Delhi High Court
Oriental Insurance Co. Ltd. vs Chander Kanta Goel on 24 August, 2012
Author: J.R. Midha
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ MAC.APP.No.343/2007, CM No.8032/2007 &
11443-44/2007
% Reserved on : 06th July, 2012
Date of decision : 24th August, 2012
ORIENTAL INSURANCE CO. LTD. ..... Appellant
Through : Mr. Tarkeshwar Nath, Adv.
versus
CHANDER KANTA GOEL ..... Respondent
Through : Mr. L.R. Goel and
Mr. Rupesh Goel, Advs.
for R-1.
CORAM :-
THE HON'BLE MR. JUSTICE J.R. MIDHA
JUDGMENT
MAC.APP.No.343/2007, CM No.8032/2007 & 11443-44/2007
1. The appellant has challenged the award of the Claims
Tribunal whereby compensation of `24,10,000/- has been
awarded to claimant/respondent No.1.
2. The accident dated 13th October, 2004 resulted in the
death of Gaurav Goel. The deceased was survived by his
mother who filed the claim petition before the Claims Tribunal.
3. The deceased was aged 25 years at the time of the
accident and was working as an Assistant Manager with the
Citi Bank, drawing a salary of `46,635/- per month. The Claims
Tribunal held that the average net salary of the deceased after
deduction of Income Tax and Provident Fund to be `29,800/-
per month. The Claims Tribunal further deducted `6,000/-
towards the installment for repayment of the car loan and took
the income of the deceased for computation of compensation
as `23,800/- per month. The Claims Tribunal added 50%
towards future prospects, deducted 1/2 towards the personal
expenses of the deceased and applied the multiplier of 11
according to the age of the mother of the deceased to
compute the loss of dependency at `23,57,000/-. `25,000/-
has been awarded towards medical expenses, `15,000/-
towards loss of love and affection and `13,000/- towards
funeral expenses. The total compensation awarded is
`24,10,000/-.
4. The learned counsel for the appellant has urged at the
time of hearing of this appeal that there was head-on collision
between the car driven by the deceased and the offending
vehicle and, therefore, compensation be reduced to the extent
of 50%.
5. There is no merit in the contention of the appellant in as
much as the deceased was driving the car on the correct side
of the road at the time of the accident and the offending
vehicle came from the opposite direction on the wrong side
and hit the car of the deceased. The Claims Tribunal
considered the entire evidence in this regard and held that the
accident occurred due to the rash and negligent driving of the
offending vehicle. The findings of the Claims Tribunal in this
regard are reproduced hereunder:-
"PW3 has deposed that the deceased Gaurav
Goel was his nephew (Bhanja i.e. sister's son).
He has also deposed that on 13.10.04, he had
gone to Faridabad to meet Gaurav Goel. He has
then deposed that after finishing work by Gaurav
Goel, they were coming to Delhi in their
respective cars. He has also deposed that
Gaurav was in his Indica car No. DL 3CW 2471
and he himself was in Zen car No.HR 7E 8599
and that he was following Gaurav's car. He has
then deposed that when they reached a little
distance ahead of Anangpur Chowk (Surajkund),
Faridabad at 10.30pm, suddenly dumper bearing
No. HR 38L 7247 came rushing at a very high
speed, without blowing any horn, from the
opposite direction and dashed against the Indica
car of Gaurav Goel. He has also deposed that
the said dumper was being driven by its driver,
rashly, negligently and at a very high speed,
without blowing any horn. He has also deposed
that the Indica car No. DL 3CW 2471 was badly
smashed by the said dumper. He has also
deposed that the driver of the said dumper, after
smashing the said Indica car, ran away with the
dumper from the place of accident. He has also
deposed that in the accident, Gaurav Goel
sustained multiple fatal injuries and was first
taken to Sarvodya Hospital, Faridabad and from
there was removed to Escorts Hospital and
Research Centre Ltd., Faridabad but died due to
the injuries sustained in the accident, the next
day. Though cross-examined, I observed that
the said deposition of PW3 has gone unshaken
and uncontroverted. What is deposed to by him
also finds support from challan Ex. PX, that has
come to be filed for the commission of the
offences U/s 279/304A IPC and wherein, the
accused is none else but the respondent No.1.
Though during cross, PW3 has deposed for being
correct that it was a head on collision, that ipso
facto is not sufficient to conclude contributory
negligence on the part of the deceased. It is
worthwhile to mention that during cross, PW3
has also deposed that when the accident
occurred, the deceased was on the correct side
of the road. When that is so, simply because the
two vehicles coming from the opposite side were
involved in the accident, it cannot be concluded
that the drivers of both the vehicles were
responsible for the occurrence of the accident.
Needless to say, deposition of PW3 during cross
that at the time of the occurrence, the deceased
was on the correct side of the road, has not been
controverted by any of the respondents,
inasmuch as no evidence to that effect has come
to be led. In view of the aforegoing, the
contention raised by the Ld. Counsel for the
respondent No.3 to the contrary merely referring
to the mechanical inspection reports of the
respective vehicles, which form part of challan
Ex.PX is of no avail and the reliance placed upon
2006 II AD (SC) 606 titled Bijoy Kumar Dugar Vs.
Vidyadhar Dutta & Others, is misplaced. In view
of the aforegoing, issue in hand is answered in
the affirmative."
6. There is no infirmity in the findings of the Claims Tribunal
with respect to the rash and negligent driving of the offending
vehicle.
7. The learned counsel for claimant/respondent No.1 has
filed the cross-objections seeking enhancement of the award
amount on the following grounds:-
(i) The deduction of `6,000/- towards the installment for
repayment of the car loan taken by the deceased is not
justified.
(ii) No compensation has been awarded towards the loss of
estate.
(iii) The rate of interest be enhanced from 8% per annum to
9% per annum.
8. The deduction of `6,000/- by the Claims Tribunal out of
the net income of the deceased is not justified. The deceased
had taken a loan for purchasing the car and was repaying loan
by means of installment of `6,000/- per month which is in the
nature of an expenditure. There is no justification for
deduction of the expenditure of `6,000/- from the salary of the
deceased. The deduction of `6,000/- is, therefore, set aside.
The income of the deceased is taken to be `29,800/- per
month. 50% is added towards the future prospects of the
deceased. The findings of the Claims Tribunal as to the
personal expenses of the deceased and the multiplier to
compute the loss of dependency of the deceased are upheld.
The Claims Tribunal has not awarded any compensation for
loss of estate. `10,000/- is awarded towards loss of estate.
9. The Claims Tribunal has awarded interest @ 8% per
annum whereas the appropriate interest according the
judgment of the Supreme Court in Municipal Corporation of
Delhi v. Association of Victims of Uphaar Tragedy, AIR
2012 SC 100 is 9% per annum. The rate of interest is
enhanced from 8% per annum to 9% per annum.
Claimant/respondent No.1 is entitled to total compensation of
`30,13,200/- as per break-up given hereunder:-
Income of the deceased : `29,800/-
Add : 50% towards future : `14,900/-
prospects
Less : 50% towards personal : `22,350/-
expenses of the deceased
Loss of dependency (`22,350 x : `29,80,200/-
12 x 11)
Compensation towards medical : `25,000/-
expenses
Compensation towards loss of : `15,000/-
love and affection
Compensation towards funeral : `13,000/-
expenses
Compensation towards loss of : `10,000/-
estate
Total : `30,13,200/-
10. For the reasons as aforesaid, the appeal is dismissed and
the cross-objections are allowed. The award amount is
enhanced from Rs.24,10,000/- to Rs.30,13,200/- along with
interest @9% per annum from the date of filing of the claim
petition till realization. The enhanced award amount along
with up to date interest be deposited by the appellant with
UCO Bank, Delhi High Court Branch by means of a cheque
drawn in the name of UCO Bank A/c Chander Kanta Goel within
a period of 30 days.
11. The learned counsel for claimant/respondent No.1
submits that there is short deposit of interest to the tune of
`1,38,792/- by the appellant while depositing the amount in
compliance with the order dated 27th April, 2009. The learned
counsel for the appellant submits that the said amount has
been deducted towards TDS. It is well settled by the judgment
of this Court in National Insurance Co. Ltd. v. Kanika
Saboo, II (2010) ACC 29 that the Insurance Company cannot
deduct TDS while depositing the amount in terms of the
interim order passed by this Court. In that view of the matter,
the deduction of TDS by the appellant is illegal and, therefore,
of no avail. The appellant is, therefore, directed to deposit the
short deposit of interest amount along with enhanced award
amount.
12. Upon the aforesaid deposit being made, the UCO Bank is
directed to release 10% of the said amount to respondent No.1
by transferring the same to her Saving Bank Account. The
remaining amount be kept in fixed deposit in the name of
respondent No.1 in the following manner:-
(i) Fixed deposit in respect of 10% of the amount for a
period of one year.
(ii) Fixed deposit in respect of 10% of the amount for a
period of two years.
(iii) Fixed deposit in respect of 10% of the amount for a
period of three years.
(iv) Fixed deposit in respect of 10% of the amount for a
period of four years.
(v) Fixed deposit in respect of 10% of the amount for a
period of five years.
(vi) Fixed deposit in respect of 10% of the amount for a
period of six years.
(vii) Fixed deposit in respect of 10% of the amount for a
period of seven years.
(viii) Fixed deposit in respect of 10% of the amount for a
period of eight years.
(ix) Fixed deposit in respect of 10% of the amount for a
period of nine years.
13. The interest on the aforesaid fixed deposits shall be paid
monthly by automatic credit of interest in the Savings Account
of respondent No.1.
14. Withdrawal from the aforesaid account shall be permitted
to the beneficiary after due verification and the Bank shall
issue photo Identity Card to the beneficiary to facilitate
identity.
15. No cheque book be issued to the beneficiary without the
permission of this Court.
16. The original fixed deposit receipts shall be retained by
the Bank in the safe custody. However, the original Pass Book
shall be given to the beneficiary along with the photocopy of
the FDRs. Upon the expiry of the period of each FDR, the Bank
shall automatically credit the maturity amount in the Savings
Account of the beneficiary.
17. No loan, advance or withdrawal shall be allowed on the
said fixed deposit receipts without the permission of this Court.
18. Half yearly statement of account be filed by the Bank in
this Court.
19. On the request of the beneficiary, Bank shall transfer the
Savings Account to any other branch according to their
convenience.
20. The beneficiary shall furnish all the relevant documents
for opening of the Saving Bank Account and Fixed Deposit
Account to Mr. M.S. Rao, AGM, UCO Bank, Delhi High Court
Branch, New Delhi (Mobile No. 09871129345).
21. List for compliance on 5th October, 2012.
22. All pending applications stand disposed of.
23. Copy of this judgment be sent to Mr. M.S. Rao, AGM, UCO
Bank, Delhi High Court Branch, New Delhi (Mobile
No.09871129345).
J.R. MIDHA, J
AUGUST 24, 2012
