IN THE GAUHATI HIGH COURT (THE HIGH COURT OF ASSAM: NAGALAND: MIZORAM AND ARUNACHAL PRADESH)

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1 IN THE GAUHATI HIGH COURT (THE HIGH COURT OF ASSAM: NAGALAND: MIZORAM AND ARUNACHAL PRADESH) MAC Appeal No. 4 of Union of India, (Represented by Secy., Ministry of Home Affairs, Govt. of India, New Delhi ) 2. Additional DIG, CRPF, Group Centre, Guwahati 23. -Versus- 1. Musstt. Amala Begum, W/o Late Alim Barlaskar, Vill- Bahadurpur, P.S. Udharband, District- Cachar. 2. Sri Baharul Islam Barlaskar. 3. Musstt. Amina Begum Barlaskar. 4. Sri Aucharnl Islam Barlaskar. 5. Sri Saharul Islam Barlaskar. 6. Sri Rahul Islam Barlaskar. 7. Musstt. Amrana Begum Barlaskar - Appellants. (Respondent Nos. 2 to 7 are children of Late Alim Barlaskar and Respondent Nos. 4 To 7 being minors are represented by their Mother Respondent No. 1) 8. Oriental Insurance Co. Ltd. (Represented by its DM Oriental Insurance Co. Ltd., PWE Rd; Silchar Town) 3 rd Floor, Navadeep Building, Ashram Rd, Ahmedabad ) - Opposite Party.

2 Advocates for the appellant: Smt R. Bora, CGC. Advocates for the respondents: Sri S Banik, Smt B Sarma, Smt B Bora.. PRESENT HON BLE MR. JUSTICE B D AGARWAL Date of hearing : Date of Judgment : JUDGMENT AND ORDER (ORAL) The Judgment and award dated passed by the learned Member, MACT, Cachar, Silchar, Assam in MAC Case No.1632 of 2003 is under challenge in the instant appeal, which has been filed by Union of India. By the said impugned judgment the tribunal has awarded total compensation Rs.7,45,820/- with 6% per annum from the date of filing of the claim application by the legal heirs of the deceased. The compensation amount has been directed to be apportioned equally in between Insurance Company and the Union of India in as much as, the accident took place due to head on collision between two vehicles, one belonging to the CRPF department and the other one was a truck insured with M/S Oriental Insurance Co Limited. 2. Heard Smti R Bora, learned CGC for the appellant and Smti B Sharma, learned counsel for the respondent Nos. 1 to 7 (claimants). The insurance company has not contested the appeal. I have also gone through the impugned judgment and other documents annexed with the memo of appeal.

3 3. During the course of argument, the learned CGC practically challenged the computation of the compensation. Her submission was that as per the Scheme of the Govt. of India issued under Office Memorandum dated legal heirs of the deceased have received ex-gratia amount of Rs.5,00,000/- (Five Lacs) from the central government and a sum of Rs.1,00, 000/- (One Lac) from the State Government and this amount ought to have been deducted from the total compensation by the tribunal. Having not done so at least a sum of Rs.5,00,000/- (Five Lacs) paid by Union of India as exgratia should be deducted from the impugned award and the appellant should be absolved from the liability of payment of Rs.3,72,910/-. 4. On the other hand, Smti Sharma, learned counsel for the claimants submitted that in view of the judgment of the Hon ble Supreme Court rendered in the case of Helen C.Rebello vs- MSRTC, reported in (1991) 1 SCC 90 and also the judgment of Vimal Kanwar & ors. vs- Kishore Dan; reported in (2013) 7 SCC 476 the ex-gratia paid to the legal heirs of the deceased have no co-relation with the accidental death of the claimant s guardian and, as such, ex-gratia payment cannot be deducted from the award amount under the provisions of Motor Vehicle Act, The learned counsel for the respondents also referred to a Division Bench Judgment of the Gauhati High Court rendered in the case of Special Secretary to the Govt. of Nagaland, Home Deptt.-vs- Berila ; reported in (2009) 1 GLR 470 as well as two judgments from the Hon ble Andhra Pradesh High Court given in the case of State of Andhra Pradesh vs- K Puspalata : (2007 ACJ 2038) and an unreported judgment in the case of Union of India vs- Smti S Padmaja. 5. On the other hand, learned CGC relied upon a judgment passed by me in the case of Nungshiton Begum vs- United India Insurance Ltd.; reported in ( 2007) 3 GLR 923. In the aforesaid case of Nungshiton Begum the deceased was the driver of a private vehicle, which was requisitioned by Election Department. After the death of the driver the legal heirs filed a claim

4 case under Workmen Compensation Act, Parallely, the legal heirs also filed a Writ Petition in the High Court and as per the direction of the High Court ex-gratia payment of Rs Lac was made to the claimants. Having regard to the nature of the payment I have held that such ex-gratia payments are broadly within the parameters of Section 140 of the MV Act, which stipulates payment of interim compensation on the principle of no fault liability, thus deductable from the final amount of compensation. The view taken by me in the case of Nungshiton Begum (supra) finds support from the Division Bench Judgment of the Gauhati High Court also. In the case of Berila (supra) their Lordships have summed-up the proposition of law as below: What crystallizes from the above discussion is that while computing the quantum of compensation under the common law, pecuniary advantage, derived by a claimant from every available source, is calculated for the purpose of computing compensation, the Tribunal, under the scheme of the MV Act, 1988, can assess, in India, only that pecuniary advantage, which the claimant may derive because of the accident and not because of the death as such. Thus, such pecuniary advantage, which would have no co-relation to the accidental death, cannot be taken into account for the purpose of computing the compensation receivable by the claimant and not any amount, which would be available to the claimant even if the deceased would have met with death otherwise than by accident. For illustration, if a Government policy be that when an employee of the Government dies, while on duty, an accidental death the Government would make available, as compensation, to the heirs of the deceased employee a particular amount, say rupees one lakh, the amount, which is so received by the heirs of such a deceased, would be deducted from the total compensation, which may have to be made available to the heirs of the deceased employee if the vehicle, which had caused the accident and given rise to the claim for compensation, is of the Government; but the amount, which is receivable by the heirs of such a deceased not because of the accident, but because of the death of the deceased, such as pension, pensionary benefits, insured amount, such amount(s) would not be deducted from the total compensation payable to the heirs of the deceased.

5 6. The Judgments of the Andhra Pradesh High Court are distinguishable on facts. In the case of K Pushpalata (supra) passing reference of payment of ex-gratia was made. His Lordship held that payment of ex-gratia or some such amount either by employer or the Govt. or any such organization, though not under statutory obligation, is out of humanitarian ground and benevolence and taking the services rendered by the deceased there is social responsibility of the employer to give compassionate appointment being a welfare State. In other words, in the aforesaid case, there was no cash payment of ex-gratia whereas, in the appeal before me ex-gratia of Rs. Five Lacs was paid by the Union of India under a particular Scheme. Similarly, in the case of Smti S Padmaja (supra) His Lordship held that claim of compensation under Railways Act is not affected due to payment of any ex-gratia compensation. This authority is also distinguishable in as much as ex-gratia of Rs.5,00,000/- was paid without any statutory scheme. 7. Judgment of the Apex Court rendered in the case of Helen C.Rebello does not help the respondents. In the judgment it has been held that where the employer ensures his employee, as against injury or death arising out of an accident, any amount received out of such insurance is deductable from the total compensation. The entire passage of the judgment is reproduced below for ready reference: 33. Thus, it would not include that which the claimant receives on account of other forms 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 which 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 retrieved out of such insurance on the happening of such incident 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 and in the course of employment of an employee.

6 8. In the case of Vimal Kanwar the Hon ble Supreme Court has held that salary receivable by claimant on his/her appointment on compassionate ground also cannot be termed as pecuniary advantage, liable for deduction. Smti Sharma, learned counsel for the claimants argued that giving a job to a legal heir of the deceased also amount to ex-gratia help to the victim family. According to the learned counsel both compassionate appointment and exgratia payment stands on the same footing since such financial helps are extended when a government employee dies in harness. 9. I respectfully disagree with the proposition propounded by the learned counsel for the respondents. In my considered opinion, when a person is appointed on compassionate ground he receives salary against the services rendered by him. Hence, the salary received by the legal heirs of the deceased cannot be deducted from the total compensation. However, ex-gratia payment is made in cash and in this way it is not comparable with the salary paid to a person on compassionate appointment. On this analogy, the judgment of Vimal Kanwar is also distinguishable on facts. 10. The above apart, in the case of General Manager, KSRTC vs- Sussama Thomas ; reported in (1994) 2 SCC 176 the Hon ble Supreme Court had laid down certain guidelines as to how the compensation should be calculated. Their Lordships have also held that while calculating pecuniary loss and assessing the compensation the court should take into consideration the interest which the claimant may get if the compensation amount is invested with a financial institution. In other words, the amount of compensation is to be cross-checked with the interest amount that is likely to come in the hands of claimant.

7 11. There are scores of judgments from the Hon ble Supreme Court, wherein, it has been observed that the death of a person in a road accident should not turn-up as a boon or bonanza for the victim s family and just compensation has to be assessed on a rational and judicious approach. In the case of Divisional Controller, KSRTC Vs- Mahadeva Shetty; (2003) 7 SCC 197, their Lordships have made the following observations: 15. It has to be kept in view that the Tribunal constituted under the Act as provided in Section 168 is required to make an award determining the amount of compensation which to it appears to be just. It has to be borne in mind that compensation for loss of limbs or life can hardly be weighed in golden scales. Bodily injury is nothing but a deprivation which entitles the claimant to damages. The quantum of damages fixed should be in accordance with the injury. An injury may bring about many consequences like loss of earning capacity, loss of mental pleasure and many such consequential losses. A person becomes entitled to damages for mental and physical loss, his or her life may have been shortened or that he or she cannot enjoy life, which has been curtailed because of physical handicap. The normal expectation of life is impaired. But at the same time it has to be borne in mind that the compensation is not expected to be a windfall for the victim. Statutory provisions clearly indicate that the compensation must be just and iit cannot be a bonanza; not a source of profit but the same should not be a pittance. The courts and tribunals have a duty to weigh the various factors and quantify the amount of compensation, which should be just. What would be just compensation is a vexed question. There can be no golden rule applicable to all cases for measuring the value of human life or a limb. Measure of damages cannot be arrived at by precise mathematical calculations. It would depend upon the particular facts and circumstances, and attending peculiar or special features, if any. Every method or mode adopted for assessing compensation has to be considered in the background of just compensation which is the pivotal consideration. Though by use of the expression which appears to it to be just, a wide discretion is vested in the Tribunal, the determination has to be rational, to be done by a judicious approach and not the outcome of whims, wild guesses and arbitrariness. The expression just denotes equitability, fairness and reasonableness, and non-arbitrariness. If it is not so, it cannot be just. 12. In the case before me, a sum of Rs. 7, 48, 820/- has been awarded to the claimants, which again should be apportioned amongst the Union of India and the Insurance Company at 50:50 ratio. In this way, half of the amount, i.e., Rs.

8 3,72, 910/- with interest must have been paid by the Insurance Company. Along with that amount, the Union of India has paid ex-gratia of Rs. 5,00, 000/- (Five Lacs) and the State Government must have paid another ex-gratia of Rs. 1,00, 000/-, as per the Scheme. If all these amounts are added the claimants must have received more than Rs. Ten Lacs, both from the Government and also from the Insurance Company. If the said amount is invested in a bank the claimants are likely to get 8% per annum, i.e., Rs. 80,000/- per year. To say it differently, the claimants should get more than Rs. 6,600/- per month as interest, whereas, as per the findings of the Tribunal the deceased was contributing only a sum of Rs. 4,720/- per month to his family. Under such circumstances, there is no justification to add the exgratia payments with the compensation amount calculated under Section 166 of the MV Act, Though the liability of the Union of India comes to Rs. 3, 72, 910/- as per the impugned award they have already paid Rs. Five lacs as ex-gratia. Hence, I hold that the appellants are absolved from their liability. The impugned judgment stands interfered with to this extent. 13. In the result, the appeal stands allowed. JUDGE Nivedita/dtg

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