Prabhavati Sharma v. Brijmohan Parihar

(1.) FOR the death of late Gopal Krishna Sharnia, husband of appellant No. 1 and father of appellant Nos. 2 to 4, the Claims Tribunal has awarded them Rs. 48,009. 97 with costs Rs. 300/and interest at the rate of 6 per cent per annum against their claim of Rs. 3,36,970/ -. Out of that amount, as per award, the insurer, respondent No. 3, is required to discharge its statutory liability to the extent of Rs. 50,000/ -.

(2.) IN this appeal, enhancement is prayed by the claimants/appellants mainly on the ground that deductions made are illegal and unwarranted. On the other hand, it is contended by respondent No. 1 (owner of the offending vehicle) that the entire sum under the award as also enhanced amount, if any, has to be paid by the insurer.

(3.) THE accident took place on 13. 5. 1977 at around 6. 30 p. m. when the deceased was driving a scooter from Gwalior Railway Station towards Morar on public duty and was accompanied by a colleague, Chandrakant (CW 3), occupying the pillion seat. He was a Sub-Engineer in the Public Health Engineering Department of the State Government and was aged 35 years. He was hit by a mini bus, registration No. MPW 8444, owned by respondent No. 1, and he died in the hospital on the same day. The finding of the Tribunal is unassailable that the driver was both rash and negligent. Not only the bus was driven at a high speed and on the wrong side of the road, but also the road was meant for one-way traffic only.

(4.) IN the claim proceedings, evidence was adduced on behalf of the claimants, oral as also documentary. The Claims Tribunal reached the conclusion that the deceased was in good health and he could have retired in normal course at the age of 58 years. He would have earned, between the dates of accident and retirement Rs. 2,21,448. 75 including house rent and conveyance allowances and his net earning could be Rs. 2,08,719. 25. Out of that l/3rd was allowed for his personal expenses, reaching at the figure of Rs. 1,39,149. 17 as loss of dependency of the claimants. From that amount, deduction was made at the rate of 33 1/2 per cent for lump sum payment and for uncertainties of life finding them entitled to Rs. 92,764. 12. The claimants had received on different accounts Rs. 20,430/-, and those payments were regarded as permissible deductions. To mention: provident fundrs. 3,962/-; gratuityrs. 3,300/-; ex gratiars. 2,500/-; family benefit fundrs. 10,000/-; C. D. S. Rs. 669/- and odds. On account of family pension payable for 23 years at the rate of Rs. 99/- per month, deduction was also held permissible of another sum of Rs. 27,324/ -. Accordingly, the net amount payable as compensation by respondents to the claimants was reckoned at Rs. 45,009. 97, but another sum of Rs. 3,000/- was awarded for loss of consortium.

(5.) LEARNED counsel for the claimant-appellants, Mr. Mittal, has cited Manjushri Raha v. B. L. Gupta 1977 ACJ 134 (SC) and he has also assailed the deductions made, relying on this courts Full Bench decision in Kashiram Mathur v. Rajendra Singh 1983 ACJ 152 (MP). Counsel also cited a Five-Judge Bench decision of the Gauhati High Court in Saminder Kaur v. Union of India 1987 ACJ 7 (Gauhati). Other decisions were also cited and those too we shall discuss in due course. In the memo of appeal, the lowest ceiling of the claim is put at Rs. 1,50,000/ -. Mr. Mittals Submission is also that interest less than 12 per cent per annum cannot be awarded under the present law laid down by the Supreme Court.

(6.) LEARNED counsel for owner-respondent, Mr. R. D. Jain, has also cited decisions besides challenging the validity of the salary statement, Exh. P-l (proved by CW 1) which admittedly formed the basis of Tribunals award. Counsel has further Submitted, relying on Sections 147 (2) and 217 (2) (a) of the Motor Vehicles Act, 1988, for short the new Act, that the entire liability under the award, including enhancement allowed, is to be discharged by the insurer and the owner has to pay nothing. This contention is contested vehemently by the learned counsel appearing for insurer-respondent, Mr. P. L. Dubey and he has contended, relying on the insurance policy, Exh. D-2, that the liability of the insurer under the law and the policy is limited to the extent of Rs. 50,000/ -.

(7.) WE answer first Mr. Jains contention concerning admissibility and probative value of Exh. P-l. It was proved by CW 1 who had drawn up the document which was signed by the Executive Engineer, P. H. E. , Maintenance Division, Gwalior. The witness was not an outsider. He was a Lower Division Assistant in the P. H. E. Office and was deputed to depose in the case by his Department on being summoned in that regard. He also deposed from Service Book of the deceased which he had brought to the court. In the statement, Exh. P-l, the pay and allowances which the deceased would have received in the course of his service from 14. 5. 1977 to 1. 8. 1999 are tabulated. The witness, in our view, was competent to depose in regard to the matters stated by him. It was not necessary for the claimants to examine the Executive Engineer who had merely signed the statement. Indeed, the correctness of the tabulation and genuineness of the signature of the Executive Engineer was not challenged in the cross-examination of the witness. He was cross-examined with regard only to the deductions and he only gave the figures and stated no other particulars in regard to the deductions. He was not questioned on the nature and the incidence of the deductions.

(8.) THERE is a striking resemblance on facts of deceaseds case and that of Manjushris husband Satyendra Raha. Apex Courts decision in Manjushri Raha v. B. L. Gupta 1977 ACJ 134 (SC), was rendered in appeal from this courts decision, reported in 1968 ACJ 1 (MP). Satyendra was aged 37 and was a Government servant drawing salary in the grade of Rs. 590/- etc. In that case also a similar salary statement was proved indicating the emoluments which the deceased would have received till his superannuation, reckoning also promotions and increments in salary which he would have earned during the course of his service. Their Lordships took the view that a fair estimate of loss of dependency and loss of company which she and her children suffered could not be less than half the amount disclosed in the statement after taking into consideration all expenses. It was also held that the claimants would have been entitled to Death-cum-Retirement Gratuity of the deceased which he would have got in the normal circumstances. On the basis of deduction in Manjushris case, 1977 ACJ 134 (SC), we are of the view that the instant claimants can validly and legitimately aspire for award of a lump sum amount of Rs. 1,05,000/-in the minimum.

(9.) ON the quantum of compensation, Mr. Jain has relied on Apex Courts decision in Sheikhupura Transport Co. Ltd. v. Northern India Transportersins. Co. Ltd. 1971 ACJ 206 (SC), but we do not think if that helps him. That was not a case of a Government servant with prospects of regular and up-scaled earning. The deceased was aged 42 years and was self-employed earning Rs. 500/- per month. Even the possibility of his dying before reaching the age of 58 years was considered in repelling challenge to High Courts award of Rs. 36,000/ -. It was owners appeal and their Lordships observed that insurers statutory liability contemplated Under Section 95 (2) of Motor Vehicles Act, 1939, for short the old Act, was not inexorable because by a contract to the contrary, that was liable to be enhanced as per Sub-clause (b). Counsel has also cited Allahabad High Courts decision in Santosh Sharma v. General Manager, Haryana Rajya Pariwahan 1987 ACJ 40 (Allahabad) and this courts decision in Oriental Fire andgenl. Ins. Co. Ltd. v. Dhanno, 1987 ACJ 759 (MP). In one case, for death of a person aged 34, earning Rs. 750/- per month, the award of Rs. 60,000/-was held just though deduction of Rs. 6,000/-on account of contributory negligence was made. In the other case, award of Rs. 46,000/-was challenged on the ground that it was beyond the scheduled amount prescribed under the Workmens Compensation Act. The insurer was held liable to discharge full liability under the award in terms of Section 95 of the Old Act and indeed, there was no appeal for enhancement. All the three deck sions cited by Mr. Jain are of no relevance to the instant case on facts. On the other hand, Manjushris case 1977 ACJ 134 (SC), provides proper guidance indicating that Government servants enjoy security of tenure, earning and health-care for longevity besides retirement benefits and in their case compensation has to be assessed differently to the best advantage of the claimants.

(10.) TO deal with the question of deduction, we refer first to the decision in Gobald Motor Service Ltd. v. R. M. K. Veluswami 1958-65 ACJ 179 (SC), cited by Mr. Jain although in Kashiram Mathur v. Rajendra Singh 1983 ACJ 152 (MP), that has been duly considered. The principle which their Lordships laid down in that case is that "the pecuniary loss can be ascertained only by balancing on the one hand the loss to the claimants of the future pecuniary benefit and on the other hand pecuniary advantage which from whatever source comes to them by reason of the death. " Indeed, they observed that the claimants cannot be permitted to recover twice for the same loss, while interpreting Sections 1 and 2 of Fatal Accidents Act, 1855 as compensation was claimed in that case in the suit filed in the year 1948 when, the provisions of Chapter Vm of the Old Act were not enacted. This view emerged from consideration of the twin basis of the action for damages due to the pecuniary loss caused to the estate of the deceased resulting from the accident and that caused aliunde to members of his- family. In the latter case, therefore, if the loss is mitigated to any extent in any manner by any advantage which the members of his family derived from his death, that has to be established by the tortfeasor to claim set-off therefor.

(11.) IN Kashiram Mathur v. Rajendra Singh 1983 ACJ 152 (MP), the deductions Were in regard to insurance, provident fund, gratuity, family pension and ex gratia payment. This court unanimously held that insurance money, provident fund and gratuity received by deceaseds heirs were not deductible although for ex gratia payment, they could not claim exemption. It was held that neither the provident fund, nor the gratuity could be regarded as an advantage "by the reason of his death" to allow tortfeasor set-off therefor and that the question of deduction concerning family pension was dependent on several factors, such as its contributory or non-contributory nature and also with reference to prospects of deceaseds useful employment after retirement Sohani, J. (as he then was), speaking for himself and Vijayavargiya, J. , observed that if the source of benefit derived by the claimants could legitimately be pressed to "considerations personal to the claimants", the benefit may not be "directly attributable" to death and that the onus to establish that it was so was on the defendants. It was held, per Shukla, J. , that ex gratia payment being a condition of contract of service and being payable only on death of the employee, as proved in that case, that was an advantage accruing to the claimants "by reason of death"; it was not a voluntary payment on charitable ground "on the occasion of death".

(12.) IN Gauhati Full Bench case, Saminder Kaur v. Union of India 1987 ACJ 7 (Gauhati), decisions galore expressing the concensus against such deductions, including Gobald Motor Service Ltd. V. R. M. K. Veluswami 1958-65 ACJ 179 (SC), were considered. The Full Bench answered one of the questions referred to it in the negative, holding that gratuity, family pension and other "benefits attached to service conditions of the employee" were not deductible, besides holding that no deduction could be made also for the policy of insurance taken out by the deceased. The court held that such benefits as would have accrued to the deceased in normal course as conditions of his service could not be regarded as benefits accruing to the claimants by reason of his death as the deceased himself would have been entitled thereto, whether he died a natural death or had died in an accident. The tortfeasors cannot be allowed to take advantage of such benefit and claim set-off in regard thereto. They cannot be allowed to gain unreasonably and the claimants cannot be allowed to lose their just dues. Two Division Benches of this court have cited with approval Saminder Kaurs case, 1987 ACJ 7 (Gauhati), in State of Madhya Pradesh v. Ashadevi 1988 ACJ 846 (MP) and Santosh v. General Manager, M. P. S. R. T. C. 1989 ACJ 572 (MP), but in allowing deduction for ex gratia payment the decision in those two cases in that regard was based on Kashiram Mathur v. Rajendra Singh 1983 ACJ 152 (MP). Mr. Jain, however, cited Jamila Begum v. Raipur Transport Co. Pvt. Ltd. 1986 ACJ 837 (MP), to sustain the claim for deduction on account of pension and in that connection, it is necessary to observe that despite Kashiram Mathur v. Rajendra Singh 1983 ACJ 152 (MP), being noticed, due consideration was not paid to the law laid down by the Full Bench. No reasons are stated for allowing the deduction except stating that the widow had admitted that she was receiving and would receive the family pension for 28 years. Their holding, therefore, according to us, has to be limited to the facts of that case.

(13.) ON a consideration of the view expressed in Kashiram Mathurs case 1983 ACJ 152 (MP) and other decisions of this court vis-a-vis Gobaldmotor Service Ltd. V. R. M. K. Veluswami 1958-65 ACJ 179 (SC) and Saminder Kaur v. Union of India 1987 ACJ 7 (Gauhati), the only question that apparently presents some difficulty is of deduction of ex gratia payment in this case. This court, in categorical terms, has held in the decisions discussed above that no deduction is permissible for provident fund, gratuity as also indeed, family pension, in the absence of the requisite evidence adduced by the tprtfeasor/defendant. It has also been held by this court, albeit on the basis of the holding in Gobald Motor Service (supra), that onus lies on the defendant to establish that any benefit derived by the claimants was deductible on account of the same accruing to them "by reason of death" of the deceased. As such, the case of the respondents for sustaining deduction in regard to the payment against "family benefit fund" must also fail for the same reason that the nature and incident of that payment has not been established as in the case of "family pension". Unless those are proved as benefits accruing to the claimants in the form of advantage resulting from the death, payments received on those heads by them are not deductible.

(14.) THERE appears to be some ambiguity in Kashiram Mathurs case 1983 ACJ 152 (MP), with regard to its holding concerning ex gratia deduction but we would not like to dilate much on that. Shukla, J. has taken the view that any ex gratia payment as condition of service is deductible and while the other two learned Judges have observed that when such payment is made on account of "considerations personal to the claimants", the same is not deductible. The view in Saminder Kaurs case 1987 ACJ 7 (Gauhati), directly counters the view of Shukla, J. in Kashiram Mathurs case, 1983 ACJ 152 (MP). Whatever that may be, in Kashiram Mathurs case 1983 ACJ 152 (MP), the court having unanimously held that ex gratia payment was deductible, we are bound by that decision. We may still observe on Kashiram Mathurs case (supra), holding that it has to be established on evidence that the payment was not on consideration personal to the claimants or that it was made pursuant to any condition of service of the deceased. No case for deduction for ex: gratia payment is made out in the instant case as nothing has come in evidence in that regard. Two witnesses, CW 1 and CW 2, could have been questioned on that, but that was not done.

(15.) THE question of owners total exemption from liability Mr. Jain argued strenuously. That has two aspects. He has firstly contended that Exh. D-2 being a policy of comprehensive insurance, the entire liability must be saddled on the insurer. To that, Apex Courts recent decision in National Insurance Co. Ltd. v. Jugal Kishore 1988 ACJ 270 (SC), provides a direct and short answer, notwithstanding the observations in Sheikhupura Transport Co. Ltd. v. Northern India Transporters Ins. Co. Ltd. 1971 ACJ 206 (SC). There is no magic in the word comprehensive which, as their Lordships observed, does not "mean that the limit of liability with respect to third party risk becomes unlimited or higher than the statutory limit fixed under Sub-section (2) of Section 95 of the" (Old Act) in the absence of a specific agreement. In the instant case, on the other hand, the policy specifically provides under the clause "limits of liability" that it shall be limited to Rs. 50,000/- "in respect of any claim or series of claims arising out of one event".

(16.) TO deal with the other aspect of Mr. Jains contention, we extract relevant portions from Section 217 of the New Act and Section 6 of the General Clauses Act:

217. Repeal and savings. (1) The Motor Vehicles Act, 1939 (4 of 1939) and any law corresponding to that Act in force in any State immediately before the commencement of this Act in that State (hereafter in this section referred to as the repealed enactments) are hereby repealed. (2) Notwithstanding the repeal by Subsection (1) of the repealed enactments, (a) any notification, rule, regulation, order or notice issued, or any appointment or declaration made or exemption granted or any confiscation made, or any penalty or fine imposed, any forfeiture, cancellation or any other thing done, or any other action taken under the repealed enactments, and in force immediately before such commencement shall, so far as it is not inconsistent with the provisions of this Act, be deemed to have been issued, made, granted, done or taken under the corresponding provision of this Act; [sub-clauses (b) to (f) not relevant]. XXX XXX XXX (4) The mention of particular matters in this section shall not be held to prejudice or affect the general application of Section 6 of the General Clauses Act, 1897 (10 of 1897) with regard to the effect of repeals.

6. Effect of repeal. Where this Act, or any Central Act or Regulation made after the commencement of this Act, repeals any enactment hitherto made or hereafter to be made, then, unless a different intention appears, the repeal shall not (a) revive anything not in force or existing at the time at which the repeal takes effect: or (b) affect the previous operation of any enactment so repealed or anything duly done or suffered thereunder; or (c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed; or [sub-clauses (d) and (e) not relevant] and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed as if the repealing Act or Regulation had not been passed.

(17.) THIS court had an occasion in Shivchand Amolakchand v. STAA M. P. No. 293 of 1989; decided on 12. 12. 1989, to construe the provisions extracted, albeit in a different context. The question was not of liability for compensation to be enforced in accordance with Section 147 of the New Act, raised in the instant case. Although that was a case of survival or otherwise of right in respect of a notification issued under the Old Act inviting applications for stage carriage permit, it was observed that new rights cannot be derived from the saving clause and it must have the effect of protecting pre-existing rights only. In the instant case, Section 217 (2) (a) does not apply in terms. It does not speak of any liability incurred under the Old Act and does not also deal with adjudication thereunder in respect thereof. It has an entirely different purpose of dealing with cases other than those of tortious liability despite its wide sweep covering "penalty or fine imposed" and "other action taken under the repealed enactment". It does not have the effect of imparting retrospective operation to Section 147 (2) (a) so as to enlarge the scope of insurers liability thereunder in regard to accidents occurring, and claims lodged and decided, under the Old Act. It has not kept alive for adjudication under the New Act the liability with respect to which, as per Section 6, General Clauses Act, "legal proceeding or remedy" contemplated under the Old Act has to be "continued or enforced". Clauses (b) and (c) of Section 6 are clear and categorical in that regard.

(18.) HAVING already reached the conclusion that the claimant-appellants are entitled to enhanced compensation which we have assessed at Rs. 1,05,000/- and having also concluded that no deduction from that is to be made, we have to decide finally the question of apportionment of that liability. But, we must also hold that the claimant-appellants are entitled to interest payable at the rate of 12 per cent per annum as law in that regard has already been settled beyond dispute. However, we leave the parties to bear their own costs in this appeal although costs awarded by the Tribunal shall remain payable. We direct that under the modified award, the liability of the insurer shall be limited to Rs. 50,000/- and the balance shall be payable by the owner.

(19.) IN the result, the appeal succeeds and the award is modified by enhancing the compensation and interest to the extent indicated.