Delhi High Court
Oriental Insurance Co. Ltd. vs Sarvesh & Ors. on 19 December, 2011
Author: G.P. Mittal
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 8th December, 2011
Pronounced on: 19th December, 2011
+ MAC.APP. 342/2009
ORIENTAL INSURANCE CO. LTD. ..... Appellant
Through Ms. Manjusha Wadhwa, Advocate
Ms. Angana Goswami, Advocate
versus
SARVESH & ORS. ..... Respondents
Through Mr. Varun Kumar, Advocate for
Respondents No.1 & 4(widow and
daughter)
Mr. R.K. Bachchan, Advocate for
Respondents No.2 & 3
AND
+ MAC.APP. 358/2009
RAM PAL SINGH & ANR. ..... Appellants
Through Mr. R.K. Bachchan, Advocate
versus
ROSHAN LAL & ORS. ..... Respondents
Through Ms. Manjusha Wadhwa, Advocate
with Ms. Angana Goswami, Advocate
for R-3 Insurance Company.
Mr. Varun Kumar, Advocate for
Respondents No.4 & 5(widow and
daughter)
CORAM:
HON'BLE MR. JUSTICE G.P.MITTAL
MAC APP 342/2009 & 358/2009 Page 1 of 7
JUDGMENT
G. P. MITTAL, J.
1. These are two cross Appeals arising out of the award dated
19.03.2009 passed by the Motor Accident Claims Tribunal (the
Tribunal) whereby a compensation of `19,17,232/- was
awarded by the Tribunal.
2. MAC APP. No.342/2009 filed by the Insurance Company is for
reduction of the compensation on the ground that the multiplier
was wrongly applied; the future prospects were considered
without any evidence and the income tax was not deducted.
3. MAC APP. No.358/2009 is by deceased Vijay Kumar's parents
who say that the deceased's widow namely Sarvesh re-married
after one year of the accident. The Appellants being aged
parents are entitled to a larger share than a sum of ` 1,00,000/-
each awarded by the Tribunal.
4. In the case of Kerala State Road Transport Corporation v.
Susamma Thomas, (1994) 2 SCC 176, it was held that the
multiplier should be selected according to the age of the
deceased or the Claimant whichever is lower. In other words,
the Court has to accept the higher age whether of the dependent
or the victim. While using the multiplier method for award of
compensation, the entire amount as per the multiplier is
awarded to the Claimants. Thus, if the Claimants are old and
the deceased is young the dependency would end earlier
(according to the age of the Claimants). Similarly, where the
Claimants are young but the deceased is old, the deceased
would not be able to provide for the maintenance of the
Claimants during the entire life time of the Claimants.
5. The main Claimant in this case is the minor child who was aged
about three months on the date of the accident and the
deceased's mother who was 55 years on the date of the
accident.
6. As per Sarla Verma & Ors. v. Delhi Transport Corporation &
Anr., (2009) 6 SCC 121, it was held that the deceased's father
was not to be considered as a dependent unless there is evidence
to the contrary. In this case no evidence was led by the
Claimants to show that the deceased's father was financially
dependent on him. It is admitted that Smt. Sarvesh the
deceased's widow re-married after one year of the accident.
7. The trend of the superior Courts is that the prospects of re-
marriage is not considered as a ground to deny or refuse the
amount of compensation, even if the widow is young. It is
neither a sin nor a stigma to re-marry. In Vijay v. Laxmi Chand
Jain & Ors., 1995 ACJ 755, a contention of prospects of re-
marriage as a ground for reduction of compensation was
rejected but it was held that if by additional evidence, it was
proved that the widow had remarried, the same could have
affected the award of compensation. In Oriental Fire and
General Insurance Co. Ltd. v. Shrimati Chandrawati, AIR 1983
All. 174, the Allahabad High Court held that a widow is not
entitled to compensation after she remarries. In Nisha v.
Gyanwati, ILR (2007) 2 Delhi 53, this Court held that "It would
be appropriate if the loss of dependency is confined to the
period from the date of the accident till the date of remarriage
of the widow".
8. Therefore, Respondent No.1 Smt. Sarvesh would be entitled to
compensation only till the date of her re-marriage from the date
of the accident.
9. The deceased was in settled business working as a Contractor
and running his concern M/s. Matangi Engineering. He was
being assessed to income tax as per the Income Tax Return
Ex.PW-1/D. He filed the return of his income of ` 1,05,124/-.
For the assessment year 2006-2007 there was no liability to pay
income tax upto the income of ` 1,00,000/- and the rate of tax
was 10% on an income above ` 1,00,000/- and below `
1,35,000/-. Thus, the deceased was liable to pay income tax of
` 500/- only. I would, therefore, ignore the same for the
purpose of calculation of dependency.
10. The deceased was in settled business and paying the income tax.
The Tribunal was, therefore, right in granting 50% of the
income towards the future prospects.
11. The average age of Baby Ritu and the deceased's mother comes
to ¼ (3 months) + 55/2 = 28 years which was also the age of
the deceased. The appropriate multiplier relevant to the
deceased's age as per Sarla Verma (supra) is 17. The Tribunal
gave the multiplier of 18 which was not justified. The loss of
dependency, on applying a multiplier of 17 comes to `
17,87,108/- (i.e. ` 1,05,124/- + 52,562 (50%) - 1/3rd x 17).
12. Respondents No.1 to 4 (in MAC APP. 342/2009) are also
entitled to a sum of ` 10,000/- towards loss of estates, ` 10,000/-
towards funeral expenses and ` 25,000/- towards loss of love
and affection.
13. After adding the notional amount under conventional heads, the
total compensation works out as ` 18,32,108/-. The awarded
compensation is reduced from ` 19,17,232/- to ` 18,32,108/-.
14. The excess amount deposited shall be refunded to the Insurance
Company along with interest earned on the FDR of this amount,
if any.
15. The Appeal filed by the Appellant Insurance Company being
MAC APP.342/2009 is allowed in above terms.
16. As far as apportionment is concerned, as stated above
Respondent Smt. Sarvesh got re-married just after one year of
the accident. A sum of ` 2,00,000/- was rightly awarded to the
widow Smt. Sarvesh (Respondent No.4) in MAC
APP.358/2009.
17. After deducting interim compensation of ` 50,000/- already
paid, the awarded compensation shall be apportioned as under:-
(i) ` 2,00,000/- along with proportionate interest to Smt.
Sarvesh (widow of the deceased Vijay Kumar)
(ii) ` 1,00,000/- along with proportionate interest to Shri Ram
Pal Singh (father of the deceased Vijay Kumar).
(iii) ` 5,00,000/- along with proportionate interest to Smt.
Kamla Devi (mother of the deceased Vijay Kumar).
(iv) Balance award amount with proportionate interest be paid
to the minor daughter Baby Ritu.
18. The amount awarded to Smt. Sarvesh and father Shri Ram Pal
Singh shall be released forthwith, if not, already released. Out
of sum of ` 5,00,000/- with interest awarded to mother Smt.
Kamla Devi, a sum of ` 1,00,000/- along with proportionate
interest shall be released to her immediately. The remaining
amount awarded to her along with proportionate interest shall
be converted into two FDRs in equal amount for one year and
three years.
19. The amount awarded to Respondent No.5 Baby Ritu shall be
held in FDR till she attains the age of 21 years or till her
marriage, whichever is later. If any amount is needed for her
higher education, her mother Smt. Sarvesh shall be entitled to
apply to the Tribunal for release of the amount for that purpose.
20. The appeal filed by the parents of the deceased being MAC
APP.358/2009 is disposed of in above terms.
21. Pending applications also stands disposed of.
(G.P. MITTAL)
JUDGE
DECEMBER 19, 2011
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