National Insurance Company Ltd. v. Roslind M.J., Rineesha K.J. (minor), Rebin Jose K.J. (minor) and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE S.SIRI JAGAN & THE HONOURABLE MR.JUSTICE K.HARILAL** **TUESDAY, THE 26TH DAY OF FEBRUARY 2013/7TH PHALGUNA 1934** ## **MACA. No. 2821 of 2009 ( )** **------------------------AGAINST THE AWARD IN OPMV.2283/2004 of M.A.C.T., ERNAKULAM =========================** ## **APPELLANT/3RD RESPONDENT:** ## **----------------------------------------------** **NATIONAL INSURACNE COMPANY LTD., DIVISIONAL OFFICE, ERNAKULAM, COCHIN-16.** ## **BY ADV. SRI.RAJAN P.KALIYATH** ## **RESPONDENTS/CLAIMANTS:** **-----------------------------------------** **1. ROSLIND M.J., AGED 28 YEARS, W/O. LATE K.S.JOHNSON, KATTIKKADU HOUSE, 20/2637 PERUMPADAPPU, PALLURUTHY POST, PALLURUTHY VILLAGE KOCHI TALUK, ERNAKULAM.** **2. RINEESHA.K.J. (MINOR DOB 7/11/1997) D/O. LATE K.S.JOHNSON** **3. REBIN JOSE K.J. (MINOR DOB 29.9.2000) MINOR S/O. LATE K.J. JOHNSON MINOR RESPONDENTS TWO AND THREE REP. BY THE FIRST PETITIONER MOTHER AND NATURAL GUARDIAN ROSLIND M.J -DO-** **R,R2 & R3 BY ADV. SRI.ANIL S.RAJ R,R2 & R3 BY ADV. SMT.K.N.RAJANI R,R2 & R3 BY ADV. SRI.RADHIKA RAJASEKHARAN P. R,R2 & R3 BY ADV. SMT.ANILA PETER** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 22.01.2013, THE COURT ON 26-02-2013 DELIVERED THE FOLLOWING:** ## **SD** **C R** ## **S. SIRI JAGAN & K.HARILAL, JJ** **------------------------------------------------M.A.C.A. No.2821 of 2009 -------------------------------------------------Dated this the 26[th] day of February, 2013** ## **J U D G M E N T** ## K.Harilal, J National Insurance Company Ltd, the insurer in the O.P. (MV) No.2283/2004 on the files of the Motor Accidents Claims Tribunal, Ernakulam is the appellant herein. The above O.P.(MV) was filed by the respondents herein who are the wife, daughter and son of deceased Johnson, who died in a road traffic accident, involving a lorry bearing No. KL-15A-3331, owned by the 1[st] respondent, driven by the 2[nd] respondent and insured with the 3[rd] respondent in the original petition. On 13.05.2003, while deceased Johnson was riding a motor cycle along ThoppumpadyEdakochi Road, the above said lorry came from the opposite direction collided with the motor cycle, he suffered injuries and succumbed to the injuries on the next day. Since the accident was caused by the rash and negligent driving of the driver of the lorry, the respondents herein filed the original petition claiming compensation. After finding that the accident arose out of the use the motor vehicle and caused by the rash and negligent driving of 2 M.A.C.A. No.2821 of 2009 the driver of the offending lorry, the Tribunal awarded Rs.13,19,750/- as compensation. Aggrieved by the amount awarded as compensation, this appeal is filed on the ground inter alia that the compensation granted is highly excessive and unreasonable. 2. We heard the counsel for the appellant and the counsel for the respondents. 3. The main point urged in the argument is that the Tribunal erred in not deducting family pension of Rs.5,000/- per month from the total monthly salary which was taken for computing loss of dependency. According to the counsel, family pension is a pecuniary benefit which has accrued to the claimants, consequent to the sad and sudden death of the deceased. As such, the Tribunal ought to have deducted that amount also from the total monthly salary. Per contra, the learned counsel for the respondents opposes the said arguments and contends that family pension is not a benefit, which had accrued to the claimants consequent to the accidental death, as it is a benefit, which could have been accrued to the claimants, if the deceased died after his superannuation or died a natural death. 3 M.A.C.A. No.2821 of 2009 4. We have given anxious consideration to the rival submissions at the Bar. The question to be considered is whether family pension which had accrued to the claimants consequent to the accidental death of the deceased is a pecuniary benefit, deductible from the monthly income of the deceased for computing loss of dependency. The general rule which has always prevailed in regard to assessment of damages under Fatal Accidents Acts was well settled by the **House of Lords in Davies** **v. Powell Duffry Associated Colliries Ltd. (1942 AC 601).** The principle is that any benefit accruing to a dependant by reason of relevant death must be taken into account while computing compensation. Under those Acts, balancing of loss and gain to a dependant by the death must be ascertained, the position of each dependant being considered separately. To elaborate the above principles, the observation made by **Lord Wright in Davies case, [(1942)AC 601]** maybe adverted to which reads as follows: “The damages are to be based on the reasonable expectation of pecuniary benefit or benefit reducible to money value. In assessing the damages all circumstances which may be legitimately pleaded in diminution of the damages must be considered in. The actual pecuniary loss of each individual entitled to sue 4 M.A.C.A. No.2821 of 2009 can only be ascertained by balancing, on the one hand, the loss to him of the future pecuniary benefit and, on the other, any pecuniary advantage which from whatever source comes to him by reason of the death”. To put it differently, the general principle is that to ascertain compensation for death, pecuniary advantage which from whatever sources comes to him by reason of death must be ascertained. It is a balancing of general loss and general gain so as to arrive at a just and fair amount of compensation. The above principle had been taken into consideration and accepted in subsequent decisions in **Gobald Motor Service Ltd. v. R.M.K. Veluswami, [1958-65 ACJ 179 (SC)], Sheikhupura Trans. Co. Ltd. v. Northern India Transporters' Ins. Co. Ltd.[1971 ACJ 206 (SC)]** and **Susamma Thomas [1994 ACJ 1 (SC)].** 5 **.** Later in **Helen C.Rebello v. Maharashtra State Road Trans. Corpn., [1999 ACJ 10 (SC)]** , it was held that the principle of balancing of loss and gain has to change its colour to the extent a statute intends to do. Thus the general principle has to be interpreted in the light of the provisions of the Motor Vehicles Act. Let us see the relevant provisions of the Motor Vehicles Act. Section 165 of the Motor Vehicles Act, 1988 which 5 M.A.C.A. No.2821 of 2009 constitutes the Claims Tribunal reads as under. “ **Claims Tribunals:--** (1) A State Government may, by notification in the Official Gazette, constitute one or more Motor Accidents Claims Tribunals (hereafter in this Chapter referred to as Claims Tribunal) for such area as may be specified in the notification for the purpose of adjudicating upon claims for compensation in respect of accidents involving the death of, or bodily injury to, persons arising out of the use of motor vehicles or damages to any property of a third party so arising, or both.” Section 166 of the Motor Vehicles Act, 1988 which constitutes the Claims Tribunal reads as under. - **“ Application for compensation:--** (1) An application for compensation arising out of an accident of the nature - - - specified in sub section (1) of section 165 may be made - (a) by the person who has sustained the injury; or - (b) by the owner of the property; or - (c) where death has resulted from the accident by all or any of the legal representatives of the deceased; or - (d) by any agent duly authorised by the person injured or all or any of the legal representatives of the deceased, as the case may be: In view of the above provisions of the Motor Vehicles Act, in the 6 M.A.C.A. No.2821 of 2009 ## abovesaid decision, Supreme Court further held that: “it is very clear, to which there could be no 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, correlating with the accidental death. The compensation payable under the Motor Vehicles Act is on account of the pecuniary loss to the claimant by accidental injury or death and not other forms of death. If there is natural death or death by suicide, serious illness, including even death by accident, through train, air flight not involving a motor vehicle, would not be covered under the Motor Vehicles Act. Thus, the application of the general principle under the common law of loss and gain for the computation of compensation under this Act must correlate to this type of injury or death, 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 all possible benefits conferred on the claimant and would be contrary to the spirit of the law. If the 'pecuniary advantage' resulting from death means pecuniary advantage coming under all forms of death then it will include all the assets movable, immovable, shares, bank accounts, cash and every amount receivable under any contract. In other words, all 7 M.A.C.A. No.2821 of 2009 heritable assets including what is willed by the deceased, etc. This would obliterate both, all the 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, would have in many cases no liability or meagre 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. [underlining supplied] Relying on **Helen C.Rebello v. Maharashtra State Road Trans. Corpn., [1999 ACJ 10 (SC)]** in the decision in **Bhakra Beas Management Board v. Kanta Aggarwal and others [2008 ACJ 2372]** , Supreme Court held that, Thus, it would 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 8 M.A.C.A. No.2821 of 2009 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. 6. Thus the principle well deducible from the above decisions is that general principle of balancing of gain and loss must be confined to that under the colour of the statute, ie; Motor Vehicles Act, 1988. Gain has to be interpreted as those gain which has accrued to the claimants as a result of accidental death or bodily injury and loss on account of the death. The Motor Vehicles Act delivers compensation for death or bodily injury occurred on account of accidents only. The pecuniary advantage means those advantages which comes to the claimants on account of accidental death and not other forms of death. So those 9 M.A.C.A. No.2821 of 2009 pecuniary advantages which accrued to the claimants on account of accidental injury or death alone can be taken into account while computing amounts payable under the Motor Vehicles Act, for fixing monthly salary under the head of loss of dependency and other gain which would have otherwise accrued to the claimants by other forms of death cannot be taken into account. 7. In view of the above principle, let us examine the question raised above in this case. Going by the scheme of family pension, it could be seen that the right to get family pension forms part of the employment scheme or contract with the employer and the dependant is always entitled to get it after the death of the employee whether he dies before or after superannuation. It is not a special pecuniary advantage, arising out of the death on account of accidental death. If he dies after the superannuation, the dependant would certainly be entitled to get family pension as the same forms part of the scheme or contract and the same accrues even if he dies a natural death or on account of sudden illness. That apart, an amount of loss and gain of one contract could not be made applicable to loss and gain of another contract. Similarly, an amount receivable under a Statute has no correlation 10 M.A.C.A. No.2821 of 2009 with an amount earned by the individual by his personal contract. In short, family pension is not a right or privilege which accrues to the dependant on account of accidental death alone. Thus the right to family pension has no correlation or nexus with the form or manner in which the employee died. 8. In view of the principle referred to above, family pension cannot be taken into account as a relevant factor for fixing loss of dependency nor can it be deducted from monthly salary of the deceased to be fixed, while computing loss of dependency. 9. In the result of the discussions made above, we are inclined to dismiss the appeal. The appeal is dismissed accordingly. **Sd/-** ## **S. SIRI JAGAN, JUDGE** **Sd/-** **K.HARILAL, JUDGE** sd