NATIONAL INSURANCE COMPANY LTD. v. INDIRA SRIVASTAVA & ORS

Citation: [2007] 13 S.C.R. 352

Court: Supreme Court of India

Bench: S.B. SINHA, H.S. BEDI

Case summary

NATIONAL INSURANCE COMPANY LTD. v. INDIRA SRIVASTAVA & ORS.pdf

Judgment text

NATIONAL INSURANCE COMPANY LTD. -T. 'f v. INDIRA SR. IVASTAVA & ORS. DECEMBER 12, 2007 -:: [S. B. SINHA AND HARJIT SINGH BEDI, JJ. ] ). ' Motor Vehicles Act, 1988-s. l 68-Death ofsalariedemployee- Computation oftotal income ofdeceased-Determination of 'just compensation '-Held: Total income of deceased-employee to be computed not only having regard to the pay packet he carried home at the end ofthe month but also other perks paidfor benefit ofhis _...... entirefamily contra-distinguishedfromperkspaidfor his own benefit_:_ Compensation to be determined on basis oftotal income so computed. Words and Phrases- ''just" and "income "-Meaning of -4· Connotationofthe term 'income' for thepurposeofdetermination of 'just compensation' envisaged under Section 168 of the Motor Vehicles Act, 1988 is in question in the present appeal.

On behalfofthe appellant itwas contended that for the purpose ofcomputation ofthe amount ofcompensation whatwas material is the basic pay and not other allowances and that emphasis is to be laid on computation ofdamages based on net income and not gross income. A -:. :. :. _ Respondent, however, submitted that apartfrom the basic salary, contributions made by the employee should also be taken into consideration for calculation ofthe amount ofcompensation, interalia, on the premise that the same would have become payable to him at a future date as, for example, voluntary retirement, superannuation etc. whichwould be beneficial to the entire family. Itwas submitted that the contributions towards Provident Fund, Life Insurance Corporation, -+gratuity etc. are includible in the definition ofincome. SRIVASTAVA -. 'r Dismissing the appeal, the Court HELD: 1. 1. The term 'income' has different connotations for differentpurposes.

Acourtoflaw,having regard to thechange in societal ~ conditions must consider the question not only having regard to pay packetthe employee carries home attheend ofthe month butalso other perks which are beneficial to the members ofthe entire family. . . I, [Para8] (357-F,G] 1. 2. Ifthe dictionary meaning ofthe word 'income' is taken to its logical conclusion, it should include those benefits, either in terms of money or otherwise,which are taken into considerationfor the purpose of payment ofincome-tax or profession tax although some elements thereof may or may not be taxable or would have been otherwise - taxable but for the exemption conferred thereupon under the statute. [Para 19] (364-F, G) -· -1- 1. 3 . The expression 'just' must also be given its logical meaning. Whereas it cannotbe a bonanza or asource ofprofit butin considering as to whatwould bejust and equitable, all facts and circumstances must be taken into consideration. [Para 23] [366-A-B] P.

Ramanatha Aiyar's AdvancedLaw Lexicon (3rd Ed. ), referred to. 2. 1. S. 168 oftheActusestheword 'justcompensation' whichshould ,. ,,,,. '>be assigned a broad meaning. One cannot, in determining the issue involved in the matter, lose sight of the fact that the private sector companies in place ofintroducing a pension scheme takes recourse to payment ofcontributory Provident Fund, Gratuity and other perks to attract the peoplewho are efficientand hard working. Different offers made to an officer by the employer, same may be eitherfor the benefit ofthe employee himselfor for the benefit ofthe entire family. Ifsome facilities are being provided whereby the entire family stands to benefit, the same must be held to be relevant for the purpose ofcomputation of total income on the basiswhereofthe amount ofcompensation payable for the death of the kith and kin of the applicants is required to be determined. [Para 9) (358-A, B, CJ 2. 2.

Whatwould be 'just compensation' mustbe determined having regard to the facts and circumstances of each case. The basis for considering the entire pay packet is what the dependents have lost due to death ofthe deceased. It is in the nature ofcompensation for future loss towards the family income. The amounts, therefore, which were required to be paid to the deceased by his employer by way of perks, should be included for computation ofhis monthly income as thatwould have been added to his monthly income by way ofcontribution to the family as contradistinguished to the ones which were for his benefit. However, from the said amount ofincome, the statutory amount oftax payable thereupon must be deducted [Paras 15 and 17) [362-A, B; 364-A, BJ Asha & Ors. v. UnitedIndian Insurance Co. Ltd & Anr. , [2004) SCC 533, distinguished. - The Manager, National Insurance Co. Ltd v. Padmavathy & Ors. , CMA No. 114 of2006 decided on 29. 1. 2007; S. Narayanamma & Ors. v.

Secretary to Government ofIndia, Ministry ofTelecommunications and Ors. , [2002) SCC 582; RathiMenon v. Union ofIndia, [2001) 3SCC 714; N. Sivammal & Ors. v. Managing Director, Pandian Roadways Corporation & Ors. , (1985] 1SCC18; TN State Transport Corporation Ltd. v. S. Rajapriya & Ors. , (2005] 6 SCC 236; New India Assurance Co. Ltd v. Charlie &Anr. , [2005] 10 SCC 720 and New India Assurance Co. Ltd v. Kalpana (Smt. ) & Ors. , (2007] 3 SCC 538, referred to. 3. In view ofthe finding abovementioned, the present appeal is to --( be allowed in part in so far as the High Court had directed deduction of medical reimbursement and tax elements on the entire sum which according to the statute constitute income. But this Court declines to do so for two reasons. Firstly, the accident had taken place as far back as on 1st September, 1997 and secondly the Tribunal as also the High Court failed to take into consideration rise in income ofthe deceased byway ofpromotion orotherwise.

For theaforementioned reasons, this Courtis notinclined to interferewith the impugnedjudgmentofthe High Court. [Para 24 and 25) [366-B, C, DJ CIVIL APPELLATE JURISDICTION: Civil Appeal No. 5830 of 2007. From the Judgment and Order dated 06. 04. 2007 ofthe High Court ofJudicature at Allahabad, Lucknow Bench at Lucknow in F. A. F. 0. No. 171 of2001. Joy Basu and B. K. Satija for the Appellant. L. N. Rao, (A. C. ), for the Respondent and Indira Srivastava Caveator-In-Person. The Judgment ofthe Court was delivered by S. B. SINHA, J. l. Leave granted. 2. Connotation ofthe tenn 'income' for the purpose ofdetermination of'just compensation' envisaged under Section 168 ofthe Motor Vehicles Act, 1988 (the Act) calls for question in this appeal which arises out of judgment and order dated 6. 4. 2007 passed by the High Court of D Judicature at Allahabad, Lucknow Bench at Lucknow in FAFO No. 171 of2001. Respondent's husband R. K. Srivastava was employed in company named Gabriel India Ltd.

While he was travelling in an auto rickshaw from Charbagh Railway Station, Lucknow to his residence situated at Ashok Marg, the same met with an accident with a 'Mahindra Commander Jeep' driven rashly and negligently. He sustained injuries and ultimately succumbed thereto. Respondents herein filed a claim petition before the learned Tribunal. Asalmy certificate was produced in the said proceedings which is in the following tenns : Earnings Amount Deductions Amount Basic 3420. 00 CPF(S) 488. 00 Special Pay 70. 00 CPF (Add) FDA 350. 00 GIS 3. 75 -f- VDA 1040. 00 LIC/GIS 509. 10 CCA 100. 00 HRR HRA 1047. 00 MSPI 60. 00 f - WashingAll. 75. 00 Society 576. 00 Conv. 225. 00 Union 3. 00 Cant. sub. 265. 00 HBA 340. 00 C. E. A. 2040. 00 B. Fund 10. 00 J_ Total 8632. 00 Total 1989. 85 3. The learned Tribunal opined that in computing his income, the element ofconveyance allowance only would fall outside the purview of income.

On the aforementioned basis, the monthly income ofthe deceased was assessed at Rs. 20364/-. Applying the multiplier of 13, as the age of the deceased was 45 years, it was held : "As such, on using multiple of 13 to the annual income ofdeceased at Rs. 2,32,372/-, the amount works out to Rs. 30,20,836/-. The ~ deceased would have spent I/3rd ofthis amount on himself, hence on deducting I/3rd from this amount, 2/3rd compensation aniount comes to Rs. 20,13,890/-. " It was concluded: "Considering all these facts, I reach to this finding that the petitioners are entitled to get 2/3rd ofthe total income ofdeceased worked out by using multiple of 13 i. e. about Rs. 20,00,000/-. Issue ~· No. 5 is decided accordingly. It is the liability ofopposite party No. 3 Insurance Company. On behalfofopposite party No. 3, the ruling ofHon'ble High Court Smt. Lalta Devi v. Suresh & Ors. , T. A. C.

8, 1999 (1) page 847 has been filed before me, but this ruling does not extend any specific benefit to opposite party No. 3. Hence, while deciding this issue No. 5, I come to this conclusion that the petitioners are entitled to get Rs. 20,00,000/- (Rs. Twenty Lakhs) as compensation. " 4. The High Court, on an appeal having bee~ preferred both by the appellant as also the respondents, partly allowed tl:ie same by a common ,. judgment holding that claimants were entitled to compensation calculated ~in case ofthe deceased at Rs. 19,53,224/- along with interest@ 9% from the date ofpresentation ofthe claim petition till its realization, holding that travelling reimbursement could not be taken into consideration for computation ofnet income ofthe deceased. 5. Appellant is, thus, before us. Keeping in view the importance of the question involved and furthermore in view ofthe fact that the first respondent was appearingin- person, we had requested Mr. L. N.

Rao, learned senior counsel, to assist us in the matter. 6. Submission ofMr. Satija, learned counsel appearing on behalfof the appellant, is that for the purpose of computation ofthe amount of compensation what was material is the basic pay and not other allowances and, in that view ofthe matter, the High Court has committed a serious .. , 1 error in opining otherwise. The learned counsel contended that emphasis by this Court are being laid on computation of damages based on net income and not gross income. It was also contended that in any event the amount ofcompensation awarded by the High Court is on higher side. 7. Mr. Rao, however, submitted that apart from the basic salary, contributions made by the employee should also be taken into consideration for calculation ofthe amount ofcompensation, inter alia, on the premise that the same would have become payable to him at future date as, for example, voluntary retirement, superannuation etc.

which -- 'f would be beneficial to the entire family. It was pointed out that the contributions towards Provident Fund, Life Insurance Corporation, gratuity etc. are includable in the definition ofincome. 8. The term 'income' has different connotations for different purposes. A court of law, having regard to the change in societal conditions must consider the question not only having regard to pay packet ~~ the employee carries home at the end ofthe month but also other perks which are beneficial to the members ofthe entire family. Loss caused to the family on a death ofa near and dear one can hardly be compensated on monetory terms. 9. Section 168 ofthe Act uses the word 'just compensation' which, ... ·in our opinion, should be assigned a broad meaning.

We cannot, in ~ determining the issue involved in the matter, lose sight ofthe fact that the private sector companies in place ofintroducing a pension scheme takes recourse to payment ofcontributory Provident Fund, Gratuity and other perks to attract the people who are efficient and hard working. Different offers made to an officer by the employer, same may be either for the benefit ofthe employee himselfor for the benefit ofthe entire family. If some facilities are being provided whereby the entire family stands to benefit, the same, in our opinion, must be held to be relevant for the purpose ofcomputation oftotal income on the basis whereofthe amount ofcompensation payable for the death ofthe kith and kin ofthe applicants is required to be determined. For the aforementioned purpose, we may notice the elements ofpay, paid to the deceased : "BASIC 63,400. 00 ~ ,,. CONVEYANCE ALLOWANCE 12,000. 00 RENT CO LEASE 49,200. 00 BONUS (35% OF BASIC) 21,840. 00 TOTAL 1,45,440.

00 In addition to above, his other entitlements were : Con. to PF 10% Basic Rs. 6,240/- (p. a. ) "" -- LTAreimbursement Rs. 7,000/- (p. a. ) Medical reimbursement Rs. 6,000/- (p. a. ) Superannuation 15% ofBasic Rs. 9,360/- (p. a. ) Gratuity Cont. 5. 34% of Basic Rs. 3,332/- (p. a. ) i- Medical Policy-self& Family @ Rs. 55,000/- (p. a. ) Education Scholarship @ Rs. 500 Rs. 12,000/- (p. a. ) Payable to his two children Directly" -... 10. There are three basic features in the aforementioned statement \ which require our consideration : I 1. Reimbursement ofrent would be equivalent to HRA; 2. Bonus is payable as a part of salary; and 3. Contribution to the Provident Fund. 11. We may furthennore notice that apart therefrom, superannuation 4. benefits, contributions towards gratuity, insurance ofmedical policy for selfand family and education scholarship were beneficial to the members ofthe family. 12.

We have, however, no doubt in mind that medical reimbursement which provides for a slab and which keeping in view the tenninology used, would mean reimbursement for medical expenses on production ofmedical bills and, thus, the same would not come Within the purview of the ~ aforementioned category. ~ 13. The question came for consideration before a learned Single Judge of the Madras High Court in The Manager, National Insurance Co. Ltd v. Padmavathy & Ors. , [CMA No. 114 of2006 decided on 29. 1. 2007], wherein it was held : "Income tax, Professional tax which are deducted from the salaried person goes to the coffers ofthe government under specific head and there is no return. Whereas, the General Provident Fund, ·~ 't Special Provident Fund, L. I. C. , Contribution are amounts paid specific heads and the contribution is always repayable to an employee at the time ofvoluntary retirement, death or for any other reason.

Such contribution made by the salaried person are deferred payments and they are savings. The Supreme Court as well as various High Courts have held that the compensation payable under the Motor Vehicles Act is statutory and that the deferred payments made to the employee are contractual. Courts have held that there cannot be any deductions in the statutory compensation, ifthe Legal Representatives are entitled to lumpsum payment under the contractual liability. Ifthe contributions made by the employee which are otherwise savings from the salary are deducted from the gross t -income and only the net income is taken for computing the >dependancy compensation, then the Legal Representatives ofthe victim would lose considerable portion ofthe income.

In view of the settled proposition oflaw, I am ofthe view, the Tribunal can make only statutory deductions such as Income tax and professional tax and any other contribution, which is not repayable by the employer, from the salary ofthe deceased person while determining the monthly income for computing the dependancy compensation. Any contribution made by the employee during his life time, form part of the salary and they should be included in the monthly income, while computing the dependency compensation. " 14. Similar view was expressed by a learned Single Judge ofAndhra Pradesh High Court in S. Narayanamma & Ors. v. Secretary to Government of India, Ministry of Telecommunications and Ors. , (2002] ACC 582, holding : ~ "In this background, now we will examine the present deductions made by the tribunal from the salary ofthe deceased in fixing the monthly contribution ofthe deceased to his family.

The tribunal has not even taken proper care while deducting the amounts from the salary ofthe deceased, at least the very nature ofdeductions from the salary ofthe deceased. My view is that the deductions made by the tribunal from the salary such as recovery ofhousing loan, vehicle loan, festival advance and other deductions, ifany, to the ~, ~ benefit of the estate of the deceased cannot be deducted while computing the net monthly earnings of the deceased. These advances or loans are part of his salary. So far as House Rent Allowance is concerned, it is beneficial to the entire family ofthe deceased during his tenure, but for his untimely death the claimants are deprived ofsuch benefit which they would have enjoyed ifthe decea~ed is alive. On the other hand, allowances, like Travelling Allowance, allowance for newspapers/periodicals, telephone, servant, club-fee, car maintenance etc.

, by virtue ofhis vocation need not be included in the salary while computing the net earnings ofthe deceased. The finding ofthe tribunal that the deceased was SRIVASTAVA [SINHA, J. ] getting Rs. 1,401/- as net income every month is unsustainable as -. ~ the deductions made towards vehicle loan and other deductions were also taken into consideration while fixing the monthly income ofthe deceased. The above finding ofthe tribunal is contrary to the principle of just compensation' enunciated by the Supreme Court in the judgment in Helen's case (1 supra). The Supreme Court in Concord of India Insurance Co. v. Nirmaladevi and Ors. , (1980) ACJ 55 (SC) held that detenr. ination ofquantum must ,( be liberal and not niggardly since law values life and limb in free country 'in generous scales'. " 15. We may, however, notice that a Division Bench ofthis Court in Asha & Ors. v. United Indian Insurance Co. Ltd. & Anr. [2004] ACC 533, whereupon reliance has-been placed by Mr.

Satija, was considering a case where, like the present one, several perks were included in salary. We may reproduce the salary certificate hereto below: '· -! "This is to certify that Shri A. M. Raikar was working as AG 111 in this organisation has been paid the following Pay & Allowances forthemonthofMay, 1995: Earnings Amount Deductions Amount Basic 3420. 00 CPF(S) 488. 00 Special Pay 70. 00 CPF (Add) FDA 350. 00 GIS 3. 75 VDA 1040. 00 LIC/GIS 509. 10 _.. 'I- CCA 100. 00 HRR HRA 1047. 00 MSPI 60. 00 Washing All. 75. 00 Society 576. 00 Conv. 225. 00 Union 3. 00 Cant. sub. 265. 00 HBA 340. 00 C. E. A. 2040. 00 B. Fund 10. 00 Total 8632. 00 Total 1989. 85 --I Net Payable Rs. 6642. 00 (Rupees six thousand six hundred forty two only). " In that case, this Court held : rl- • "Lastly it was submitted that the salary certificate shows that the salary of the deceased was Rs. 8,632/-. It was submitted that the High Court was wrong in taking the salary to be Rs. 6,642/-.

It was submitted that the High Court was wrong in deducting the allowances and amounts paid towards LIC, Society charges and HBA etc. We are unable to accept this submission also. The claimants are entitled to be compensated for the loss suffered by them. The loss suffered by them is the amount which they would have been receiving at the time when the deceased was alive. There can be no doubt that the dependents would only be receiving the net amount less I/3rd for his personal expenses. The High Court was therefore right in so holding. " This Court inAsha (supra) did not address itselfthe questions raised before us. It does not appear that any precedent was noticed nor the term ... 'just compensation' was considered in the light ofthe changing societal condition as also the perks which are paid to the employee which may or may not attract income tax or any other tax. What would be 'just compensation' must be determined having regard to the facts and circumstances of each case.

The basis for considering the entire pay packet is what the dependents have lost due to death ofthe deceased. It is in the nature of compensation for future loss towards the family income. "! ' ~ 16. In Rathi Menon v. Union ofIndia, [2001] 3 SCC 714, this Court, upon considering the dictionary meaning ofcompensation held : "In this context a reference to Section 129 ofthe Act appears useful. The Central Government is empowered by the said provision to make rules by notification "to carry out the purposes of this Chapter". It is evident that one ofthe purposes ofthis chapter is that the injured victims in railway accidents and untoward incidents must get compensation. Though the word "compensation" is not defined in the Act or in the Rules it is the giving ofan equivalent or substitute of equivalent value.

In Black's Law Dictionary, "compensation" is shown as "equivalent in money for a loss sustained; or giving back an equivalent in either money which is but the measure ofvalue, or in actual value otherwise conferred; or recompense in value for some loss, injury or service especially when it is given by statute. " It means when you pay the compensation in terms ofmoney it must represent, on the date ofordering such payment, the equivalent value. 25. In this context we may look at Section 128(1) also. It says that the right of any person to claim compensation before the Claims Tribunal as indicated in Section 124 or 124-A shall not affect the right ofany such person to recover compensation payable under any other law for the time being in force. But there is an interdict that no person shall be entitled to claim compensation for more than once in respect ofthe same accident.

This means that the party has two alternatives, one is to avail himself ofhis civil remedy to claim compensation based on common law or any other statutory provision, and the other is to apply before the Claims Tribunal under Section 124 or 124-A ofthe Act. As he cannot avail himself ofboth the remedies he has to choose one between the two. The provisions in Chapter Xlll ofthe Act are intended to provide a speedier remedy to the victims of accidents and untoward incidents. Ifhe were to choose the latter that does not mean that he should be prepared to get a lesser amount. He is given the assurance by the legislature that the Central Government is saddled with the task ofprescribing fair and just compensation in the Rules from time to time. The provisions are not intended to give a gain to the Railway Administration but they are meant to afford just and reasonable compensation to the victims as speedier measure.

If a person files a suit the amount of compensation will depend upon what the court considers just and reasonable on the date of determination. Hence when he goes before the Claims Tribunal claiming compensation the detennination 'H ofthe amount should be as on the date ofsuch detennination. " . _ ' 17. The amounts, therefore, which were required to be paid to the deceased by his employer by way of perks, should be included for computation ofhis monthly income as that would have been added to his monthly income by way ofcontribution to the family as contradistinguished to the ones which were for his benefit. We may, however, hasten to add that from the said amount of income, the statutory amount oftax payable thereupon must be deducted. 18. The term 'income' in P. Ramanatha Aiyar's Advanced Law Lexicon (3rd Ed.

) has been defined as under: "The value of any benefit or perquisite whether convertible into money or not, obtained from a company either by adirector or a person who has substantial interest in the company, and any sum paid by such company in respect ofany obligation, which but for such payment would have been payable by the director or other ... Iperson aforesaid, occurring or arising to a person within the State from any profession, trade or calling other than agriculture. " It has also been stated : 'INCOME' signifies 'what comes in' (per Selbome, C. , Jones v. Ogle, 42 LJ Ch. 336). 'It is as large a word as can be used' to denote a person's receipts '(per Jessel, MR Re Huggins, 51 LJ Ch938. ) income is not confined to receipts from business only and . ~ . means periodical receipts from one's work, lands, investments, etc. AIR 1921Mad427 (SB). Ref. 124 IC 511 : 1930 MWN 29: 31 MLW 438 AIR 1930 Mad 626: 58 MLJ 337. " 19.

Ifthe dictionary meaning ofthe word 'income' is taken to its logical conclusion, it should include those benefits, either in tenns ofmoney or otherwise, which are taken into consideration for the purpose of payment ofincome-tax or profession tax although some elements thereof ~-may or may not be taxable or would have been otherwise taxable but for the exemption conferred thereupon under the statute. 20. In N Sivammal & Ors. v. Managing Director, Pandian NATIO~AL INSURANCE COMPANY LTD. v. INDIRA 365 Roadways Corporation & Ors. , [1985) 1 SCC 18, this Court took into consideration the pay packet ofthe deceased. 21. We may notice that in T. N State Transport Corporation Ltd. v. S. Rajapriya & Ors. , [2005) 6 SCC 236, this Court held : "8. The assessment ofdamages to compensate the dependants is beset with difficulties because from the nature ofthings, it has to take into account many imponderables e. g.

the life expectancy of the deceased and the dependants, the amount that the deceased would have earned during the remainder ofhis life, the amount that he would have contributed to the dependants during that period, the chances that the deceased may not have lived or the dependants may not live up to the estimated remaining period of their life expectancy, the chances that the deceased might have got better employment or income or might have lost his employment or income together. 9. The manner of arriving at the damages is to ascertain the net income ofthe deceased available for the support of himself and his dependants, and to deduct therefrom such part ofhis income as the deceased was accustomed to spend upon himself, as regards both self-maintenance and pleasure, and to ascertain what part of his net income the deceased was accustomed to spend for the benefit of the dependants.

Then that should be capitalised by multiplying it by a figure representing the proper number ofyears' _.. :. ,... i purchase. 10. Much ofthe calculation necessarily remains in the realm of hypothesis "and in that region arithmetic is a good servant but bad master" since there are so often many imponderables. In every case "it is the overall picture that matters", and the court must try to assess as best as it can the loss suffered. " 22. Yet again in New India Assurance Co. Ltd. v. Charlie & Anr. , (2005] 10 SCC 720, the same view was reiterated. However, therein although the words 'net income' has been used but the same itselfwould ordinarily mean gross income minus the statutory deductions. We must ~ also notice that the said decision has been followed in New India Assurance Co. Ltd. v. Kalpana (Smt. ) & Ors. , [2007] 3 SCC 538. 23. The expression 'just' must also be given its logical meaning.

Whereas it cannot be a bonanza or a source ofprofit but in considering as to what would be just and equitable, all facts and circumstances must be taken into consideration. 24. In view of our finding abovementioned, the appeal is to be ~ . allowed in part in so far as the High Court had directed deduction of medical reimbursement and tax elements on the entire sum which according to the statute constitute income. But we decline to do so for two reasons. Firstly, the accident had taken place as far back as on 1st September, 1997 and secondly the Tribunal as also the High Court failed to take into consideration rise in income of the deceased by way of promotion or otherwise. 25. For the aforementioned reasons, we are not inclined to interfere with the impugned judgment. This appeal is, therefore, dismissed. In the facts and circumstances ofthe case, there shall be no order as to costs. B. B. B. Appeal dismissed.