(Per : HONOURABLE MR.JUSTICE AKIL KURESHI) 1. Since the accident had taken place nearly 13 years back in the year 1999 and since the Claims Tribunal had awarded compensation which in our opinion was extremely conservative, we had taken up this appeal for final hearing at the admission stage with the consent of the learned advocates appearing for the contesting parties as was recorded previously in our order dated 14.3.2012.
2. The appellants original claimants have challenged judgement and award dated 10.12.2010 passed by MACT(Aux.) Gondal, Camp at Jetpur in MACP No.1239/1999. Brief facts may be noted at the outset.
(2.1) One Girdhar @ Girish was travelling on his motorcycle on 5.9.1999 going from Wankaner to Mendarda village. In the afternoon at about 2:30, when he was passing JetpurJunagadh highway and had reached Junagadh Marketing yard, a Matador bearing registration No.GJ1TT9761 coming from the opposite side went on the wrong side and dashed against the motorcycle. He was thrown off the motorcycle, received serious injuries. He was taken to Government hospital at Jetalpur, where he was declared brought dead.
(2.2) It seems that in front of motorcycle, a rickshaw was going. Matador hit the rickshaw first before hitting motorcycle. Rickshaw driver filed FIR which was produced at exh.34. In the FIR, the rickshaw driver Hasanbhai stated that matador was coming from opposite direction at high speed. Matador first hit his Chakdo rickshaw. He was thrown on the road side. Thereafter, the matador had also hit the motorcycle coming behind him. The claimants had also produced panchnama of scene of accident at exh.35. It recorded that matador after hitting the motorcycle had dashed against a tree on the wrong side of the road.
(2.3) The claimants who were the widow of the deceased, two minor children and his aged parents filed abovementioned Claim Petition claiming compensation of Rs.40 lakhs from the owner and insurer of the motorcycle involved in the accident.
(2.4) Deceased was aged about 34 years on the date of accident. He was working as a storekeeper in Gujarat Electricity Board and was posted at Wankaner. The claimants produced his last salary slip and other documents to show that his income was more than Rs.8000/ per month. Tribunal believed the income of the deceased at Rs.8081/ and after granting 50% rise for future income and thereafter, setting apart 1/3rd for personal expenditure of the deceased, calculated the dependency benefits of the claimants at Rs.8041/ per month.(Which is a minor calculation error and correct figure should have been Rs.8081/.) (2.5) Before the Tribunal, the opponents pointed out that the widow of the deceased was given compassionate appointment by GEB and she was receiving regular salary. The Tribunal calculated net income of the wife of the deceased at Rs.7000/ per month. The Tribunal therefore, believed that the dependency benefits of the family should be only Rs.1041/ (i.e. Rs.8041 – Rs.7000). On such residual amount of Rs.1041/, the tribunal applied multiplier of 16 and worked out the dependency benefits of the family at Rs.1,99,872/. The tribunal granted Rs.10,000/ towards loss of consortium to the wife and Rs.10,000/ towards loss of estate. The tribunal added further sum of Rs.2500/ towards funeral expenses and thus awarded a total sum of Rs.2,22,372/ (2.6) Widow and minor children have therefore approached us by filing the present appeal seeking enhancement in the compensation. It is pointed out that minor Meet Girdharbhai having died he is deleted from the cause title.
3. On the basis of evidence on record, counsel Shri Sheth for the appellants vehemently contended that the tribunal erred in adopting sum of Rs.8041/ as income available to the family of the deceased. He submitted that there were periodical pay revisions applied by the employer. Such pay revisions also ought to have been taken into account.
In particular counsel submitted that the tribunal committed gross error in reducing such dependency benefits by Rs.7000/ only on the ground that widow of the deceased was granted compassionate appointment by the employer.
4. On the other hand, learned counsel Shri Mehul Sharad Shah opposed the appeal. He submitted that the tribunal has not taken into account various deductions while calculating the net salary of the deceased. He also supported the approach of the tribunal in taking into account the salary earned by wife of the deceased through her employment.
5. Insofar as factum of accident, that the deceased died during such accident and that the accident was caused due to sole negligence of the driver of the Matador, there is hardly any dispute possible or even raised before us. Through cogent evidence, the claimants had established the fact of accident and that the deceased died during such accident. With respect to negligence of the driver of the Matador also, there can hardly be any dispute. In the FIR exh.34, complainant pointed out that the Matador had come from the wrong side. It was driven at an excessive speed. It first dashed against his rickshaw and then hit the motorcycle. Additionally panchnama also recorded that Matador after hitting said vehicles dashed against a tree on the wrong side of the road and only thereafter it stopped. Negligence of driver of Matador was thus writ large on face of the record. Opponents did not examine the driver of the Matador.
6. Coming to the question of compensation that the claimants should receive, first of all, we would like to examine closely the income of the deceased at the time of his death. His salary slip for the month of August 1999 showed his basic salary of Rs.5250/. After adding DA, HRA and other allowances, his gross salary for the month came to Rs.7556.31. The employer deducted professional tax of Rs.40/. There are ofcourse other deductions such as GPF contribution and repayment of advances taken. Such contribution cannot diminish the income of the employee. In addition to such gross salary of Rs.7556/, the deceased was also separately paid a sum of Rs.525/ by way of conveyance allowance. His gross salary thus was Rs.8081/. From such salary, his tax liability shall have to be deducted. The salary slip does not show any deduction towards tax at source. We may therefore have to calculate roughly his tax liability. We may recall that his monthly salary was approximately Rs.8000/. He was contributing Rs.832/ towards CPF. Thus considering the exemption for such contribution as also considering the standard deduction available to the salaried class at the relevant time, his total taxable income would not be more than Rs.7000/ per month i.e. Rs.84,000/ per year. The ready reckoner for the relevant year suggests that on such income, an assessee would pay total tax inclusive of surcharge of Rs.6380/. Adding the professional tax and rounding off, we are of the opinion that his monthly tax liability could be estimated at Rs.550/. Deducted from the gross income of Rs.8081/, his take home salary would be close to Rs.7500/ per month. On such income, a reasonable increase for future rise in the salary should be granted. The deceased was aged about 34 years. He therefore, had a long service left. He was employed as a permanent employee in a State owned Corporation. The Corporation was following pay pattern and periodic pay revisions as per the Government pay structure. Considering these aspects of the matter, granting 50% increase for the assessment of dependency benefits on the current salary cannot be stated to be unreasonable. The monthly income of the deceased worked out for such benefits would therefore, be Rs.11,250/. Out of such sum, what should be diverted to the claimants is a question required to be answered in peculiar facts of the case. We may recall that the widow of the deceased was granted compassionate appointment after his death. It was because of this that the tribunal slashed down the dependency benefits of the claimants by entire take home salary of the wife from such employment. We are however, of the opinion that such a reduction was not justified.
7. Many reasons can be given for such an approach. Firstly, a housewife who was previously not in any gainful employment may even in ordinary course of events engage herself in monetarily productive activities. A housewife and mother bringing up young children may in due course of time once her children grow up and is rid of initial burden of their basic eduction, may seek gainful employment to augment the family income. Further, employment of a person on compassionate basis may be relatable to death of deceased. The income earned by the wife through such compassionate appointment can only be relatable to her rendering actual service. By gaining compassionate appointment, she only secures appointment in preference over other eligible candidates. Her salary however depends on actual rendering of service. In other words, a person appointed on compassionate grounds due to death of an employee dying in harness only does not have to compete with other eligible candidates and thus secures employment in a preferential category, nevertheless, salary is dependent solely on rendering satisfactory service.
8. In the present case, the defendants have not brought anything on record to suggest that the wife was not qualified to seek employment elsewhere which she might have done in due course of time and thereby, augmented the family income. Equally, there is nothing on record to suggest that when such compassionate appointment was granted to the wife of the deceased.
9. Additionally, we also cannot lose sight of the fact that the wife in the present case would be rendering invaluable service as a housewife. As a homemaker she would be performing several roles. As a mother looking after young children and taking keen interest in their education and upbringing. As a wife she would be looking after her husband who was the sole breadwinner of the family. As a daughterinlaw she would be looking after aged parents of the husband. As a lady of the house she would be the pivot of the family around which wellbeing, happiness and stability of the family would depend. As a working woman, she would have to play a dual role as that of breadwinner as well as a person looking after home. In absence of her husband, she would have responsibility of bringing up the children singlehandedly. To perform such additional duties, she will need extra help for which she would have to pay salary to the helpers.
10. Let us examine how different Courts have viewed such a situation.
● Before Division Bench of Gujarat High Court in case of Arunaben and others v. Mehmoodbhai Imamali Kaji and others reported in 1983 ACJ 409, similar question came up for consideration. In the said case widow of the deceased was granted appointment on compassionate grounds as per standing order framed by the Gujarat State Road Transport Corporation in which the deceased was working at the time of his death. The Claims Tribunal reduced the compensation payable to the wife and other dependants by 25% taking into account such factor. The Court referring to large number of decisions of foreign Courts held that such deduction was not permissible. It was observed as under :
“17. It appears that as in the United Kingdom and Australia, so in New Zealand, the view prevails that the dependant's own income is not relevant because such income is not a benefit in consequence of the death but a consequence of the dependant's own work or investment (see Kemp & Kemp, the Quantum of Damages, Vol 1, 1975 Edition, page 366) 18. No decision of an Indian Court having a bearing on the point under consideration has been brought to our notice, but having regard to the view which prevails in foreign countries in similar jurisdiction, the proper principle to apply would appear to be that in determining the pecuniary loss to the dependents, no deduction should be made for the earning capacity or the actual earning of the widow arising from her gainful employment taken up after the accidental death of her husband, because such income is not a benefit in consequence of the death but is the result of her own labour.
xxxx 20. True it is that an attempt was made on behalf of the Corporation to establish that the appointment was offered to the widow as a “special case”, presumably with a view to urging that the Corporation, conscious as it was of being a tortfeasor, wanted to make up to the dependents the loss which it had caused them. The effort, in other words, appeared to be to persuade the Court that the widow's earning now used to support her and the other dependents should be taken into account as the “benefit” or “gains” resulting from the death of deceased on the basis that they were in the nature of payment voluntarily made by a tortfeasor in an attempt to mitigate the damages caused by him. It is not possible to agree with this line of reasoning. In the first place, as earlier pointed out, the earnings of the widow were the result of her own labour. They were not in the nature of a gratuitous payment, made by an employer, who is liable in tort for the death of an employee, to the widow of such an employee. In the next place, there is no evidence to suggest that the widow was offered the employment by the Corporation because it was conscious of being vicariously liable for the tortious act resulting in the death of the deceased. The evidence, on the contrary, points in the other direction in as much as there has been a persistent attempt to deny any liability for the accidental death. In the last place, the General Standing Order, Ex. 75, which records the policy decision covering employees of the Corporation dying or becoming permanently disabled while in service, is of general application. In other words, the benefit of employment under the said policy decision is available irrespective of whether the death or disablement of an employee is the direct result of the tortious act of the Corporation or anyone or more of its employees. Besides, all that the General Standing Order does is to give a preference in the matter of appointment to the Class III or IV post if the candidate possesses the requisite qualifications and is otherwise found suitable on merits. Under these circumstances, it is impossible to equate the appointment of the widow as a measure consciously taken with the end in view of making up to the dependents the loss occasioned on account of the tortious act for which the Corporation was vicariously liable.”
In the said decision, deceased was a conductor of Gujarat State Road Transport Corporation. He died while he was assisting the driver of the bus of the ST Corporation in taking reverse. He was crushed between the bus and the motortruck. The claimants had therefore, sought compensation from the driver and owner of the bus as well as of the motortruck. Before High Court, ST Corporation who was the owner of the bus had tried to submit that appointment of widow of the deceased was offered as a special case and urged that this being a conscious act of tort feasor to make up to the loss suffered by the dependants, such factor should be taken into account. Such contention was negatived by the Division Bench of the High Court observing that the earnings of the widow were the result of her own labour. They were not in nature of a gratuitous payment made by an employer who is liable in tort for the death of an employee. Further, there was no evidence to suggest that widow was offered the employment by the Corporation because it was conscious of its vicarious liability for the tortuous act resulting into death of the husband. It was observed that the evidence, on the contrary, pointed to the other direction as there had been a persistent attempt on part of the ST Corporation to deny any liability for the accidental death. It was also held that the Corporation had the policy for granting payment on compassionate grounds in case of an employee dying or becoming permanently disabled while in service. It was therefore, observed that benefit of employment under such a policy was available irrespective of whether the death or disablement of an employee was the direct result of the tortuous act of the Corporation or any of its employees.
● In case of O.N.G.C., Mehsana Project v. Vinakapur @ Vinodkumari and others reported in 1996(2) GLH 927, very similar case once again came up before the Division Bench of this Court. It was a case where deceased Vinaykumar was employed in ONGC. He died in a vehicular accident. The employer gave appointment to his wife on compassionate grounds. ONGC approached the High Court contending that the wife cannot seek compensation under the law of torts since the Corporation had already granted appointment to her on compassionate basis due to death of her husband. The Division Bench rejected such contention observing :
“4. The moment it is kept in mind that the employment offered to the said widow on account of death of her husband was the part of the policy pursued by the Corporation as it was operating Compassionate Appointment Scheme, whether death was natural, accidental or otherwise, this would have been the position for the widow. She would have got the employment under the scheme keeping in mind her qualifications and eligibility.
5. Under the circumstances, we do not see any connection between the employment and liability of the Corporation under the Law of Torts. It has been wellrecognised in this branch of law that if any amount to be adjusted towards the liability of the tortfeasor, it should offer the same cause of action namely negligence and payment should be thereunder. However, if the payment is for any other reason and more particularly when payment is the part of a package or contract of employment, it cannot assume the character of the payment under the Law of Torts.
6. What can be deducted is " like from the like ". The payment under the contract or package related to the employment can never be equated with the payment towards discharge of liability under the Law of Torts. That being the position, the said contention even if it was taken from the very beginning and pursued with vigor before the trial court which is now being done before us, the said contention must fail and we hold that it fails.”
● In case of Helen C.Rebello (Mrs.) and others v. Maharashtra State Road Transport Corporation and another reported in (1999) 1 Supreme Court Cases 90, the Apex Court considered the question whether the life insurance money of the deceased is to be deducted from the claimants' compensation receivable under the Motor Vehicle Act. In this context the Apex Court observed that Section 110B empowers the tribunal to determine the compensation which appears to it to be just. The Court was of the opinion that these words widen the scope of determination of compensation which is neither under the Indian Fatal Accident Act, 1855 nor under the English Fatal Accident Act, 1846. The Court in para. 29 of the decision concluded that “Thus, we have no hesitation in concluding that the Tribunal, while computing the compensation under Section 110B of 1939 Act, has a wider discretion than what it had under the 1855 Act. Various provisions of this Act indicate the legislature's intent conferring visible benefit on the claimants by securing compensation through casting obligation on the tort feasor and the insurer.”
The Apex Court was of the opinion that for balancing the pecuniary advantage received to the claimants from whatsoever source would include only which comes to the claimant on account of accidental death and not other forms of death. The Apex Court held and observed as under :
“33. Thus, it would not include that which claimant receives on account of other forms 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 only on account of the accidental death but that which 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 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 employment of 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 Vehicles 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 contribution. How thus an amount earned out of one’s labour or contribution towards one’s wealth, savings, etc. either for himself or for his family, which such person knows, under the law, has to go to his heirs after his death either by succession 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 received as compensation under the Motor Vehicle Act. There is no corelation between the two amounts. Not even remotely. 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 corelation with an amount earned by an individual. Principle of loss and gain has to be on the same place 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 only on the happening of the event viz., accident which may not take place at all. Similarly, family 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 accidental 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 heirs, 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 a step or contingency in terms of the contract, to receive the amount. Similarly any case, 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 corelation. The insured (deceased) contributes his own money for which he receives the amount which has no corelation to the compensation computed as against the torfeasor 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 contribution. 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 have observed the whole scheme of the Act, in relation to the payment of compensation to the claimant, is beneficial legislation, the intention of the legislature is made more clear by the change of language from what was in Fatal Accidents Act, 1855 and what is brought under Section 110B of the 1939 Act. This is also visible through the provision of Section 168(1) under the Motor Vehicles Act, 1988 and Section 92A of 1939 Act which fixes the liability on the owner of the vehicle even on no fault. It provides that 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 the claimant by such owner of the vehicle. Section 92B ensures that the claim for compensation under Section 92A is in addition to any other right to claim compensation in respect whereof (sic. Thereof) 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 legislature 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 statute, 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 Vehicles Act basing mostly on the language of English statutes and not taking into consideration the changed language and intends of the legislature under various provisions of the Motor Vehicles Act, 1939.
37. Accordingly, we set aside the impugned judgment dated 9th September, 1985 and restore the judgment of the tribunal dated 29 September, 1980 and hold that the amount received by the claimant on the life insurance of the deceased is not deductible from the compensation computed under the Motor Vehicles Act.. The respondent concerned shall make the payment accordingly, if not already paid in terms thereof.”
● Subsequently, the question of balancing the benefits received by the relative of the deceased upon being appointed on compassionate grounds came up for consideration before the Apex Court in case of Bhakra Beas Management Board v. Kanta Aggarwal(smt) and others reported in (2008) 11 Supreme Court Cases 366. Division Bench of the Apex Court speaking through Hon'ble Justice Dr. Arijit Pasayat observed that the the High Court lost sight of the fact that the benefits which the claimant receives on account of the death or injury have to be duly considered while fixing the compensation and noting that widow of the deceased was appointed on compassionate basis immediately after the accident, reduced the claim granted by the Claims Tribunal and approved by the High Court. To this judgement, we would make a detailed reference at a later stage.
● We may at this stage, refer to various decisions of different High Courts on the issue.
● In case of A.P. Dorairaj v. The State of Madras reported in AIR 1974 Madras 252, the question considered by the Division Bench of Madras High Court was whether while awarding compensation to the claimants who received injuries in an accident, any amount paid by the employer gratuitously or on compassionate grounds, can be taken into consideration. Division Bench held and observed as under :
“15. We hold that in the present case, the amounts paid by the claimant's employer gratuitously should not be taken into account in assessing the damages. It is admitted that a sum of Rs. 7,000 has been so paid gratuitously by the company Heatley and Gresham Ltd. That amount cannot be deducted from compensation payable towards loss of salary. Therefore we hold that the claimant is entitled to a sum of Rs. 7,000 towards loss of salary.”
● In case of Bhagat Singh Sohan Singh v. Smt. Om Sharma and others reported in AIR 1983 Punjab and Haryana 94, Full Bench of the High Court considered whether the receipts of insurance, provident fund, pension or gratuity benefits by the dependants of the victim of an automobile accident must be altogether excluded from consideration in computation of award to them. In para.18, the Full Bench observed as under :
“18. To conclude on this aspect it seems to be well settled that on the basis of legislative history, on general principle, on the language of Sec.110B and on authoritative precedent insurance benefits accruing to the deceased victim of an automobile accident are not to be taken into account for assessing just compensation to his dependants.”
In final conclusion, the Bench opined : “To finally conclude, the answer to the question posed at the outset is rendered in the negative and it is held that the recept of insurance, provident fund, pension or gratuity benefits by the dependants of the victim of an automobile accident must be altogether excluded from consideration in the award of compensation to them under Section 110B of the Motor Vehicles Act.”
● In case of Saminder Kaur and another v. Union of India reported in 1987 ACJ 7, five Judge Bench of Gauhati High Court held that benefits received by the legal representative of the deceased consequent to his death in an accident such as insurance policy amount, family pension, gratuity, Provident Fund etc. are not deductible from the amount of compensation which the claimants are entitled to.
● In case of Pallavan Transport Corporation Ltd. (Metro) v. P. Murthy and etc., reported in AIR 1989 Madras 14, the Division Bench of Madras High Court was of the opinion that benefits such as family benefit scheme and ex gratia payment cannot be excluded for the purpose of awarding compensation to the claimants. It was observed that the family benefit scheme and the ex gratia payment are available to all Government servants who died while they are in service. This has nothing to do with the accident, whereas the compensation to be awarded under the provisions of the Motor Vehicles Act relates to the damages caused on account of the accident. Further the compensation amount represents the loss which the tort feasor had caused to the estate of the deceased. Deducting the abovesaid amounts form the amount of compensation arrived at will amount to relieving the tort feasor of his liability. It was further observed that amount payable under the Family Benefit Scheme and the ex gratia payment are not intended for such purpose.
● In case of The Branch Manager, The Oriental Fire and General Insurance Co. Ltd. v. Laxmi Patra and others reported in AIR 1991 Orissa 310, Learned Single Judge of Orissa High Court (Hon'ble Justice Arijit Pasayat, as he then was,) considered whether the amounts received by the family of the deceased on being appointed on compassionate grounds should be deducted form the amount of compensation payable to the claimants. Learned Judge held that such deduction was impermissible. It was observed that :
“...No adjustment is to be made for the widow's income if any. What is to be assessed is the loss of dependency due to the accident, and therefore, any income earned by the widow has no role to play in the assessment. While considering the question of adjustment on account of gratuity, provident fund received or income having earned by the widow, it has to be borne in mind that what is to be assessed is compensation for deprivation of benefit to the claimants which they would have been entitled to had the deceased been alive. There is distinction between moneys coming into the hands of the claimant "at death" and "on account of death". The concept of mitigation of damages may be relevant while computing damages; but as indicated above, there is distinction between compensation and damage. There can also be a moralistic approach to the problem. A tortfeasor is not to be given the benefit of any money that comes into the hands of the claimant on account of death of a near and dear one. The set off as suggested would be conferring a benefit for a negligent act. Similar view was expressed by the Delhi High Court in AIR 1982 Delhi 1, Smt. Amarjit Kaur v. M/s. Vanguard Insurance Co. Ltd.”
● Question came up yet again before the Kerala High Court in case of Geethakumari and others v. Rubber Board and others reported in 1994 ACJ 796, whether salary or any part thereof which may be payable to widow from the employment given to her on compassionate grounds on account of death of her husband can be deducted from the compensation payable to her. The Division Bench referring to and relying on large number of decisions of various High Courts including that of this Court in case of Arunaben v. Mehmoodbhai Imamali Kaji reported in 1983 ACJ 409(Gujarat) held that no portion of the pension, insurance money, gratuity, provident fund or any gratuitous payment received by the legal representatives of a deceased employee can be deducted from the amount of compensation payable to them under the Motor Vehicles Act. So also the salary or any part thereof which may be payable to the widow from the employment given to her on compassionate grounds on account of her husband's death, cannot be deducted. The Bench observed as under :
“18. It is now settled that in all claims for appointment on compassionate grounds, there should not be any delay in appointment since the purpose of providing appointment on compassionate grounds is to mitigate the hardship due to death of the breadearner in the family. It is also well settled that if there is no suitable post for appointment supernumerary post should be created to accommodate the applicant. [See Sushma Gosain v. Union of India AIR 1989 SC 1976 and Brijithamma v. State of Kerala 1990 (1) KLT 399]. Therefore, it can be said that the right to get employment in the dying in harness scheme is a separate and distinct right which is available in the case of death of the employee due to natural reasons also. This is an additional ground to hold that the compensation payable in a motor accident cannot be reduced on account of the giving of employment to any one of the legal representatives of the deceased.
19. Accordingly, we hold that no portion of the pension, insurance money, gratuity, provident fund or any gratuitous payment received by the legal representatives of a deceased employee can be deducted from the amount of compensation payable to them under the Motor Vehicles Act. So also the salary or any part thereof which may be payable to the widow for the employment given to her on compassionate grounds on account of her husband's death cannot be deducted from the compensation payable to her under the Motor Vehicles Act. No part of the income that the widow or other legal representatives may be getting from any business or profession, whether it is a continuation of the business of the deceased or a new business started by them, can be deducted from such compensation.”
● This very question once again was considered by the Division Bench of Punjab and Haryana High Court in case of Sunita Rani and others v. Hardev Singh and others reported in AIR 1995 Punjab and Haryana 300. In the said case, Division Bench observed that the mere fact that the sufferer starts earning by the dint of his or her own efforts, would not absolve the tort feasor of his liability to reimburse the claimants for the loss caused by way of compensation. It was observed that “it is unimaginable for social welfare legislation vide which the Legislature has provided for the liability to pay compensation and impliedly provided for the calculation of the same and specifically provided that the first compensation has to be assessed under Section 140 and if the claimants are entitled to any other compensation, in that eventuality the compensation under Section 140 is to be assessed and it is only if the compensation under the other provision is higher than the difference between the two shall be paid in addition to the compensation granted under section 140.” The Bench went on to observe that “Giving of service on compassionate ground is again totally an irrelevant consideration while assessing the compensation under the Motor Vehicles Act. In our considered view, the fact of starting or earning by any dependent member entitled to compensation is no ground to deprive him of the compensation for the loss caused by delinquent or person liable to reimburse the claimant by way of compensation.” The Bench further observed that :
“6. Deductions on the basis of inheritance because of death or deduction for any benefits accrued to the claimants because of death or injury cannot be made on any comprehensible reasons apart from the fact that it would be giving a premium to tort feaser for his tortuous act. Making the deduction would be crucifying the statutory provision of Motor Vehicles Act for granting the compensation for the loss caused, to do otherwise would result in draconian rule i.e. if person gets more by inheritance or as insurance cover and compensation figure is lower that (then) it cannot be expected that the amount would be paid to tort feaser. One cannot have wooden approach particularly in a welfare legislation.”
● In case of Smt. Lalitha and another v. Dashanbhat Haribansh Bhat and others reported in AIR 1998 Karnataka 344, once again this very question came up for consideration before the Division Bench of the Karnataka High Court. It was a case wherein the Claims Tribunal, while awarding compensation to the widow of the deceased who died in a vehicular accident, was influenced by the fact she was given employment on compassionate grounds in the same capacity in which deceased was working and was paid the same salary. She was therefore, granted compensation for a period of one year i.e. the period between the date of accident and till she was given employment. She was thereafter, held not entitled to loss of dependency subsequent to her appointment as according to the tribunal she did not suffer any financial loss arising out of the death of her husband. Division Bench reversed the decision of the tribunal by making following observations :
“9. In our view, the Tribunal has gravely erred in denying the compensation under the head 'loss of dependency' to appellant No. 1 because of her appointment on compassionate grounds in the place of the deceased. The Tribunal erred in recording a finding that the salary earned by appellant No. 1 would compensate for the loss of salary which was being earned by the deceased. Whatever salary she got after employment was in lieu of services rendered by her. The same does not mean that there was no loss of dependency. While the husband was earning she must have employed herself gainfully in the household work. Salary earned by the deceased was in lieu of the services rendered by him and because of his death loss was caused to the estate resulting in loss of dependency to the appellants. Salary earned by appellant No. 1 was due to the work put in by her and could not be adjusted or treated as compensation for the loss of earning of the deceased. Salary earned by appellant No. 1 could not be equated with the compensation she was entitled to on account of the death of her husband. While determining the compensation under the head loss of dependency/loss to the estate, the Courts have to examine as to what was the loss caused to the estate of the deceased or to the dependants for the income which was contributed by the deceased to them. To the extent of loss of the income which was being contributed by the deceased to the dependants, the dependents are entitled to be compensated. Simply because one of the family members was given employment in the place of the deceased on compassionate grounds, the loss of dependency would not be off set against the income earned by the dependents from the appointment given to him/her on compassionate grounds. The income earned by the dependant would be for the services rendered by him/her independently of the loss to the estate caused due to the death of the deceased.”
● In case of Charu Barman and others v. Satya Narayan Jiwan Ram and others reported in 1998(2) T.A.C. 505(Gau), such a question came up for consideration. The High Court was of the opinion that the tribunal erred in deducting monthly salary earned by wife from employment granted on compassionate basis from the compensation payable to the claimants.
● In case of United India Insurance Co. Ltd., v. Jyotsnaben and others reported in AIR 1999 Gujarat 131, Division Bench of this Court considered whether ex gratia payment granted to the dependants of the victim of the motor vehicle accident can be deducted from the compensation awardable to them. Division Bench referring to large number of decisions of various High Courts concluded that ex gratia payment is a collateral benefit which cannot be deducted from the award of damages. Whatever comes to the heirs or dependants of the deceased as a collateral benefit cannot be debited in the balancesheet of gain and loss arising by the reason of the death from the accident. It was observed that the governing principle is that the damage recoverable must be directly attributable to the tort and no more and that is why what is to be deducted must be intrinsically the same. What was not in pari materia could not be deducted. The Division Bench referred to the observations of Lord Reid in House of Lords in case of Perry v. Cleaver, (1969 ACJ 363(HL, England), wherein it was observed that “it would be revolting to the ordinary man's sense of justice and therefore, contrary to public policy, that the sufferer should have his damages reduced so that he would gain nothing from the benevolence of his friends or relation of the public at large, and that the only gainer would the wrong doer.”
● In case of Smt. Mousumi Hansda and ors. v. Oriental Insurance Co. Ltd. & anr. reported in I(2001) ACC 540 (DB), Division Bench of Calcutta High Court once again considered the question whether the appointment of wife of the deceased on compassionate grounds would permit deduction from the compensation payable to her under the Motor Vehicles Act due to the death of her husband. It was a case wherein due to death of husband, wife was granted appointment on compassionate basis. The tribunal therefore, while awarding compensation, awarded lumpsum amount of Rs.1,50,000/ only. Division Bench referring to and relying on decision of the Apex Court in case Helen C. Rebello (supra) observed as under :
“A bare perusal of the aforementioned discussions makes it clear that accidental death within the meaning of the Motor Vehicles Act, 1988, must be kept confined to a death occurred by reason of use of motor vehicle. A pecuniary advantage gained by the heirs and legal representatives of the deceased cannot thus be interpreted to mean pecuniary advantage resulting from accidental death. Death of an employee in harness, therefore, cannot be termed as “accidental death” within the meaning of the said provision. The learned Tribunal, therefore, in our opinion completely erred in deciding the said issue against the appellants.”
The Court referring to decision of other High Courts on this point ruled in favour of the claimants and enhanced compensation to Rs.4,09,500/ totally ignoring the factor of wife having been appointed on compassionate grounds.
● This very question once again came up for consideration before the Andhra Pradesh High Court in case of A.P.S.R.T.C. v. G. Jana Bai & ors. reported in II(2001)ACC 716(DB). The Division Bench held that employment of wife on compassionate basis had nothing to do with the compensation to be awarded to the claimants. It was observed that :
“15. In so far as the second contention of the appellant that the first respondent who is the wife of the deceased was gainfully employed and as such, sustainable deduction has to be made from the compensation amount awarded by the claimants in view of the decision cited (Supra), we are not inclined to accept this submission. It must be remembered that though the wife of the deceased has secured employment on the compassionate grounds, her employment has nothing to do with the compensation to be awarded to the claimants as a result of the death of the deceased due to rash and negligent driving of the driver of the appellant's Bus. Merely because the wife was provided with employment, it would not disentitle the claimants to claim just and reasonable compensation for the death of the deceased. Though counsel for the appellant relied on a decision (Supra), in support of her contention in this regard, we are afraid, the ratio laid down in the said decision would not enure to the benefit of the appellant in as much as in the said case, the claimant himself was the injured person and even after sustaining injuries he was reemployed by his employer without affecting his service condition. Under those circumstances, a division bench of this Court in the said decision held that since there is no loss of earning capacity of the claimant there in, and as such amount granted by the Tribunal was reduced. However, in the instant case, the claimants are not the injured persona but they are the dependents of the deceased who died in a motor accident on account of the rash and negligent driving of the Bus by the driver of the appellant. This is not the case where there is no loss of earning capacity of the injured but this is a case of death on account of rash and negligent driving of the appellant's Bus for which the claimants being the legal representatives of the deceased are entitled for just and reasonable compensation. Therefore, the mere fact of the wife of the deceased gainfully employed on compassionate grounds cannot be a ground for awarding less compensation though the claimants are entitled for more compensation. We, therefore, reject the submission of the council for the appellant in this regard having regard to the view taken by us.”
● In case of Kanika Hazarika and others v. Sreeam Barthakur and others reported in 2003 ACJ 159 such question came up before the Division Bench of Gauhati High Court. It was a case wherein the person who died in a vehicular accident was working in a bank. After his death, his wife was given employment in the bank under the scheme of compassionate appointment framed by the Bank. The Bench considered the question whether deduction on account of salary received by the widow from the compensation payable to the claimants was admissible. The Division Bench referred to and relied on decision in case of Helen C. Rebello (supra) and held as under :
“10. In view of the law laid down by the apex court as stated above let us consider the fact of the present case. There is no dispute at the bar that the claimant Kanika Hazarika was given an employment in the bank by the employer of the deceased and the said bank is not a wrongdoer and it was in no way connected with the accident. Now, the question is whether the employment of the claimant is in any way correlated to the accidental death for which the compensation is awarded. The claimant could have been provided with a job under the Dieinharness Scheme irrespective of the fact that the deceased had died as a result of a vehicular accident or otherwise even natural death. That was the benefit provided, to the employee by the employer and thus, it is in no way related to the accidental death of the deceased. Respondents before us are in no way connected with the employment of the claimant. This is not a case where a wrongdoer in order to compensate the victim or the dependents of the deceased has done something out of compensation by providing them with a job so that the victim is compensated. Thus, the ratio of law laid down by the full bench of this court in Saminder Kaur, 1987 ACJ 7 (Gauhati), is distinguishable and not applicable to the fact established in the present case. The decision in Helen C Rebello, 1999 ACJ 10 (SC), covers the matter in hand. Applying the above, we are of the opinion that the Tribunal, erred in law in deducting Rs. 2000 from the amount of the dependency. ”
● In case of United India Insurance Co. Ltd v. Bindu reported in 2007(1) ACC 688, Division Bench of Kerala High Court considered such a question and held as under :
“From the above decision it is clear that just because the wife had got employment under the compassionate scheme, compensation is not liable to be reduced. Compassionate employment is given under the scheme of the employer and the quantum of compensation has nothing to do with the same and it is all together on a different ground the said thing is given. It has also to be remembered that even if a husband dies a natural death wife would be entitled to employment under the compassionate scheme, if the scheme so provides. Learned counsel has invited our attention to the decision of the Apex Court in T. N. State Transport Corporation Limited V/s S. Rajapriya and Ors. In the said decision Apex Court observed that the actual pecuniary loss of each individual entitled to sue 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. It was only laying down the general principles and the court was not considering this point at all and it was only considering about the amount when there is interest payable on the same by way of fixing the amount. So the said decision does not advanced the case of the insurance company. Therefore, we hold that as held by this court in the decision reported in Geetha Kumari's Case (Supra), just because the wife had got employment under the compassionate scheme no amount of compensation has to be deducted. A devision bench of The Andhra Pradeh High Court in A.P.S.R.T.C, Hyderabad V/s G. Jana Bal II (2001) ACC 716 : 2001 (3) TAC 148 (AP), held that the mere fact of the wife of deceased gainfully employed on compassionate grounds cannot be a ground for awarding less compensation though the claimants are entitled for more compensation. Similarly, a division bench of Gauhati High Court in Kanika Hazarika and Ors. V/s Sreeram Barthkumar and Ors. 2003 ACJ 159, held that deduction on account of the salary received by the widow on an employment given by the bank where the deceased as working should not be taken into consideration for fixing the amount. Thus, those decisions also support the view taken by us.”
● In case of State of Andhra Pradesh v. Pushpalatha reported in 2007 ACJ 2038, Learned Single Judge of the High Court was considering the contention of the appellant State of Andhra Pradesh that after the accident widow and son of the deceased were granted employment on compassionate ground and that therefore, they are not entitled to any compensation on account of death of the deceased in vehicular accident. Such contention was negatived by the learned Judge referring to and relying upon large number of decisions of various High Courts including decision of Supreme Court in case of Helen C. Rebello (supra). It was concluded as under :
“11. In view of the above judgements it is clear that providing of employment to any one of the eligible dependants of the deceased, who dies in harness due to the motor accident cannot be taken as as a ground to deny the compensation awarded by the Tribunal under the Motor Vehicles Act after adjudicating that the accident occurred due to rash and negligent driving of the driver of the vehicle involved in the accident. Similarly, payment of ex gratia by the employer or the Government and payment of amounts viz., provident fund, group insurance or any amounts of such nature, which are contributed by the deceased because of his mandatory service conditions cannot be deducted from the compensation granted by the Tribunal under the Motor Vehicles Act, 1988”
● In case of National Insurance Company Ltd. V. Smt. Manju Bala & ors reported in AIR 2009 Delhi 19, Learned Single Judge of Delhi High Court referred to the decision in case of Helen C. Rebello (supra) and observed as under :
“9. From the above decision it is clear that just because the wife had got employment on the compassionate ground, compensation is not liable to be reduced. Compassionate employment is given by the employer and the quantum of compensation has nothing to do with the same and it is altogether on a different ground the said thing is given. It has also to be remembered that even if husband dies a natural death, the wife would be entitled to employment under the compassionate scheme, if the scheme so provides or at the wish of employer.”
● In case of Bhupathi Prameela & Ors. v. The Superintendent of Police, Vizianagaram & ors. reported in AIR 2010 Andhra Pradesh 189, the Division Bench referring to various decisions of other High Courts was of the opinion that the benefits received by the claimants which are ex gratia in nature cannot be deducted from the total compensation.
11. From the above, it can be seen that there was total unanimity in the judicial opinion of various High Courts on the point. Unanimously all the High Courts of the country had held in different decisions that if upon the death of a person, his widow or other dependant is granted appointment on compassionate basis by the employer of the deceased, any salary received through such employment cannot be deducted from the compensation payable to the claimants. No decision of any Court taking a contrary view has been pointed out to us.
12. Then came the decision in case of Bhakra Beas Management Board v. Kanta Aggarwal(smt) and others reported in (2008) 11 Supreme Court Cases 366. In the said decision, none of the decisions of the High Courts were brought to the notice of the Apex Court. The decision of the Apex Court in case of Helen C. Rebello (supra) was noticed and discussed. We may have a closer look at the decision in case of Bhakra Beas Management Board (supra). It was a case where almost immediately after the death of a person in a vehicular accident, his wife was given compassionate appointment by the employer and also residence was provided to her. When the tribunal fixed the compensation payable to the claimants ignoring such benefits and High Court confirmed such view of the tribunal, the issue reached the Apex Court in appeal filed by the original defendants. The Apex Court was of the opinion that the High Court lost sight of the fact that the benefits which the claimants received on account of death or injury had to be duly considered while fixing the compensation. Noticing that respondent no.1 i.e. widow of the deceased was getting Rs.4700/ per month and a residence was also provided to her and that such compassionate appointment was given immediately after the accident, the Apex Court reduced the compensation fixed by the tribunal and confirmed by the High Court, instead of remanding the matter to the High Court for fresh consideration since the accident had taken place more than 14 years back.
13. From the said decision of the Apex Court, few things emerge. Firstly, we find that the deceased was travelling in a Jeep which met with an accident with truck. From the eyewitness account the Courts held the driver of the Jeep solely negligent for causing the accident. Bhakra Beas Management Board which was the appellant in the Apex Court thus appears to be the owner of the Jeep in which the deceased was travelling. The management appears to have immediately upon the death of deceased offered compassionate appointment to his wife and also provided residence to wife. It was in this background that the Apex Court observed that such benefits had to be taken into account while fixing the compensation. In the case before the Apex Court, thus the employer who had granted compassionate appointment was the same who was also the defendant in the claim petition liable to satisfy the Tribunal's award. The situation would be different if the defendant as well as the employer which grants compassionate appointment are entirely two different entities. Question would be whether in such a situation can a tort feasor seek to gain benefit out of the benevolent act of the employer of the deceased?
Such a concept has been resoundingly rejected by several Courts including the Apex Court in various decisions and in particular in case of Helen C. Rebello (supra). In case of Helen C. Rebello (supra), the Apex Court laid great emphasis on the concept of just compensation. The Apex Court also made a distinction between pecuniary advantages on account of accidental death and those available in other cases. Division Bench of this Court in case of United India Insurance Co. Ltd., v. Jyotsnaben and others (supra) reiterated that what is to be deducted must be intrinsically the same. What is not in pari materia could not be deducted.
14. Three different situations thus emerge. First would be a case where the employer of the deceased has nothing to do with his accidental death. His widow or any other dependant is granted appointment on compassionate basis in terms of “dying in harness” scheme. Courts upon courts have held that the wrong doers who caused death by his wrongful act cannot benefit out of such benevolent act of the employer. Our case falls in this first category. Second category of the case would be where the employer of the deceased is also vicariously liable to pay compensation to the dependants of the deceased. Even in such a case, if the employer has granted appointment to his widow on compassionate grounds in terms of a scheme, no adjustment for the salary of the widow was held permissible mainly on the ground that widow would have received such appointment irrespective of the nature of death i.e. accidental or otherwise. Two cases decided by this Court in case of Arunaben and others v. Mehmoodbhai Imamali Kaji and others (supra) and O.N.G.C., Mehsana Project v. Vinakapur @ Vinodkumari and others(supra) fall in this category. In both these cases, the employer tried to avoid liability to pay compensation for the tortuous act by pointing out that the widow of the deceased was given appointment on compassionate grounds. High Court in both cases rejected such a contention and refused adjustment of the salary of the wife against the compensation payable for the death of the husband on the grounds that the wife would have received such appointment in case of death due to any reason and that the salary earned by the wife was for rendering service. Particularly, in case of Arunaben and others v. Mehmoodbhai Imamali Kaji and others (supra), the Court noted that the appointment of the wife was made as per the scheme framed by the employer of the husband and not as a tradeoff for payment of compensation. The third category of the cases may be where the person causing the accident or the employer of such a person vicariously liable to pay compensation for the tortuous act of the employee, offers employment to the widow or any dependant of the deceased not under any scheme for compassionate appointment but to reduce or avoid such liability. In such a situation the employer of the widow/dependant would contend that necessary adjustment in the compensation payable to the dependants of the deceased should be made. Case before the Supreme Court in Bhakra Beas Management Board (supra) seems to fall in this category. Even the decision in case of Bhakra Beas Management Board (supra) does not lay down a ratio that all benefits received by the dependants of the deceased through such compassionate appointment should be deducted from the compensation computed and found payable to the claimants.
15. Decision in case of Bhakra Beas Management Board (supra) therefore, must be viewed in light of special facts in which same was rendered. It was a case wherein apparently the defendant was the employer. The employee died in a vehicular accident. It appears that he was travelling in the Jeep owned by the employer. The driver of the Jeep was held negligent in causing the accident. The employer had immediately upon death offered appointment on compassionate grounds to the widow of the deceased. The employer had also provided residential accommodation to her. It was in this background that the Apex Court was of the opinion that the High Court ought to have taken into account such benefits granted to the widow. While saying so in our humble opinion the Apex Court neither laid down a ratio that in all cases where upon death of a person in a vehicular accident widow or any other family member is appointed on compassionate grounds, all benefits of salary flowing from such appointment must be deducted from the compensation payable to the dependants of the deceased particularly when the employer granting compensation appointment and the defendant who is liable to pay compensation are two different persons. Defendant who has to compensate the dependants of the deceased for the wrong done cannot gain any benefit out of the benevolent act of the employer of the deceased. It is often said, judgment of a Court should not be read as a Euclid's theorem. Ratio of a decision must be understood in the background of the case in which the decision has been rendered.
16. Single Judge of Punjab and Haryana High Court in case of New India Assurance Company Limited through its Deputy Manager, Chandigarh v. Smt. Santosh Wife of Ajay Kumar reported in 2011 ACJ 2761 noticed the decision of the Apex Court in case of Bhakra Beas Management Board (supra). The question ofcourse presented before the Court was whether ex gratia payments received by the family of the deceased paid by the Government upon death should be adjusted towards compensation payable to the dependants? In para. 11 learned Judge observed that in Bhakra Beas Management Board (supra) the fact that wife was given compassionate appointment and also provided with accommodation was taken into consideration to scale down the extent of entitlement, although not taken as completely wiping out the claim. Learned Judge further observed that if under the compassionate scheme, a widower a member of the family is granted an employment, the aspect of providing employment alone is the result of death. The salary, which such a person obtains on such employment is a consideration for the services rendered by such person only. Therefore, the salary earned by such a person cannot be deducted.
17. We also find that in case of Bhakra Beas Management Board (supra), the Apex Court did not disturb the basic ratio laid down in case of Helen C. Rebello (supra) wherein it was held that the amount to be deducted would not include that which the claimant receives on account of other forms of deaths, which he would have received even apart from accidental death. It is well known that the scheme for compassionate appointment is available in case of the person dying in harness whether due to accident, naturally or any other cause. Therefore, benefit of compassionate appointment flowing to a family member of the deceased servant cannot be stated to be one which would be available only upon accidental death. Further the Apex Court in case of Helen C. Rebello (supra) held that amount of loss and gain of one contract cannot be made applicable to loss and gain of another contract and similarly the amount receivable under statute would have no corelation to amount earned by an individual. Subsequent decision in case of Bhakra Beas Management Board (supra) must be seen in light of the fact that defendant paying the compensation for accidental death to the claimants was the same as one who apparently offered employment to his wife on compassionate basis immediately after such death and also provided accommodation for residence. This is the only way in which we are able to reconcile the ratio of the Apex Court laid down in case of Helen C. Rebello (supra) and observations made in case of Bhakra Beas Management Board (supra). In the present case husband died in an accident, sole responsibility of which was fasten on the driver of the Matador who was held grossly negligent in causing such accident. Husband's employer Gujarat Electricity Board had after sometime in tune with the scheme of the compassionate appointment granted employment to his wife, since employee had died in harness. Looked from any angle, the driver or owner of the Matador cannot seek any benefit out of such employment granted by the Gujarat Electricity Board on compassionate grounds to the wife of the deceased.
18. In view of the above observations, we are of the opinion that the tribunal committed serious error in granting compensation of Rs.2,22,372/ to the claimants basing heavy reliance on the fact that widow of the deceased was granted compassionate appointment by the Gujarat Electricity Board. We have already assessed the income of the deceased at Rs.11,250/. For the purpose of dependency benefits of the claimants, a third thereof i.e. 3750/ per month could be set apart for the personal expenditure of the deceased himself leaving net figure of Rs.7500/ per month or Rs.90,000/ per annum for the dependants. We leave the multiplier adopted by the tribunal unchanged and thus work out the dependency benefit at Rs.14,40,000(Rs.90,000/x16). To such amount we would add Rs.25,000/ for loss of estate and Rs.20,000/ for loss of consortium to widow. We allow Rs.5000/ towards transport and expenditure towards post death ceremonies. Thus total sum of Rs.14,90,000/ to be paid under following different heads :
Rs.14,40,000/ dependency benefits Rs.25,000/ loss of estate Rs.20,000/ loss of consortium Rs.5000/ post death ceremonies Rs.14,90,000/ total compensation
19. Additional amount awarded under this judgement shall carry interest at the rate of 7.5% from the date of Claims Petition till actual payment.
20. It is clarified that additional compensation receivable under this judgement shall be apportioned in the ratio of 60% in favour of the appellants in equal measure and remaining 40% shall be shared equally by respondent no.3 and 4 i.e. the parents of the deceased.
21. Out of the additional compensation that the insurance company would deposit under this order, 80% thereof with proportionate cost and interest shall be deposited by the Claims Tribunal in the Fixed Deposit in any nationalised bank of the choice of the claimants for a period of five years. No premature withdrawal of such fixed deposit nor any loan on such fixed deposit shall be permitted. Remaining 20% with proportionate cost and interest shall be disbursed in favour of the appellant no.1 on behalf of both the appellants and the respondents no.3 and 4 in the proportion of apportionment made hereinabove by Account Payee cheque after due verification.
22. With above directions, the First Appeal is disposed of.
(Akil Kureshi,J.) (C.L. Soni,J.) (raghu)