Fulbasiya and Others vs Ramnivas Poddar and Others

Pritinker Diwaker, J.�As all the abovementioned three appeals arise out of the same accident dated 21-8-1998, they are disposed of by this common order. M.A. No. 91/2002 has been preferred by the claimants--the widow and two sons of deceased Lakshan aged about 52 years at the relevant time who died in an accident on 21-8-1998. Tribunal after considering the facts and circumstances of the case awarded a sum of Rs. 60,000/- as compensation to the claimants by the award impugned dated 5-12-2001.

M.A. No. 217/2002 has been preferred by the Insurance Co. assailing the award whereby learned Tribunal has awarded compensation of Rs. 60,000/- in favour of the claimants by fixing the liability of the Insurance Co. According to the Insurance Co., liability cannot be fastened on it as the Development Officer namely, B.L. Khes had issued a fake insurance cover note though he was not competent to do so.

M.A. No. 251/2002 has also been preferred by the Insurance Co. against the said award whereby injured/respondent No. 1-Kalpana has been awarded a sum of Rs. 20,000/- as compensation.

Facts of the case in brief are that on 21-8-1998 when deceased Lakshan and injured Kalpana were travelling in a truck bearing registration No. CIJ 8497, it met with an accident resulting in the death of Lakshan and causing injury to Kalpana. Widow and two sons of deceased Lakshan filed Claim Case No. 211999 before the Motor Accidents Claims Tribunal (for short "Tribunal"), Baikunthpur, District Koriya claiming compensation of Rs. 13,00,000/- whereas injured Kalpana claimed a compensation of Rs. 2,50,000/-. However, by the impugned award learned Tribunal awarded compensation of Rs. 60,000/- in favour of the appellants/claimants of M.A. No. 91/2002 whereas injured Kalpana, the claimant/respondent No. 1 of M.A. No. 251/2002 has been awarded compensation of Rs. 20,000/-.

Counsel for the claimants in M.A. No. 91/2002 submits that learned Tribunal has awarded lump sum amount of Rs. 60,000/- as compensation to the claimants without appreciating the correct legal position. He further submits that learned Tribunal has erred in law in deducting the amount to be received by appellant No. 2 Sudhiyan as his salary after being given compassionate appointment. He submits that the amount received as salary after getting compassionate appointment cannot be deducted while calculating the dependency. In support of this submission, reliance is placed on the decision of the Supreme Court in the matter of Vimal Kanwar and Others Vs. Kishore Dan and Others, , wherein it has been categorically held that the salary received by the claimant after getting compassionate appointment cannot be termed as pecuniary advantage for being deducted. Counsel for the claimants further argued that at the time of death the deceased was working with the SECL and was earning Rs. 47,433.36 per annum as salary. He further submits that even if the multiplier of 11 is applied, the claimants would be entitled to receive the compensation of more than Rs. 2,00,000/-.

In relation to liability of Insurance Co., Counsel for the claimants submits that at the time of accident, the vehicle was insured with the National Insurance Co. and the question of cover note being issued by B.L. Khes who was subsequently suspended, is of no help to the Insurance Co. He submits that the point of issuance of cover note by B.L. Khes has already been adjudicated by this Court in the matter of Firoz Mohammed Vs. Fulbasia and Another, in the matter of National Insurance Co. Vs. Bagarsai and others, in Misc. Appeal No. 104/2001 as well as two other connected appeals.

Replying to this argument of the Counsel for the claimants, it has been argued by the Counsel for the Insurance Co. that once the compassionate appointment has been given to Sudhiyan (appellant No. 2), dependency is automatically reduced and thus the Tribunal was fully justified in awarding the lump sum compensation of Rs. 60,000/- to the claimants.

In relation to M.A. Nos. 217/2002 and 251/2002, it has been argued by the Counsel appearing for the Insurance Co. that once the Development Officer, B.L. Khes was under suspension, any amount received by him towards the insurance premium or any fake cover note issued by him, has no value and merely on that basis liability of the Insurance Co. cannot be fastened.

Heard Counsel for the parties and perused the documents on record.

It is not disputed by anyone that at the time of accident the deceased was an employee of SECL. It is also not disputed that no salary slip or related document has been filed and proved by the claimants. Tribunal has erred in law in awarding just Rs. 60,000/- as lump sum compensation to the claimants on the ground that the compassionate appointment was granted to Sudhiyan (appellant No. 2). Mere compassionate appointment given to him does not disentitle the claimants to receive the just compensation for which they are legally entitled. Assuming that at the time of death, per day income of the deceased was Rs. 100/-, his monthly income excluding 6 off days comes to Rs. 2,400/- and likewise the annual income comes to Rs. 28,800/-. Out of this, the deceased must have been spending 1/3rd of Rs. 28,800/- on himself, which comes to Rs. 9,600/- required to be deducted towards personal and living expenses. Thus, after deducting Rs. 9,600/- out of Rs. 28,800/- the total figure comes to Rs. 19,200/- per annum, which the deceased was required to contribute on his kiths and kins. Since at the relevant time, the deceased was aged about 52 years, it appears appropriate for this Court to apply the multiplier of 11 and after doing so the figure of compensation comes to Rs. 2,11,200/-.

That apart, keeping in mind the facts and circumstances of the case, this Court deems it proper to award an additional lump sum amount of Rs. 25,000/- on the heads of funeral expenses, loss of consortium and love and affection. After adding the amount of Rs. 25,000/- the total figure of compensation comes to Rs. 2,36,200 out of which the compensation of Rs. 60,000/- already awarded, needs to be deducted. Ultimately, the extensive calculation makes the claimants entitled to receive the actual amount of compensation as Rs. 1,76,200/-.

Learned Counsel for the parties submits that with a view to avoid the possibility of dispute between the parties before the Tribunal about the period for which the claimants are entitled to receive the interest on the enhanced amount of compensation, the interest needs suitable quantification. This submission appears to be reasonable and while acceding to that, the interest on the enhanced compensation amount is quantified at Rs. 75,000/-. Thus, by adding an interest amount of Rs. 75,000/- to the actual compensation calculated above, the total sum which the claimants would now receive comes to Rs. 2,51,200/-.

In sum and substance, it is held that now the claimants would be entitled to get overall amount of compensation as Rs. 2,51,200/- inclusive of interest quantified as above.

So far as the appeals preferred by the Insurance Co. are concerned, in the case of Firoz Mohammed (supra), where premium was taken by B.L. Khes, Development Officer prior to 2-12-1999, i.e., prior to the date of his suspension and the notice published by the Insurance Co. in Nav Bharat, dated 11-3-2000, it has been held by this Court "whether Shri B.L. Khes, Development Officer, was authorised on 20-11-1999 to issue cover note or not, is a matter between the Insurance Co. and its officer and the owner cannot be made to suffer on account of the act of the officers of the Insurance Co.". In view of above, the appeal preferred by the claimants is allowed to the extent indicated above. However, the appeals preferred by the National Insurance Co. being without any substance are hereby dismissed.