Oriental Insurance Company Ltd. vs Akbari Begum & Ors
2010 Latest Caselaw 1809 Del

*IN THE HIGH COURT OF DELHI AT NEW DELHI

                  +       MAC.APP.No.401/2007

                                 Date of Decision: 7th April, 2010
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      ORIENTAL INSURANCE COMPANY LTD. ..... Appellant
                    Through : Ms. Manjusha Wadhwa, Adv.

                      versus

      AKBARI BEGUM & ORS                 ..... Respondents
                   Through : Mr. Ambar Qamaruddin,
                             Adv. for R-1 to R-5.

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 appellant has challenged the award of the learned

Tribunal whereby compensation of Rs.13,67,000/- has been

awarded to claimants/respondents No.1 to 5. The claimants

have filed the counter claim and seek enhancement of the

award amount.

2. The accident dated 25th October 2003 resulted in the

death of Fariduddin. The deceased was survived by his

widow, two sons, one daughter and mother, who filed the

claim petition before the learned Tribunal.

3. The deceased was aged 52 years at the time of the

accident and was working as Train engine driver with

Northern Railway earning Rs.14,000/- per month. The learned

Tribunal took the income of the deceased as 14,000/-,

deducted 1/3rd towards the personal expenses of the

deceased and applied the multiplier of 8 to compute the loss

of dependency at Rs.13,44,000/-. Rs.3,000/- has been

awarded as funeral expenses and Rs.20,000/- towards loss of

consortium and loss of love and affection. The learned

Tribunal has awarded total compensation of Rs.13,67,000/-

to claimants.

4. The learned counsel for the appellants has urged that

the deceased was aged 52 years at the time of the accident

and, therefore, the future prospects could not be taken into

consideration in view of the judgment of Hon'ble Supreme

Court in the case Sarla Verma Vs. Delhi Transport

Corporation, 2009 (6) Scale 129.

5. The learned counsel for the respondent Nos. 1 to 5 has

urged on the following grounds at the time of hearing of this

appeal:-

(i) The deduction towards the personal expenses of

the deceased be reduced from 1/3rd to 1/4th.

(ii) The multiplier be enhanced from 8 to 11.

(iii) The compensation awarded for funeral expenses

be enhanced.

(iv) The compensation be awarded for loss of estate.

(v) The rate of interest be enhanced from 7% to 7.5%

per annum.

(vi) The compensation of Rs.33,600/- as medical

expenses of the deceased be awarded up to his

death.

6. The deceased was aged 52 years at the time of

accident and was working as Train engine driver with

Northern Railway and was earning Rs.14,000/- per month.

The deceased has left behind five legal representatives.

According to the judgment of Hon'ble Supreme Court in the

case of Sarla Verma Vs. Delhi Transport Corporation,

2009 (6) Scale 129, the deceased is not entitled to future

prospects. However, the appropriate deduction towards the

personal expenses is 1/4th and the appropriate multiplier

is 11. Following the aforesaid judgment of Hon'ble Supreme

Court, the future prospects are set aside, the personal

expenses of the deceased are reduced from 1/3rd to 1/4th and

the multiplier is enhanced from 8 to 11.

7. The learned counsel for the appellant submits that the

widow of the deceased is receiving pension which should be

deducted from the compensation awarded to her. The

pension being received by the widow of the deceased is not

deductable from the compensation in view of the judgment

of this Court in the case of National Assurance Co. Ltd.

vs. Neelam Widow, 2009 ACJ 992. The findings of this

Court in this regard are as under:-

"27. The important question for consideration is when the widow of deceased and her two children are getting family pension amounting to Rs. 3200/- per month and the widow has also been given a job by the Maruti Udyog Ltd. on

compassionate grounds, can these benefits are required to be correspondingly reduced from the amount of total compensation payable or not?

28. In Mrs.Helen C.Rebello and others v. Maharashtra State Road Transport Corpn. and another, AIR 1998 SC 3191, about pensionary benefits, the Apex Court in para 16 referred to the case of the Grand Trunk Railway of Canada v. Jenning, (1888) 13 AC 800 and held as under:-

"At the Common Law, pecuniary benefits from insurance policies, whatever the source, and pension schemes whether contributory or non-contributory, were deducted. The various English Courts' decisions reveal the unsettled state of adjudication regarding the deductions from the compensation payable under the Fatal Accidents Act, 1846. Various divergent opinions were expressed, some favourable to the claimant to exclude any sum payable on life insurance or pensions from deduction out of the compensation payable to the claimant and other not to deduct till, as aforesaid, the matter was set at rest by various legislations culminating into the Fatal Accidents Act, 1959. Till before this, within the limitation of the restrictive language of the Act and in the absence of any motivating and guiding words under the statute the general principles under the common law was applied to ascertain the pecuniary loss and gain. Thus, the 'pecuniary advantage' from whatever source comes to the claimant by reason of the death, was interpreted giving its widest meaning. This amplitude of large sphere has been the cause of concern of the Courts, Legislative and the Jurists and reference to the insurance, pension, gratuity etc. whether it is a pecuniary gain deductible, if it is, whether one‟s conscience, equity and fairness are eroded, specially if it is applied with reference to the provisions of Motor Vehicles Act? To salvage from this onslaught, some decisions declined to interpret for deduction and some other, even after holding deductible, expressed their

conscience in favour of the sufferer. This we find both in the English decisions and the Indian decisions."

The Apex Court further in para 36 has pointed out about the family pension as under;

"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 co-relation between the two."

29. This Court in Delhi Transport Corporation v. Meena Chaturvedi and others, 2006 ACJ 406, held that deductions on account of life insurance, provident fund, pension, etc. are not admissible in view of the decision of the Apex Court in Helen C.Rebello (supra).

30. In case of N.Sivammal and others v. The Managing Director, Pandian Roadways Corpn. and another, AIR 1985 106, the Apex Court pointed out that the reduction of monetary benefit of pension from the amount of compensation is without justification.

31. In Savitri Devi & Ors. v. Pala Ram & Ors., II (2000) ACC 152 (DB), the Punjab and Haryana High Court has taken the view that the pension/family pension payable to the widow could not be taken into consideration for reducing the dependency of the claimants.

32. In view of the aforesaid principles laid down by the various judgments, the question is no more res integra and the Tribunal exercising jurisdiction under the Motor Vehicles Act is required to consider the payment of damages/compensation to the person concerned on the basis of income and the loss that others would suffer irrespective of benefits, such as, insurance, provident fund, pension, etc."

8. The Claims Tribunal has awarded Rs.3,000/- towards

funeral expenses which are enhanced to Rs.10,000/-. The

Claims Tribunal has not awarded any compensation towards

to loss of estate. Rs.10,000/- is awarded towards loss of

estate.

9. The claimants/respondents No.1 to 5, incurred a sum of

Rs.33,600/- on medical expenditure on the treatment of the

deceased. The medical bills were produced by the claimants

before the Claims Tribunal and same has been recorded in

para 15 of the award. However, the Claims Tribunal erred in

not awarding the said amount to the claimants. Rs.33,600/-

is awarded towards medical expenses.

10. The total compensation is computed to be

Rs.14,59,600/- [(14,000 x 3/4 x 12 x 11) + Rs.10,000 +

Rs.20,000 + Rs.10,000 + Rs.33,600]

11. The Claims Tribunal has awarded interest @ 6% per

annum. Following the judgment of Hon'ble Supreme Court in

the case of Dharampal & Ors. vs. U.P. State Road

Transport Corporation, III 2008 ACC (1) SC, the rate of

interest is enhanced from 6% to 7.5% per annum.

12. The appeal and the cross objections are partially

allowed. The award amount is enhanced from Rs.13,67,000/-

to Rs.14,59,000/- along with interest @7.5% per annum from

the date of filing of the claim petition up to the date of notice

of deposit under Order XXI Rule 1 of the Code of Civil

Procedure.

13. The appellant has deposited 50% of the amount

awarded by the Claims Tribunal in terms of the order dated

12th July, 2007 and the same has been released by the

Claims Tribunal to the claimants. The balance amount

awarded by the Claims Tribunal as well as the enhanced

award amount along with up to date interest be deposited by

the appellant with State Bank of India A/c Akbari Begum, Tis

Hazari Branch, Delhi through Mr. H.S. Rawat, Relationship

Manager (Mb: 09717044322) within 30 days.

14. Upon the aforesaid amount being deposited, State Bank

of India is directed to release 10% of the amount to

respondent No.1 by transferring the same to her Saving Bank

Account. The remaining amount be kept in fixed deposit in

the following manner:-

(i) Fixed deposit in respect of 10% of the award

amount in the name of respondent No.2 for a

period of one year.

(ii) Fixed deposit in respect of 10% of the award

amount in the name of respondent No.3 for a

period of two years.

(iii) Fixed deposit in respect of 10% of the award

amount in the name of respondent No.4 for a

period of three years.

(iv) Fixed deposit in respect of 10% of the award

amount in the name of respondent No.4 for a

period of four years.

(v) Fixed deposit in respect of 10% of the award

amount in the name of respondent No.5 for a

period of five years.

(vi) Fixed deposit in respect of 10% of the award

amount in the name of respondent No.5 for a

period of six years.

(vii) Fixed deposit in respect of 10% of the award

amount in the name of respondent No.1 for a

period of seven years.

(viii) Fixed deposit in respect of 10% of the award

amount in the name of respondent No.1 for a

period of eight years.

(ix) Fixed deposit in respect of 10% of the award

amount in the name of respondent No.1 for a

period of nine years.

15. The respondents are permanent residents of Allahabad

and, therefore, State Bank of India, Tis Hazari Branch is

directed to transfer the interest on the aforesaid fixed

deposits monthly by automatic credit of interest in the

Savings Account of appellant No.1 with State Bank of India,

Allahabad Branch.

16. Withdrawal from the aforesaid account shall be

permitted to appellants No.1 to 5 after due verification and

the Bank shall issue photo Identity Card to appellants No.1

to 5 to facilitate identity.

17. No cheque book be issued to appellants No.1 to 5

without the permission of this Court.

18. The Bank shall issue Fixed Deposit Pass Book instead of

the FDRs to appellants No.1 to 5 and the maturity amount of

the FDRs be automatically credited to the Saving Bank

Account of the beneficiary at the end of the FDR.

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

said fixed deposit receipts without the permission of this

Court.

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

this Court.

21. On the request of appellants No.1 to 5, the Bank shall

transfer the Savings Account to any other branch according

to the convenience of appellants No.1 to 5.

22. Appellants No.1 to 5 shall furnish all the relevant

documents for opening of the Saving Bank Account and Fixed

Deposit Account to Mr. H.S. Rawat, Relationship Manager, Tis

Hazari Branch, Tis Hazari (Mb: 09717044322).

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

parties under signatures of the Court Master.

24. Copy of this order be also sent to Mr. H.S. Rawat,

Relationship Manager, Tis Hazari Branch, Tis Hazari (Mb:

09717044322) under the signature of Court Master.

J.R. MIDHA, J APRIL 07, 2010