9911796707
TMI Blog1998 (9) TMI 681X X X X Extracts X X X X X X X X Extracts X X X X ..... of appellants Nos.2 to 6, was travelling in the Maharashtra State Road Transport Corporation bus from Rathare Badruk to Pune on 12th April, 1973 at about 4.00 P.M. when this bus passed the village Umbraj and came near village Kotri near milestone No. 89/4, Karnataka State Transport bus was seen coming from the opposite direction, i.e., from Satara side towards Kolhapur. The drivers of the two buses were not able to control their buses resulting into collision between the two, seriously injuring the deceased clemant Rebello and Mr. Vincy John Pereira, in which Rebello received multiple fractures and died on the spot. The appellants filed a Specie Civil Suit No. 24 of 1975 against the aforesaid two State Road Transport Corporations. It was averred in the plaint that the deceased was aged about 40 years and was the sole bread winner of the family. He was a well-known boat builder and businessman of the Bassein. He was doing business in partnership under the name and style of Marine Engineering Works. He was a person of great skill and hard worker. He was a person of robust health and sober habits. His income from the business and other activities was about Rs- 40,000/- per annum. He ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion. However, the appeal (No. 209/81) of the appellants was dismissed as it could not be pressed in view of the decision of the Bombay High Court, as aforesaid. It is against this judgment; this appeal has been preferred by the appellants. At the outset, learned counsel, appearing for the respondents made a preliminary objection that this appeal is not maintainable since the appeal in the High Court was dismissed as not pressed. We have no difficulty in holding that this preliminary objection of the respondents has no merit. We find that the High Court had rejected the appeal with the following observation: As regards the other appeal, bearing No.209 of 1981, Mr. Chaphkar, the learned counsel for the appellants, has urged that in view of the (Full Bench) decision of this Court, he does not press the appeal as the same does not survive. (Full Bench, was wrongly recorded for the Division Bench) This only reveals that since the question of deduction, as aforesaid being covered by the earlier decision of the same court, he could not press the point in that appeal in that court. It is for this reason the appellants challenge this point before us for our consideration. In t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tention to the judgments reported in Union of India v. S. Ghosh, AIR 1973 Pat 129, Sushila Devi v. lbrahim, AIR 1974 Madh Pra 181; Sabha Pati v. Rameshwar Singh, 1973 Acc CJ 319 (Orissa High Court) and Automobiles Transport v Dewalal AIR 1977 Raj 121, and a few other judgments of the same courts taking the contrary view. We may at once observe that Patna High Court supports deduction only of such policy amounts as are subscribed to meet accident contingency and no other policy amounts. It rather supports Mr. Zaveri's contention and not that of Mr. Dwivedee, Mr. Zaveri also drew our attention to some other judgments of Delhi High Court, including in the case of Orissa Road Transport Co. Ltd. v. Sibananda Pattanak, 1976 ACC CJ 497: (AIR 1976 Orissa 205) which justify deduction only of a portion and not of the entire policy amounts. After recording the divergent options by the various High Courts in India, said decision itself records the state of uncertainty in the following terms: - The answer turns really on whether such policy amount can be said to be pecuniary advantage' that come to the claimants 'by reason of the death of the deceased?' That such amount ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly are compensatory and not punitive damages. It records from the decided cases that there may arise variety of circumstances giving rise to different consideration and it is by no means easy to lay down any inflexible rule. In fact, answer to the question raised in this appeal would mainly depend on defining this pecuniary benefit in the context of the law under the Motor Vehicles Act with its preceding historical facts. The state of fluidity shows writ at large when the court records while considering the 'pecuniary benefit' by further circumscribing its periphery which is evident from the following: It is nobody's case that it was an accident policy entitling the claimants to such amount, on the death of the deceased only in such an accident, and the amount could not have been received by them, had the death been. due to otherwise than such an accident. We express no opinion if this could have made any difference as there is no unanimity in the decided cases as to the liability of even such amounts to deduction from compensation . Leaving this state of affairs so far as Indian courts are concerned, we may now advert to the courts in England, right f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 939 Act, it is not necessary to go into this question In this case, we would be examining whether there is difference of language between 1855 Act and 1939 Act or not, if yes, what difference it would makes. Now we refer to the relevant provisions both of 1855 Act and 1939 Act. Relevant section of the Fatal Accidents Act, 1855 is quoted here under; (A) Suit for compensation to the family of a person for loss occasioned to it by his death by actionable wrong. - Whenever the death of a person shall be caused by wrongful act, neglect, or default, and the act neglect or default is such as would (if death had not ensued) have entitled the party injured to maintain an action and recover damages: in respect thereof, the party who would have been liable if death had 3101 ensued, shall be liable to an action or suit for damages, notwithstanding the death of the person, injured, and although the death shall have been caused under such circumstances as amount in law to felony or other crime. And in every such action, the court may give such damages as it may think, proportioned to the loss resulting from such death to the parties respectively, for whom and 'for whose benefit such a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... really it would be the most unreasonable think in the world if he were not to be allowed to get it, because a man pays his premiums on these insurances against accidents with the intention and object of getting them back again, if he should have the misfortune to meet with an accident and be injured. In this decision, another earlier decision is also referred, which may have some relevance, is quoted here under: It is not worthwhile to go into it, but the subject of insurances will be found to have been thoroughly discussed a few years ago in Dalby V. India and London Life Assurance Co. (1854 (15) C.B. 365) in the Court of Common Pleas. A man pays the premiums upon these accident policies upon this kind of footing, namely, that his right to an indemnity in case of an accident shall be an equivalent for the mischief or injury that happens to him. He gets more, no doubt, if the mischief happens than all the premiums which he has paid would amount to; but he runs the chance that he will not get anything at all; and therefore, it is, I say, that he ought to have this sum in addition to the damages that he may have sustained at the hands of the defendants by reason of the acc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sion. How arc damages for his financial loss to be assessed? In particular how is the disablement pension to be dealt with? The authorities are not consistent with each other, so I find it necessary to begin by considering general principles. Two questions were raised for the adjudication, first what did the appellant lose as a result of the accident? What are the sums which he or his dependents would have received but the the accident but which, by reason of the accident, he or his dependents can no longer get? And second, what are the sums which he or his dependents did in fact receive as a result of the accident but which he or his dependents would not have received if there had been no accident? The Court while dealing with the second point also felt the same difficulty, to which we are in, which is recorded hereunder: None of the noble and learned Lords who took part gave it more than a passing reference, and I am satisfied that none of them intended to go out of their way to pronounce on it. Before Gourley's case (1955 (3) All.E.R. 796) it was well established that there was no universal rule with regard to sums which came to the plaintiff as a result of the ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gency occurs the claimant, the gainer as he receives the amount even before paying the full premiums and the gain is to the proportion of the balance unpaid premium, whether it is injury or death. A Large number of persons, under the policy may live upto the maturity of policy by paying full premium and the contingency of injury or death may not happen. On each of such. matured policies. Life Insurance Corporation has their gain in mind enters into its business, to offer to the policy holders in term, in case of happening of the said contingency to pay the full amount assured, if it takes place earlier, without paying the full premium. It is this game of gain or loss the Life Insurance Corporation enters into the contract. This fact is revealed by the Preamble of the Life Insurance Corporation Act, 1956 {Act No. 31 of 1956), quoted hereunder: An Act to provide for the Nationalization of life insurance business in India by transferring all such business to a Corporation established for the purpose and to provide for the regulation, and control of the business of the Corporation and for matters connected therewith or incidental thereto. Many invest through this policy for var ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts, the heirs of Rajaratnam, filed a suit against this company, claiming compensation under Section I of the Fatal Accidents Act, 1855 for the loss of pecuniary benefit sustained by them personally and under Section 2 for the loss sustained by the estate on account of the death of Rajaratnam. 'the Court awarded damages to the claimants. On appeal to the High Court, it confirmed the compensation awarded with some modification in the quantum of compensation. In this background, this Court was called upon to decide the limited question raised by the counsel for the appellant, which is evident from the following: Learned counsel for the appellants raised before us the following points: (I) The finding of the High Court that the bus was driven at an excessive speed at the place where the accident occurred, based on probabilities, was erroneous. (2) The concurrent finding of the two courts' that respondents 2 to 7 would be entitled to damages in a sum of ₹ 25,200/- for the loss of pecuniary advantage to them was not based upon any acceptable evidence but only on surmises. (3) The High Court went wrong in awarding damages separately for loss of expectation of life under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rtained accurately, but must necessarily be an estimate, or even partly a conjecture. Shortly stated, the general principle is that the pecuniary loss can be ascertained only by balancing on the one hand the loss to the claimants of the futile pecuniary benefit and on the other any pecuniary advantage which from whatever source comes to them by reason of the death, that is, the balance of loss and gain to a dependent by the death must be ascertained. This Court in Gobald Motor Service (supra) considering the quantum of damages under Sections I and 2 of the Fatal Accidents Act, 1855, referred to the said principle as enunciated in the English decisions, since our provisions under the Act in consideration, was similar to Section 9 of the English Fetal Accidents Act 1846. This Court was neither called upon to consider computing damages under the Motor Vehicles Act nor to consider any form of deductions, whether justified under the Motor Vehicles Act. We have already referred to above the Section (1A) of the Fatal Accidents Act, 1855 and Section 110-B of the Motor Vehicles Act, 1939 under which compensation is payable to the claimant. Section I of 1855 Act was renumbered as Sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of fixing compensation under that provision is wide. Even if we assurance (we do not propose to decide that question in this case) that compensation under that provision has to be fixed on the same basis as is required to be done under Fatal Accidents Act, 1855 (Act 13 of 1855), the pecuniary loss to the aggrieved party would depend upon data which cannot be ascertained accurately but must necessarily be an estimate or even partly a conjecture. The general principle is that the pecuniary loss can be ascertained only by balancing on the one hand the loss to the claimants of the future pecuniary benefit and on the other any pecuniary advantage which from whatever sources come to them by reason of the death, that is, the balance of loss and gain to a dependent by the death must be ascertained - See Gobald Motor Service Ltd. v. R.M.K.Veluswami, (1962) I SCR 929=(AIR 1962 SC 1). This Court, in this case did observe, though did not decide, to which we refer that the use of the words, which appears to it to be just under Section 110-B gives wider power to the Tribunal in the matter of determination of compensation under 1939 Act. There is another case of this Court in which there i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... now brought in under 1939 Act, gains importance. This shows that the word just' was deliberately brought in 110-B of the 1939 Act to enlarge the consideration in computing the compensation which, of course, would include the question of deductibility, if any. This leads us to an irresistible conclusion that principle of computation of the compensation both under the English Fatal Accidents Act, 1846 and under the Indian Fatal Accidents Act, 1855 by the earlier decision, were restrictive in nature In the absence of any guiding words therein, hence the courts applied the general principle at the common law of loss and gain but that would not apply to the considerations under Section 110-B of 1939 Act which enlarges the discretion to deliver better justice to the claimant, in computing the compensation, to see what is just. Thus, we find that all the decisions of the High Courts, which based its interpretation on the principles of these two Acts, viz., English 1846 Act and Indian 1855 Act to hold deductions, were valid cannot be upheld. As we have observed above, the decisions even with reference to the decision of this Court in Gobald Motor Service (supra), where the question w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under Section 110-B of the 1939 Act, has a wider discretion, than what it had under the 1855 Act. Various provisions of this Act indicate legislature's intend conferring visible benefit to the claimant by securing compensation through casting obligation in the tortfeasor and the insurer. Section 94 makes it obligatory to insure a vehicle against third party risk before putting on the road. Statutory obligatory and the limit of the insurer is provided under Section 95. Under Section 95-AA in addition to the deposits under See. 7 of the Insurance Act, 1938. the insurer has to deposit with the Reserve Bank of India or State Bank of India a security of thirty thousand for discharging any liability covered by the insurance policy. Then, Section 96 casts obligation on the insurers to satisfy judgements in respect of third party risks. No settlement between insurer and insured in respect of any claim to which the third party is entitled, is valid unless third party is a party to such settlement under Section 97. All these and such other provisions are clearly beneficial legislation, hence should be interpreted which confers benefit and not which usurp its benefit. This being so, we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 no 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 Vehic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of such insurance on the happening of such incidence may be an amount liable for deduction. However, our legislature has taken not 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. 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 he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le 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 so 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 torfeasor for his negligence on account of accident. As aforesaid, the amount receivable as compensation under the Act is on account of the injury of 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 received under the life insurance policy is contractual. As we have observed the whole scheme of the Act, in relation of the payment of compensation ..... X X X X Extracts X X X X X X X X Extracts X X X X
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