TaxTMI 
TaxTMI 
TaxTMI 
2020 (1) TMI 1730
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....een preferred by the insurance company and the latter appeal (arising out of S.L.P.(C) No. 978/2020 @ Diary No. 17683/2019) by the claimants respondent Nos. 1 and 2. The parties are referred to as per their status in the former appeal for the sake of convenience. 4. The claim petition was filed by the respondent Nos. 1 and 2 herein, who are the major sons of Smt. Sunheri Devi (deceased). The deceased was on her way to attend the office of Tehsildar, Uchana (where she was working as a Peon) from Dharoli Khera village on 20.10.2014 at about 9.00 a.m., travelling as a pillion rider on a motorcycle bearing No. HR­32­G­8749. At that time, a dumper/tipper bearing registration No. HR­56­A­3260 coming from the opposite direction, being driven in a rash and negligent manner, collided with the motorcycle, resulting in fatal injuries sustained to the deceased to which she succumbed. 5. The respondent Nos. 1 and 2 claimed an amount of Rs.50,00,000/­ (Rupees fifty lakhs only) along with interest at the rate of 12% per annum on the assertion that the deceased was earning Rs.28000/­ per month (Rs.21000/­ as salary and Rs.7000/­ as family....
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....ddition, an amount of Rs.25,000/­ was awarded on account of funeral expenses, etc. and the total compensation was computed at Rs.17,40,532/­ along with interest at the rate of 9% per annum from the date of institution of petition. The driver, owner and insurer of the offending vehicle were held jointly and severally liable. 8. Against the award passed by the Tribunal, cross appeals were preferred being F.A.O. No. 1341 of 2016 (O&M) filed by the appellant and F.A.O. No. 4023 of 2016 (O&M) filed by the respondent Nos. 1 and 2. The appellant (insurance company) primarily contended that the respondent Nos. 1 and 2 are not entitled to compensation for loss of dependency as they are major and earning and also because the family of the deceased was entitled to receive financial assistance under the Haryana Compassionate Assistance to the Dependants of Deceased Government Employees Rules, 2006 (in short, 'the 2006 Rules'). The respondent Nos. 1 and 2 contended that being major and also earning by itself cannot be regarded as ineligibility to claim compensation. Further, the Tribunal has wrongly assessed loss of dependency on take­home salary instead of ....
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....s. 1 & 2 may be entitled only to compensation under conventional heads as held in National Insurance Company Limited v. Pranay Sethi & Ors (2017) 16 SCC 680 11. The latter appeal has been preferred by the respondent Nos. 1 and 2, primarily on the ground that the High Court erred in deducting 50% of the amount from compensation instead of one­third (1/3rd). Further, deduction of 50% amount of the financial assistance receivable under the 2006 Rules on the assumption that the respondent Nos. 1 and 2 are eligible therefor is a manifest error. Reliance is also placed on the decision of the High Court in Ajmero (supra). It is urged that the High Court ought to have considered that the respondent Nos. 1 and 2 were dependant on the deceased and that they have been deprived of her love and affection and income and thus entitled to compensation as claimed in the original application in that regard. 12. We have heard Mr. Amit Kumar Singh, learned counsel for the insurance company (appellant) and Ms. Abha R. Sharma, learned counsel for the respondent Nos. 1 and 2. The principal issues which arise for our consideration are as follows: ­ (i) Whether the major sons of the....
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....ded to it under sub­section (6) of section 158 as an application for compensation under this Act." (emphasis supplied) 14. The legal representatives of the deceased could move application for compensation by virtue of clause (c) of Section 166(1). The major married son who is also earning and not fully dependant on the deceased, would be still covered by the expression "legal representative" of the deceased. This Court in Manjuri Bera (supra) had expounded that liability to pay compensation under the Act does not cease because of absence of dependency of the concerned legal representative. Notably, the expression "legal representative" has not been defined in the Act. In Manjuri Bera (supra), the Court observed thus:­ "9. In terms of clause (c) of sub­section (1) of Section 166 of the Act in case of death, all or any of the legal representatives of the deceased become entitled to compensation and any such legal representative can file a claim petition. The proviso to said sub­section makes the position clear that where all the legal representatives had not joined, then application can be made on behalf of the legal representatives of the....
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....ate of the deceased. As a result, the legal representative of the deceased would inherit the estate. Indeed, in that case, the Court was dealing with the case of a married daughter of the deceased and the efficacy of Section 140 of the Act. Nevertheless, the principle underlying the exposition in this decision would clearly come to the aid of the respondent Nos. 1 and 2 (claimants) even though they are major sons of the deceased and also earning. 15. It is thus settled by now that the legal representatives of the deceased have a right to apply for compensation. Having said that, it must necessarily follow that even the major married and earning sons of the deceased being legal representatives have a right to apply for compensation and it would be the bounden duty of the Tribunal to consider the application irrespective of the fact whether the concerned legal representative was fully dependant on the deceased and not to limit the claim towards conventional heads only. The evidence on record in the present case would suggest that the claimants were working as agricultural labourers on contract basis and were earning meagre income between Rs.1,00,000/&sh....
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.... 5(1) of the 2006 Rules. In that, if the deceased employee was to survive the motor accident injury, he would have remained in employment and earned his regular pay and allowances. Any other interpretation of the said Rules would inevitably result in double payment towards the same head of loss of "pay and wages" of the deceased government employee entailing in grant of bonanza, largesse or source of profit to the dependants/claimants..... 26. Indeed, similar statutory exclusion of claim receivable under the 2006 Rules is absent. That, however, does not mean that the Claims Tribunal should remain oblivious to the fact that the claim towards loss of pay and wages of the deceased has already been or will be compensated by the employer in the form of ex gratia financial assistance on compassionate grounds under Rule 5(1). The Claims Tribunal has to adjudicate the claim and determine the amount of compensation which appears to it to be just. The amount receivable by the dependants/claimants towards the head of "pay and allowances" in the form of ex gratia financial assistance, therefore, cannot be paid for the second time to the claimants. True it is, that the 2006 Rules would come i....
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.... relied upon decision, the same learned Judge had occasion to observe as follows: ­ "... However, perusal of the judgment would reveal that the Court has not adverted to the issue that had the Rules of 2006 extending assistance to family of a deceased employee been not in existence, family would have been entitled to pension to the extent of 50% of the last drawn pay. As per the settled position in law, the pensionary benefits available to family of a deceased employee are not amenable for deduction for computing loss of dependency. There is nothing on record suggestive of the fact that in addition to compassionate assistance under the Rules, family of the deceased is being paid pension till the age of superannuation. Rather Rule 5(2) of the 2006 Rules specifically denies family pension as per normal rules..." (emphasis supplied) 17. The view so taken by the High Court is not the correct reading of the decision of three­Judge Bench of this Court in Shashi Sharma (supra) for more than one reason. First, this Court was conscious of the fact that under Rule 5(2) of the 2006 Rules, the family pension receivable by the family would be payable, ....
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.... deduction of the amount receivable by the legal representatives of the deceased on this count (under the 2006 Rules), from the compensation amount, should have independently determined the compensation amount and ordered payment thereof subject to legal representatives of the deceased filing affidavit/declaration before the executing Court that they have not received nor would they claim any amount towards financial assistance under the 2006 Rules, so as to become entitled to withdraw the entire compensation amount. 19. Reverting to the determination of compensation amount, it is noticed that the Tribunal proceeded to determine the compensation amount on the basis of net­salary drawn by the deceased for the relevant period as Rs.16,918/­ per month, while taking note of the fact that her gross­salary was Rs.23,123/­ per month (presumably below taxable income). Concededly, any deduction from the gross-salary other than tax amount cannot be reckoned. In that, the actual salary less tax amount ought to have been taken into consideration by the Tribunal for determining the compensation amount, in light of the dictum of the Constitution Bench of this Court i....
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....titled for compensation to be reckoned on the basis of loss of dependency, due to loss of gross salary (less tax amount, if any) of the deceased and future prospects and deduction of only one­third (1/3rd) amount towards personal expenses of the deceased. As regards the multiplier '13' applied by the Tribunal and the High Court, the same needs no interference. As a result, on the facts and in the circumstances of this case, the amount payable towards compensation will have to be recalculated on the following basis: ­ Loss of dependency due to loss of income calculated at Rs.31,26,229.60/­ [(Rs.23,123/­ x 12 x 13) + (30% future prospects) - (1/3rd deduction for personal expenses)]. In addition, the claimants would be entitled for a sum of Rs.70,000/­ towards conventional heads in terms of dictum in paragraph 59.8 of Pranay Sethi (supra). Thus, a total sum of Rs.31,96,230/­ (Rupees thirty­one lakhs ninety­six thousand two hundred thirty only), as rounded off, is payable to the claimants. However, this amount alongwith interest at the rate of 9% per annum from the date of filing of the claim petition till payment, will be paya....