APHC010013652019 IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI (Special Original Jurisdiction) [3333] FRIDAY,THE TWENTY FIFTH DAY OF APRIL TWO THOUSAND AND TWENTY FIVE PRESENT THE HONOURABLE SMT. JUSTICE V.SUJATHA M.A.C.M.A.No.9 of 2019 Between: Patta E. R. Lakshmi and Others ...APPELLANTS AND B Kanaka Raju and Others ...RESPONDENTS Counsel for the Appellant(S): 1. JADA SRAVAN KUMAR Counsel for the Respondent(S): 1. 2. C PRAKASH REDDY The Court made the following: HONOURABLE SMT JUSTICE V. SUJATHA M.A.C.M.A.No.9 of 2019 JUDGMENT: The claimants filed the present appeal aggrieved by the award dated 19.10.2018 in M.V.O.P.No.832 of 2017passed by the Chairman, Motor Accident Claims Tribunal-cum-VI AdditionalDistrict Judge, partly allowing the claim petition by granting compensation at Rs.3,00,000/-,as against the claim of Rs.75,00,000/-, with interest at 9% p.a. from the date of petition till the date of realization, payable by the respondents 1 to 3 jointly and severally for the death of the deceased Hari Gopal in a motor accident that occurred on 22.03.2014. 2. For the sake of convenience, the parties are referred as they are arrayed before the Tribunal. 3. The claimants filed the claim petition under Section 166 of the Motor Vehicles Act read with Rule 455 of the Motor Vehicles Rules, claiming compensation of Rs.75,00,000/- for the death of Hari Gopal, (hereinafter referred as deceased) in a motor accident occurred on 22.03.2014. On the date of incident, the deceased Hari Gopal went to Neelakundilu on his motorcycle bearing No.A.P.31-BE-17 and on the return journey, when he reached near Mamidilova, one Elcher Van bearing No.AP 31-TU- 9219 being driven by the 1st respondent, suddenly applied brakes without giving any signal in a rash and negligent manner,as a result of which, the deceased, who was following the van went and dashed the same at about 10.30 p.m. and sustained serious injuries. Immediately, he was shifted to K.G. Hospital and while undergoing treatment on 23.03.2014 at about 12.25 p.m. he succumbed to injuries. A case in Crime No.66 of 2014 was registered by the SHO, Anandapuram Police Station under Section 304-A IPC against the 1st respondent. The deceased, who was aged about 48 years, was working as Junior Manager (Operation) in RINL, Sinter Plant, Steel Plant, Visakhapatnam and was earning a gross salary of Rs.53,811/- per month at the time of accident. The claimants have spent Rs.25,000/- towards funeral of the deceased, Rs.5,000/- towards transportation of the dead body. The 1st respondent being the driver, the 2nd respondent being the owner and the 3rd respondent being the insurer of the offending vehicle are jointly and severally liable to pay the compensation. Hence, the claim petition. 4. While respondent Nos.1 and 2 remained ex parte, the 3rd respondent –insurer of the vehicle filed written statement resisting the claim and disputing the manner of accident, the rashness and negligence of the 1st respondent, the holding of valid and effective driving license with the 1st respondent, the insurance of the vehicle with the 3rd respondent and the existence of insurance policy on the date of accident. The 3rd respondent claimed that the deceased is only responsible for the accident and due to his negligence only the accident occurred but not due to negligence of respondent No.1. The legal representatives of the deceased are also provided job on compassionate grounds. The 3rd respondent further claimed that since there is welfare scheme in the Steel Plant for their employees, there is no financial loss to the claimants. The claimants under personal accident benefit also, received substantial compensation and that the claimants cannot be permitted to get benefit twice for the same accident under two difference sources. The claim made by the claimants is excessive and prayed for dismissal of the petition. 5. Based on the above pleadings, the Tribunal framed the following issues for trial: 1. Whether the deceased died in the motor accident on 22.03.2014 due to rash and negligent act of the driver of Van bearing No.AP 31- TU-9219? 2. Whether the petitioners entitled for compensation? If so, what amount and from which of the respondents? 3. To what relief? 6. During the course of trial, on behalf of the claimants, PW1 to 4 were examined and Exs.A.1 to A.10 and Ex.X.1 to X.4 were marked. On behalf of respondents, RW1 was examined and Exs.B1 and B2 were marked. 7. The Tribunal, based on the evidence of P.W.2 coupled with documentary evidence of Exs.A.1-FIR and Ex.A.5-charge sheet, came to the conclusion that the accident occurred due to sudden applying of brakes to Elcher Van bearing No.AP-31-TU-9219 near Mamidilova Village at about 22-30 hours. Relying upon the judgments in Manjit Kaur and others vs. Alla Dutta and others(2018 ACJ 1500)and in Mary Immanuvel& another vs. Periyasamy& others(C.M.A.(MD) No.907/2011), the Tribunal, having come to the conclusion that the deceased had not maintained sufficient distance between his motorcycle and the offending vehicle and that he followed the crime vehicle closely from behind due to which the accident took place, held that there was contributory negligence on the part of the deceased for causing the accident and fixed his share of negligence at 50%. Considering the age of the deceased mentioned in Ex.X-1- service profile of the deceased, the Tribunal determined the age of the deceased as 48 years, and as per the recitals of Ex.A.9- payslip of the deceased, gross salary of the deceased was Rs.53,811/- and for the age group between 46 to 50 years, as per the judgment of Sarala Varma (2009 ACJ 1298) the multiplier is 13. The Tribunal, basing on the evidence of PW.3-the Finance Manager of the Steel Plant, having come to the conclusion that the claimants have received a sum of Rs.13,00,000/- towards other death benefits, besides an amount of Rs.25,16,000/- under the Group personal Accident Insurance as the death of deceased was covered under the policy, held that payments made to the legal representatives of the deceased in connection with his death occurred for a particular reason can be taken into consideration for deduction. Relying upon the Judgment in Bhakra Beas Management Board vs. Kanta Agarwal and others(Civil Appeal No.4216/2008), the Tribunal held that where the employer insures his employee, as against the injury or death arising out of an accident, any amount received out of such insurance on the happening of such incident may be an amount liable for deduction, since the legislature has taken note of such contingency through the proviso of Section 95 under which the liability of the insurer is excluded in respect of injury of death, arising out of and in the course of employment. Further, as per Ex.A.9-pay slip of the deceased, the Tribunal took the income of the deceased at Rs.50,000/- per month, which comes to Rs.6,00,000/- per annum and after deducting 1/3rd amount towards personal expenditure of the deceased, and by applying multiplier of 13, the Tribunal calculated the compensation at Rs.52,00,000/-.In addition to the said amount of Rs.52,00,000/-, the Tribunal also awarded Rs.1,00,000/- towards loss of consortium , Rs.1,00,000/- towards loss of estate, Rs.10,000/- to the 4th petitioner towards love and affection, Rs.25,000/- each to the petitioners No.2 and 3 towards love and affection and Rs.25,000/- towards funeral expenses. In all, the Tribunal awarded Rs.54,85,000/-., and after deducting 50% of the amount towards the share of negligence of the deceased, the Tribunal assessed the compensation at Rs.27,42,500/-. Following the ratio laid down in Bhakra Beas Management Board,and having held that the petitioners have already received Rs.25,16,000/- towards Group Insurance Linked Scheme, the Tribunal awarded Rs.2,26,500/-, which was rounded up to Rs.3,00,000/- with proportionate costs and interest at 9% per annum from the date of petition i.e., 26.06.2014 till the date of realization. The awarded compensation is apportioned between the petitioners at Rs.1,25,000/- to the 1st petitioner, Rs.25,000/- to the 2nd petitioner, Rs.1,00,000/- to the 3rd petitioner and Rs.50,000/- to the 4th petitioner and that the share of the 3rd petitioner with accrued interest are directed to be deposited in any Nationalized Bank till he attains majority. Aggrieved by the said award, the present appeal came to be filed. 11. Heard SriJada Sravan Kumar, learned counsel appearing for the appellants and the learned Standing Counsel appearing on behalf of insurance company. 12. Learned counsel for the appellants would submit that the finding of the Tribunal with regard to the deceased contributed for the accident due to the rash and negligent driving on the part of the deceased is not sustainable and contrary to the evidence on record. The Tribunal also erred in assessing 50% negligence on the part of the deceased and while assessing the contributory negligence, the size of the vehicle and the force involved has to be taken into consideration and more negligence has to be fixed on the larger vehicle. The Tribunal grossly erred in holding that the benefit of group insurance is liable to be deductable from the compensation assessed by the Tribunal and argued that the amount of compensation paid by the Department under the group insurance scheme was made only for the premium paid by the deceased and as such the deduction of such amount while arriving at a just compensation is not warranted since the said amount is purely the death benefits payable to the dependents under the group insurance scheme on account of untimely death of the bread winner. 13. On the other hand, learned Standing Counsel for the Insurance Company, while upholding the award passed by the Tribunal, contended that the Tribunal rightly assessed just compensation, after deducting 50% of the negligence on the part of the deceased and there are no valid and justifiable grounds to interfere with the order under challenge and sought for dismissal of the appeal. 14. Now the following points that falls for consideration are: i) Whether there is any contributing negligence on the part of the deceased in causing the accident, if so, whether the deduction of 50% of the amount towards the share of negligence on the part of the deceased, from the total compensation is justified? ii) Whether the Tribunal is justified in deduction of the amount of compensation paid under theGroup Insurance Schemefrom the compensation receivable under the Motor Vehicles Act? POINT: In so far as contributory negligence on the part of the deceased is concerned, as per their written statement, it is the contention of the respondent Insurance Company that the deceased was negligent in his driving as he suddenly crossed the road without following the flow of traffic on his motor cycle bearing No.AP-31-BE-17 and dashed the van. P.W.2 is stated to be the eye-witness to the incident.According to his evidence, on the date of the incident, the deceased who was travelling on his motorcycle towards Pendurthi, at about 10.30 P.M., when he reached Mamidilova village on SSH-38 road, a van bearing No.AP-31-TU-9219, which was proceeding in front of his motor cycle, being driven by the driver in a rash and negligent manner, and applied sudden brakes without giving caution, due to which, the deceased hit the van with his motor cycle in its rear side and sustained injury on his chest. In the light of the evidence of PW.2, who was the eye-witness to the incident, it can be safely concluded that if the deceased was vigilant and had maintained reasonable distance from the vehicle which was going ahead of him, he would have averted the accident. In order to substantiate the fact that it is thumb rule of sufficient distance to keep at least a safe distance of two to three seconds gap in ideal conditions to avert collision, the learned standing counsel for the respondent-Insurance company, placed a reliance on Nishan Singh and others v. Oriental Insurance Company Limited1, wherein the Hon’ble Supreme Court duly considering the Regulation 23 of the Rules of Road Regulations has held as under: “23. Distance from vehicles in front.− The driver of a motor vehicle moving behind another vehicle shall keep at a sufficient distance from that other vehicle to avoid collision if the vehicle in front should suddenly slow down or stop.” The expression ‘sufficient distance’ has not been defined in the Regulations or elsewhere. The thumb rule of sufficient distance is at least a safe distance of two to three seconds gap in ideal conditions to avert collision and to allow the following driver time to respond. The distance of 10–15 feet between the truck and maruti car was certainly not a safe distance for which the driver of the maruti car must take the blame. It must necessarily follow that the finding on the issue under consideration ought to be against the claimants.” Basing on the evidence of PW.2 and following the ratio laid down in the judgmentsrelied on by the Tribunal, this court is of the 1(2018) 6 SCC 765 considered view that the finding given by the Tribunal that if the deceased had maintained a reasonable and sufficient distance, he would have averted the collision between the Elcher vehicle and that there was a contributory negligence of 50% on the part of the deceased,is justified and well founded and needs no interference. Accordingly, the point No.1 is answered against the appellants. Point No.2: In so far as the deduction of Rs.25,16,000/- received under the Group Insurance Linked scheme from the total compensation, is concerned, the learned counsel for the appellants vehemently contended that the Tribunal grossly erred in deducting the amount received under the Group Insurance Linked scheme, on the ground that whatever pecuniary advantage is received by the claimant on account of the accidental death is not liable to be deducted from the total compensation. In support of his contention, the learned counsel for the appellants placed a reliance on Vimal Kanwar and others v. Kishore Dan and others2to contend that pecuniary advantages received from other sources by reason of victim’s death is not 2(2013) 7 SCC 476 liable for deduction, while determining the compensation under the Motor Vehicles Act. The Hon’ble Supreme Court held as under: “………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. The following was the observation and finding of this Court: “35. Broadly, we may examine the receipt of the provident fund which is a deferred payment out of the contribution made by an employee during the tenure of his service. Such employee or his heirs are entitled to receive this amount irrespective of the accidental death. This amount is secured, is certain to be received, while the amount under the Motor Vehicles Act is uncertain and is receivable only on the happening of the event, viz., accident, which may not take place at all. Similarly, family pension is also 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. The heirs receive family pension even otherwise than the accidental death. No correlation between the two. Similarly, life insurance policy is received either by the insured or the heirs of the insured on account of the contract with the insurer, for which the insured contributes in the form of premium. It is receivable even by the insured if he lives till maturity after paying all the premiums. In the case of death, the insurer indemnifies to pay the sum to the heirs, again in terms of the contract for the premium paid. Again, this amount is receivable by the claimant not on account of any accidental death but otherwise on the insured's death. Death is only a step or contingency in terms of the contract, to receive the amount. Similarly any cash, bank balance, shares, fixed deposits, etc. though 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. How could such an amount come within the periphery of the Motor Vehicles Act to be termed as “pecuniary advantage” liable for deduction. When we seek the principle of loss and gain, it has to be on a similar and same plane having nexus, inter se, between them and not to which there is no semblance of any correlation. The insured (deceased) contributes his own money for which he receives the amount which has no correlation to the compensation computed as against the tortfeasor for his negligence on account of the accident. As aforesaid, the amount receivable as compensation under the Act is on account of the injury or death without making any contribution towards it, then how can the fruits of an amount received through contributions of the insured be deducted out of the amount receivable under the Motor Vehicles Act. The amount under this Act he receives without any contribution. As we have said, the compensation payable under the Motor Vehicles Act is statutory while the amount receivable under the life insurance policy is contractual.” A perusal of the principle of law laid down in the judgment extracted supra, makes it clear that provident fund, pension, insurance and similarly any cash, bank balance, shares, fixed deposits, etc., are all “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 and such an amount will not come within the periphery of the Motor Vehicles Act to be termed as “pecuniary advantage” and such amount is not liable for deduction for determination of compensation under the Motor Vehicles Act. On the other hand, the learnedcounsel for the Insurance Company also placed a reliance on Krishna and others v. Tek Chand and others3, wherein the Hon’ble Supreme Court held that there cannot be a duplication in payments or a windfall owing to a misfortune and that on the death of the person in harness, owing to a road traffic accident the dependents of a deceased cannot be doubly benefited. The judgment relied upon by the learned standing counsel for the Insurance Company is of no help as the facts of that case stand on different footing. As per the principle laid down in VimalKanwar and others v. Kishore Dan and others, this court is of the considered view that a life insurance policy is received either by the insured or the heirs of the insured basing on the contract with the insurer, in which the insured also contributes in the form of premium and once all the premiums are paid, the insurer can receive the said amount as per the contract and that if at all the insured dies, 3SLP (C) No.5044 of 2019, dt. 5.2.2024 irrespective of nature of the death, his legal heirs are liable to be paid the sum by the insurer as per the terms of the contract not on account of any accidental death, but on account of the insurer’s death. Accordingly, the pecuniary advantages receivable by the heirs on account of one’s death does not have any correlation with the amount receivable under a statute occasioned on account of accidental death and that the amount of compensation payable by the department on account of death of the employee will not come within the periphery of the Motor Vehicles Act to be termed as “pecuniary advantages” and that the amount received by the claimants from other sources cannot be deducted from the total compensation. The evidence of P.W.3 and Ex.A.9 would show that the deceased was contributing Rs.120/- every month towards Group Insurance Linked Scheme, as such this Court is of the opinion that the case of the claimants is squarely covered by the judgment of the Apex Court in “Vimal Kanwar Vs. Kishore Dan” (referred supra). Hence, this court has no hesitation to hold that Tribunal has grossly erred in deducting the amount of Rs.25,16,000/- received by the claimants under the Group Insurance linked scheme. Therefore, the appellants are entitled to be awarded the amount of Rs.25,16,000/- received towards Group Insurance Linked Scheme, in addition to the amount of Rs.3,00,000/- already awarded. Accordingly, the appeal is partly allowed and the order dated 19.10.2018 passed in M.V.O.P.No.832 of 2014 by the Chairman, Motor Accident Claims Tribunal-cum-VI Additional District Judge, Visakhapatnam is modified by enhancing the compensation from Rs.3,00,000/- to Rs.28,16,000/- (Rs.3,00,000/- + Rs.25,16,000/-) with proportionate costs and interest at 9% p.a. on the total compensation from the date of petition till the date of realization. However, the apportionment between the appellants-claimants shall be made proportionately according to the enhanced compensation. There shall be no order as to costs. As a sequel thereto, miscellaneous petitions, if any, shall stand closed. _____________ V. SUJATHA, J Date: 25.04.2025 Ksn