Delhi High Court
National Insurance Co. Ltd. vs Rukmini Gautam & Ors on 7 September, 2012
Author: J.R. Midha
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ MAC.APP.No.295/2008 and CM No.13858/2008
% Reserved on : 31st August, 2012
Date of decision : 07th September, 2012
NATIONAL INSURANCE CO. LTD. ..... Appellant
Through : Ms. Shantha Devi Raman,
Adv.
versus
RUKMINI GAUTAM & ORS ..... Respondents
Through : Mr. R.K. Bachchan, Adv.
for R-1 to 6.
Mr. J.N. Aggarwal, Adv. for
R-8/DTC.
CORAM :-
THE HON'BLE MR. JUSTICE J.R. MIDHA
JUDGMENT
1. The appellant has challenged the award of the Claims
Tribunal whereby the compensation of `6,36,000/- has been
awarded to claimants/respondents No.1 to 6.
2. The accident dated 13th October, 2005 resulted in the death
of Inder Pal Singh. The deceased was survived by his widow and
five children who filed the claim petition before the Claims
Tribunal. The deceased was aged 41 years at the time of the
accident and was working as a conductor with Delhi Transport
Corporation. The Claims Tribunal took the income of the deceased
as `4,000/- per month in terms of the salary slip - Ex.PW1/5,
deducted 1/4th towards personal expenses of the deceased and
applied the multiplier of 16 to compute the loss of dependency at
`5,76,000/-. `30,000/- has been awarded towards loss of estate,
funeral expenses and transportation of dead body, `10,000/- has
been awarded towards loss of consortium and `20,000/- has been
awarded towards medical expenses. The total compensation
awarded is `6,36,000/-.
3. The learned counsel for the appellant has urged at the time of
hearing of this appeal that the liability of the appellant is limited to
`3,62,740/- (`4,000/- less 50% x 181.37) under the Workmen's
Compensation Act, 1923 and the remaining compensation has to be
paid by DTC, respondent No.8. The learned counsel for the
appellant has referred to and relied upon the Insurance policy in
which the appellant has charged the premium of `50/- for limited
liability for conductor and driver at the rate of `25/- each under the
Workmen's Compensation Act, 1923.
4. The learned counsel for Delhi Transport Corporation has
submitted that the liability of the appellant is unlimited. However,
the learned counsel is not able to substantiate as to how the liability
of the appellant is unlimited as the policy in question is a third
party policy and the appellant has charged the premium for the
statutory liability in respect of the conductor and driver under the
proviso to Section 147 of the Motor Vehicles Act, 1988.
5. Under the proviso to Section 147 of the Motor Vehicles Act,
1988, the Insurance policy in respect of a motor vehicle is required
to compulsorily insure the liability under the Workmen's
Compensation Act, 1923 in respect of the employees on the
vehicle. The appellant has charged the following premium in the
policy in question:-
"Basic premium : `1,860/-
Liability premium for 59
passengers @ `138/- each : `8,142/-
Liability premium for conductor
and driver @ `25/- each under
the Workmen's Compensation Act : `50/-."
6. The appellant has charged the premium to cover the liability
under the Workmen's Compensation Act and the remaining
liability has to be borne by DTC. The deceased was aged 41 years
at the time of the accident and was earning `4,000/- per month.
Taking 50% of the income of the deceased and applying the
relevant factor of 181.37, the liability under the Workmen's
Compensation Act is computed to be `3,62,740/-.
7. The claimants/respondents No.1 to 6 seek enhancement of
the award amount. The learned counsel for claimants/respondents
No.1 to 6 submits that no compensation has been awarded for loss
of love and affection. The learned counsel further submits that the
rate of interest be enhanced from 7.5% per annum to 9% per
annum in terms of the judgment of the Supreme Court in Municipal
Corporation of Delhi v. Association of Victims of Uphaar Tragedy,
AIR 2012 SC 100.
8. The learned counsel for the appellant submits that
claimants/respondents No.1 to 6 have not filed the cross-objections
and, therefore, the enhancement is not warranted. The appellant's
submission in this regard is contrary to law. It is well settled that
the Appellate Court has the jurisdiction to enhance the award even
in the absence of cross-objections under Order XLI Rule 33 of the
Code of Civil Procedure. Reference in this regard may be made to
the recent judgment of this Court in National Insurance Co. Ltd. v.
Komal, MANU/DE/2870/2012 in which this Court has referred to
and followed catena of judgments of the Supreme Court and other
High Courts.
9. The Claims Tribunal has not awarded any compensation for
loss of love and affection. `10,000/- is awarded for loss of love
and affection. The rate of interest is enhanced from 7.5% per
annum to 9% per annum in terms of the judgment of the Supreme
Court in Municipal Corporation of Delhi v. Association of Victims
of Uphaar Tragedy (supra). The claimants shall be entitled to
`6,46,000/- out of which the liability of the appellant is restricted
to `3,62,740/- along with interest @ 9% per annum from the date
of filing of the claim petition till realization and the remaining
liability shall be of DTC.
10. The appeal is allowed. The award in favour of
claimants/respondents No.1 to 6 is enhanced from `6,36,000/- to
`6,46,000/- along with interest @ 9% per annum from the date of
filing of the claim petition till realization out of which the liability
of the appellant is held to be `3,62,740/- along with interest @ 9%
per annum from the date of filing of the claim petition till
realization and the remaining liability is held to be of DTC.
11. The appellant has deposited a sum of `6,70,214/- with the
Registrar General of this Court in terms of the order dated 1 st
August, 2008 on 30th August, 2008 out of which 50% has been
released to the claimants/respondents No.1 to 6 and the remaining
amount is lying in fixed deposit. The liability of the appellant in
terms of this judgment as on 30th August, 2008 is determined to be
`4,45,251/- as per the break-up given hereunder:-
Principal amount : `3,62,740/-
Interest @9% per annum from the date : `82,511/-
of filing of the claim petition i.e. 20th
February, 2006 to 30th August, 2008
Total : `4,45,251/-
12. The appellant is entitled to refund of `2,24,963/- (`6,70,214
- `4,45,251). The Registrar General is directed to refund a sum of
`2,24,963/- along with interest which has accrued thereon in the
fixed deposit to the appellant within a period of four weeks. The
remaining amount along with interest which has accrued thereon be
sent to the UCO Bank by means of a cheque drawn in the name of
UCO Bank A/c Rukmani Gautam.
13. Respondent No.8 - Delhi Transport Corporation is directed
to deposit a sum of `2,83,730/- (`6,46,000 - `3,62,270) along with
interest thereon @9% per annum from the date of filing of the
claim petition i.e. 20th February, 2006 up to the date of deposit with
UCO Bank, Delhi High Court Branch by means of a cheque drawn
in the name of UCO Bank A/c Rukmani Gautam within a period of
30 days.
14. Upon the aforesaid deposit being made, UCO Bank is
directed to release 10% of the total amount (amount to be deposited
by DTC + the amount to be transferred by the Registrar General) to
respondent No.1 by transferring the same to her Saving Bank
Account. The remaining amount be kept in fixed deposit in the
following manner:-
(i) Fixed deposit in respect of 10% of the amount in the
name of respondent No.2 for a period of one year.
(ii) Fixed deposit in respect of 10% of the amount in the
name of respondent No.3 for a period of two years.
(iii) Fixed deposit in respect of 10% of the amount in the
name of respondent No.4 for a period of three years.
(iv) Fixed deposit in respect of 10% of the amount in the
name of respondent No.5 for a period of four years.
(v) Fixed deposit in respect of 10% of the amount in the
name of respondent No.6 for a period of five years.
(vi) Fixed deposit in respect of 10% of the amount in the
name of respondent No.1 for a period of six years.
(vii) Fixed deposit in respect of 10% of the amount in the
name of respondent No.1 for a period of seven years.
(viii) Fixed deposit in respect of 10% of the amount in the
name of respondent No.1 for a period of eight years.
(ix) Fixed deposit in respect of 10% of the amount in the
name of respondent No.1 for a period of nine years.
15. The interest on the aforesaid fixed deposits shall be paid
monthly by automatic credit of interest in the Savings Account of
respondent No.1.
16. Withdrawal from the aforesaid account shall be permitted to
respondent No.1 after due verification and the Bank shall issue
photo Identity Card to respondent No.1 to facilitate identity.
17. No cheque book be issued to respondent No.1 without the
permission of this Court.
18. 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.
19. No loan, advance or withdrawal shall be allowed on the said
fixed deposit receipts without the permission of this Court.
20. Half yearly statement of account be filed by the Bank in this
Court.
21. On the request of the beneficiaries, Bank shall transfer the
Savings Account to any other branch according to their
convenience.
22. The beneficiaries 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.
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
SEPTEMBER 07, 2012
