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IN THE HIGH COURT OF CALCUTTA
Subhro Kamal Mukherjee, Subrata Talukdar, JJ.
The National Insurance Company Ltd. - Appellant
Versus
Ayesha Sekh & Ors. - Respondents
FMA 2565 of 2007
Decided On : 17-12-2014
For the Appellant :Kamal Krishna Das and Pradip Kumar Pal Chowdhury, Advocates
For the Respondents:Uday Shankar Chattopadhyay, Suman Sankar Chatterjee and Matri Prasad Das, Advocates
Hereditary commission receivable by the claimants upon the death of the victim-agent is not liable to be deducted from the compensation awarded by the Tribunal as it has no nexus to the accident.
Headnote:
MOTOR ACCIDENT - COMPENSATION - DEDUCTION - HEREDITARY COMMISSION - NOT LIABLE FOR DEDUCTION - NO NEXUS WITH ACCIDENT
Fact of the Case:
The deceased, Sk. Zear Ali, was hit by a lorry while standing by the side of the G.T. Road. He died on the spot. The claimants, his wife and two minor children, filed a claim for compensation under Section 166 of the Motor Vehicle Act, 1988. The Tribunal awarded a sum of Rs. 25,09,970/- in their favor. The Insurance Company challenged the award, contending that the Tribunal erred in not deducting the hereditary commission receivable by the claimants upon the death of the victim-agent.
Finding of the Court:
The Court held that the hereditary commission receivable by the claimants has no nexus to the accident per se and would have been anyway receivable by the heirs of the agent even in the normal course of his death. The Court relied on the judgment of the Hon'ble Apex Court in Helen C. Rebello And Others v. Maharashtra State Road Transport Corporation And Another reported in 1999 (1) SCC 90, which held that under the Motor Vehicles Act an amount receivable by the claimant not on account of the accidental death but, otherwise on the death of the insured person, will not come under the meaning of "pecuniary advantage" which is liable for deduction.
Issues: Whether the hereditary commission receivable by the claimants is liable to be deducted from the compensation awarded by the Tribunal.
Ratio Decidendi: The Court held that the hereditary commission receivable by the claimants has no nexus to the accident per se and would have been anyway receivable by the heirs of the agent even in the normal course of his death. The Court relied on the judgment of the Hon'ble Apex Court in Helen C. Rebello And Others v. Maharashtra State Road Transport Corporation And Another reported in 1999 (1) SCC 90, which held that under the Motor Vehicles Act an amount receivable by the claimant not on account of the accidental death but, otherwise on the death of the insured person, will not come under the meaning of "pecuniary advantage" which is liable for deduction.
Final Decision: The Court dismissed the appeal filed by the Insurance Company and upheld the award of the Tribunal.
Subrata Talukdar, J.
This is an appeal in connection with a motor accident claims case challenging the judgment and award dated 22nd February, 2007 passed by the Motor Accident Claims Tribunal (for short MACT), Burdwan in case No. 136 of 2005 (previously numbered as 468 of 2004). The Insurance Company is the appellant before this Court, the respondent Nos. 1, 2 and 3 are the claimants and the respondent No. 4 is the owner of the offending vehicle in question. The respondent Nos. 2 and 3 are minors and therefore represented by the respondent No. 1, their mother and natural guardian.
2. By the judgment and award impugned the Ld. Tribunal was pleased to award a sum of Rs. 25,09,970/- in favour of the three claimants as compensation under Section 166 of the Motor Vehicle Act, 1988 (for short the 1988 Act). The short facts of the case are as follows:-
(a) That the victim, one Sk. Zear Ali @ Jiyarli Sk. was husband of the claimant/OP No. 1 and the father of the claimants/OP Nos. 2 and 3. On the fateful date of 23rd August, 2004 at about 17.00 hours the victim was standing by the side of G.T. Road and talking with one Sk. Abdus Salek when suddenly the offending lorry bearing the registration No. WBK 9313 while travelling from Durgapur to Burdwan tried to overtake another vehicle. The driver of the offending lorry lost his control and hurtled along the Southern side of the road where victim was standing and dashed against the victim. The victim died on the spot.
(b) A case was registered under Galsi Police Station being case No. 106 of 2004 dated 23rd August, 2004 under Sections 279/304-A IPC for rash and negligent driving. The post mortem was conducted at Burdwan Medical College and Hospital.
(c) At the time of his death the victim was aged around 41 years. The victim was the sole bread winner of his family and the claimants, being his family members, were therefore entirely dependent on him. The victim used to work as an agent of the Life Insurance Corporation of India (for short LICI), Guskara Branch and earned a sum of Rs. 2,78,886/- per annum.
3. The Claimants claimed compensation of Rs. 31,88,860/-, after deducting one third of Rs. 2,78,886/- towards the personal expenses of the victim and applying the multiplier of Rs. 15 along with the additional sum of Rs. 4,00000/- towards non-pecuniary damages due to mental agony.
4. The Ld. Tribunal held as follows:-
(i) That from the deposition of the PWs it is admitted that the victim was an LICI agent attached to Guskara Branch. From the evidence on record and the deposition of the PW2 it is also admitted that the victim met with a tragic accident after being hit by the offending lorry and no charge of contributory negligence can be imputed against the victim. From the date of birth on 10th November, 1962 as appearing in the certificate of the West Bengal Board of Secondary Education the victim was aged around 42 years on the date of the accident.
(ii) In support of the income of the victim at the relevant point of time the claimants relied upon the T.D.S. certificate showing the income of the victim for the financial year 2003-2004. The said T.D.S. certificate was marked Exhibit-1 and discloses the income of the victim as Rs. 2,78,886/- for the year 2003-2004. However, after deducting income tax the actual annual income of the victim comes to Rs. 2,50,997.10 paise.
(iii) Taking note of the argument advanced by the Insurance Company that the Claimants being the legal heirs of the victim are entitled to receive hereditary commission upon death of the agent calculated on the basis of the premium deposited, the Ld. Tribunal was of the view that in a claim case it need not be concerned with any amount which is receivable by the heirs of the deceased that has no relation with the accident. According to the Ld. Tribunal it is only concerned with the applicable compensation relatable to the accident and not to the death as such. The Ld. Tribunal found support from a decision of the Hon'ble Guw
