Delhi High Court
Oriental Insurance Co. Ltd. vs Aditi Jain & Ors on 2 May, 2012
Author: G.P. Mittal
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 2nd May, 2012
+ MAC.APP. 786/2010
ORIENTAL INSURANCE CO. LTD. ..... Appellant
Through: Mr. Pradeep Gaur, Adv. with
Mr. Shashank Sharma, Adv.
versus
ADITI JAIN & ORS ..... Respondent
Through: Mr. S.M. Suri, Advocate.
+ MAC.APP. 788/2010
ORIENTAL INSURANCE CO. LTD. ..... Appellant
Through: Mr. Pradeep Gaur, Adv. with
Mr. Shashank Sharma, Adv.
versus
ADITI JAIN & ORS ..... Respondent
Through: Mr. S.M. Suri, Advocate.
+ MAC.APP. 790/2010
ORIENTAL INSURANCE CO. LTD. ..... Appellant
Through: Mr. Pradeep Gaur, Adv. with
Mr. Shashank Sharma, Adv.
versus
ADITI JAIN & ORS ..... Respondent
Through: Mr. S.M. Suri, Advocate.
+ MAC.APP. 793/2010
ORIENTAL INSURANCE CO. LTD. ..... Appellant
Through: Mr. Pradeep Gaur, Adv. with
Mr. Shashank Sharma, Adv.
versus
MAC. APP. 786/2010 Etc. Page 1 of 13
ADITI JAIN & ORS ..... Respondent
Through: Mr. S.M. Suri, Advocate.
CORAM:
HON'BLE MR. JUSTICE G.P.MITTAL
JUDGMENT
G. P. MITTAL, J. (ORAL)
1. These four Appeals arise out of a judgment dated 19.07.2010
passed by the Claims Tribunal whereby four Claim Petitions
bearing Suit No.101/2007 (MAC APP.793/2010), Suit
No.93/2007 (MAC APP.790/2010), Suit No.100/2007 (MAC
APP.788/2010) and Suit No.114/2007 (MAC APP.786/2010)
were disposed of.
2. In the accident involving a blueline bus No.DL-1P-1259 and a
car No.DL-2CH-1438, the Appellants lost their entire family.
Two minor girls Ms. Aditi Jain and Ms. Ridhima Jain were left
to fend for themselves in the company of their aged
grandmother Smt. Kusum Lata Jain. Kusum Lata Jain lost her
husband Mam Chand Jain, her son Arun Kumar Jain, her
daughter-in-law Renu Jain and her grandson Master Vardhan
Jain. Aditi Jain and Ridhima Jain lost their grandfather Mam
Chand Jain, aged 65 years, their father Arun Kumar Jain, their
mother Ranu Jain and their younger brother Master Vardhan
Jain.
3. During inquiry before the Motor Accident Claims Tribunal (the
Claims Tribunal), it was established that the accident was
caused on account of the rash and negligent driving of bus
No.DL-1P-1259 by its driver Rishi @ Bhola (Respondent No.2
in these Appeals). The said driver was also convicted in the
criminal case under Section 279/304-A IPC. Since the finding
on negligence is not disputed by the Appellant Insurance
Company, my task is only to go into the quantum of
compensation.
MAC APP.793/2010 (Suit No.101/2007)
4. It is urged by the learned counsel for the Appellant Insurance
Company that this case relates to the death of Master Vardhan
Jain (Aditi and Ridhima's younger brother). Apart from a
compensation of `3,75,000/- on the basis of the judgment of
this Court in Chiranji Lal & Ors. v. Mangat Ram & Ors. I
(2010) ACC 855, a compensation of `75,000/- each was
awarded to the two sisters on account of loss of their younger
brother; it is urged that it is not in consonance with the law and
the compensation of `1,50,000/- is excessive and exorbitant.
The same is liable to be set aside.
5. The Claims Tribunal took this case to be an exceptional case
where the two minor girls apart from losing their parents and
grandfather in the same accident, also lost their younger brother.
6. In Para 26 of the impugned judgment, the Claims Tribunal held
as under:-
"26. This is case of two sisters who in young age
have lost not only their younger brother, but also mother,
father. In Indian families, if parents die then generally
brother is the great source of emotional, psychology and
monetary support and strength for the sisters before and
after the marriage. In our community, there is festival of
Rakhi which gives very special importance to the bond
between sister and brother and survives the life of
parents and now for these two sisters every
Raksahbandhan will remind them throughout their life
that their only brother died I the young age. In my
considered view, for this particular loss the sisters are to
be compensated in addition to `3,75,000/- as pronounced
by Hon'ble High Court. I award additional `75,000/-
each to both the sisters on account of loss for their
youngest brother who would have been great life support
and sense of security to them in their lives. Thus, total
compensation awarded to these sisters comes to
`5,25,000/- to be shared equally."
7. Normally, irrespective of the financial status, a compensation of
`3.75 lacs is awarded in case of the death of a school going
minor child. (National Insurance Company v. Farzana & Ors.,
2009 ACJ 2763).
8. The Claims Tribunal noticed the special facts of this case where
the two small girls lost not only their only brother but their
parents and grandfather. In the special circumstances, extracted
hereinabove, I would not interfere with the award of the
compensation of `75,000/- each to the two small girls who lost
everybody in this world and were left with a hostile relation (an
uncle) who, as it was claimed during the inquiry before the
Claims Tribunal, was himself interested in swallowing whatever
was left in the business, being carried out by their father.
MAC APP.788/2010 (Suit No.100/2007)
9. This case relates to the death of Claimants' mother Renu Jain.
She was 39 years on the date of the accident. With a great
effort Shri S.M. Suri, Advocate, who was appointed as Amicus
Curiae during the pendency of the Claim Petition, could dig out
the Income Tax Return (ITR) filed by the deceased on
31.10.1995 returning an income of `54,465/-. On this, a
compensation of `9,69,000/- was awarded by adopting a
multiplier of 17. The Claims Tribunal observed that as per the
Second Schedule, the appropriate multiplier was '16' but it was
adopting the multiplier of '17' because of the exceptional
circumstances and hardship of the Claimants who were two
minor girls, who lost both their parents in the accident. Though,
this accident relates to the year 1996, but the Claim Petition
came to be decided on 19.07.2010. The appropriate multiplier
as per Sarla Verma (Smt.) & Ors. v. Delhi Transport
Corporation & Anr., (2009) 6 SCC 121 was '15' and not '16',
although it is '16' as per the second Schedule. Thus, the
multiplier of '17' was adopted by the Claims Tribunal as
against the multiplier of '15' which was relevant to the age of
the deceased. It may be noticed that in this case no
compensation has been awarded towards Loss of Love and
Affection and towards the Loss of Gratuitous Services and the
moral support rendered by their mother Smt. Renu Jain to the
minor girls.
10. There is no Cross Appeal by the Claimants. The increase of
'2'in the multiplier would mean excess compensation of
`1,00,000/- considering that a compensation of `25,000/- was
payable towards the Loss of Love and Affection, I would take
the remaining amount towards the Loss of Gratuitous services
rendered by the deceased to the Claimants. Thus, there is no
ground to interfere in the award of the compensation except the
rate of interest with which I would deal a little later.
MAC APP.786/2010 (Suit No.114/2007)
11. This Appeal relates to the death of Mam Chand Jain,
grandfather of Aditi Jain and Ridhima Jain and the husband of
Smt. Kusum Lata Jain, who died during the pendency of the
Claim Petition.
12. The Claims Tribunal accepted the deceased's income to be
`10,000/- per month, which is not challenged during the course
of arguments. It is, however, urged by the learned Counsel for
the Appellant that only Kusum Lata Jain was financially
dependent on the deceased and therefore, there should have
been a deduction of 50% towards the personal and living
expenses instead of one-third made by the Claims Tribunal. It
is a matter of record that the Claimants Aditi Jain and Ridhima
Jain also lost both their parents in this very accident. They were
therefore financially dependent on their deceased grandfather
also.
13. In this view of the matter, there was nothing wrong in making
deduction of one-third towards the personal and living expenses
of the deceased. Here again, no compensation was awarded
towards loss of love and affection. The compensation of
`4,00,020/- was awarded by the Claims Tribunal on an annual
dependency of `80,004/- and on applying multiplier of '5'. The
Claims Tribunal made an addition of `10,000/- on account of
Loss of Consortium and `10,000/- on account of Funeral
Expenses. There appears to be a clerical error as the
compensation payable by adding this sum would come to
`4,20,020/- and not `5,20,020/- as held in Para 30 (Page 26) of
the impugned judgment. Thus, it is held that Respondents No.1
and 2 were entitled to a compensation of `4,20,020/-.
MAC APP.790/2010 (Suit No.93/2007)
14. This Appeal relates to the award of compensation of
`13,52,344/- on account of death of Arun Kumar Jain, (the
deceased) father of the Claimants.
15. During inquiry before the Claims Tribunal, it was claimed that
the deceased was a businessman and an industrialist. He had an
income of `1,50,000/-. However, copy of the ITR Ex.PW-
3/114 showed that the deceased returned the income of
`1,60,028/- in the year 1995-96. The Claims Tribunal deducted
one-third towards the personal and living expenses and adopted
the multiplier of '16' instead of '14', appropriate to the age of
the deceased.
16. The Claims Tribunal further awarded a sum of `50,000/- each
towards Loss of Love and Affection to both the Claimants.
17. Learned Counsel for the Appellant Insurance Company urges
that adopting the multiplier of '16' was not justified and the
award of compensation of `50,000/- each totaling to `1,00,000/-
towards loss of love and affection is excessive and exorbitant.
18. It is true that normally, a compensation of `25,000/- only is
awarded towards Loss of Love and Affection as against
`1,00,000/- in this case. (Sunil Sharma v. Bachitar Singh (2011)
11 SCC 425 and Baby Radhika Gupta v. Oriental Insurance
Company Limited (2009) 17 SCC 627). In this case, a sum of
`1,00,000/- was awarded which was on the higher side.
19. During inquiry before the Claims Tribunal, it was established
that the deceased Arun Kumar Jain was an industrialist. He was
living in a posh area of Delhi in Bengali Market. Both the
Claimants were studying in Mater De, a reputed Public School
in Delhi whereas their deceased brother was studying in St.
Columbus School.
20. As stated earlier, Sh. S.M.Suri, Advocate who was appointed as
Amicus by the Claims Tribunal made personal efforts to
retrieve the ITR returning an income of `1,50,000/- in the
relevant year. The Amicus was handicapped to bring in all the
evidence to prove that the deceased had good future prospects.
Deceased Arun Kumar Jain was aged 42 years on the date of the
accident. Normally, people settle in their business in the forties.
Other ITRs could not be produced to show that the deceased's
income was increasing. Considering all the facts and
circumstances including that the deceased's children were
studying in the best schools in Delhi and he was residing in one
of the best areas in the city, the Claimants were entitled to some
addition towards future prospects. That having not been
granted, I would not interfere with the award of `13,52,344/-
(although the multiplier of '16' as against the settled multiplier
of '14' has been applied by the Claims Tribunal) and an excess
sum of `75,000/- has been awarded towards loss of love and
affection. The Claimants by virtue of the provision of Order
XLI Rule 22 CPC can resist the Appeal for reduction of
compensation on other grounds without filing of any Cross
Appeal or Cross Objections. The question of resisting the
Appeal on quantum of compensation awarded by the Claims
Tribunal without filing any Cross Appeal or Cross Objection
was considered by three Judge Bench in Jayakodi & Ors. v.
Branch Manager, NIC & Anr., Civil Appeal No.401/2008
(arising out of SLP (Civil) No.13746/2004 decided on
11.01.2008). The Supreme Court held that the Court can change
the compensation under various heads so long as the
compensation is not reduced in an Appeal filed by the Claimant.
The relevant portion of the report is extracted hereunder:
"5........When an appeal is filed by claimants claiming
enhancement, the appellate court will calculate the just
compensation, in accordance with law. If the amount so
calculated is in excess of what is awarded, the difference
is awarded as additional compensation. If the amount
calculated is found to be less than or equal to the amount
awarded by the court below, then the amount awarded by
the court below is maintained. But there cannot be any
objection for recalculation of compensation under various
heads in accordance with law. So long as the total amount
awarded is not less than what is awarded by the court
below, there cannot be any objection if the amount is
reduced under any particular head."
Thus the claimants can resist the Appeal for reduction of
compensation without filing any cross objection on the ground
that no future prospects were granted by the Claims Tribunal.
21. It is contended by the learned Counsel for the Appellant that
this Claim Petition was instituted in the year 2002 (although the
accident occurred in the year 1996). The rate of interest on long
term deposit since the year 2000 upto the year 2007 was in the
vicinity of just 7% to 8%. It was only since the year 2008 that
the rate of interest started rising. It is urged that in Sarla Verma
(supra) the Supreme Court granted the interest @ 7.5% per
annum only; the interest awarded @ 12% per annum in all four
Appeals is excessive and calls for reduction.
22. While awarding interest several factors including the bank rate
of interest, the peculiar circumstances of the case, as in the
present case where the Claimants were left without any family
members except their aged grandmother who also died during
the proceedings are to be taken into consideration.
23. In Abati Bezbaruah v. Dy. Director General, Geological Survey
of India, (2003) 3 SCC 148, the Supreme Court culled out the
factors to be taken into consideration while awarding interest in
a motor accident case. Paras 6 and 18 of the report are
extracted hereunder:-
"6. The question as to what should be the rate of interest,
in the opinion of this Court, would depend upon the facts
and circumstances of each case. Award of interest would
normally depend upon the bank rate prevailing at the
relevant time.
x x x x x x x x x x x
x x x x x x x x x x x
18. Three decisions were cited before us by Mr. A.P.
Mohanty, learned counsel appearing on behalf of the
appellant, in support of his contentions. No ratio has
been laid down in any of the decisions in regard to the
rate of interest and the rate of interest was awarded on
the amount of compensation as a matter of judicial
discretion. The rate of interest must be just and
reasonable depending upon the facts and circumstances
of each case and taking all relevant factors including
inflation, change of economy, policy being adopted by
Reserve Bank of India from time to time, how long the
case is pending, permanent injuries suffered by the
victim, enormity of suffering, loss of future income, loss
of enjoyment of life etc., into consideration. No rate of
interest is fixed under Section 171 of the Motor Vehicles
Act, 1988. Varying rates of interest are being awarded
by Tribunals, High Courts and the Supreme Court.
Interest can be granted even if a claimant does not
specifically plead for the same as it is consequential in
the eye of law. Interest is compensation for forbearance
or detention of money and that interest being awarded to
a party only for being kept out of the money which ought
to have been paid to him. No principle could be
deducted nor can any rate of interest be fixed to have a
general application in motor accident claim cases having
regard to the nature of provision under Section 171
giving discretion to the Tribunal in such matter. In other
matters, awarding of interest depends upon the statutory
provisions, mercantile usage and doctrine of equity.
Neither Section 34 CPC nor Section 4-A(3) of the
Workmen's Compensation Act are applicable in the
matter of fixing rate of interest in a claim under the
Motor Vehicles Act. The courts have awarded the
interest at different rates depending upon the facts and
circumstances of each case. Therefore, in my opinion,
there cannot be any hard-and-fast rule in awarding
interest and the award of interest is solely on the
discretion of the Tribunal or the High Court as indicated
above."
24. In any case, award of interest @ 12% per annum would be
excessive. The same is reduced to 9% per annum.
25. The award of compensation in the four Appeals is maintained
and the rate of interest is reduced from 12% per annum to 9%
per annum from the date of filing of the Petition till the date of
deposit in this Court.
26. The excess compensation on account of reduction in the rate of
interest shall be refunded to the Appellant Insurance Company
with the accrued interest, if any, during the pendency of the
Appeal.
27. The statutory amount of `25,000/- in each of the Appeal shall
be refunded to the Appellant Insurance Company.
28. The Appeals are allowed in above terms.
29. Pending applications also stand disposed of.
(G.P. MITTAL)
JUDGE
MAY 02, 2012
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