Sunil Chadha & Anr vs New India Insurance Co. & Ors
2009 Latest Caselaw 4897 Del

29
*       IN THE HIGH COURT OF DELHI AT NEW DELHI

                       +       MAC.APP.No.369/2008

%                                 Date of decision: 30th November, 2009


      SUNIL CHADHA & ANR                   ..... Appellants
                   Through : Mr. Suman Kapoor, Adv.

                      versus

      NEW INDIA INSURANCE CO. & ORS        ..... Respondents
                    Through : Mr. D.K. Sharma, Adv.

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.5,95,600/- has been

awarded to the appellants. The appellants seek enhancement of

the award amount.

2. The accident dated 25th May, 2005 resulted in the death of

Sunav Chadha. The deceased was survived by his parents who

filed the claim petition before the learned Tribunal.

3. The deceased was 22 years old at the time of the accident

and was working as a Sales Executive with M/s Studio-22. The

appellants claim the income of the deceased to be Rs.28,000/-

per month. The employer of the deceased came in the witness

box as PW-3 and deposed that he was paying a salary of

Rs.28,000/- per month to the deceased. However, the learned

Tribunal disbelieved the witness considering that the income was

paid in cash and the appointment letter, confirmation letter did

not bear the signatures of the deceased and the vouchers and

other records of payment of salary were not produced. The

learned Tribunal assumed the income of the deceased to be

Rs.11,250/-, added 50% towards future prospects and the income

of the deceased for computation of compensation was taken to

be Rs.16,900/- per month, 50% was deducted towards the

personal expenses of the deceased and multiplier of 9 was

applied to compute the loss of dependency. Rs.10,000/- has

been awarded towards funeral expenses, Rs.40,000/- towards

loss of love and affection and Rs.30,000/- towards loss of estate.

The total compensation has been computed to be Rs.9,92,600/-

out of which 40% has been deducted towards contributory

negligence of the deceased and the compensation of

Rs.5,95,600/- has been awarded to the appellants.

5. The learned counsel for the appellants has urged the

following grounds at the time of hearing of this appeal:-

(i) The finding of the learned Tribunal with respect to

the 40% contributory negligence of the deceased

be set aside.

(ii) The multiplier be enhanced from 9 to 13.

(iii) The rate of interest be enhanced from 7% per

annum to 7.5% per annum.

6. With respect to the finding of contributory negligence, the

learned counsel for the appellants has referred to and relied on

the statement of eye-witness PW-2 who deposed that the crane

suddenly came on the wrong side of the road and hit the car

being driven by the deceased. The learned counsel for

respondent No.1 refers to and relies upon the site plan on the

record of the learned Tribunal according to which the crane was

on the correct side of the road whereas the car was on the wrong

side of the road. However, the site plan has not been proved as

the Investigating Officer of the Police was not called in the

witness box. The learned counsel for the appellants submit that

the site plan has been prepared by the police at the instance of

the driver of the crane who was himself the accused and the site

plan does not depict the correct position of the vehicles at the

time of the accident.

7. Considering the facts and circumstances of this case and

the evidence urged by the parties, it is clear that there has been

head on collision between the offending vehicle and the car

driven by the deceased himself. Even if the offending vehicle is

assumed to be on the wrong side of the road, it was the heavy

crane and its speed could not have been very high and the

deceased certainly had the opportunity of avoiding the accident.

The finding of contributory negligence of the deceased is,

therefore, upheld. However, the contributory negligence of the

deceased is taken to be 25% instead of 40%.

8. The deceased was aged 22 years at the time of the accident

and he was survived by his parents aged 49 and 52 years

respectively at the time of the accident. The appropriate

multiplier according to the age of the mother of the deceased is

13 and, therefore, the multiplier is enhanced from 9 to 13.

9. The learned Tribunal has awarded interest @7% per annum.

Following the judgment of the Hon'ble Supreme Court in the case

of Dharampal vs. U.P. State Road Transport Corporation,

III 2008 ACC (1) SC, the rate of interest is enhanced from 7%

per annum to 7.5% per annum.

10. Taking the income of the deceased to be Rs.16,900/- per

month, deducting 1/2 towards personal expenses, applying the

multiplier of 13 and deducting 25% towards contributory

negligence of the deceased, the loss of dependency of the

appellants is computed to be Rs.9,88,650/- [(Rs.16,900 x 1/2 x 12

x 13) - 25%]. Adding Rs.10,000/- towards funeral expenses,

Rs.40,000/- towards loss of love and affection, Rs.30,000/-

towards loss of estate, the total compensation is computed to be

Rs.10,68,650/- (Rs.9,88,650 + Rs.10,000 + Rs.40,000 +

Rs.30,000)

11. The appeal is allowed and the award amount is enhanced

from Rs.5,45,600/- to Rs.10,68,650/- along with interest @7.5%

per annum from the date of filing of the petition till realization.

12. The enhanced award amount along with interest be

deposited by respondent No.1 with UCO Bank, Delhi High Court

Branch A/c Sunil Chadha and Vandana Chadha through Mr. M.M.

Tandon, Member-Retail Team, UCO Bank Zonal, Parliament

Street, New Delhi (Mobile No. 09310356400) within 30 days.

13. Upon the aforesaid amount being deposited, UCO Bank is

directed to release 50% of the same to the appellants by

transferring the said amount to their Saving Bank Account and

the remaining amount be kept in fixed deposit for a period of 2½

years on which monthly interest be paid to them.

14. The interest on the aforesaid fixed deposits shall be paid

monthly by automatic credit of interest in the Savings Account of

the appellants.

15. Withdrawal from the aforesaid accounts shall be permitted

to the appellants after due verification and the Bank shall issue

photo Identity Card to the appellants to facilitate identity.

16. The original FDRs shall be retained by UCO Bank in safe

custody. However, the original Pass Book shall be given to the

appellants along with the photocopy of the FDRs.

17. The original Fixed Deposit Receipts shall be handed over to

appellants at the expiry of the period of the FDRs.

18. No loan, advance or withdrawal shall be allowed on the said

fixed deposits without the permission of this Court.

19. Half yearly statement of account be filed by the Bank in this

Court.

20. Copy of the order be given dasti to counsel for both the

parties under the signature of the Court Master.

22. Copy of this order be also sent to Mr. M.M. Tandon, Member-

Retail Team, UCO Bank Zonal, Parliament Street, New Delhi

(Mobile No. 09310356400) through UCO Bank, Delhi High Court

Branch.

J.R. MIDHA, J

NOVEMBER 30, 2009 aj