Delhi High Court
Cholamandalam Ms General Insurance Co. … vs Usha Gupta And Ors on 22 January, 2025
Author: Neena Bansal Krishna
Bench: Neena Bansal Krishna
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Pronounced on: 22nd January, 2025
+ MAC.APP. 314/2024 & CM APPLs. 36587/2024, 36589/2024
CHOLAMANDALAM MS GENERAL INSURANCE CO. LTD
Plot No. 39, 2nd Floor, Samyak Tower,
Opposite Metro Pillar No. 120,
Pusa Road, New Delhi-110005 .....Appellant
Through: Ms. Suman Bagga, Advocate.
versus
1. USHA GUPTA
W/o Late Shri M.R. Gupta
R/o 66, Paschim Vihar Extension,
New Delhi, West Delhi,
Delhi-110063 .....Respondent No. 1
2. SUNIL GUPTA
S/o Late Shri M.R. Gupta
R/o 66, Paschim Vihar Extension,
New Delhi, West Delhi,
Delhi-110063 .....Respondent No. 2
3. HRITIK (DRIVER)
S/o Shri Inderjeet Singh,
R/o A-823, J.J. Colony,
Madipur, New Delhi .....Respondent No. 3
4. ROSHAN (OWNER)
S/o Shri Inderjeet Singh,
R/o A-823, J.J. Colony,
Madipur, New Delhi .....Respondent No. 4
Through: Mr. Pankaj Gupta, Advocate.
Signature Not Verified
DigitallySigned By:VIKAS
ARORA MAC.APP. 314/2024 Page 1 of 8
Signing Date:22.01.2025
23:06:09
CORAM:
HON'BLE MS. JUSTICE NEENA BANSAL KRISHNA
JUDGMENT
NEENA BANSAL KRISHNA, J.
1. An Appeal under Section 173 Motor Vehicle Act, 1988 has been filed
by the Insurance Company to challenge the Award dated 24.01.2024, vide
which the compensation in the sum of Rs. 13,36,140/- along with interest @
7% per annum has been awarded to the Claimants Respondent No.1&2/wife
and son on account of demise of Sh. M.R. Gupta, aged 80 years, in the road
accident dated 21.11.2021.
2. The Appellant/ Insurance Company has challenged the Impugned
Award on the ground that only Non-Pecuniary Damages ought to have been
granted to the legal heirs of the 80-year-old deceased and no compensation
towards Loss of Dependency could have been paid as there was no evidence
that the 80-year-old deceased was gainfully employed. Further, there was no
loss of income, as the only dependent i.e. the wife is already getting family
pension to the tune of Rs. 20,000/-p.m.
3. Submissions heard and record perused.
4. Briefly stated, on 21.11.2021, at about 12:01 P.M, when the Deceased
was crossing the road near Madipur Police Chowki, Punjabi Bagh, the
offending Vehicle bearing Registration No. DL 8SCW0855 driven at a high
speed, in a rash and negligent manner by the Driver/Hritik/Respondent No.3,
hit the deceased due to which he sustained grievous injuries. He was shifted
to Sri Balaji Action hospital, Paschim Vihar where he died during the
treatment.
Signature Not Verified
DigitallySigned By:VIKAS
ARORA MAC.APP. 314/2024 Page 2 of 8
Signing Date:22.01.2025
23:06:09
5. FIR No. 990/2021 under Section 279/304A IPC, 1860 at P.S. Punjabi
Bagh was registered against the driver/Hritik.
6. The Detailed Accident Report/Claim Petition was filed on
20.09.2022.
7. Vide the Impugned Award dated 24.01.2024 compensation in the sum
of Rs. 13,36,140/- along with interest @ 7% per annum has been awarded to
the Claimants i.e. the Wife and the son of the Deceased.
Loss of Dependency:
8. While calculating Compensation in such unfortunate cases, it must be
borne in mind that while no amount of monetary compensation can replace a
person, but the objective of granting compensation is to grant just and fair
compensation so as to alleviate the financial crisis which may befall the
legal heirs of the deceased and to place them in a position to ensure at least
financial security. With this in mind, the compensation may be calculated in
this case.
9. Admittedly, the deceased, Mr. M.R. Gupta, was a retired
Superintendent from Government Boys Sr. Sec. School, Madipur, Delhi and
on the date of accident, was getting a pension in the sum of Rs.41,737/- per
month, as has been reflected in his Pension Account of the deceased Ex. PW-
l/2 and Particulars of Service of Pensioner Ex. PW-l/3(OSR). Furthermore, it
is not disputed that even after the demise of Late Sh. M.R. Gupta, his
wife/Smt. Usha, is getting the family pension in the sum of Rs.20,000/- per
month.
Signature Not Verified
DigitallySigned By:VIKAS
ARORA MAC.APP. 314/2024 Page 3 of 8
Signing Date:22.01.2025
23:06:09
10. The question however, for consideration is whether the Family
pension being received by the wife, can be considered for calculating Loss
of Dependency?
11. This aspect was considered in the case of Mrs. Helen C. Rebello &
Ors. vs. Maharashtra State Road Transport Corpn. & Anr. AIR, 1998 SC
3191 wherein it was observed that while calculating the compensation on
account of death, the pecuniary advantage accruing under the Act, had to be
deciphered by co-relating it 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 not other forms of death. The
pecuniary advantage cannot be interpreted and co-related to any other
source/form of death such as natural death or death by suicide, serious
illness, including even death by accident, through train, air flight not
involving motor vehicle because the same would dilute all possible benefits
conferred on the Claimant and would be contrary to the spirit of law. If the
pecuniary advantage resulting from death was to include all forms of
amounts whether by way of inheritance, succession or any other manner,
then it could obliterate both, all possible conferment of economic security to
the claimant by the deceased and the intention of the legislature. By such an
interpretation, the tortfeasor, despite his wrongful act or negligence which
contributed to the death of the victim, would have in many cases no or
meagre liability and would benefit from the same. Thus, any amount which
the Claimants received on account of other forms of death, would not be
included while considering the loss of pecuniary benefit in case of accidental
amount. Any amount receivable or received not on account of accidental
Signature Not Verified
DigitallySigned By:VIKAS
ARORA MAC.APP. 314/2024 Page 4 of 8
Signing Date:22.01.2025
23:06:09
death but would have in any case be received by the Claimant, cannot be
construed as a “pecuniary advantage” liable for deduction.
12. With specific reference to deduction of “pensionary benefits”, it was
further explained that a person becomes entitled to pension on account of the
services rendered in the Department during the tenure of his service. The
employee or his heirs are entitled to this amount irrespective of the
accidental death. Similarly, family pension is also earned by an employee for
the benefit of his family in the form of contribution of his services in terms
of service conditions, which becomes receivable by the heirs on his demise.
There is no co-relation between the family pension, which in any case the
family would have got and the amount which is paid on account of
accidental death.
13. Helen C. Rebello (supra) was referred to by the Apex Court in the
Case of United India Insurance Co. Ltd. etc. vs. & Patrica Jean Mahajan &
Ors., 2002 (6) SCC 281 wherein it was endorsed that there is no co-relation
between the compensation payable on account of accidental death and the
amounts receivable irrespective of such accidental death which otherwise in
the normal course one would be entitled to receive. It was further
highlighted an amount receivable under a statute has no co-relation with an
amount earned by an individual.
14. In the case of Lal Dei & Ors. vs. Himachal Road Transport, (2007) 8
SCC 319, the Apex Court set-aside the Impugned Order of deduction of the
family pension, by observing that the family pension is earned by an
employee for the benefit of his family in the form of his contribution in the
service in terms of the service conditions receivable by the heirs after his
death and is receivable even otherwise than the accidental death. There is no
Signature Not Verified
DigitallySigned By:VIKAS
ARORA MAC.APP. 314/2024 Page 5 of 8
Signing Date:22.01.2025
23:06:09
co-relation between the two and therefore, the family pension amount paid
to the family cannot be deducted while calculating the compensation
awarded to the claimants.
15. In Vimal Kanwar & Ors. vs. Kishore Dan & Ors., AIR 2013 SC 3830,
the issue arose before the Hon’ble Apex Court that “whether Provident
Fund, Pension and Insurance receivable by claimants come within the
periphery of the Motor Vehicles Act to be termed as “Pecuniary Advantage”
liable for deduction.” While relying on the judgment of Mrs. Helen C.
Rebello (supra) it was concluded that Provident Fund, Pension, Insurance
and similarly any Cash, Bank Balance, Shares, Fixed Deposits, etc. are all a
“pecuniary advantage” receivable by the heirs on account of one’s death, but
all these have no correlation with the amount receivable under a Statute
occasioned only on account of accidental death. Such an amount will not
come within the periphery of the Motor Vehicles Act to be termed as
“pecuniary advantage” liable for deduction. It was also held that salary
receivable by the claimant on compassionate appointment, may have nexus
with the death of an employee while in service but it has no co-relation with
the accidental death and hence, not liable to be deducted
16. Similar observations have been made in the Case of Sebastiani Lakra
vs. National Insurance Company Ltd., AIR 2018 SC 5034 wherein it was
observed that deductions cannot be allowed from the amount of
compensation either on account of insurance, or on account of pensionary
benefits or gratuity or grant of employment to a kin of the deceased, because
these amounts are earned by the deceased on account of contractual relations
entered into by him with others and do not accrue to the heirs on account of
his death in a motor vehicle accident. It was further explained that amounts
Signature Not Verified
DigitallySigned By:VIKAS
ARORA MAC.APP. 314/2024 Page 6 of 8
Signing Date:22.01.2025
23:06:09
of pension and gratuity are paid on account of the service rendered by the
deceased to his employer and are more like the property of the deceased.
Since these amounts are also payable on death, irrespective of the form or
cause of the death, the same is not liable to be deducted. If the deduction
towards the family pension is permitted, it would amount to a tort fissure
being given the benefit of munificence or gratuity of others.
17. The Karnataka High Court in its recent Judgment in Oriental
Insurance Co. Ltd. vs. Smt. Rathnamma, decided on 24.01.2023, has
followed all the above-mentioned precedents, to observe that the family
pension, receivable by the wife after demise of her husband in an accident,
cannot be termed as pecuniary advantage or gainful income arising out of
the death of her husband related to the accident. The object of family
pension is to sustain the wife, after she loses the companionship of her
husband and in order to safe her from being thrown on the street. Family
pension is basically livelihood for maintenance of the life and is not liable to
be deducted while assessing the loss of dependency of the Claimants.
18. Applying the above settled principles in the present case, the learned
Tribunal has rightly not deducted the family pension while calculating the
compensation in the sum of Rs. 13,36,140/- along with interest @ 7% per
annum.
Conclusion: –
19. In view of the foregoing, it is held that there is no infirmity in the
Impugned Award dated 24.01.2024 and the same does not warrant any
interference.
Signature Not Verified
DigitallySigned By:VIKAS
ARORA MAC.APP. 314/2024 Page 7 of 8
Signing Date:22.01.2025
23:06:09
20. The Statutory Deposit be returned to the Insurance Company in
accordance with law.
21. The Appeal is dismissed, along with the pending Application(s) if
any.
(NEENA BANSAL KRISHNA)
JUDGE
JANUARY 22, 2025
RS
Signature Not Verified
DigitallySigned By:VIKAS
ARORA MAC.APP. 314/2024 Page 8 of 8
Signing Date:22.01.2025
23:06:09
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