Partly allowed

The Orietnal Insurance Co. Ltd. v. Mrs. Subha Rajan Desai

Bombay HC19 Dec 2013FA/1630/2012

Case brief

AI extract

What is this about?

Motor accident compensation involved liability apportionment, dependency assessment and deduction of employer-funded accident insurance. The court upheld the 80:20 apportionment and injury awards, but recalculated and enhanced fatal-accident compensation after deducting insurance proceeds. Three appeals were dismissed; the fatal-accident appeal and cross-objection were partly allowed.

What did the court decide?

Fatal-accident compensation enhanced with 7.5% annual interest and proportionate costs; balance directed to be deposited within ten weeks.

The Orietnal Insurance Co. Ltd. Vs Mrs. Subha Rajan Desai — Motor Accident Claims | Bombay HC (2013)

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1 fa573,1630,700,1369

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ssp

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELATE JURISDICTION

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FIRST APPEAL NO.573 OF 2013

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The Oriental Insurance Co. Ltd....Appellant
vs.
Meena Tukaram Jadhav & Others...Respondents

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ALONG WITH

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FIRST APPEAL NO.700 OF 2013

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The Oriental Insurance Co. Ltd...Appellant
vs.
Subha Rajan Desai & others...Respondents

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ALONG WITH

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FIRST APPEAL NO.1369 OF 2012

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The Oriental Insurance Co.Ltd....Appellant
vs.
Kum.Prachi Pramod Borkar & Ors....Respondents

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ALONG WITH

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FIRST APPEAL NO.1630 OF 2012

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The Oriental Insurance Co. Ltd. ...Appellant
vs.
Subha Rajan Desai & Others ...Respondents

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ALONG WITH

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CROSS OBJECTION ST.NO.29695 OF 2013 IN
FIRST APPEAL NO.1630 OF 2012

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The Oriental Insurance Company Ltd...Appellant
vs.
Shubha Ranjan Desai & others ...Respondents

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2 fa573,1630,700,1369

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Mr.S.S.Vidyarthi for the Appellant in all the First
Appeals and for applicants in CAF Nos.2500/2012,
2513/2012, 2519/2012, 2511/2012.
Mr.A.A.Kumbhakoni i/b Mr.Tejas D. Deshmukh for the
respondent No.1 to 3 in First Appeal No.1630 of 2012
and for the applicant in Cross Objection
St.no.29695/2013 and in CAF 4140/2012
Ms Urmila Sanil for respondent No.4 in FA
Nos.573/2013, 700/2013,1369/2012 and for respondent
No.8 in FA No.1630/2012
Mr.T.J.Mendon for respondent Nos. 4 and 5 in FA
No.1630/2012.

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CORAM : A.S.OKA, & REVATI MOHITE DERE,JJ.
DATE ON WHICH JUDGMENT IS RESERVED:OCTOBER 24,2013
DATE ON WHICH JUDGMENT IS PRONOUNCED:DECEMBER 19,
2013

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JUDGMENT: (PER A.S.OKA,J)

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1 These appeals arising out of Judgments and
Awards made by learned Member of the the Motor
Accident Claims Tribunal,Mumbai can be disposed of
by a common Judgment and Order as claims arising out
of the same accident have been decided by the
Tribunal by the impugned Judgments and Awards.

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2The accident occurred on 28th August 1998. The
members of Borkar Family had hired a auto rickshaw
at the place known as Kodibaug, near Karwar in the
State of Karnataka and they were proceeding towards
Karwar Beach by the auto rickshaw on High way No.17.
When the auto rickshaw reached in front of the
the RTO Office at Karwar, a truck came from the
opposite direction and collided with the auto
rickshaw. The allegation in the claim petitions is
that the truck was being driven in a rash and
negligent manner. As a result of the dash given by

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3 fa573,1630,700,1369

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the truck, the occupants of the auto rickshaw
sustained injuries. The truck was owned by one
Prabhakar Naik which was insured on the date of
accident with the Oriental Insurance Company Limited
(the appellant). The auto rickshaw was insured at
the relevant time with the National Insurance
Company Limited which is one of the respondents in
Appeals.

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3The claim application No.758 of 1999 was filed
by one Meena T. Jadhav. The said Meena was
travelling in the auto rickshaw along with the
members of Borkar Family. Her age at the time of
accident was 14 years and she was working as a maid
servant with the Borkar Family. On account of
injuries sustained by her, she claimed compensation
of Rs.2,50,000/-.

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4The appellant- the Oriental Insurance Company
Ltd the insurer of the truck filed a written
statement contending that the accident occurred due
to rash and negligent driving on the part of the
driver of the auto rickshaw. The National Insurance
Company Limited, the insurer of the auto rickshaw,
filed a written statement contending that the
accident took place on account of rash and negligent
driving of the driver of the truck. By the impugned
Award dated 5th August 2011, the learned Member of
the Tribunal held that there was negligence on the
part of the drivers of both the vehicles. The
learned Member directed that the apportionment of
the liability between the appellant-the Oriental

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fa573,1630,700,1369

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Insurance Company Limited and the National Insurance
Company Limited shall be made in the proportion of
80:20. In the said claim, the compensation of
Rs.1,36,150/- was granted to the claimant with
interest thereon at the rate of 7.5% per annum from
the date of filing of the claim petition till
realization. First Appeal No.573 of 2013 filed by
the appellant-the Oriental Insurance Company Limited
takes an exception to the said Judgment and Award.

¶31

5First Appeal no.700 of 2013 is filed by the
Oriental Insurance Company Limited for challenging
the Judgment and Award dated 6th August 2011 in Claim
Application No.756 of 1999 which was filed by one
Mrs. Subha Rajan Desai (formerly known as Priya
Pramod Borkar) who was the occupant of the auto
rickshaw. She is the widow of Pramod Borkar who
died in the same accident. She claimed compensation
of Rs.3,00,000/- on account of injuries sustained by
her. Similar contentions were raised by the
insurers of the vehicles which were raised in the
claim petition filed by Meena Jadhav. The Tribunal
granted compensation of Rs.1,85,680/- together with
interest thereon at the rate of 7.5% from the date
of filing of the claim petition till the payment of
compensation amount.

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6First Appeal No.1369 of 2012 filed by the
Oriental Insurance Company Limited takes an
exception to the Award dated 4th August 2011 in claim
petition no.757 of 1999 filed on behalf of minor
Prachi through her mother and natural guardian

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5 fa573,1630,700,1369

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Mrs.Subha Rajan Desai. Injured Prachi is the minor
daughter of deceased Pramod. Identical defences
were raised by both the insurance companies to the
claim petition. Total compensation of Rs.65,000/-
has been granted by the Tribunal with interest
thereon at the rate of 7.5% pa.

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7First Appeal No.1630 of 2012 has been preferred
by the Oriental Insurance Company Limited for
challenging the Judgment and Award dated 3rd August
2011 passed by the learned Member of the Tribunal in
claim petition No.755 of 1999 filed claiming
compensation on account of death of the said Pramod
Borkar. The claim petition has been filed by Priya,
(nee Mrs.Subha Desai) the widow, her two minor
daughters, her mother-in-law and her sister-in-law
(unmarried sister of deceased Pramod). Defences
which are similar in the companion petitions were
raised by both the insurers. The total compensation
of Rs.28,70,740/- together with interest thereon at
the rate of 7.5% pa was granted under the impugned
Judgment and Award. Claim of Rs.60,00,000/- was
made in the said claim petition. In this appeal,
there is a Cross Objection Stamp No.29695 of 2013
filed by the first to third claimants claiming
enhancement in the compensation to the extent of
Rs.22,70,740/- filed by the claimants.

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8We must note that in all the claims, the
compensation payable to the claimants has been
apportioned between the Oriental Insurance Company
Limited and the National Insurance Company Limited

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fa573,1630,700,1369

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in the proportion of 80%:20%.

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9In support of the appeals preferred by the
Oriental Insurance Company Limited, the learned
counsel Shri Vidharthi invited our attention to the
evidence on record to show that the driver of the
auto rickshaw was negligent. He invited our
attention to the findings recorded on issue No.1
regarding negligence. He urged that only because
the truck is heavier than the auto rickshaw, one
cannot jump to the conclusion that there was
negligence on the part of the driver of the truck
when there is a head on collision between the auto
rickshaw and the truck. He urged that the finding
on the issue of negligence against the driver of the
truck is perverse as the same is not based on
evidence. He urged that the claimants did not
examine any witness to prove the negligence on the
part of the driver of the truck. Without prejudice
to his contention that there is no negligence on the
part of the driver of the truck, he urged that in
any event, the liability ought to have been
apportioned equally between the two insurers. He
urged that the compensation granted to all the
claimants is exorbitant and especially in claim
petition no.755 of 1999 which is the case of fatal
accident. He urged that deceased Pramod was drawing
a salary of Rs.17,692/- per month at the time of his
death. He submitted that there was no evidence to
show that the deceased would have earned salary of
Rs.29,000/-. He submitted that the admitted position
is that the legal representatives of deceased

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7 fa573,1630,700,1369

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received a sum of Rs.14,00,000/- under the group
insurance scheme, the premium whereof was paid by
the Shipping Corporation of India, the employer of
the deceased. He relied upon the decision of the
Apex Court in the case of Helen C. Rebello and
others vs. Maharashtra State Road Transport
Corporation1. He submitted that the insurance claim
of Rs.14,00,000/- has been received by the claimants
from the group insurance policy taken by the
employer which was payable only on account of
accidental death. He invited our attention to the
evidence of Mr. Venugopal, an Officer of Shipping
Corporation of India, the employer of the deceased
Pramod. He stated that the said insurance scheme
was for the employees of SCI to cover the accidents.
He, therefore, submitted that in view of the law
laid down in the case of Helen Rebello, the amount
of Rs.14,00,000/- will have to be deducted from the
compensation payable to the claimants in the claim
filed on account of death of Pramod. He urged that
in view of the decision of the Apex Court in the
case of Sarla Verma (Smt.) and others vs. Delhi
Transport Corporation and another2, the multiplier
of 15 ought to have been applied instead of 16
adopted by the Tribunal. In support of other
appeals, he contended that the compensation granted
is on the higher side.

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10The learned counsel for the claimants supported
the impugned Judgments and Awards. The learned

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1 1999 ACJ page 10

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2 (2009) 6 SCC 121

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8 fa573,1630,700,1369

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counsel for the respondents appearing in First
Appeal no.1630 of 2012 urged that there is no
evidence brought on record by the appellants to
show that the insurance policy under which the
amount of Rs. 14,00,000/- was paid is an accident
insurance policy. He urged that it is the group
insurance policy taken by the employer and the grant
of benefit under the said policy is on account of
death of deceased Pramod. He urged that therefore,
going by the decision of the Apex Court in the case
of Helen C. Rebello and others (supra), no deduction
can be made from the compensation on account of
payment of Rs.14,00,000/- under the group insurance.
He placed reliance on the decision of the Apex Court
in the case of Sunil Sharma and others vs. Bachital
Singh and others3. He urged that the amounts which
were payable to the deceased by way of perks and
allowances should be taken as the income of the

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deceased for the purpose of calculating multiplicand. He urged that in view of the said decision, even deduction towards employee's provident fund scheme or insurance scheme cannot be made from the salary of the deceased for the purpose of calculating multiplicand. He urged that there were five dependents on the deceased namely widow, two minor daughters, the mother and an unmarried sister. He submitted that hence, deduction of 1/4^th ought to have made on account of personal expenditure of the deceased instead of 1/3^rd. He, therefore, urged that the cross objection filed in First Appeal No. 1630 of 2012 by the claimant Nos.1 3 2011 SCJ 1441

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9 fa573,1630,700,1369

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to 3 will have to be allowed. He urged that in any
case, there was no reason to deny 50% addition
towards the future prospects of increase in income
as held in the case of Sarla Verma (supra). The
learned counsel for the National Insurance Company
Limited urged that it is brought on record in
evidence of widow of Pramod that it was the truck
which came on the wrong side and gave a dash to auto
rickshaw. Her submission is that the findings of
the Tribunal of apportioning the liability at 80% :
20% between the Oriental Insurance Company Limited
and National Insurance Company Limited is legal and
proper and no interference is called for.

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11We have considered the submissions. The first
question arises in these appeals is as regards the
negligence. The negligence on the part of the
driver of the truck is disputed. In the alternative,
a limited submission is made by the applicant-the
Oriental Insurance Company Limited (insurer of the
truck) that both the drivers of the truck and auto
rickshaw were at fault and considering the fact that
it was head on collision, the liability should have
been apportioned at 50% : 50%.

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12It will be necessary to make a reference to the
evidence on the aspect of negligence. We must note
here that the appellant-oriental Insurance Company
Limited did not examine the driver of the truck. In
this context, the evidence of Mrs. Subha Desai, the
widow of the deceased who herself was injured will
have to be examined. In the examination-in-chief she

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stated that she along with her husband and kids were
proceeding by the auto rickshaw from Kodiar to
Karwar Beach when the truck insured with the
appellant came from the opposite direction in a fast
speed. She deposed that the truck came on the wrong
side of the road and dashed against the auto
rickshaw. In the cross examination made by the
Advocate for the appellant, she admitted that there
was head on collision between the auto rickshaw and
the truck. She expressed inability to tell the
speed of the auto rickshaw and the fact whether it
was proceeding by the center of the road. She stated
that the fault was of the drivers of both the
vehicles. However, in the cross examination made by
the Advocate for the National Insurance Company
Limited, she stated that the rickshaw was proceeding
in a normal speed and that the truck came from the
opposite direction and after coming to its wrong
side, it dashed against the auto rickshaw. She
stated that the auto rickshaw was on the center of
the road.

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13The learned Member of the Tribunal has also
referred to the spot panchanama at Exhibit-15. By
referring the spot panchanama, the learned Member of
the Tribunal has observed thus:

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“11Aforesaid factum has testified and
corroborates with the Spot Panchnama
Exhibit 15 which had drawn by the
Investigating Officer after registration of
the offence by going at the spot. It

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reveals from Spot Panchnama that the spot
is located on Karwar Sadashiv National
Highway No.17, Opposite R.T.O.Office. The
road at the spot was Tar road running
straight from sought to north and
investigating officer was found there fresh
dry blood marks, pieces of glass and
vehicles which were lying there. He
described that from the place of occurrence
of accident on eastern side there is Kachha
Road at a distance of 5 feet where auto
rickshaw No.KA-30-1087 was standing facing
towards Town. Front right side of the auto
rickshaw was entirely bend and crushed.
Its front show glass, right side indicator
covers were broken into pieces and upper
side hood is entirely torn away. Right side
wheel of the said rickshaw was lying on the
Kachha Road at a distance of one feet from
the road. The left side rear wheel is on
the edge of Kachha Road.”

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14On the perusal of the Panchanama, the learned
Member noticed the position of the vehicles after
the accident. In paragraph 12 of the impugned
Judgment, the learned Member observed thus:

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“12He further described regarding the
lorry No.CNE-3569 which was standing facing
towards North. Its front and rear side
tyre are lying on Tar road on the eastern
side at a distance of about 3 feet from

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Western side edge of the tar road. Near the
right side front tyre mudguard of the truck
was crushed in side and found that there
was fresh abrarised marks which was on the
hight of about 4 feet from the ground.
After visiting the spot and giving the full
description of the spot the Investigating
Officer has mentioned that the scene of
occurrence is situated on Tar road of 22
feet width. It has 7 feet in width on left
Western side Kachha road and 5 feet in
width on Eastern side Kachha road. At a
distance of 8 feet from the spot there was
R.T.O.Office and northern side at a
distance of 20 feet, on the edge of both
sides a Tar road. There was one bridge
where letter was written by cement as 106/2
on East side at a distance of 200 feet
there was building of R.T.O. On the south
at about 60 feet there was R.T.O.office.
On the east there was forest plantation.
So after perusal of the aforesaid Panchnama
it is crystal clear that the auto rickshaw
was proceeding with passenger on its right
side in normal speed and all of sudden
lorry bearing No.CNE-3569 came in high
speed from opposite direction and though
the auto rickshaw had seen by the driver of
the lorry even he could not control the
speed all of sudden and lost the control
over the lorry. So lorry has went towards
the head of the auto rickshaw by leaving

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the middle road at a distance of 2 feet and
gave violent dash to the head of the auto
rickshawand so the left wheel of the auto
rickshaw extremely went on the Kachha Road.
It shows that the accident took place due
to rashness and negligence on the part of
the driver of offending vehicle No.CNE-
3569.”

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( Underlined added)

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15This finding will have to be appreciated in the
light of the fact that the widow of deceased Pramod
stated in her cross-examination that the truck came
on its wrong side. She deposed that at that time,
the truck was being driven in a very high speed.
From deposition it is clear that the auto rickshaw
was being driven on its correct side at the time of
impact. On the other hand, no attempt has been
made by the appellant-insurer to examine the driver
or cleaner of the offending truck insured with it.
In fact, an adverse inference ought to have been
drawn against the appellant for not examining the
driver of the truck. There is a passing observation
made by the learned Member that as the truck is a
larger and heavier vehicle than the auto rickshaw,
the driver of the truck owes more duty and
responsibility to take proper care and caution. Even
if we ignore this observation, for the reasons which
we have set out, no fault can be found with the
apportionment of liability between the two insurance
companies made by the Tribunal. We must also note
that both the insurance companies are the Government

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of India Undertakings and therefore, we fail to
understand the relevance of this dispute between the
two companies on the apportionment.

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16Now we turn to the other issue of the quantum
of compensation in First Appeal No.1630 of 2012
which arises in the claim application No.755 of
1999 filed by the widow, two minor daughters, mother
and unmarried sister of deceased Pramod. As far as
the income is concerned, the claimants examined
Mr.Venugopal, an Officer of the Shipping Corporation
of India whose designation was Deputy General
Manager. The deceased Pramod was an employee of the
Shipping Corporation of India. He has produced in
evidence a letter dated 25th May 2011 recording the
service details and bio-data of the deceased Pramod
which is marked as Exhibit 22. The said letter
discloses that the date of birth of the deceased was
18th September 1962 and he joined the employment of
the Shipping Corporation of India (for short SCI) on
27th October 1986. The deceased was in the regular
employment of SCI. The witness Mr. Venugopal stated
that the age of retirement of employees of SCI is 60
years. The certificate issued by the SCI at Exh.21
was produced in evidence by Mr. Venugopal. It
records that at the time of the death of the
deceased, his salary was Rs.17,692.67. It is stated
that the salary of the employees of the SCI was
revised with retrospective effect from 1st January
1997. He stated that as per the revision, on the
date of accident, his salary would have been
approximately Rs.29,000/-. There is no cross

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examination of the said witness made on the
correctness of the contents of the certificate at
Exhibit-21. Therefore, on the date of the death,
the salary of the deceased can be safely taken at
Rs.29,000/-. The deceased was employed on 27th
October 1986 as a Telex Operator and on the date of
death, he was holding the post of Junior Officer.
The age of retirement as stated above was 60 years.
Thus, the deceased was in the permanent employment
of SCI. The date of birth of the deceased was 18th
September 1962. Thus, on the date of accident, his
age was just less than 36 years. Therefore, as held
by the Apex Court in the case of Sarla Verma
(supra), for the purpose of computing multiplicand,
50% of the actual salary on the date of death will
have to be added in the income towards future
prospects of the increase in the earnings. There
was no reason for the learned Member to add only 10%
on account of increase in the earnings in future.
Therefore, his income for the purpose of calculating
the multiplicand will have to be taken at
Rs.43,500/- (Rs.29,000.00+Rs.14,500.00). 30% of the
said amount will have to be deducted on account of
the income-tax. Thus, the monthly income can be
taken at Rs.30,450/-.

¶76

17The claim petition was filed by the widow, two
minor daughters, the mother and unmarried sister of
the deceased. There is no cross examination made of
the widow on the dependency of the mother and the
sister of the deceased. Therefore, we can proceed

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on the footing that the widow, two minor daughters
mother and sister of the deceased were dependents
and therefore, as held in the case of Sarla Verma
(supra), 1/4th deduction will have to be made on
account of personal expenditure of the deceased.
Hence, a sum of Rs.7612.50/- being 1/4thof
Rs.30,450/- will have to be deducted from
Rs.30,450/-. Hence, the monthly dependency will be
Rs.22,837.50.

¶80

18The other question is as to what should be the
multiplier. In paragraph 42 of the decision of the
Apex Court in the case of Sarla Verma (supra) for
the age group of 26 to 30 years, the multiplier
prescribed is 17 and for the age group of 31 to 35
years the multiplier is 16. For the age group of 36
to 40 years, the multiplier prescribed is 15. On
the date of accident, the deceased had not completed
36 years of age and therefore, he will not fall in
the age group of 36 to 40 years and will have to be
placed in the age group of 31 to 35 years.
Therefore, the multiplier of 16 has been rightly
applied by the learned Member of the Tribunal.
Accordingly, the total amount payable to the
claimants will be Rs.43,84,800.00 (Rs.22,837.50x12 x
16). Usual amount of Rs.50,000/- will have to be
added towards loss of consortium, funeral expenses
etc. Hence, the compensation payable will be
Rs.44,34,800/- which can be rounded off to
Rs.44,35,000/-.

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19Now the other issue is regarding the insurance

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¶83

amount of Rs.14,00,000/- admittedly received by the
legal representatives of the deceased Pramod. In
the cross examination of Mr. Venugopal, it is
brought on record that a sum of Rs.14,00,000/- is
received by the legal representatives of the
deceased Pramod. On this aspect, it will be
necessary to note precisely what the witness Mr.
Venugopal stated in his cross examination. He has
stated thus :

¶84

“There is a insurance scheme for the
employees merely for the accident. Said
coverage 100 times the salary. Premium of
said insurance scheme is paid by the
Corporate and it is not recovered from the
employees. The legal heirs of the deceased
have received approximately Rs.14,00,000/-
to death of the deceased, purely on account

¶85

of his death in accident under Group
Insurance Scheme. Company issue form No.16
of the income tax. It is not true that
salary certificate on record is grossing
inflated. It is not true that it is
insurance to say that the deceased would
have got revised pay.”

¶86

(Underline added)

¶87

20Thus, the deceased Pramod was the beneficiary
of the insurance scheme of SCI for its employees.
The premium was paid by SCI which was not recovered
from him. Mr. Venugopal stated that the amount of
Rs.14,00,000/- has been received against the said

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¶89

insurance claim purely on account of death of Pramod
in the accident. On this aspect, it will be
necessary to make a reference to the decision of the
Apex Court in the case of Helen Rebello and others
(supra). In paragraph 34 of its decision in the
case of Helen C. Rebello (supra), the Apex Court
observed thus:

¶90

“34...... Thus, the application of general
principle under the common law of loss and
gain for the computation of compensation
under this Act must correlate to this type
of injury or death viz., accidental. If
the words `pecuniary advantage' from
whatever source are to be interpreted to
mean any form of death under this Act it
would dilute all possible benefits
conferred on the claimant and would be
contrary to the spirit of the law. If the
`pecuniary advantage' resulting from death
means pecuniary advantage coming under all
forms of death then it will include all the
assets movable, immovable, shares, bank
accounts cash and every amount receivable
under any contract. In other words, all
heritable assets including what is willed
by the deceased, etc. This would
obliterate both all possible conferment of
economic security to the claimant by the
deceased and the intentions of the
legislature. By such an interpretation the
tort feasor in spite of his wrongful act or

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negligence, which contributes to the death,
would have in many cases no liability or
meager liability. In our considered
opinion, the general principle of loss and
gain takes colour of this statute, viz.,
the gain has to be interpreted which is as
a result of the accidental death and the
loss on account of the accidental death.
Thus, under the present Act whatever
pecuniary advantage is received by the
claimant, from whatever source, would only
mean which comes to the claimant on account
of accidental death and not other form of
death. The constitution of the Motor
Accidents Claims Tribunal itself under
section 110 is as the section states:

¶94

“....for the purpose of adjudicating upon
claims for compensation in respect of
accidents involving the death of, or bodily
injury to,....”

¶95

21In paragraph 35, the Apex Court proceeded to
observed thus:

¶96

“35Thus, it would not include that
which claimant receives on account of other
forms of death, 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

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received or receivable not only on account
of the accidental death but that 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 received (sic) out of
such insurance on the happening of such
incidence 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
(Sic and) in the course of employment of an
employee.”

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(underline added)

¶101

22Thus, in the case of an ordinary life
insurance, if on account of death of person in a
motor accident, the legal representatives receive
the amount under the policy, the same cannot be
excluded as such benefit has no correlation to the
accidental death. The said amount would have come to
the legal representatives even in the case of
natural death. But if the employee is insured by his
employer against injury or death arising out of an
accident, any amount received under such policy on
accidental death would be liable for deduction from
compensation. This law laid down in the case of
Helen Rebello has not been disturbed by the Apex

¶102

fa573,1630,700,1369

¶103

¶104

Court in the subsequent decision in the case of
Sunil Sharma and others.

¶105

23In the facts of the case, in the cross
examination of Mr. Venugopal what is brought on
record is that there is a group insurance scheme for
the employees of the SCI. The entire premium is
paid by SCI which was not recovered from its
employees. In the said scheme, a sum of
Rs.14,00,000/- was received by the legal
representatives of the deceased Pramod. Mr.
Venugopal in the cross examination stated that the
legal representatives of the deceased received the
said amount “Purely on account of his death in
accidentunder the Group Insurance Scheme”.
Surprisingly, there was no re-examination of the
witness made by the Advocate for the claimants for
obtaining a clarification whether the insurance was
an accident insurance or general insurance. Even
the policy of insurance is not placed on record by
the claimants. The statement of Mr. Venugopal is
that the amount was received purely on account of
death of the deceased in accident which may suggest
that the policy was an accident policy. In view of
this statement, the burden was on the claimants to
prove the contents of the policy. However, the
claimants did not produce the policy. Hence, the
contention of the Appellant that the sum of
Rs.14,00,000/- was the pecuniary advantage received
by the legal representatives of the deceased on
account of accident will have to be accepted. In the
circumstances, a sum of Rs.14,00,000/- will have to

¶106

22 fa573,1630,700,1369

¶107

be deducted from the compensation payable to the
deceased. Thus, from the aforesaid amount of
Rs.44,35,000/-, a sum of Rs.14,00,000/- will have to
be deducted. Thus, the total compensation payable
will be Rs.30,35,000/-. Though, the cross objection
is preferred by the first to third claimants, the
benefit of enhancement will be available to the
other claimants as well.

¶108

24We must note here that in the other appeals,
there is no serious challenge to the quantum of
compensation and the real challenge is to the
apportionment of liability between the two
insurance companies. In the claim for compensation
filed by Ms Meena Jadhav, Dr. Naresh Khanna, an
Orthopaedic Surgeon has duly proved the Disability
certificate at Exh.22. He assessed the permanent
partialdisabilityat44%.Sherequired
hospitalization in Nanavati Hospital, Bombay. An
implant was inserted which was required to be
removed after about two years. The details of
compensation granted to the said claimant read thus:

¶109

1)Pain and sufferings	Rs.30,000.00
2)Injuryand disability	Rs.40,000.00
3)Medical expenses	Rs.38,950.00
4)Futureprospects	Rs.10,000.00
5)Loss of income	Rs.7,200.00
6)Conveyance charges	Rs.5,000.00
7)Special diet	Rs.5,000.00
Total	1,36,150.50

¶110

fa573,1630,700,1369

¶111

¶112

25As far as widow of deceased Pramod is
concerned, in claim petition No.756 of 1989, she
has been granted compensation of Rs.1,85,680/-. Some
argument was canvassed as regards the payment of
flying Allowance and difference in pay. The widow
of deceased Pramod was at the relevant time Chief
Air Hostess in Air India. On the basis of the
documentary evidence at Exhibits 26 and 27, the
Tribunal came to the conclusion that she had to take
sick leave for 84 days on medical ground. For a
period of 84 days, she was deprived of flying
Allowance which is paid only to the Air Hostess on
duty. The said flying Allowance was Rs.10,000/- per
month. She had to take sick leave for 84 days as she
was recovering from injuries. On the basis of the
certificate at Exhibit-28, a finding was recorded
that though her salary was Rs.46,000/- p.m, during
the period of sick leave she received salary of
Rs.17,853/- per month. The details of the
compensation awarded to her is as under:

¶113

(1)Medical Bills	Rs.12,680.00
(2)Pain and sufferings	Rs.25,000.00
(3)Injuryand disability	Rs.25,000.00
(4)Flyingallowance	Rs.30,000.00
(5)Difference amount ofpay	Rs.87,000.00
(6)Conveyance charges	Rs.3,000.00
(7)Special Diet	Rs.3,000.00
Total	Rs.1,85,680.00

¶114

26 It is not possible to find fault with the
quantum of compensation.

¶115

24 fa573,1630,700,1369

¶116

27 The remaining claim is by Prachi, a minor
daughter of Pramod by way of claim application
No.757 of 1999 Dr.Pandit, an Orthopaedic Surgeon
proved the Disability certificate and assessed 30%
partial permanent disability. The total amount of
compensation was granted at Rs.65,000/- the
bifurcation of which is as under:

¶117

1)Pain and sufferings	Rs.25,000.00
2)Injuryand disability	Rs.25,000.00
3)Medical expenses	Rs.5,000.00
4)Conveyance charges	Rs.2,500.00
5)Special diet	Rs.2,500.00
6)Future medical expenses	Rs.5,000.00
TOTAL	Rs.65,000.00

¶118

28The compensation amount is reasonable which
calls for no interference.

¶119

29 Thus, the appeal No.573 of 2013, 700 of 2013,
1369 of 2012 must fail and First Appeal No.1630 of
2012 and Cross Objection Stamp No.26951 of 2013 must
partly succeed.

¶120

30 Hence, we pass the following order:

¶121

(I) The compensation payable in Claim Application No.755 of 1999 shall be Rs 30,35,000/-(Inclusive of no fault liability);

¶122

(II) The amount will carry interest at the rate of 7.5% per annum from the date of application

¶123

fa573,1630,700,1369

¶124

¶125

till the realization of the amount;

¶126

(III) The original claimants will be entitled to proportionate costs of the claim petition as well as cross objection. There will be no order as to costs in First Appeal No.1360 of 2012.

¶127

(IV) The balance compensation amount shall be deposited with the Tribunal within ten weeks from today. Thereafter, the Tribunal shall pass an order of investment/ disbursement after hearing the Claimants;

¶128

(V) First Appeal No.1630 of 2012 and Cross Objection Stamp No.29695 of 2012 are partly allowed on above terms. First Appeal Nos.573 of 2013, 700 of 2013 and 1369 of 2012 are hereby dismissed with no order as to costs.

¶129

(VI) Pending Civil Applications are disposed of.

¶130

(REVATI MOHITE DERE,J.)(A.S.OKA,J.)

The Orietnal Insurance Co. Ltd. v. Mrs. Subha Rajan Desai

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The Orietnal Insurance Co. Ltd. v. Mrs. Subha Rajan Desai

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