IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 26th DAY OF JULY, 2019 PRESENT THE HON’BLE MRS. JUSTICE B.V.NAGARATHNA AND THE HON’BLE MR. JUSTICE K. NATARAJAN M.F.A. No.16/2018 (MV-D) C/w M.F.A. No.2222/2018 (MV-D) In M.F.A. No.16/2018:
BETWEEN:
THE REGIONAL MANAGER, REGIONAL OFFICE, UNITED INDIA INSURANCE CO. LTD., 6TH FLOOR, KRISHI BHAVAN BUILDING, HUDSON CIRCLE, NRUPATHUNGA ROAD, BENGALURU – 560 009.
REP. BY ITS DEPUTY MANAGER SMT. SUDHA D. RAO. ... APPELLANT (BY SRI B.C.SEETHARAMA RAO, ADVOCATE) AND:
1. SRI H.C. NAGABHUSHAN, AGED ABOUT 63 YEARS, S/O. LATE H.S. CHANDRASHEKAR, 2. SMT. ARUNA BHUSHAN, AGED ABOUT 55 YEARS, W/O. SRI H.C. NAGABHUSHAN, BOTH ARE RESIDING AT NO.2302/2007, 4TH CROSS, AISHWARYA APARTMENTS, PAMPANAGAR, RPC LAYOUT, VIJAYANAGAR II STAGE, HAMPINAGAR, BENGALURU – 560 104.
3. SRI SELLAPPAN, MAJOR IN AGE, S/O. MR. KUPPANNA GOUNDER, AT NO.62, MAIN ROAD, A.S. PETTAI, NAMAKKAL – 637 001. (OWNER OF LORRY NO.TN.28/A-1918) 4. SRI T.B. SUBRAMANYAM, MAJOR IN AGE, RESIDING AT NO. 29, 2ND MODEL HOUSE STREET, BASAVANAGUDI, BENGALURU – 560 004.
(OWNER OF CAR NO.KA.51/MA-8798) 5. THE NEW INDIA ASSURANCE CO. LTD., LAXMI COMPLEX, M.G. ROAD, BANGALORE – 560 001, (INSURER OF CAR NO.KA-51/MA-8798) ... RESPONDENTS (BY SRI A.K. BHAT, ADVOCATE FOR SRI THIPPESWAMY B.C., ADVOCATE FOR R-1 & R-2; NOTICE TO R-3 TO R-5 ARE DISPENSED WITH) THIS MFA IS FILED UNDER SECTION 173(1) OF MOTOR VEHICLES ACT AGAINST THE JUDGMENT AND AWARD DATED 26.09.2017 PASSED IN MVC NO.4209/2015 ON THE FILE OF VII ADDITIONAL JUDGE, XXXII ACMM & MACT, COURT OF SMALL CAUSES, BENGALURU, AWARDING COMPENSATION OF RS.94,31,739/- WITH INTEREST @ 8% P.A. FROM THE DATE OF THE CLAIM PETITION TILL ITS REALISATION.
In M.F.A. No.2222/2018:
BETWEEN:
1. SRI H.C. NAGABUSHAN S/O. LATE H.S. CHANDRASEKHAR, AGED ABOUT 64 YEARS, 2. SMT. ARUNA BHUSHAN, W/O. H.C. NAGABUSHAN, AGED ABOUT 56 YEARS, BOTH ARE R/AT NO.2302/2017, 4TH CROSS, AISHWARYA APARTMENTS, PAMPANAGAR, RPC LAYOUT, VIJAYANAGAR II STAGE, HAMPINAGAR, BANGALORE – 560 104. ... APPELLANTS (BY SRI A.K. BHAT, ADVOCATE FOR SRI THIPPESWAMY B.C., ADVOCATE) AND:
1. SRI SELLAPPAN S/O. KUPPANNA GOUNDER, MAJOR, R/AT: NO.62, MAIN ROAD, A.S. PETTAI, NAMAKKAL – 637 001.
(OWNER OF THE LORRY BEARING NO.TN-28-AJ-1918) 2. THE REGIONAL MANAGER, REGIONAL OFFICE, THE UNITED INDIA INSURANCE CO. LTD., 6TH FLOOR, KRISHI BHAVAN, HUDSON CIRCLE, NRUPATHUNGA ROAD, BANGALORE – 01.
(INSURER OF THE LORRY BG. NO.TN-28-AJ-1918 VIDE POLICY NO.1709003114p110506970 VALID FROM 01-03-2015 TO 29-02-2016) 3. T.B. SURBAMANYAM NO.29, 2ND MODEL HOUSE STREET, BASAVANGUDI – 560 004. (OWNER OF THE CAR BG.
NO.KA-51-MA-8798) 4. THE NEW INDIA ASSURANCE COMPANY LTD., MAHALAKSHMI COMPLEX, M.G. ROAD, BANGALORE – 560 001.
(INSURER OF THE CAR BG.
NO.KA-51-MA-8798) ... RESPONDENTS (BY SRI B.C. SEETHARAMA RAO, ADVOCATE FOR R-2; NOTICE TO R-1, R-3 AND R-4 ARE DISPENSED WITH) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 26.09.2017 PASSED IN MVC NO.4209/2015 ON THE FILE OF THE VII ADDITIONAL SMALL CAUSES JUDGE, & MACT, COURT OF SMALL CAUSES, BANGALORE, (SCCH-3) PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THESE APPEALS HAVING BEEN HEARD AND RESERVED ON 04/07/2019 AND IT BEING LISTED FOR PRONOUNCEMENT OF JUDGMENT TODAY, NAGARATHNA J., PRONOUNCED THE FOLLOWING:
J U D G M E N T The insurance company has preferred MFA No.16 of 2018 assailing the judgment and award dated 26/09/2017 passed in MVC No.4209 of 2015 by the VII Additional Judge, XXXII ACMM and Motor Accident Claims Tribunal, Court of Small Causes (SCCH-3), Bengaluru, (hereinafter referred to as ‘the Tribunal’ for the sake of brevity) on the quantum of compensation awarded by the Tribunal to the respondents-claimants, while the claimants have preferred MFA No.2222 of 2018 seeking enhancement of compensation.
2. For the sake of convenience, the parties shall be referred to in terms of their ranking/status before the Tribunal.
3. Briefly stated the facts are that, the claimants filed the claim petition under Section 166 of the Motor Vehicles Act, 1988 (for short ‘the Act’) seeking compensation of Rs.4,00,00,000/- (Four crores) on account of the death of Ajay Bhushan @ Ajay Chandra in a road traffic accident on 30/05/2015. The claim petition was preferred by the parents and financial dependants of Ajay Bhushan. According to the claimants, on 03/05/2015 at about 03.30 a.m., [wrongly typed as 30.05.2015 at about 09.32 a.m. in the Tribunal’s judgment], Ajay Bhushan was traveling in a Maruti Alto car bearing registration No.KA-51/MA-8798 along with others and after visiting Gokarna, Sirsi, when they were on National Highway-4, Nelamangala-Bengaluru Road, opposite Nadgir College, Madavara, Dasanapur Hobli, at that time, a lorry bearing registration No.TN-28/AJ-1918 came with high speed, in a rash and negligent manner and dashed against the car. As a result, the inmates of the car including Ajay Bhushan sustained injuries. Ajay was shifted to M.S.Ramaiah Hospital where he was an in-patient and on 30/05/2015 at 09.32 a.m., succumbed to the injuries; the post-mortem examination was conducted and his last rites were performed.
4. According to the claimants, Ajay Bhushan was working as a Senior Engineer at Syanpse Techno Design Innovations Private Limited, Bengaluru and earning a salary of Rs.1,25,000/- per month. That, his death has occurred on account of the negligence on the part of the driver of the lorry. That, Madanayakanahalli police had registered a case against the driver of the lorry in Crime No.199/2015 for the offence punishable under Sections 279 and 304-A of the Indian Penal Code and that the respondents were jointly and severally liable to pay compensation.
5. In response to the notices issued by the Tribunal, respondent Nos.1 and 3 before the Tribunal did not appear, while both the insurance companies appeared and filed their written statements. Respondent No.2-insurance company admitted issuance of policy in respect of the lorry bearing registration No.TN-28/AJ-1918, but denied the material averments of the claim petition and sought for dismissal of the same.
6. Respondent No.4-insurance company contended that the policy issued in respect of the private car was a liability only or an Act policy and that the occupants were not covered under the policy. Hence, the said insurer was not liable to pay any compensation and had sought for dismissal of the claim petition.
7. The Tribunal raised the following issues for its consideration on the basis of the aforesaid rival pleadings:
“1. Whether the petitioners prove that they are the LRs of deceased Sri.Ajay Bhushan @ Ajay Chandra?
2. Whether the petitioners prove that deceased Sri.Ajay Bhushan @ Ajay Chandra was died in RTA arising out of the accident alleged to have been taken place on 03.05.2015 at about 03.30 a.m. on Nelamangala-Bengaluru Road, NH-4 Highway, Opp. NADGIR College, Madavara, Dasanapur Hobli, Bengaluru North due to the rash and negligent driving of the driver of Lorry bearing No.TN-28-AJ-1918 as alleged in the petition?
3. Whether the petitioners are entitled for compensation? If so, what amount & from whom?
4. What order or award? ”
8. In support of their case, the claimants examined the father of the deceased H.C.Nagabhushan as PW-1 and another witness Suresh U.Humberi as PW-2. The claimants produced twenty-five documents which were marked as Exs.P-1 to P-25, while the respondent-insurer examined two witnesses, being the administrative officers of the respective insurance companies as RWs-1 and 2, and they produced five documents which were marked as Exs.R-1 to R5. On the basis of the aforesaid evidence on record, the Tribunal answered issue Nos.1 and 2 in the affirmative; issue No.3 partly in the affirmative and allowed the claim petition in part against respondent Nos.1 and 2, dismissing the same against respondent Nos.3 and 4, by awarding compensation of Rs.94,31,739/- together with interest at the rate of 8% per annum from the date of claim petition till realisation. Being aggrieved by the exorbitant compensation awarded by the Tribunal, MFA No.16 of 2018 has been filed by the insurance company of the offending lorry, while the claimants have sought enhancement of the compensation by filing MFA No.2222 of 2018.
9. We have heard Sri. B.C.Seetharama Rao, learned counsel for the insurance company and Sri.A.K.Bhat for Sri.B.C.Thippeswamy, learned counsel for the claimants and perused the material on record, as well as the original record.
10. Learned counsel for the insurer made three-fold submissions. First is with regard to the quantum of compensation on the head of loss of dependency being on the higher side and the second is with regard to the non-deduction of Rs.14,99,999/- which was received by the claimants from the employer of the deceased under the Group Insurance Scheme from the compensation awarded by the Tribunal. Thirdly, he submitted that the award of interest at the rate of 8% per annum is unreasonable and excessive. In support of his submissions, he has relied upon certain decisions, which shall be referred to during the course of consideration of the submissions of the learned counsel for the insurance company.
11. Per contra, learned counsel for the respondent-claimants supported the judgment and award of the Tribunal and contended that the same would not call for any interference at the hands of this Court and that there is no merit in the appeal filed by the insurance company and the same be dismissed. At the same time, he contended that the award of compensation by the Tribunal being on the lower side, it may be enhanced by re-assessing the same and by allowing the appeal filed by the claimants.
12. By way of reply, learned counsel for the Insurer reiterated his submissions and sought for dismissal of the appeal filed by the claimants.
13. Having heard learned counsel for the respective parties, the following points would arise for our consideration:
“1. Whether the award of compensation of Rs.92,23,248/- on the head of loss of dependency as well as other heads is just and proper or calls for enhancement or a reduction?
2. Whether a sum of Rs.14,99,999/- received by the claimants from the employer of the deceased under Group Insurance Scheme ought to be deducted from the over all compensation awarded by the Tribunal?
3. Whether the award of interest at the rate of 8% per annum is exorbitant and therefore, calls for a reduction?
4. What order? ”
14. The fact that, Ajay Bhushan son of claimants died on 30/05/2015 at about 09:32 a.m. while he was undergoing treatment for the injuries sustained in a road traffic accident, which occurred on 03/05/2015 at about 03:30 a.m. when he was traveling along with others in a Maruti Alto car bearing registration No.KA-51/MA-8798 on Nelamangala- Bengaluru Road (NH-4) when at that time, a lorry bearing registration No.TN-28/AJ-1918 was driven in a rash and negligent manner endangering human life and collided with the car, resulting in the death of Ajay Bhushan, has been established by the claimants. The controversy in this appeal is regarding the quantum of compensation awarded by the Tribunal. The Tribunal has awarded compensation of Rs.94,31,739/- with interest at the rate of 8% per annum from the date of petition till realisation, in the following manner:
Sl.
No.
Heads of compensation Amount awarded 1. Loss of dependency Rs.92,23,248/-
2. Loss of love and affection Rs.40,000/-
3. Loss of estate Rs.10,000/-
4. Transportation of dead body and funeral expenses Rs.20,000/-
5. Medical expenses Rs.1,38,491/-
TOTAL: Rs.94,31,739/-
15. The first point for consideration is whether the award of compensation on the head of loss of dependency at Rs.92,23,248/- is exorbitant. In this regard, it is noted that the claimants had pleaded that the deceased Ajay Bhushan was working as a Senior Engineer in Syanpse Techno Design Innovations Private Limited, Bengaluru and earning Rs.1,25,000/- per month. The pay slip for the month of March 2015 at Ex.P-18 shows that he had received Rs.1,05,783/-. The claimants had also examined Senior H.R. Manager as PW-2. He stated that Ajay Bhushan was receiving salary of Rs.60,283/- per month and that he was having another 35 years of service and promotions. The Tribunal considered Rs.60,283/- as the monthly salary as per pay slip Ex.P-20 which was for the month of May 2015. On that, a sum of Rs.2,250/- towards arrears of salary, Rs.3,647/- towards Income Tax, Rs.200/- towards Professional Tax and Rs.1,100/- towards sodexo deduction, in all Rs.7,197/- would have to be deducted. Consequently, the net salary would be Rs.53,086/-. 40% of the said salary (Rs.21,234/-) has to be added towards future prospects which totals to Rs.74,320/-. Since, the claimants are his parents and the deceased was a bachelor, 50% of the said amount (Rs.37,160/-) would have to be deducted towards personal expenses of the deceased. The same has to be anualised (multiplied by 12) and by applying the multiplier of ‘17’ as the deceased was 27 years of age, the compensation on the head of loss of dependency would be Rs.75,80,640/- [i.e., Rs.37,160/- x 12 x ‘17’], instead of Rs.92,23,248/- as awarded by the Tribunal.
16. Further, the claimants have spent Rs.1,38,491/- towards medical expenses. The same has been awarded by the Tribunal and it is retained. As per the dictum of the Hon’ble Supreme Court in the case of Magma General Insurance Co. Ltd vs. Nanu Ram Alias Chuhru Ram, [2018 ACJ 2782], claimant Nos.1 and 2 being the parents are entitled for Rs.30,000/- each towards loss of filial consortium.
Further, the claimants are entitled to a sum of Rs.15,000/- towards funeral and transportation expenses, and Rs.15,000/- towards loss of estate. Thus, the claimants are entitled to a re-assessed compensation of Rs.78,09,131/-. Therefore, the compensation awarded by the Tribunal is reduced to Rs.78,09,131/- from Rs.94,31,739/-. Hence, we answer point No.1 in favour of the insurer and against the claimants.
17. The next point for consideration is as to whether the award of Rs.14,99,999/- under the Group Insurance Scheme by the employer would have to be deducted from the said compensation. In this regard, learned counsel for the appellant-insurer relied upon the judgment of the Hon’ble Supreme Court in Mrs.Helen C.Rebello and others vs. Maharashtra State Road Transport Corporation and another, [AIR 1998 SC 3191(1)] (Helen Rebello), wherein the Hon’ble Supreme Court while delineating on the expression just compensation contended that any pecuniary advantage received by the claimants which has a co-relation with the accidental death and no other form of death, ought to be deducted as no person can have a windfall out of a misfortune. It was contended that if any amount is 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 out of such insurance on the happening of such incident may be an amount liable for deduction.
18. Per contra, reference was also made to Rajeshwari G. Bhuyar and others Vs. Sindhu Travels and another, [2017 ACJ 87], (Rajeshwari G.Bhuyar) by learned counsel for the respondent- claimants to contend that the fruits of an amount received through contributions/premium made by the insured or the employer of the deceased cannot be deducted out of the amount receivable under the Motor Vehicles Act.
19. Learned counsel for the claimants further relied upon Sebastiani Lakra and Others vs. National Insurance Company Limited and another, [AIR 2018 SC 504], (Sebastiani Lakra) wherein after referring to Helen Rebello, it has been observed that law is well settled that deductions cannot be allowed from the amount of compensation either on account of insurance, or on account of pensionary benefits or gratuity or grant of employment to a kin of the deceased. The main reason is that all these amounts are earned by the deceased on account of contractual relations entered into by him with others including employer. It cannot be said that these amounts accrued to the dependents or the legal heirs of the deceased on account of his death in a motor vehicle accident. That the claimants/dependents are entitled to just compensation and any advantage which accrues to the estate of the deceased or to his dependents as a result of some contract or act which the deceased performed in his life time cannot be said to be the outcome or result of the death of the deceased even though these amounts may go into the hands of the dependents only after his death. Further, the Hon’ble Supreme Court has observed that deduction can be ordered only where the tort-feasor satisfies the Court that the amount has accrued to the claimants only on account of death of the deceased in a motor vehicle accident.
20. In Helen Rebello’s case, the observations of the Hon’ble Supreme Court on the pecuniary advantage received by claimants to be deductible in the case of an accidental death or other form of death are apposite and are extracted as under:
“ 33. So far as the general principle of estimating damages under the common law is concerned, it is settled that the pecuniary loss can be ascertained only by balancing on one hand, the loss to the claimant of the future pecuniary benefits that would have accrued to him but for the death with the ‘pecuniary advantage’ which from whatever source comes to him by reason of the death. In other words, it is the balancing of loss and gain of the claimant occasioned by the death. But this has to change its colour to the extent a statute intends to do. Thus, this has to be interpreted in the light of the provisions of the Motor Vehicles Act, 1939. It is very clear, to which there could be 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, co-relating 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 motor vehicle, would not be covered under the Motor Vehicles Act. Thus, the application of general principle under the common law of loss and gain for the computation of compensation under this Act must co-relate to this type of injury or deaths, viz., accidental. If the words ‘pecuniary advantage’ from whatever source are to be interpreted to mean any form of death under this Act it would dilute 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 heritable assets including what is willed by the deceased etc. This would obliterate both, all possible conferment of economic security to the claimant by the deceased and the intentions of the legislature. By such an interpretation the tortfeasor in spite of his wrongful act or negligence, which contributes to the death, 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 accident death. Thus, under the present Act whatever pecuniary advantage is received by the claimant, from whatever source, would only mean which comes to the claimant on account of the accidental death and not other form of death. The constitution of the Motor Accidents Claims Tribunal itself under Section 110, is as the Section states;
“....for the purpose of adjudicating upon claims for compensation in respect of accidents involving the death of, or bodily injury to, ”
34. Thus, it would not include that which claimant receives on account other form of deaths, which he would have received even apart from accidental death. Thus, such pecuniary advantage would have no correlation to the accidental death for which compensation is computed. Any amount received or receivable not 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 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, in the course of employment of an employee.
35. 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 co-relation between the two amounts. Not even remotely. How can an amount of loss and gain of one contract could be made applicable to the loss and gain of another contract. Similarly, how an amount receivable under a statute has any co-relation with an amount earned by an individual. Principle of loss and gain has to be on the same place within the same sphere, of course, subject to the contract to the contrary or any provisions of law.
36. 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 cash, bank balance, shares, fixed deposits, etc. though are all a pecuniary advantage receivable by the heirs on account of one’s death but all these have no co-relation with the amount receivable under a statute occasioned only on account of accidental death. How could such an amount come within the periphery of the Motor Vehicles Act to be termed as ‘pecuniary advantage’ liable for deduction. When we seek the principle of loss and gain, it has to be on similar and same plane having nexus inter se between them and not to which, there is no semblance of any co-relation. The insured (deceased) contributes his own money for which he receives the amount has no co- relation to the compensation computed as against tortfeasor for his negligence on account of accident. As aforesaid, the amount receivable as compensation under the Act is on account of the injury or death without making any contribution towards it, then how can 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 receivable under the life insurance policy is contractual. ”
(emphasised in the Report) 21. That in Sebastini Lakra, at paragraph 12, the Hon’ble Supreme Court has observed as under:
“ 12. The law is well-settled that deductions cannot be allowed from the amount of compensation either on account of insurance, or on account of pensionary benefits or gratuity or grant of employment to a kin of the deceased. The main reason is that all these amounts are earned by the deceased on account of contractual relations entered into by him with others. It cannot be said that these amounts accrued to the dependents or the legal heirs of the deceased on account of his death in a motor vehicle accident. The claimants/dependents are entitled to ‘just compensation’ under the Motor Vehicles Act as a result of the death of the deceased in a motor vehicle accident. Therefore, the natural corollary is that the advantage which accrues to the estate of the deceased or to his dependents as a result of some contract or act which the deceased performed in his life time cannot be said to be the outcome or result of the death of the deceased even though these amounts may go into the hands of the dependents only after his death. ”
22. Rajeshwari G.Bhuyar was decided by a Division Bench of this Court wherein, the amount received by claimants under group personal accident claim settlement for which premium was being paid by the employer was disallowed from being deducted from the compensation.
23. PW-2 Suresh U.Humberi, Senior H.R. Manager at the office of Syanpse Techno Design Innovations Private Limited, Bengaluru was examined by the claimants wherein in the cross-examination he admitted that the group insurance policy (GIS) was also taken for the deceased and that a sum of Rs.14,99,999/- was paid to the parents of the deceased. But, no document was produced in that regard. In what context a sum of Rs.14,99,999/- was paid to the parents of the deceased under the GIS is not known, as the said evidence has not been brought on record. Whether the said amount was paid on account of the death of Ajay Bhushan in the road traffic accident as in the instant case or whether the said amount would have been paid to the parents of the deceased Ajay Bhushan even if his death had occurred in any other manner, is not known. Further, as the Hon’ble Supreme Court has observed in Sebastiani Lakra, the said benefit is given to the employee i.e., the deceased Ajay Bhushan’s parents in the instant case, on account of his employment in Syanpse Techno Design Innovations Private Limited, Bengaluru. The said amount arises out of the contractual relationship and there is no material on record to correlate the said payment to the death of Ajay Bhushan due to the accident in question. If at all any such payment could have been deducted, it ought to be directly related to the death of Ajay Bhushan, which occurred on account of the road traffic accident in respect of which the claim petition has been filed under Section 166 of the Motor Vehicles Act, 1988 seeking compensation on various heads. It is only in order to avoid duplication in payment or an unjust enrichment so to say, that such a deduction could be made, if permitted. But, in the instant case, we cannot hold that the payment of Rs.14,99,999/- was made by the employer of Ajay Bhushan to his parents on account of the death of Ajay Bhushan in the road traffic accident with regard to which the claim petition was filed by his parents. If the said payment would have been paid to them even otherwise, i.e., on account of the death of Ajay Bhushan due to any other reason that had caused his death resulting in the cessation of his service with the employer and as a means of succor to the parents or family of the deceased, then the same cannot be related to compensation being sought in the instant case under Section 166 of the Act due to death arising out of the road traffic accident on account of the tortious negligence on the part of the driver of the offending lorry. Hence, for the aforesaid reasons, point No.2 is answered in favour of the respondents/claimants and it is held that the sum of Rs.14,99,999/- is not deductible from the amount of compensation awarded by the Tribunal.
24. This takes us to point No.3 which is with regard to the rate of interest awarded by the Tribunal on the compensation. We find that there is considerable force in the submission of the learned counsel for the appellant/insurer that normally the Courts/Tribunals are awarding interest at the rate of 6% per annum on the compensation amount and in the instant case, awarding 8% interest per annum is exorbitant and on the higher side and without any reason being assigned therefor. Hence, we reduce the rate of interest and the reassessed compensation shall carry interest at the rate of 6% per annum. Point No.3 is answered in favour of the insurance company.
25. In the result, the appeal filed by the insurance company is allowed in part and the appeal filed by the claimants is dismissed.
Claimant Nos.1 and 2 together are entitled to equal share in the amount of compensation with interest.
Out of the compensation awarded, 50% of the compensation awarded to claimant No.1 and 75% of the compensation awarded to claimant No.2 shall be deposited in any Post Office and/or Nationalised Bank account for an initial period of ten years. They shall be entitled to draw periodical interest on the said deposit. The balance compensation shall be released to them after due identification.
The insurance company shall deposit the balance compensation amount with up to date interest before the Tribunal within a period of four weeks from the date of receipt of a certified copy of this judgment, in the event of same has not yet been deposited.
The amount in deposit be transmitted to the Tribunal forthwith.
Parties to bear their respective costs.
Sd/- JUDGE RK/-
Sd/- JUDGE