Uoi &Ors. vs M.K.Ghuman & Ors.
2009 Latest Caselaw 2191 Del

18
*       IN THE HIGH COURT OF DELHI AT NEW DELHI

                     +      FAO. No.484/2000

%                              Date of decision: 21st May, 2009

      UOI &ORS.                                ..... Appellants
                         Through : Ms. Geeta Sharma,
                                   Ms. Preeti Dalal and
                                   Ms. Maneesha Dhir, Advs.

                  versus

      M.K.GHUMAN & ORS.                 ..... Respondents
                   Through : Mr. O.P. Goyal and
                             Mr. Navneet Goyal, Advs.


CORAM :-
THE HON'BLE MR. JUSTICE J.R. MIDHA

1.      Whether Reporters of Local papers may              Yes
        be allowed to see the Judgment?

2.      To be referred to the Reporter or not?             Yes

3.      Whether the judgment should be                     Yes
        reported in the Digest?


                           JUDGMENT (Oral)

1. The appellants have challenged the award of the learned

Tribunal whereby compensation of Rs.10,00,000/- with interest

@6% per annum has been awarded to claimants/respondents

No.1 to 5.

2. The accident dated 27th January, 1986 resulted in the death

of Major Surenderjit Singh Ghumman. On 27th January, 1986 at

about 6:45 pm, the deceased was driving his two wheeler scooter

bearing No.CHH-8818 near Army Headquarters, Delhi Cantt when

he was hit by Army Matador No.DEP 7980 resulting in grievous

injuries. The deceased was removed to the Army Hospital, Delhi

Cantt and was admitted in ICU where he expired on 5 th February,

1986.

3. The deceased was survived by his widow, two minor

children and parents who filed the claim petition before the

learned Tribunal.

4. The deceased was 38 years old at the time of the accident.

He had completed NDA and thereafter IMA (Indian Military

Academy), Dehradun and was commissioned on 21 st December,

1969. The deceased was earning Rs.4,000/- per month apart

from having facilities of free ration, medical facilities, free

education for children and canteen facilities at the time of the

accident. Considering the future prospects of the deceased, the

learned Tribunal took the income of the deceased as Rs.8,000/-

per month. 1/3rd was deducted towards the personal expenses of

the deceased and the multiplier of 16 was applied to compute the

loss of dependency at Rs.10,24,000/-. Rs.10,000/- has been

awarded towards loss of estate, loss of consortium and funeral

expenses and the total compensation computed is Rs.10,34,000/-

The amount was reduced by Rs.34,000/- as the deceased had

claimed only Rs.10,00,000/-. The learned Tribunal awarded

interest @6% per annum on the award amount.

5. The appellant has challenged the impugned award on the

ground that the accident occurred due to the negligence of the

deceased who was under the influence of the liquor at the time of

the accident and, therefore, the appellant is not liable to pay any

compensation whatsoever.

6. The claimants produced the eye-witness, PW-6, Narender

Kumar before the learned Tribunal who deposed that the accident

occurred due to the rash and negligent driving of the Army

Matador. PW-6 deposed that the scooter was on the left side of

the road and the matador came in the centre of the road and hit

the scooter and the speed of the scooter at that time was 30 - 35

kms per hour whereas the speed of the matador was about 70

kms per hour.

7. The appellants produced three witnesses, RW-1, RW-2 and

RW-3. RW-3 is the driver of the Army vehicle who deposed that

he saw a cow crossing the road due to which he slowed down the

vehicle and allowed the cow to cross when the scooter came from

the opposite side and dashed into the Army vehicle. RW-3 also

deposed that the deceased was smelling of alcohol and was

negligently driving. RW-1 was sitting in the Army vehicle along

with the driver and he also deposed to the same effect. The

appellants also produced the doctor, RW-2 who examined the

deceased in the Army Hospital and deposed that the deceased

was smelling of alcohol. However, RW-2 admitted that he did not

conduct any test to determine the presence of alcohol and the

smell could have been on account of alcoholic medicines at the

Base Hospital.

8. The departmental enquiry was conducted by the Military

authorities where RW-1 and RW-3 appeared but did not make any

statement that the deceased was under the influence of liquor.

The army authorities recorded a finding in the enquiry report that

the deceased was neither under the influence of the liquor nor

mentally disturbed at the time of the accident.

9. The learned Tribunal has considered the entire evidence of

the parties in detail in the impugned award to arrive at the

finding that the accident occurred due to the rash and negligent

driving of the Army vehicle. There is no infirmity in the finding of

the learned Tribunal with respect to the rash and negligent

driving of the Army vehicle which is proved by the testimony of

the independent eye-witness, PW-6 who deposed that the

deceased was driving on the left side of the road and the

matador came on the centre of the road to hit the scooter of the

deceased. Even RW-1 and RW-3 have also admitted the accident

but the explanation that a cow came on the road was not proved.

The finding of the rash and negligent driving of the Army vehicle

is, therefore, upheld.

10. The claimants/respondents have filed the cross-objections

to claim the enhancement of the award amount. The learned

counsel for the claimants seek enhancement on the following

grounds:-

(i) The deceased has left behind five legal representatives,

namely widow, two minor children and parents who were

dependent upon him and, therefore, the personal expenses of the

deceased should be deducted as 1/5th instead of 1/3rd.

(ii) No compensation has been awarded for loss of love and

affection.

(iii) Compensation for loss of estate and loss of consortium be

enhanced.

(iv) The deduction of Rs.34,000/- from the amount computed by

the learned Tribunal on the ground that the claimants have

claimed only Rs.10,00,000/- is unjustified.

(v) The rate of interest @6% per annum be enhanced.

11. With respect to the deduction of personal expenses, it has

been settled by the Hon'ble Supreme Court in the case of Sarla

Verma Vs. Delhi Transport Corporation, 2009 (6) Scale 129

decided on 15th April, 2009 that where the deceased left behind

four to six dependent family members, 1/4th should be deducted

towards the personal expenses. The deduction of personal

expenses of the deceased is, therefore, reduced from 1/3 rd to

1/4th.

12. The learned Tribunal has not awarded any compensation for

loss of love and affection. The compensation of Rs.10,000/- is

awarded to each of the claimants for loss of love and affection.

The learned Tribunal has awarded Rs.10,000/- towards loss of

estate, loss of consortium and funeral expenses. The

compensation under these heads is enhanced to Rs.25,000/-

(Rs.10,000/- for loss of estate, Rs.10,000/- for loss of consortium

and Rs.5,000/- for funeral expenses).

13. The learned Tribunal has computed the compensation

payable to the deceased to be Rs.10,34,000/-. However, the

learned Tribunal deducted Rs.34,000/- on the ground that the

claimants claimed Rs.10,00,000/- in the claim petition. The

finding of the learned Tribunal is contrary to the judgment in the

case of Nagappa vs. Gurudayal Singh, AIR 2003 SC 674

where it has been held that claimants are entitled to just

compensation and they can be awarded higher compensation

than the compensation claimed in the petition. The deduction of

Rs.34,000/- by the learned Tribunal in the award, is therefore,

unjustified.

14. The learned Tribunal has awarded interest @6% per annum

which is considerably low considering that prior to 2001, the bank

interest rate was 12% per annum. Thereafter, the Hon'ble

Supreme Court in the case of Kaushnuma Begum vs. New

India Assurance Co. Ltd., AIR 2001 SC 485 held that in view

of the prevailing bank interest rates, interest @9% should be

awarded. In the case of Dharampal vs. U.P. State Road

Transport Corporation, III 2008 ACC (1) SC, the Hon'ble

Supreme Court has awarded interest @7.5% per annum.

Considering the bank rate of interest, the rate of interest on the

award amount is enhanced from 6% per annum to 12% per

annum from the date of filing of the petition till 2001 and

thereafter @9% till the date of the award, i.e. 18th August, 2000

and thereafter @7.5% per annum up to the date of payment.

15. In view of the above, the appeal is dismissed and the cross-

objections are allowed. The award amount is enhanced from

Rs.10,00,000/- to Rs.12,27,000/- [(Rs.8,000 - Rs.2,000) x 12 x 16

+ Rs.10,000 + Rs.10,000 + Rs.10,000 + Rs.10,000 + Rs.10,000

+ Rs.25,000)] along with interest @12% per annum from the date

of filing of the petition up to 31st December, 2001, thereafter

@9% per annum up to the award of the learned Tribunal, i.e. 18 th

August, 2000 and thereafter @7.5% per annum.

16. The appellant has deposited 50% of the award amount with

the Registrar General of this Court in terms of the order dated

17th January, 2001 out of which Rs.2,50,000/- has been received

by the claimants and the balance amount is lying in the fixed

deposit in terms of the order dated 9th March, 2009.

17. The Registrar General is directed to transfer/remit the entire

award amount along with up to date interest to the learned

Tribunal within a period of two weeks. The appellant is directed

to deposit the remaining award amount along with up to date

interest with the learned Tribunal within 30 days.

18. The shares of the claimants in the award amount shall be as

under:-

      Claimant/respondent No.1               :       60%
      Claimants/respondents No.2 to 5        :       10% each

19. The learned Tribunal is directed to release 10% of the

enhanced award amount along with interest to claimant No.1 and

5% of the enhanced award amount along with interest to each of

claimants/respondents No.2 to 5 and their remaining share be

kept in the fixed deposit for a period of five years on which

periodical interest be paid to them but no loan or advance be

permitted without the permission of the learned Tribunal.

20. The copy of the order be given 'dasti' to learned counsel for

the parties under signature of Court Master.

J.R. MIDHA, J May 21, 2009 aj