National Insurance Co. Ltd. vs Gaje Singh & Ors.
2012 Latest Caselaw 2876 Del

R-37
*       IN THE HIGH COURT OF DELHI AT NEW DELHI

                   +        MAC.APP.311/2005

%                               Date of decision: 01st May, 2012

       NATIONAL INSURANCE CO. LTD.            ..... Appellant
                     Through : Mr. L.K. Tyagi, Adv.

                   versus

       GAJE SINGH & ORS.                  ..... Respondents
                     Through : Mr. O.P. Mannie, Adv. for R-1
                               and 2.
       CORAM:
       HON'BLE MR. JUSTICE J.R. MIDHA

                       JUDGMENT (ORAL)

1. The appellant has challenged the award of the Claims

Tribunal whereby the compensation of `37,10,000/- has been

awarded to respondent Nos.1 and 2. The appellant seeks

reduction of the award amount.

2. The accident dated 8th February, 2001 resulted in the

death of Saurabh Chauhan. The deceased was aged 11 years

at the time of the accident and was a student of 5th standard.

The deceased was survived by his parents who filed the claim

petition before the Claims Tribunal. The Claims Tribunal

awarded `37,10,000/- to the claimants.

3. The learned counsel for the appellant has urged at the

time of hearing of this appeal that the amount awarded by the

Claims Tribunal is highly exorbitant. The Claims Tribunal has

assumed the income of `30,000/- in respect of the child

without any basis.

4. The father of the deceased appeared in the witness box

as PW-1 and deposed that the deceased was a brilliant student

of 5th standard of D.L.D.A.V. Model School, Shalimar Bagh,

Delhi. The report cards of 3rd and 4th standard were proved as

Ex.PW1/2 and Ex.PW1/3. The deceased had secured 78.9%

marks in 3rd standard and 80.9% marks in 4th standard. The

deceased had also participated in various competitions. The

merit certificates of various competitions were proved as

Ex.PW1/4 to Ex.PW1/7. The deceased had secured 1st position

in English and Hindi rhyme competition in LKG as per Ex.PW1/4

and Ex.PW1/5. The deceased had also participated in the Intra

School Bournvita Quiz Contest on 31st August, 2000 as per

Ex.PW1/6. The deceased had also participated voluntarily in

Cancer Awareness Campaign of Cancer Aid Society as per

Ex.PW1/7. PW-1, father of the deceased was working as a

teacher in a government school and his wife was working with

Allahabad Bank. The deceased was ambitious to become an

Engineer. The elder brother of the deceased was an

Engineering student.

4. In Association of Victims of Uphaar Tragedy & Ors.

v. UOI, 104 (2003) DLT 234 (DB), the Division Bench of this

Court applied the multiplier method and the Second Schedule

of the Motor Vehicles Act, 1988 to compute the compensation

payable to the victims of the Uphaar Tragedy. The Division

Bench held that the victims of the fire incident belonged to

reasonably well-placed families and presumed that the

average income of the victims above age of 20 years to be not

less than `15,000/- per month, 1/3rd was deducted towards the

personal expenses and the multiplier of 15 was applied to

compute the compensation as `18,00,000/-. With respect to

the children, the Division Bench awarded compensation of

`15,00,000/-. The Division Bench also awarded interest @ 9%

per annum. The findings of the Division Bench of this Court

are reproduced hereunder :-

"109. The Supreme Court in G.M. Kerala State Road Transport Corporation Trivandrum v. Susamma Thomas (Mrs) and Ors. (supra), has held that the multiplier method of compensation was the logically sound and well established method for determining the compensation. It was held that a departure might be justified only in rare and extra ordinary circumstances and very exceptional cases. It has also been held by the Supreme Court in Sarla Dixit v. Balwant Yadav, etc. that unless there were special reasons, the Court should not deviate from the schedule of the Motor Vehicles Act in arriving at just compensation payable to the victims of the road accident. The principles laid down in the said judgment can also be applied in the present case. Though the actual income of none of the deceased is on record but having regard to the fact that all those persons who had either died or were injured were sitting

in the balcony where the rate of admission was Rs.50/- per seat, it can safely be concluded that the victims of the fire incident belong to reasonably well placed families and this Court will, therefore, not be in error in holding that the average income of each one of the victims above the age of 20 years was not less than Rs.15,000/- per month. Deducting 1/3rd for the personal expenses of the deceased, the dependency would not be less than Rs.10,000/- per month or say Rs.1,20,000/- per annum. Applying the multiplier 15 prescribed in the second schedule to the Motor Vehicles Act, in our view, relatives of each one of the victims would be entitled to compensation of Rs.18,00,000/- (Rupees Eighteen Lacs only). Insofar as the children mentioned in Annexure-B are concerned, in our view, the relatives of each one of the said child would be entitled to a lumpsum compensation of Rs.15,00,000/- (Rupees Fifteen Lacs only). We also direct that the relatives of the deceased as well as the persons injured in fire will also be entitled to interest at the rate of 9% per annum from the date of filing of the petition on the amount of compensation assessed by us. The respondents, above-named, are granted two months time to pay compensation with interest and till such time the compensation is paid, respondents 11 and 12 will have no right to transfer, assign or create third party rights in the cinema building. In case of non-payment of compensation within the period fixed by us, the amount can be recovered by execution as a decree by sale of the cinema building or in any other manner in accordance with law.

110. We have arrived at the compensation on the basis of our estimation of the income of the victims of the unfortunate incident as we had no means to know their exact income. We, therefore, leave it open to the injured as well as relatives of the deceased to claim compensation based on the exact income of the victims by filing a suit or any other proceeding as may be permissible in law and if a suit or any other proceedings claiming such

compensation are initiated within one year of this judgment, the same shall not be dismissed only on the ground of limitation. The amount directed by us to be payable under this judgment shall be adjusted against the amount which may ultimately be granted in favor of such persons in the proceedings mentioned above."

(Emphasis Supplied)

5. The Municipal Corporation of Delhi challenged the

aforesaid judgment of the Division Bench before the Supreme

Court. The Supreme Court in Municipal Corporation of

Delhi v. Association of Victims of Uphaar Tragedy, AIR

2012 SC 100, reduced the compensation from `18 lakhs to

`10 lakhs in respect of victims aged more than 20 years and

from `15 lakhs to `7.5 lakhs in respect of the victims aged less

than 20 years. The findings of the Supreme Court are

reproduced hereunder :-

"38. ... It can be by way of making monetary amounts for the wrong done or by way of exemplary damages, exclusive of any amount recoverable in a civil action based on tortuous liability. But in such a case it is improper to assume admittedly without any basis, that every person who visits a cinema theatre and purchases a balcony ticket should be of a high income group person. In the year 1997, Rs. 15,000 per month was rather a high income. The movie was a new movie with patriotic undertones. It is known that zealous movie goers, even from low income groups, would not mind purchasing a balcony ticket to enjoy the film on the first day itself. To make a sweeping assumption that every person who purchased a balcony class ticket in 1997 should have had a monthly income of Rs. 15,000 and on that basis apply high multiplier of 15 to

determine the compensation at a uniform rate of Rs. 18 lakhs in the case of persons above the age of 20 years and Rs. 15 lakhs for persons below that age, as a public law remedy, may not be proper. While awarding compensation to a large group of persons, by way of public law remedy, it will be unsafe to use a high income as the determinative factor. The reliance upon Neelabati Behera (AIR 1993 SC 1960 : 1993 AIR SCW 2366) in this behalf is of no assistance as that case related to a single individual and there was specific evidence available in regard to the income. Therefore, the proper course would be to award a uniform amount keeping in view the principles relating to award of compensation in public law remedy cases reserving liberty to the legal heirs of deceased victims to claim additional amount wherever they were not satisfied with the amount awarded. Taking note of the facts and circumstances, the amount of compensation awarded in public law remedy cases, and the need to provide a deterrent, we are of the view that award of Rs. 10 lakhs in the case of persons aged above 20 years and Rs. 7.5 lakhs in regard to those who were 20 years or below as on the date of the incident, would be appropriate. We do not propose to disturb the award of Rs. 1 lakh each in the case of injured. The amount awarded as compensation will carry interest at the rate of 9% per annum from the date of writ petition as ordered by the High Court, reserve liberty to the victims or the LRs. of the victims as the case may be to seek higher remedy wherever they are not satisfied with the compensation. Any increase shall be borne by the Licensee (theatre owner) exclusively.

39. Normally we would have let the matter rest there. But having regard to the special facts and circumstances of the case we propose to proceed a step further to do complete justice. The calamity resulted in the death of 59 persons and injury to 103 persons. The matter related to a ghastly fire incident of 1997. The victims association has been fighting the cause of victims for more than 14

years. If at this stage, we require the victims to individually approach the civil court and claim compensation, it will cause hardship, apart from involving huge delay, as the matter will be fought in a hierarchy of courts. The incident is not disputed. The names and identity of the 59 persons who died and 103 persons who were injured are available and is not disputed. Insofar as death cases are concerned the principle of determining compensation is streamlined by several decisions of this Court. (See for example Sarla Verma v. Delhi Transport Corporation (2009) 6 SCC 121:(AIR 2009 SC 3104:2009 AIR SCW 4992). If three factors are available the compensation can be determined. The first is the age of the deceased, the second is the income of the deceased and the third is number of dependants (to determine the percentage of deduction for personal expenses). For convenience the third factor can also be excluded by adopting a standard deduction of one-third towards personal expenses. Therefore, just two factors are required to be ascertained to determine the compensation in 59 individual cases. First is the annual income of the deceased, two-third of which becomes the annual loss of dependency the age of the deceased which will furnish the multiplier in terms of Sarla Verma. The annual loss of dependency multiplied by the multiplier will give the compensation."

"Conclusions

46. In view of the foregoing, we dispose of the appeals as follows:

xxx

(v) CA No. 6748 of 2004 is allowed in part and the judgment of the High Court is modified as under:

(a) The compensation awarded by the High Court in the case of death is reduced from Rs. 18 lacs to Rs. 10 lacs (in the case of those aged more than 20 years) and Rs. 15 lacs to Rs. 7.5 lacs (in the

case of those aged 20 years and less). The said sum is payable to legal representatives of the deceased to be determined by a brief and summary enquiry by the Registrar General (or nominee of learned Chief Justice/Acting Chief Justice of the Delhi High Court).

(b) The compensation of Rs. One lakh awarded by the High Court in the case of each of the 103 injured persons is affirmed.

(c) The interest awarded from the date of the writ petition on the aforesaid sums at the rate of 9% per annum is affirmed.

(d) If the legal representatives of any deceased victim are not satisfied with the compensation awarded, they are permitted to file an application for compensation with supporting documentary proof (to show the age and the income), before the Registrar General, Delhi High Court. If such an application if filed within three months, it shall not be rejected on the ground of delay. The Registrar General or such other Member of Higher Judiciary nominated by the learned Chief Justice/Acting Chief Justice of the High Court shall decide those applications in accordance with paras above and place the matter before the Division Bench of the Delhi High Court for consequential formal orders determining the final compensation payable to them."

(Emphasis Supplied)

6. In MCD v. Association of Victims of Uphaar Tragedy

(supra), the Supreme Court has awarded `10 lakhs to the

victims aged more than 20 years and `7.5 lakhs to the victims

aged less than 20 years. In that case, the multiplier of 15 was

applied and 1/3rd was deducted towards the personal expenses

which means that the Court has assumed the income of the

victims aged more than 20 years to be `8,333/- per month and

that of victims aged less than 20 years to be `6,249/- per

month. The calculation of the compensation would be as

under :-

For victims aged more than 20 years:-

(`8,333/- less 1/3rd )x 12 x 15 = `10 lakhs.

For victims aged less than 20 years:-

(`6249/- less 1/3rd ) x 15 = `7.5 lakhs.

7. It is relevant to note that the Uphaar Tragedy took place

on 13th June, 1997 and the minimum wages at the relevant

time ranged from `1677/- for unskilled workers to `2437/- for

graduates. It is thus clear that although there was no proof of

the income of the victims, the Supreme Court did not find it

proper to apply the minimum wages.

8. In United India Insurance Co. v. Kanwar Lal,

MAC.APP.No.385/2007 decided on 27th April, 2012, this

Court following the judgment of the Supreme Court in

Municipal Corporation of Delhi v. Association of Victims

of Uphaar Tragedy, AIR 2012 SC 100, awarded `10 lakhs in

respect of the death of a 18 year old child. The findings of this

Court are reproduced hereunder :-

"10. Following the judgment of the Supreme Court in Municipal Corporation of Delhi v. Association of Victims of Uphaar Tragedy

(supra), this Court assumes the income of the deceased to be `10,800/- per month considering that the deceased was a student of 12th standard in a reputed school of Delhi and was ambitious to become MBA/C.A., his brother is doing engineering course and his father is working as a Superintendent in Central Excise office. The deceased was unmarried and aged 18 years at the time of the accident. The parents of the deceased were aged 37 and 44 years respectively at the time of the accident. As per the judgment of the Supreme Court in Sarla Verma v. Delhi Transport Corporation, (2009) 6 SCC 121, the appropriate multiplier according to the age of the mother is 15 and the appropriate deduction towards personal expenses is 1/2. Deducting 1/2 towards personal expenses and applying the multiplier of 15, the loss of dependency is computed to be `9,72,000/-. `10,000/- is awarded towards loss of love and affection, `10,000/- towards loss of estate and `8,000/- towards funeral expenses. The total compensation is computed to be `10,00,000/-. Since the driver of the offending vehicle was holding a fake driving licence, the appellant is entitled to recovery rights against the owner of the offending vehicle after making the payment of the award amount to the claimants."

9. This case is squarely covered by the aforesaid judgments.

Following the aforesaid judgments, this Court assumes the

income of the deceased to be `10,800 per month considering

that the deceased was brilliant student of reputed school of

Delhi, he was ambitious to become engineer, his brother is

already doing engineering and his father is a teacher. The

parents of the deceased are aged 41 and 42 years respectively

at the time of the accident. As per the judgment of the

Supreme Court in Sarla Verma v. Delhi Transport

Corporation, (2009) 6 SCC 121, the appropriate multiplier

according to the age of the mother is 14 and the appropriate

deduction towards the personal expenses of the deceased are

1/2. Deducting 1/2 towards the personal expenses of the

deceased and applying the multiplier of 14, the loss of

dependency is computed to be `9,07,200/-. `10,000/- is

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

loss of estate and `8,000/- is awarded towards funeral

expenses. The total compensation is computed to be

`9,35,200/-.

10. For the aforesaid reasons, the appeal is allowed and the

award amount is reduced from `37,10,000/- to `9,35,200/-

along with interest @ 9% per annum for the date of filing of

the petition till realization.

11. The respondent has deposited a sum of `5,00,000/- with

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

20th April, 2005 out of which `2,50,000/- has been released to

respondents No.1 and 2 and the remaining amount is lying in

fixed deposit. Let the remaining amount be released by the

Registrar General of this Court to respondents No.1 and 2

within a period of four weeks.

12. The balance award amount along with up to date interest

be deposited by the appellant with the UCO Bank, Delhi High

Court Branch by means of cheque drawn in the name of UCO

Bank A/c Gaje Singh Chauhan. Upon the aforesaid amount

being deposited, the UCO Bank is directed to keep the said

amount in fixed deposit in the joint names of respondents No.1

and 2 in the following manner:-

(i) Fixed deposit in respect of 10% for a period of one

year.

(ii) Fixed deposit in respect of 10% for a period of two

years.

(iii) Fixed deposit in respect of 10% for a period of three

years.

(iv) Fixed deposit in respect of 10% for a period of four

years.

(v) Fixed deposit in respect of 10% for a period of five

years.

(vi) Fixed deposit in respect of 10% for a period of six

years.

(vii) Fixed deposit in respect of 10% for a period of

seven years.

(viii) Fixed deposit in respect of 10% for a period of eight

years.

(ix) Fixed deposit in respect of 10% 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 respective

Savings Account of the beneficiaries.

14. Withdrawal from the aforesaid account shall be permitted

to the beneficiaries after due verification and the Bank shall

issue photo Identity Card to the beneficiaries to facilitate

identity.

15. No cheque book be issued to the beneficiaries 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 beneficiaries 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 beneficiaries.

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 beneficiaries, 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. The statutory amount deposited by the appellant be

refunded back to the appellant through counsel after deposit of

the award amount.

22. 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 MAY 01, 2012 mk