain and sufferingsRs.30,000.002) Injury and disabilityRs.40,000.003) Medical expensesRs.38,950.004) Future prospectsRs.10,000.005) Loss of incomeRs.7,200.006) Conveyance chargesRs.5,000.007) Special dietRs.5,000.00Total1,36,150.50 25. As far as widow of deceased Pramod is concerned, in claim petition No.756 of 1989, she has been granted compensation of Rs.1,85,680/-. Some argument was canvassed as regards the payment of flying Allowance and difference in pay. The widow of deceased Pramod was at the relevant time Chief Air Hostess in Air India. On the basis of the documentary evidence at Exhibits 26 and 27, the Tribunal came to the conclusion that she had to take sick leave for 84 days on medical ground. For a period of 84 days, she was deprived of flying Allowance which is paid only to the Air Hostess on duty. The said flying Allowance was Rs.10,000/- per month. She had to take sick leave for 84 days as she was recovering from injuries. On the basis of the certificate at Exhibit-28, a finding was recorded that though her salary was Rs.46,000/- p.m, during the period of sick leave she received salary of Rs.17,853/- per month. The details of the compensation awarded to her is as under:(1) Medical BillsRs.12,680.00(2) Pain and sufferingsRs.25,000.00(3) Injury and disabilityRs.25,000.00(4) Flying allowanceRs.30,000.00(5) Difference amount of payRs.87,000.00(6) Conveyance chargesRs.3,000.00(7) Special DietRs.3,000.00TotalRs.1,85,680.00 26. It is not possible to find fault with the quantum of compensation.27. The remaining claim is by Prachi, a minor daughter of Pramod by way of claim application No.757 of 1999 Dr.Pandit, an Orthopaedic Surgeon proved the Disability certificate and assessed 30% partial permanent disability. The total amount of compensation was granted at Rs.65,000/- the bifurcation of which is as under:1) Pain and sufferingsRs.25,000.002) Injury and disabilityRs.25,000.003) Medical expensesRs.5,000.004) Conveyance chargesRs.2,500.005) Special dietRs.2,500.006) Future medical expensesRs.5,000.00TOTALRs.65,000.00 28. The compensation amount is reasonable which calls for no interference.29. Thus, the appeal No.573 of 2013, 700 of 2013, 1369 of 2012 must fail and First Appeal No.1630 of 2012 and Cross Objection Stamp No.26951 of 2013 must partly succeed.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]15. This finding will have to be appreciated in the light of the fact that the widow of deceased Pramod stated in herthat the truck came on its wrong side. She deposed that at that time, the truck was being driven in a very high speed. From deposition it is clear that the auto rickshaw was being driven on its correct side at the time of impact. On the other hand, no attempt has been made by theto examine the driver or cleaner of the offending truck insured with it. In fact, an adverse inference ought to have been drawn against the appellant for not examining the driver of the truck. There is a passing observation made by the learned Member that as the truck is a larger and heavier vehicle than the auto rickshaw, the driver of the truck owes more duty and responsibility to take proper care and caution. Even if we ignore this observation, for the reasons which we have set out, no fault can be found with the apportionment of liability between the two insurance companies made by the Tribunal. We must also note that both the insurance companies are the Government of India Undertakings and therefore, we fail to understand the relevance of this dispute between the two companies on the apportionment.Thus, in the case of an ordinary life insurance, if on account of death of person in a motor accident, the legal representatives receive the amount under the policy, the same cannot be excluded as such benefit has no correlation to the accidental death. The said amount would have come to the legal representatives even in the case of natural death. But if the employee is insured by his employer against injury or death arising out of an accident, any amount received under such policy on accidental death would be liable for deduction from compensation. This law laid down in the case of Helen Rebello has not been disturbed by the Apex Court in the subsequent decision in the case of Sunil Sharma and others.23. In the facts of the case, in the cross examination of Mr. Venugopal what is brought on record is that there is a group insurance scheme for the employees of the SCI. The entire premium is paid by SCI which was not recovered from its employees. In the said scheme, a sum of Rs.14,00,000/was received by the legal representatives of the deceased Pramod. Mr. Venugopal in the cross examination stated that the legal representatives of the deceased received the said amount "Purely on account of his death in accident under the Group Insurance Scheme". Surprisingly, there was noof the witness made by the Advocate for the claimants for obtaining a clarification whether the insurance was an accident insurance or general insurance. Even the policy of insurance is not placed on record by the claimants. The statement of Mr. Venugopal is that the amount was received purely on account of death of the deceased in accident which may suggest that the policy was an accident policy. In view of this statement, the burden was on the claimants to prove the contents of the policy. However, the claimants did not produce the policy. Hence, the contention of the Appellant that the sum of Rs.14,00,000/was the pecuniary advantage received by the legal representatives of the deceased on account of accident will have to be accepted. In the circumstances, a sum of Rs.14,00,000/will have to be deducted from the compensation payable to the deceased. Thus, from the aforesaid amount ofa sum of Rs.14,00,000/will have to be deducted. Thus, the total compensation payable will be Rs.Though, the cross objection is preferred by the first to third claimants, the benefit of enhancement will be available to the other claimants as well.