The Oriental Insurance Co. Ltd. vs Radha Devi & Ors.
2011 Latest Caselaw 1017 Del

*IN THE HIGH COURT OF DELHI AT NEW DELHI

                      +     MAC.APP.NO.264/2008

                               Date of Decision : 21st February, 2011

%

      THE ORIENTAL INSURANCE CO. LTD.      ..... Appellant
                     Through : Mr. Pankaj Seth, Adv.

                      versus

      RADHA DEVI & ORS.                   ..... Respondents
                    Through : Mr. Sanjeet K. Singh, Adv.
                              for R-1 to 7.
                              Ms. Manjeet Chawla, Adv.
                              for R-9.

CORAM :-
HON'BLE MR. JUSTICE J.R. MIDHA

1.      Whether Reporters of Local papers may
        be allowed to see the Judgment?

2.      To be referred to the Reporter or not?

3.      Whether the judgment should be
        reported in the Digest?


J.R. MIDHA, J. (Oral)

1. The appellant has challenged the award of the learned

Tribunal whereby the compensation of `19,25,800/- has been

awarded to claimants/respondents No.1 to 7.

2. The accident dated 29th October, 1999 resulted in the

death of Brahm Pal. The deceased was aged 35 years at the

time of the accident and was survived by his mother, widow

and five minor children who filed the claim petition before the

Claims Tribunal. The deceased was working with Himachal

Pradesh Tourism Development Corporation earning `5,431/-

per month. The learned Tribunal added 50% towards the

future prospects, deducted 1/3rd towards the personal

expenses of the deceased and applied the multiplier of 16 to

compute the loss of dependency at `19,00,800/-. `15,000/- has

been awarded towards loss of consortium and `10,000/-

towards funeral expenses. The total compensation awarded is

`19,25,800/.

3. The learned counsel for the appellant has urged the

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

(i) The driver of the offending vehicle was not holding a

valid driving licence at the time of the accident and,

therefore, the appellant is not liable.

(ii) There is an error of calculation in para 8 of the

award and the Claims Tribunal has taken the annual

loss of dependency as `1,18,800/- instead of

`64,800/-.

4. Learned counsel for the appellant submits that the driver

of the offending vehicle was not holding a valid driving licence

at the time of the accident and, therefore, the appellant is not

liable to pay the compensation to the claimants. However, the

appellant did not lead any evidence in this regard before the

Claims Tribunal. The Claims Tribunal has rejected the defence

of the appellant on the ground that the appellant did not lead

any evidence to prove that the driver of the offending vehicle

was not holding a valid driving licence. Respondent No.9 is the

owner of the offending vehicle who has filed the counter

affidavit dated 8th August, 2008. Along with the counter

affidavit, respondent No.9 has filed the certified copy of the

driving licence of the driver of the offending vehicle which was

seized by the police and is lying with the Court dealing with the

criminal case. In that view of the matter, the finding of the

Claims Tribunal does not warrant any interference.

5. The learned counsel for the appellant next submits that

the Claims Tribunal has taken the annual loss of dependency at

`1,18,800/- instead of `64,800/-. It is submitted that the

annual income of the deceased should be taken as `64,800/-

instead of `1,18,800/-. The learned counsel for

claimants/respondents No.1 to 7 admits that there is an error

of calculation in para 8 of the award. However, it is submitted

that the Claims Tribunal has erred in deducting 1/3rd towards

personal expenses instead of 1/5th in terms of the judgment of

the Hon'ble Supreme Court in the case of Sarla Verma Vs. Delhi

Transport Corporation, 2009 (6) Scale 129. It is submitted that

the annual loss of dependency of the claimants should be

taken as `78,206.40. It is further submitted that the Claims

Tribunal has not awarded any compensation for loss of estate

and loss of love and affection. It is further submitted that the

Claims Tribunal has erred in awarding interest @7% per annum

instead of 9% per annum in terms of the judgment of the

Hon'ble Supreme Court in the case of Kaushnuma Begum vs.

New India Assurance Co. Ltd., (2001) 2 SCC 9.

6. The salary of the deceased at the time of death was

`5,431/- per month. The deceased was aged 35 years at the

time of the accident and, therefore, 50% has to be added

towards future prospects. The income of the deceased after

adding the future prospects is computed to be `8,146.50

(`5,431 + 50% of `5,431). The annual income of the deceased

is computed to be `97,758/-. The Claims Tribunal has deducted

1/3rd towards the personal expenses of the deceased whereas

the deceased has left behind seven legal representatives and,

therefore, 1/5th is to be deducted towards personal expenses of

the deceased in terms of the judgment of the Hon'ble Supreme

Court in the case of Sarla Verma Vs. Delhi Transport

Corporation (supra). The annual loss of dependency is

computed to be `78,206.4 (`97,758 - 1/4th of `97,758). The

deceased was aged 35 years at the time of the accident and

the appropriate multiplier according to the judgment of Hon'ble

Supreme Court in the case of Sarla Verma (supra) is 16.

Applying the multiplier of 16, the loss of dependency is

computed to be `12,51,302.40.

7. The Claims Tribunal has awarded `15,000/- towards loss

of consortium and `10,000/- towards funeral expenses which is

upheld. However, no compensation has been awarded towards

loss of love and affection and loss of estate. `10,000/- is

awarded towards loss of love and affection and `10,000/- is

awarded towards loss of estate. The claimants are entitled to

total of `12,96,302.40 (`12,51,302.40 + `15,000 + `10,000 +

`10,000 + `10,000). The break-up of `12,96,302.40 is as

under:-

Compensation towards loss of : `12,51,302.40 dependency Compensation towards loss of : `15,000/- consortium Compensation towards loss of : `10,000/- love and affection Compensation towards loss of : `10,000/- estate Compensation towards funeral : `10,000/- expenses Total : `12,96,302.40

8. The appeal as well as cross-objections are allowed and

the award amount is reduced from `19,25,800/- to

`12,96,302.40. The Claims Tribunal has awarded interest at

the rate of 7% per annum. This case relates to the accident

dated 29th October, 1999 and, therefore, the rate of interest is

enhanced from 7% per annum to 9% per annum.

9. The appellant has deposited a sum of `20,26,411/- with

the Registrar General of this Court in terms of order dated 25th

April, 2008 out of which 40% of the amount has been released

to the claimants and the remaining 60% has been kept in the

fixed deposit in terms of order dated 12th November, 2010.

The Accounts Department of this Court has done the

calculation according to which the appellant is liable to deposit

a sum of `51,840.40. The break-up of `51,840.40 is as under:-

Principal award amount : `12,96,302.40

Interest up to : `8,06,949.00 16th August, 2008

Total : `21,03,251.40

Less : Amount deposited : `20,51,411.00 by the appellant on 16th August, 2008 Balance payable by the : `51,840.40 Appellant

10. The appellant is directed to deposit a sum of `51,840.40

with State Bank of India, Tis Hazari Branch A/c Radha Devi

within two weeks. Upon the said amount being deposited, the

State Bank of India is directed to release the said amount to

respondent No.1 without any restriction of FDR.

11. List for reporting compliance on 8th April, 2011.

12. Copy of this order be given 'Dasti' to learned counsel for

the parties under signature of Court Master.

J.R. MIDHA, J

FEBRUARY 21, 2011 aj