United India Insurance Co. Ltd. vs Gora Devi and Others

S.K. Keshote and Ajay Rastogi, JJ.—This special appeal u/s 18 of the Rajasthan High Court Ordinance, 1949, is directed by non-claimant appellant, United India Insurance Co. Ltd. (for short, ''the appellant company'') against the judgment dated 26.11.1997, of the learned single Judge, in S.B. Civil Miscellaneous Appeal No. 495 of 1995, under the impugned judgment the learned single Judge enhanced the amount of compensation to Rs. 11,10,796 from that of Rs. 5,00,000 awarded by learned Motor Accidents Claims Tribunal, Jaipur City, Jaipur in Claim Case No. 650 of 1992.

The facts of the case, in brief, are that on 23.7.1992 when Ramdhan (since deceased) was going on a motor cycle towards Laxmi Mandir Cinema Hall, Jaipur, one truck bearing No. RJ 14-G 0221, driven rashly and negligently by its driver, struck the motor cycle of the deceased, he was crushed and died on the spot. The appellant company, undisputedly, insured the offending truck. Claimants-respondents are the widow, children, mother of the deceased, they filed the claim petition for compensation against the driver, owner and the insurer of the truck, before the learned Tribunal. The learned Tribunal under its award awarded the amount of compensation aforesaid. On the amount of compensation, the learned Tribunal further ordered for payment of interest by the appellant company at the rate of 12 per cent per annum. The appellant company did not challenge the award of the learned Tribunal before the learned single Judge.

The claimants-respondents filed the aforesaid miscellaneous appeal seeking enhancement of the amount of compensation. Learned single Judge under the impugned judgment partly allowed the appeal of the claimants-respondents and enhanced the amount of the compensation as indicated above. Hence this special appeal.

The learned Counsel for the appellant company vehemently contended that the learned single Judge has committed an error in taking the income of the deceased double of his existing income for the purpose of determination of the compensation to be awarded in favour of the claimants.

The second contention raised by the learned Counsel for the appellant company is that the amount of pensionary benefits received by the widow of the deceased ought to have been deducted from the amount of the economic dependency of the family of the deceased by the learned single Judge. The learned Counsel for the appellant company submitted that on the amount of compensation the income tax was payable and rightly learned Tribunal has deducted Rs. 60,500 under this head.

Lastly, it is contended that the award of interest on the amount of compensation at the rate of 12 per cent per annum is highly excessive.

On the other hand, learned Counsel for the claimants-respondents supported the judgment of the learned single Judge.

We have given our anxious and thoughtful consideration to the rival contentions raised by the learned Counsel for the parties.

The learned Counsel for the appellant company, it appears, has made the first contention, may be under the erroneous impression that the deceased was not a permanent employee. From the facts come on the record and more particularly the document available on the record of the miscellaneous appeal and marked as Exh, 6 in red pencil, we find that the deceased Ramdhan was upper division clerk in the government secretariat. Exh. 6 is the last pay certificate of deceased for the period from 23.7.1992 till the date of his death. It is not gainsaying that after 23.7.1992 the pay of government employees has virtually become 2 1/2 times. It is bound to increase, leaving apart the fact that after regular intervals the Pay Commission is constituted, in addition thereto, the government servant gets yearly increment as well as periodical increase of dearness allowance.

The learned single Judge, in the fact of this case, has rightly placed reliance on the decision of the Hon''ble Supreme Court in General Manager, Kerala State Road Transport Corporation, Trivandrum Vs. Mrs. Susamma Thomas and others, , therein the Supreme Court has taken the future prospects of increase in the income of a government servant in the permanent service for determination of the compensation, as double of the income of the deceased on the date of accident.

The deduction of pension amount, which the widow would have received as family pension, by the Tribunal is ex facie erroneous. The pensionary benefits would have been available to the widow of the deceased government servant irrespective of the fact whether he died in the accident or natural death and it has no relevance to the cause of death of the deceased. Thus it cannot be taken as benefit to the extent to deduct the same from monthly contribution of the deceased making to the family. Our this view is fortified by the decision of the Hon''ble Apex Court in N. Sivammal v. Managing Director, Pandian Roadways Corporation 1985 ACJ 75 (SC). Thus we do not find any error in the approach and decision of the learned single Judge not to deduct the amount of family pension, which the widow of the deceased would have been receiving.

As regards to the deductions made by the learned Tribunal of the amount of income tax from the amount of compensation the same being paid to the Income Tax Department, suffice it to say that the appellant company has not produced any evidence before learned Tribunal to show that the deceased was having a taxable income. From the pay slip, which has been produced on the record before the learned single Judge of the month in which the deceased died, it nowhere transpires that the deceased was having a taxable income. The income tax on the amount of compensation awarded to claimants on the death of their bread-earner, leaving apart the question whether it is payable or not, in the absence of any evidence that the income of the deceased was taxable, the deduction made under the head aforesaid by the learned Tribunal, has rightly been not accepted by the learned single Judge.

The last contention of the learned Counsel for appellant company regarding the award of interest at the rate of 12 per cent per annum on the amount of compensation has no merit and substance. The appellant company did not challenge that part of the award of the Tribunal, hereby it has awarded the interest at the rate of 12 per cent on the amount of compensation in favour of the claimants-respondents by filing appeal or cross-objection. Where the appellant company has not challenged this part of the award before the learned single Judge, it is not open to it to challenge the same in the special appeal. That apart, it is not gainsaying that at the time when the award has been passed by the learned Tribunal, the trend of the court/Tribunal was to award the interest at the rate of 12 per cent per annum on the amount of compensation. In view of these facts and the law as it stood on relevant date, more so when that part of the award of learned Tribunal has not been challenged by the appellant before learned single Judge, this contention cannot be accepted.

As a result of the aforesaid discussion the appeal fails and the same is dismissed. The parties are left to bear their own costs.