Tata A.I.G.General Insurance Co. ... vs Ramwati & Ors.
2010 Latest Caselaw 1386 Del

22 & 23
*IN THE HIGH COURT OF DELHI AT NEW DELHI

                                Date of Decision: 12th March, 2010

%
                    +      MAC.APP. 271/2007

      TATA A.I.G.GENERAL INSURANCE CO. LTD...... Appellant
                     Through : Ms. Anjalli Bansall, Adv.

                   versus

      RAMWATI & ORS.                    ..... Respondents
                   Through : Mr. Navneet Goyal and
                             Mr. Varun Kumar, Advs.


                  +        MAC.APP.No.379/2007

      RAMWATI & ORS                     ..... Appellants
                   Through : Mr. Navneet Goyal and
                             Mr. Varun Kumar, Advs.

                   versus

      SUKHVIR SINGH & ORS                ..... Respondents
                    Through : Ms. Anjalli Bansall, Adv.
                              for R-3.

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.31,42,800/-

has been awarded to the claimants. The appellant in

MAC.APP.No.271/2007 is seeking reduction of the award

amount whereas the appellants in MAC.APP.No.379/2007 are

seeking enhancement of the award amount.

2. The accident dated 23rd February, 2005 resulted in the

death of Jasbir Singh. The deceased was survived by his

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

claim petition before the learned Tribunal.

3. The deceased was travelling in Toyota Qualis bearing

No.DL-4C-P-0059 on Delhi-Rohtak highway. At Kharawad

bye-pass near Sudhir Factory, Gandhra More, Sampla, a

Maruti Zen car bearing No.DL-4C-5540 came from the

approach road and hit the Toyota Qualis due to which Toyota

Qualis overturned and fell into the ditch resulting in death of

Jasbir Singh. The deceased was aged 44½ years at the time

of the accident and was working with State Bank of India

drawing Rs.21,128/- per month. The learned Tribunal added

50% towards the future prospects, deducted 20% towards

Income Tax, deducted 1/3rd towards the personal expenses

and applied the multiplier of 15 to compute the loss of

dependency at Rs.30,52,800/-. Rs.40,000/- has been

awarded towards loss of consortium, Rs.40,000/- towards

loss of love and affection and Rs.10,000/- towards funeral

expenses. The total compensation awarded is

Rs.31,42,800/-.

4. The learned counsel for the appellants in

MAC.APP.No.271/2007 has urged the following grounds at

the time of hearing of this appeal:-

(i) The driver of the Toyota Qualis was contributory

negligent for the accident and, therefore, liability

of the appellant is liable to be reduced.

(ii) The income of the deceased should be taken as

Rs.20,053/- per month.

(iii) The multiplier be reduced from 15 to 14.

(iv) The compensation be reduced on the ground that

the widow of the deceased is getting pension.

(v) The future prospects be reduced from 50% to

30%.

(vi) The compensation towards loss of consortium and

loss of love and affection be reduced.

5. On the aspect of negligence, the eye-witness, Lal Singh

Saini appeared in the witness box as PW-5 and deposed that

he was travelling in the Toyota Qualis along with the

deceased at the time of the accident. He further deposed

that the Toyota Qualis was on the highway and the Maruti

Zen car bearing No.DL-4C-5540 came from the link road and

hit the Toyota Qualis on the left side with a very great force.

PW-5 further deposed that the accident occurred due to rash

and negligent driving of the Maruti Zen Car. The widow of the

deceased appeared in the witness box as PW-2 and also

deposed on the same lines. The Investigating Officer of the

police appeared in the witness box as R3W2 and deposed

that the Toyota Qualis was on the highway towards Sampla

and the Maruti Zen came from the approach road and hit the

Toyota Qualis and the case was registered against the driver

of Maruti Zen in FIR No.29/05. The driver of Maruti Zen

appeared in the witness box as RW1 and deposed that the

accident occurred due to rash and negligent driving of the

Toyota Qualis. However, in cross-examination, he admitted

that he came from the side road and approached the main

road but did not see the Toyota Qualis. RW-1 further

admitted that the accident occurred when he was mounting

on the main highway from the side road. RW-1 further

admitted that the Maruti Zen stopped on the same side of

the road hardly two-three feet from the point of impact.

RW-1 further admitted that he ran away from the spot of

occurrence after the accident. From the statements of the

eye-witnesses, PW-2 and PW-5, Investigating Officer-R3W2

and driver of the Maruti Zen Car, RW1, rash and negligent

driving of the driver of Maruti Zen Car is sufficiently proved.

The finding of the learned Tribunal in this regard is upheld.

6. The deceased was aged 44½ years at the time of the

accident and the appropriate multiplier according to the

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

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

129 is 14 whereas the learned Tribunal has applied the

multiplier of 15. The multiplier is, therefore, reduced from 15

to 14.

7. The deceased was working as Special Assistant with

State Bank of India at the time of the accident. In the claim

petition, it was mentioned that the salary of the deceased

was Rs.20,053/- per month. However, the witness from State

Bank of India appeared as PW-1 and proved the certificate

dated 16th December, 2005 in respect of the salary paid to

the deceased in the month of January, 2005 as Ex.PW1/A

according to which Rs.20,053/- was paid to the deceased.

The Manager of State Bank of India appeared in the witness

box as PW-3 and deposed that the gross salary of the

deceased at the time of the accident was Rs.21,128/- per

month. The salary certificate for the month of February, 2005

was proved as Ex.PW3/A according to which the gross salary

of the deceased in February, 2005 was Rs.21,128/-. The

service sheets of the deceased were also proved as

Ex.PW3/B.

8. In view of the difference in amount in Ex.PW1/A and

Ex.PW3/A, the Manager of State Bank of India was recalled

by the learned Tribunal and he clarified that both the

certificates Ex.PW2/1 and Ex.PW3/A were issued by him. He

further clarified that there was a mistake as special

compensatory allowance of Rs.975/- was not shown in

Ex.PW3/A, and Ex.PW2/1 was issued for the salary actually

drawn by the deceased last time before his death whereas

Ex.PW3/A was prepared after the revision of the salary in

pursuance to Bank settlement in November, 2002. The

witness produced another certificate-Ex.PW3/C. The learned

Tribunal has taken the salary of the deceased at the time of

the accident to be Rs.21,128/- per month in terms of

Ex.PW3/A. The finding of the learned Tribunal in this regard

with respect to the salary of the deceased is upheld.

9. The learned Tribunal has deducted 20% towards the

Income Tax. As per the calculation by the Accounts

Department of this Court, the deceased would have paid

Income Tax of Rs.6,638/- per annum subject to the Saving of

Rs.1,00,000/- by the deceased. However, if the saving of

Rs.1,00,000/- is not taken into consideration, the

approximate Income Tax would be to the tune of Rs.27,000/-

per annum. In either case, the 20% deduction towards the

Income Tax by the Claims Tribunal is not justified. Rs.2,128/-

is deducted towards the Income Tax on Rs.21,128/- and the

income of the deceased for computation of compensation is

taken as Rs.19,000/- per month.

10. The learned Tribunal added 50% towards the future

prospects. The deceased was aged 44½ years at the time of

the accident and the future prospects in terms of the

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

Verma (Supra) has to be 30% of the salary. The future

prospects of the deceased are reduced from 50% to 30%.

11. The learned counsel for Insurance Company submits

that pension being received by claimant/appellant No.1

should be deducted from the loss of dependency of the

deceased. The judgment of the Hon'ble Supreme Court in

the case of Sarla Verma (Supra) does not permit any

deduction to be made on account of pension being received

by the family of the deceased after his death. No judgment

has been cited by the learned counsel for the Insurance

Company in support of her submission. In United India

Insurance Co. Ltd. vs. Patricia Jean Mahajan, II(2002)

ACC 460, the Hon'ble Supreme Court has held as under:-

"33.........Similarly, how an amount receivable under a statute has any co-relation with an amount earned by an individual. Principle of loss and gain has to be on the same line within the same sphere, of course, subject to the contract to the contrary or any provisions of law. The court has further referred to receipts of Provident Fund which is a deferred payment out of contribution made by an employee during tenure of his service. Such an employment is payable irrespective of accidental death of the employee. The same is the position relating to family pension. There is no co-relation between the compensation payable on account of accidental death and the amounts receivable irrespective of such accidental death which otherwise in the normal course one would be entitled to receive. This Court for taking the above view has also referred to certain English decisions as discussed in paragraph 18 of the judgment."

12. Following the aforesaid judgment, it is held that the

pension being received by the widow of the deceased is not

deductable from the loss of dependency.

13. The learned Tribunal has deducted 1/3rd towards the

personal expenses of the deceased. The deceased has left

behind six legal representatives and, therefore, the

appropriate deduction according the judgment of the Hon'ble

Supreme Court in the case of Sarla Verma (Supra) is 1/4th.

The personal expenses of the deceased are reduced from

1/3rd to 1/4th.

14. The learned Tribunal has awarded Rs.40,000/- towards

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

affection which are on a higher side. The compensation

towards loss of consortium is reduced from Rs.40,000/- to

Rs.10,000/- and the compensation towards loss of love and

affection is also reduced from Rs.40,000/- to Rs.10,000/-.

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

15. Taking the income of the deceased to be Rs.19,000/-

per month, adding 30% towards the future prospects,

deducting 1/4th towards personal expenses and applying the

multiplier of 14, the loss of dependency is computed to be

Rs.31,12,200/- [(Rs.19,000 + 30% of Rs.19,000) x 12 x 3/4 x

14]. Adding Rs.10,000/- towards loss of consortium,

Rs.10,000/- towards loss of love and affection, Rs.10,000/-

towards loss of estate and Rs.10,000/- towards funeral

expenses, the total compensation is computed to be

Rs.31,52,200/- (Rs.31,12,200 + Rs.10,000 + Rs.10,000 +

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

16. Both the appeals are partially allowed and the

compensation is enhanced from Rs31,42,800/- to

Rs.31,52,200/-.

17. The award amount along with interest be deposited by

the Insurance Company with UCO Bank A/c Ramwati, Delhi

High Court Branch through Mr. M.M. Tandon, Member-Retail

Team, UCO Bank Zonal, Parliament Street, New Delhi (Mobile

No. 09310356400) within 30 days.

18. Upon the aforesaid deposit being made, UCO Bank is

directed to release 10% of the same to claimants/appellants

in MAC.APP.No.379/2007 in equal shares. 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 claimant/appellant No.1

for a period of one year.

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

amount in the name of claimant/appellant No.5

for a period of two years.

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

amount in the name of claimant/appellant No.2

for a period of three years.

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

amount in the name of claimant/appellant No.3

for a period of four years.

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

amount in the name of claimant/appellant No.3

for a period of five years.

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

amount in the name of claimant/appellant No.4

for a period of six years.

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

amount in the name of claimant/appellant No.1

for a period of seven years.

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

amount in the name of claimant/appellant No.1

for a period of eight years.

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

amount in the name of claimant/appellant No.1

for a period of nine years.

19. The interest on the aforesaid fixed deposits shall be

paid monthly by automatic credit of interest in the Savings

Account of claimant/appellant No.1.

20. Withdrawal from the aforesaid account shall be

permitted to claimant/appellant No.1 after due verification

and the Bank shall issue photo Identity Card to

claimant/appellant No.1 to facilitate identity.

21. No cheque book be issued to claimant/appellant No.1

without the permission of this Court.

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

the FDRs to the claimants and the maturity amount of the

FDRs be automatically credited to the Saving Bank Account

of the beneficiary at the end of the FDR.

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

said fixed deposit receipts without the permission of this

Court.

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

this Court.

25. On the request of the claimants, the Bank shall transfer

the Savings Account to any other branch of UCO Bank

according to the convenience of the claimants.

26. The claimants shall furnish all the relevant documents

for opening of the Saving Bank Account and Fixed Deposit

Account to Mr. M.M. Tandon, Member-Retail Team, UCO Bank

Zonal, Parliament Street, New Delhi (Mobile No.

09310356400).

27. After deposit of the enhanced award amount along with

interest in terms of this judgment, the Registry is directed to

refund the statutory amount deposited by the appellant in

MAC.APP.No.271/2007.

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

parties under signatures of the Court Master.

29. 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 the UCO Bank,

High Court Branch under the signature of Court Master.

J.R. MIDHA, J MARCH 12, 2010 aj