Decided on August 07,1992

S.ASHRAF BI Appellant


- (1.)The appellant herein filed a petition M.V.O.P.No.31/81 in the Court of the District Judge-cum-Motor Accidents Claims Tribunal, Kurnool claiming compensation on account of the death of her husband by name S. KhasimSaheb in a motor accident on 21-6-1980 which occurred on account of the rash and negligent driving of the lorry APD 5268. The Tribunal found that the accident occurred on account of rash and negligent driving of the lorry by the driver, who is the 1st respondent in the petition. As. regards the quantum of compensation the Tribunal had taken into consideration the fact that the deceased was aged about 40 years and was getting a pay of Rs.455/- p.m. out of whichhe was giving Rs. 350/- to his wife for house-hold expenses. But it had taken into consideration the fact that the petitioner was given a job by the Government under the social security scheme and was receiving a total pay of Rs. 406 /- and therefore deducted 80% by reason of her present employment and had given 20% towards loss of support, and arrived at the compensation of Rs. 16,000/- on that ground. The tribunal added some other amounts as special damages and the total came to Rs. 17,300/-. Since lumpsum payment was being made, the Tribunal further deducted an amount of 15% and arrived at me net amount of Rs. 14,705/- and rounded to Rs. 14,700/- and granted interest at 6% p.a. The petitioner filed this appeal contending that the compensation awarded is very inadequate.
(2.)The learned counsel for the appellant contended (i) that the lower Tribunal committed an error in taking into consideration the pay which the petitioner is earning on account of the job which was given to her; (ii) that the Tribunal was wrong in deducting 15% on account of the fact that lump sum payment is being given; and (iii) that the Tribunal ought to have granted interest at 12% per annum.
(3.)I will take up the first contention. The learned counsel for the 3rd respondent i.e., the Insurance Company has referred to the decision of the Supreme Court in Sheikhupura Transport Co. vs. N.I.T. Ins.Co. in which it is pointed out that "In fixing the compensation the pecuniary loss can be ascertained only by balancing on the one hand the loss to the claimants of the future benefit and on the other any pecuniary advantage which from whatever sources comes to them by reason of the death, that is, the balance of loss and gain to a dependant by the death must be ascertained." He has therefore contended that since the petitioner got a job and is getting pay from that job on account of the death of her husband the income which she is getting must be deducted from the loss of dependency and if that is done there is no loss of dependency at all in this case. But the learned counsel for the appellant has pointed out that the income which the appellant is deriving by virtue of the job which she is doing cannot be taken into consideration while estimating the compensation. He has referred to the following decisions in support of his contention; In Nirmala Sarma vs. Raja Ram, it was held that if the heir of the deceased has joined service, her salary cannot be taken into consideration or deducted from the amount of compensation payable to her. In Arunaben vs. Mehmoodbhai Imamali Kaji it is held as follows:-
"Where the State Road Corporation, after the death of its conductor in an accident gave appointment to the widow of the deceased under a policy decision no deduction could be made from the compensation awarded to the dependants on account of the earnings of the widow by treating her earnings as the "benefit" or "gains" resulting from the death of the deceased on the basis that they were in the nature of payments voluntarily made by a tortfeasor in any attempt to mitigate the damage caused by him."
In Kanwar vs. Pep Singh, Rajasthan High Court has held that no deduction should be made on the ground of pension and the employment of the eldest son of the deceased. In Oriental Fire & Genl. Ins. Co. Ltd. vs. Laxmi Patra Orissa High Court held that "while considering the question of adjustment on account of gratuity, provident fund received or income having earned by the widow, it has to be borne in mind that what is to be assessed is compensation for deprivation of benefit to the claimants which they would have been entitled to had the deceased been alive. There is distinction between moneys coming into the hands of the claimants "at death" and 'on account of death'. The concept of mitigation of damages may be relevant while computing damages; but as indicated above, there is a distinction between compensation and damages. There can also be a moralistic approach to the problem. A tortfeasor is not to be given the benefit of any money that comes into the hands of the claimant on account of death of a near and dear one. The set-off as suggested would be conferring a benefit for a negligent act."

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