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Judgment
Jayant Patel, J.—Draft amendment granted.
The short facts of the case are that on 21.10.2002, when the claimant was going on the scooter bearing Registration No. GJ-6-F-6626 towards Gorva and at that time, one Tanker bearing Registration No. GTK-4053 dashed with the scooter and the wheel of the Tanker had passed over the leg of the deceased and he sustained serious injuries. As a result thereof, one leg was to be amputated and other leg sustained serious damage and disability. The claim petition was filed initially for a compensation of Rs. 10 lac, which ultimately came to be enhanced to Rs. 40 lac as per the amendment granted by the Tribunal. The tribunal after considering the evidence on record awarded the compensation of Rs. 19,67,000/- with the interest at the rate of 7.5% per annum. It is under these circumstances, the present appeal before this Court.
We have heard Mr. Rajni Mehta, learned Counsel for the Appellant and Mr. Hakim, learned Counsel appearing for the original claimant by caveat.
The first contention raised by the learned Counsel for the Appellant is that after the award was passed by the Tribunal, in the investigation through some private agency, the Appellant has found that the original claimant was also having insurance as per the Company''s Group Insurance Policy with New India Insurance Company Limited and on account of the injury, the said Company i.e., Employer, M/s. Gujarat State Financial Corporation Limited had paid the amount of Rs. 8,96,970/- to the original claimant and it was submitted that under these circumstances, the said amount of Rs. 8,96,970/- paid by the employer of the claimant to him is required to be deducted from the compensation awarded by the Tribunal. The learned Counsel also submitted that to bring on record the aforesaid evidence, Civil Application No. 4378 of 2011 has been filed for additional evidence in the present proceedings. It was submitted that in view of the decision of the Apex Court in the case of Mrs. Helen C. Rebello and Others Vs. Maharashtra State Road Transport Corpn. and Another, since the said amount has not been deducted, which is paid by the employer, it can be said that the Tribunal has committed error, which may be considered in the present appeal. The learned Counsel further relied upon the subsequent decision of the Apex Court in case of United India Insurance Co. Ltd. Vs. Patricia Jean Mahajan and Others Etc. Etc., wherein as per him, the Apex Court has reiterated the same principle as was laid down by it in the earlier decision in case of Helen Rebello (Supra). It was submitted that, therefore, this Court may interfere.
We may record that one of the similar contentions came to be raised for deduction of the amount of compensation on the ground of availability of the pension on account of the death of the deceased in First Appeal No. 1083 of 2011 decided on 4.4.2011 and this Court in the aforesaid matter considered and negatived the said contention by making observations at paragraphs 7 and 8 as under:
As observed earlier, the Tribunal has taken note of the loss being suffered by the family of the deceased on account of the death of the deceased which includes the pay revision, loss of pension, provident fund as well as gratuity which comes to about Rs 8 lakhs. If the pay revision is considered, the dependency benefit would be double. Under these circumstances, the pension being available to the deceased if not considered, could not be said to be erroneous approach on the part of the Tribunal. Apart from the above, we may record that this Court in the case of Revaben and Others Vs. Kantibhai Narottambhai Gohil and Another, has found that the approach on the part of the Tribunal of deduction of pensionary benefit in the compensation is erroneous. The observations were made by the Division Bench of this Court (Coram: C.K. Thakker & Y.B. Bhatt, J.J.) in the aforesaid decision at para 5.2, reads as under:
5.2 Having considered the submissions made by both the counsel and having perused with care the approach of the Tribunal in this regard, the only conclusion we can draw is that the entire approach is based on certain surmises and inferences which are not justified. Moreover, on a question of principle itself, no deduction could have been made from the damages awardable under this head, on account of the family pension which would be available to the claimants on account of the death of the deceased. We have no doubt that no such deduction was permissible. The basic principle underlying the inadmissibility of such deductions is that the damages for the tortuous act which are awardable to the claimants are on the basis that the tortfeasor has committed the acts in question for which he is liable to pay damages. Obviously, the tortfeasor cannot be permitted to take advantage of his own wrong. If in fact deductions were made on account of certain benefits which may accrue to the claimants on account of the death of the deceased and if a set-off is given in respect of these amounts against the damages awardable, it would amount to conferring an advantage upon the tortfeasor. Even on basic principles, no such deduction can be made inasmuch as the benefits which would accrue to the dependents of the deceased are benefits which would even otherwise have accrued to the claimants on the death of the deceased, irrespective of how he had died. These principles are by now well settled and do not merit a lengthy discussion Suffice it to say that these principles have been settled by a Division Bench of this Court in the case of Prataprai Arjandas Dhameja v. Bhupatsing Gagji 1982 ACJ 316 and also in the case of Arunaben v. Mehmoodbhai Imamali Kaji 1983 ACJ 409 .
Under these circumstances, it is not possible to accept the contention of the learned Counsel for the Appellant that for the purpose of dependency benefit, the assessment of the income by the Tribunal was erroneous. Hence, the said contention deserves to be rejected and therefore, rejected.
It is worth noting that as recorded in the above referred observations, three Division Benches of this Court; one in the case Revaben and Others Vs. Kantibhai Narottambhai Gohil and Another, another in case of Prataprai Arjandas Dhameja v. Bhupatsing Gagji, reported in 1982 ACJ 316 ; and third one in case of Arunaben v. Mehmoodbhai Imamali Kaji, reported in 1983 ACJ 409 have taken the view that the tortfeasor cannot be permitted to take advantage of his own wrong and if a set-off is given in respect of these amounts against the damages awardable, it would amount to conferring an advantage upon the tortfeasor. It has also been observed that no such deduction can be made inasmuch as the benefits, which would accrue to the dependent of the deceased are benefits which would even otherwise have accrued to the claimants on the death of the deceased irrespective of how he had died and such principles as per the above referred decision of the Division Benches of this Court are well settled.
Further, even if the contention is considered for the sake of examination that any amount was paid by the employer to the claimant on account of the Group Insurance Scheme, there was no evidence on record to show that the premium was not being deducted from the employee concerned, towards the Group Insurance scheme or that the expenses of such purpose were not passed over. Apart from the above, if the employer has taken the insurance of its employee, may be of Group Insurance Policy and if the employee concerned has claimed the compensation on account of the accident from the employer, who may be one of the tortfeasor, it might attract a different consideration, but in a case where the tortfeasor, who is Appellant herein is not at all concerned with the contract of the Group Insurance, cannot be earn to have premium of its own wrong for the very statutory liability to compensate the injury of the third party as per the provisions of the Motor Vehicle Act read with the contract of Insurance with the owner of the vehicle through which the injury is sustained to the claimant.
The reliance placed upon the decision of the Apex Court in case of Helen C. Rebello (supra) is ill-founded inasmuch as the principles laid down in the said decision by the Apex Court is not that the deduction is to be made, but on the contrary the conclusion recorded by the Apex Court in paragraph 36 the relevant of which reads as under:
... 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 correlation 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.
Further, at paragraph 38, it was found by the Apex Court, relevant of which reads as under:
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 considerations, 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 intents of the legislature under various provisions of the Motor Vehicles Act, 1939.
The same view has been reiterated in the subsequent decision of the Apex Court in the case of United India Insurance Co. Ltd. v. Patricia Jean Mahajan and Ors. (supra). Under these circumstances, reliance upon the decision of the Apex Court is misconceived and is of no help for showing the legal position otherwise.
The aforesaid is coupled with the circumstances that after the conclusion of the case or the proceedings before the Tribunal a new ground is sought to be canvassed, which would require essentially the leading of evidence, including the opportunity of cross-examination by the parties.
Under the circumstances, the contention cannot be accepted and it cannot be said that the Tribunal has committed error in not deducting the amount, if any, paid by the employer to the claimant.
The next contention raised by the learned Counsel for the Appellant is that the disability of the claimant concerned was not properly assessed by the expert and the one who certifies the disability was not the Orthopedic Surgeon competent for such purpose and, therefore, it was submitted that the Tribunal has committed error in relying upon the said evidence of the witness Dr. Uday Ramchandra Puramdare - Ex.46.
We have considered the evidence of the said witness. It is an admitted position that one left leg has been amputated below the knee and the other leg sustained serious disability. It has also come on record that the claimant was Additional General manager with GSFC. If one left leg is amputated such may result into 100% locomotive disability in normal circumstances, but as per the said witness he has relied upon the evidence of Workmen Compensation Act and the disability has accordingly been certified.
In our view, there is amputation of left leg and serious damage and disability to the strength of the right leg and if the Tribunal has relied upon the evidence of the witness, which is less than 100% locomotive disability and has certified to the extent of 87%, such an approach on the part of the Tribunal cannot be said to be erroneous. The pertinent aspect is that the witness in the evidence himself has stated that it could be treated as 100% locomotive permanent disability, keeping in view the nature of work done by the person concerned. Under these circumstances, the said contention cannot be accepted.
It was next contended by the learned Counsel for the Appellant that the multiplier of five given to the claimant is on higher side. It was submitted that after a short period of one-and-a-half years'' service, he was to retire. Under these circumstances, the Tribunal ought not to have given the multiplier of five.
The age of the claimant as sought in the claim petition was 59 years. If the multiplier for fatal case is considered as per the observations of the Apex Court in the case of Smt. Sarla Verma and Others Vs. Delhi Transport Corporation and Another, more particularly the observations made at para 42, the multiplier could be of 9. The another pertinent aspect is that the deceased still had to undergo the next years of his life with one leg with the poor strength and one leg totally amputated. Keeping in view even the normal longevity of 65 to 70 years, if the multiplier of 5 is applied by the Tribunal for assessing the compensation, such an approach cannot be said to be unreasonable or erroneous. Hence, the said contention deserves to be rejected and, therefore, rejected.
It was next contended by the learned Counsel for the Appellant that for next six months, the claimant had received salary from the employer. It was, therefore, submitted that the Tribunal has committed error on the said aspect.
It deserves to be recorded that the total compensation awarded in normal circumstances has to meet with the test on just compensation. As observed earlier, there is 100% locomotive disability and the claimant concerned could not discharge duty. The Tribunal has considered the aspect of monitory benefits by encashment of the leave, which may accrue to the claimant in capacity as the employee of GSFC. Further, another aspect is that the Tribunal has not considered the prospective income while assessing the compensation. Under these circumstances, keeping in view the facts of the present case, if the Tribunal has assessed the compensation by including six months'' leave, which otherwise could have been encashed upon the age of retirement, such an approach cannot be said to be erroneous on the part of the Tribunal.
Hence, the appeal is meritless and, therefore, dismissed.