M/S United India Insurance Co vs Baby Kashwi Aggarwal & Ors
2010 Latest Caselaw 1722 Del

39
*IN THE HIGH COURT OF DELHI AT NEW DELHI


                                 Date of Decision: 26th March, 2010
%

+     MAC.APP.No.669/2006


      M/S UNITED INDIA INSURANCE CO      ..... Appellant
                     Through Mr. Abhishek Kumar and
                     Mr. Prabhat Kumar, Advs.

                    versus

      BABY KASHWI AGGARWAL & ORS        ..... Respondents
                   Through. Mr. R.K. Kohli and
                   Mr. Madhurendra Kumar, Advs.


+     MAC.APP. 729/2006

      BABY KASHWI AGARWAL                     ... Appellant
                   Through. Mr. R.K. Kohli and
                   Mr. Madhurendra Kumar, Advs.

                    versus

      UNITED INDIA INSURANCE CO. & ORS. .....Respondents
                     Through Mr. Abhishek Kumar and
                     Mr. Prabhat Kumar, 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 appellant has challenged the award of the learned

Tribunal whereby compensation of Rs.11,58,000/- has been

awarded to claimants/respondents No.1, 3 and 4.

2. The accident dated 10th May, 2004 resulted in death of

Nirman Aggarwal. The deceased was survived by his minor

daughter and parents.

3. The deceased was travelling in Mahendra Scorpio Car

bearing No.DL-4CR-0283 which met with an accident with a

truck. The truck ran away from the spot and was not traced

out. FIR - Ex.PW3/A was registered against the driver of the

truck. The appellant is the insurer of the Mahendra Scorpio

Car.

4. The appellant has challenged the impugned award on

two grounds. The first ground of challenge is that the

appellant is not liable in respect of the death of the

occupants of the Mahendra Scorpio car. The second ground

of challenge is that the accident occurred due to the

composite negligence of the Mahendra Scorpio car and the

truck and, therefore, the liability of the appellant is liable to

be reduced.

5. With respect to the liability of the appellant in respect

of the occupants of the car, the learned counsel for the

appellant does not press the same in view of the judgment of

this Court in the case of Yashpal Luthra vs. United India

Insurance Co. Ltd., MAC.APP.No.176/2009 decided on 9 th

December, 2009 in which all the Insurance Companies have

admitted their liability in respect of the occupants of a car.

6. With respect to the second ground raised by the

appellant, it is noted that the deceased was the occupant of

Mahendra Scorpio car which met with an accident with a

truck. The FIR was registered against the driver of the truck.

The finding of the Claims Tribunal holding the appellant to be

liable is based on evidence on record and is upheld.

7. The appeal is dismissed.

8. The appellant has deposited the entire award amount

with the Claims Tribunal in terms of the order dated 18th

August, 2006 passed by this Court. The Claims Tribunal is

directed to release the award amount to the claimants, if not

already done.

MAC.APP.No.729/2006

1. The appellants are seeking the enhancement of the

award amount.

2. The deceased was aged 32 years at the time of the

accident and was working as Administrator-cum-Manager

with M/s J.K. Oils Industries earning Rs.14,000/- per month.

The Claims Tribunal added 50% towards future prospects,

deducted 2/3rd towards personal expenses and applied the

multiplier of 12 to compute the loss of dependency at

Rs.10,08,000/-. Rs.1,50,000/- has been awarded towards

loss of love and affection. The total compensation awarded

is Rs.11,58,000/-.

3. The learned counsel for the appellant has urged the

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

(i) The multiplier be enhanced from 12 to 16.

(ii) The personal expenses of the deceased be

reduced from 2/3rd to 1/3rd.

(iii) The compensation be awarded for loss of estate

and funeral expenses.

(iv) The rate of interest be enhanced from 6% per

annum to 7.5% per annum.

4. The learned counsel for Insurance Company submits

that the compensation for loss of love and affection is on a

higher side and is liable to be reduced.

5. The deceased was aged 32 years at the time of the

accident and has left behind three legal representatives.

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

the case of Sarla Verma Vs. Delhi Transport

Corporation, 2009 (6) Scale 129, the appropriate

multiplier in the present case is 16 and the appropriate

deduction towards the personal expenses is 1/3rd. The

contrary finding of the Claims Tribunal is set aside. Taking

the income of the deceased as Rs.14,000/-, adding 50%

towards future prospects, deducting 1/3rd towards personal

expenses and applying the multiplier of 16, the loss of

dependency is computed to be Rs.26,88,000/- [(Rs.14,000 +

50% of Rs.14,000) x 12 x 2/3 x 16]. The compensation for

loss of love and affection is reduced from Rs.1,50,000/- to

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

and Rs.10,000/- towards funeral expenses. The total

compensation is computed as Rs.27,18,000/- (Rs.26,88,000

+ Rs.10,000 + Rs.10,000 + Rs.10,000). The rate of interest

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

6. The appeal is allowed and the award amount is

enhanced from Rs.11,58,000/- to Rs.27,18,000/- along with

interest @7.5% per annum from the date of filing of the claim

petition till the date of notice of deposit under Order XXI Rule

1 of the Code of Civil Procedure.

7. The enhanced award amount along with interest be

deposited by respondent No.1 with UCO Bank A/c Baby

Kashwi Aggarwal, 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.

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

directed to release 10% of the same to Baby Kashwi

Aggarwal (Respondent No.1) through her guardian and 10%

jointly to Jai Prakash Aggarwal (Respondent No.3) and Usha

Aggarwal (Respondent No.4), by transferring the said amount

to their Savings Bank Account. The remaining amount be

kept in fixed deposit in the following manner:-

(i) Fixed deposit in respect of 15 % of the amount in

the name of Kashwi Aggarwal for a period of one

year.

(ii) Fixed deposit in respect of 15% of the amount in

the joint names of Jai Prakash Aggarwal and Usha

Aggarwal for a period of one year.

(iii) Fixed deposit in respect of 50% of the amount in

the name of Kashwi Aggarwal till she attains the

age of maturity.

9. The interest on the fixed deposit of Kashwi Aggarwal

shall be paid monthly by automatic credit of interest in the

Savings Account of Kashwi Aggarwal to be operated by her

guardian whereas the interest on the fixed deposit of Jai

Prakash Aggarwal and Usha Aggarwal be released to them,

by transferring the same to their joint account.

10. Withdrawal from the aforesaid account shall be

permitted to respondent Nos.1, 3 and 4 after due verification

and the Bank shall issue photo Identity Card to appellants

No.1, 3 and 4 to facilitate identity.

11. No cheque book be issued to respondent Nos.1, 3 and 4

without the permission of this Court.

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

the FDRs to respondent Nos.1, 3 and 4 and the maturity

amount of the FDRs be automatically credited to the Saving

Bank Account of the beneficiary at the end of the FDR.

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

said fixed deposit receipts without the permission of this

Court.

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

this Court.

15. On the request of respondent Nos.1 or 3 and 4, the

Bank shall transfer the Savings Account to any other branch

according to the convenience of respondent Nos.1, 3 and 4.

16. The respondent Nos.1, 3 and 4 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.

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

parties under the signatures of the Court Master.

18. 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 26, 2010 HL