Oriental Insurance Co. Ltd. vs Chaman Lal Ghai & Ors
2012 Latest Caselaw 5837 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

+                       MAC.APP.No.569/2005

 %                        Date of decision : 28th September, 2012

      ORIENTAL INSURANCE CO. LTD.          ..... Appellant
                      Through : Mr. Tarkeshwar Nath and
                                Mr. Saurabh Kumar Tuteja,
                                Advs.
               versus

      CHAMAN LAL GHAI & ORS             ..... Respondents
                  Through : Mr. Anjum Kumar and
                            Mr. Sachin Sharma, Advs.

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

                      JUDGMENT (ORAL)

1. The appellant has challenged the award of the Claims Tribunal whereby the compensation of `12,20,000/- has been awarded to claimants/respondents No.1 to 6. The appellant seeks reduction of the award amount.

2. The accident dated 29th January, 2002 resulted in the death of Sunil Kumar Ghai. The deceased was aged 30 years at the time of the accident and was survived by his widow, parents and three minor children who filed the claim petition before the Claims Tribunal. The deceased was working as a Commission Agent. It was claimed that the deceased was earning `8,000/- to `10,000/- per month. The Claims Tribunal took the income of the deceased

as `7,500/- per month, deducted `7,000/- per annum towards Income Tax, added 50% towards future prospects, deducted 1/3 rd towards personal expenses of the deceased and applied the multiplier of 17 to compute the loss of dependency at `11,90,000/-. `30,000/- has been awarded towards loss of consortium, love and affection and funeral expenses. The total compensation awarded is `12,20,000/-.

3. The learned counsel for the appellant has urged at the time of hearing of this appeal that the Claims Tribunal has taken the income of the deceased on a higher side. It is submitted that the income was not proved by sufficient evidence and, therefore, the income of the deceased is liable to be reduced. Learned counsel for the appellant further submits that the future prospects be reduced from 50% to 30% in view of the recent judgment of the Supreme Court in Santosh Devi v. National Insurance Co. Ltd., 2012 (4) SCALE 559.

4. Learned counsel for the claimants/respondents No.1 to 6 submits that the income of the deceased was proved by leading sufficient evidence. He seeks enhancement of the award amount on the ground that the personal expenses of the deceased are liable to be reduced to 1/3rd to 1/4th as the deceased has left behind six legal representatives.

5. The deceased was working as a Commission Agent. The Claimants have examined three witnesses to prove the income of

the deceased. PW-2, partner of Mahavira Garments deposed that he used to pay `3,000/- to `3,500/- per month to the deceased. The vouchers in respect of the payments made to the deceased were proved as Ex.PW-2/A to PW-2/E. PW-6, proprietor of Baba Garments deposed that he used to pay `2,500/- per month to the deceased as commission. The cash vouchers towards the payments made to the deceased were proved as Ex.PW-6/1 to PW-6/4. PW-7, proprietor of M/s. New K.K. Garments deposed that he used to pay commission of `2,500/- to `3,500/- per month to the deceased. The cash vouchers were proved as Ex.PW-7/6 to PW- 7/10. From the statements of the three witnesses mentioned above, the Claims Tribunal presumed the income of the deceased to be `7,500/- per month. There is no infirmity in the finding of the Claims Tribunal and the income of `7,500/- per month taken by the Claims Tribunal does not warrant any interference.

6. The Claims Tribunal has added 50% towards the future prospects. However, in the recent judgment of Santosh Devi (supra), the Supreme Court has awarded 30% as future prospects. Following the aforesaid judgment, the future prospects are reduced from 50% to 30%.

7. The Claims Tribunal has deducted 1/3rd towards the personal expenses of the deceased. The deceased has left behind six legal representatives. In term of the judgment of the Supreme Court in Sarla Verma v. Delhi Transport Corporation, (2009) 6 SCC 121, the personal expenses of the deceased have to be taken as 1/4 th.

Following the aforesaid judgment, the personal expenses of the deceased are reduced from 1/3rd to 1/4th.

8. Taking the income of the deceased as `7,500/- per month, adding 30% towards the future prospects, deducting 1/4th towards personal expenses, further deducting `7,000/- per annum towards Income Tax and applying the multiplier of 17, the loss of dependency is computed at `11,90,000/-. `30,000/- has been awarded towards loss of consortium, love and affection and funeral expenses. The Claims Tribunal has not awarded any compensation for loss of estate. `10,000/- is awarded for loss of estate. The claimants/respondents No.1 to 6 are entitled to a total compensation of 14,42,500/- as per the break up given hereunder:-

     (i)     Income of the deceased                    :       `7,500/-

     (ii)    Add:     30%     towards       future     :       `2,250/-
             prospects
     (iii)   Annual Income (9750 x 12)                 :    `1,17,000/-

     (iv)    Less: Income Tax                          :       `7,000/-

     (v)     Less: Personal Expenses (1/4th)           :      `27,500/-

     (vi)    Loss of dependency (82,500 x 17)          :   `14,02,500/-

     (vii) Compensation      for   loss    of          :      `30,000/-
           consortium, love and affection and
           funeral expenses.

     (viii) Loss of estate                             :      `10,000/-

                                            Total      :   `14,42,500/-

9. Learned counsel for the appellant submits that the compensation awarded by the Claims Tribunal cannot be enhanced in the absence of cross-objections. The submission of the learned counsel is contrary to law. Reference in this regard can be made to the recent judgment of this Court in National Insurance Co. Ltd. v. Komal, MANU/DE/2870/2012 in which this Court following the catena of the judgments of the Supreme Court and various High Courts in Pannalal v. State of Bombay, AIR 1963 SC 1516, Rameshwar Prasad v. M/s Shyam Beharilal Jagannath, (1964) 3 SCR 549, Nirmal Bala Ghose v. Balai Chand Ghose, AIR 1965 SC 1874, Giani Ram v. Ramjilal, AIR 1969 SC 1144, Harihar Prasad Singh v. Balmiki Prasad Singh, AIR 1975 SC 733, Mahant Dhangir v. Madan Mohan, AIR 1988 SC 54, State of Punjab v. Bakshish Singh, AIR 1999 SC 2626, Nagappa v. Gurudayal Singh, (2003) 2 SCC 274, Oriental Fire And General Insurance Co. Ltd. v. Amarsing Pratapsing Sikliker, (1999) 3 MLJ 147 and Prakramchand v. Chuttan, AIR 1991 MP 280, has enhanced compensation in the absence of cross-objections.

10. Learned counsel for the appellant further submits that vide order dated 7th November, 2005, the appellant was directed to deposit the entire award amount with the Claims Tribunal out of which 30% was directed to be released to the respondents and the remaining amount was directed to be kept in fixed deposit and the interest thereon was directed to be paid to the respondents. It is

submitted that six cheques deposited by the appellant towards the 70% of the award amount were not deposited by the Nazir of the Claims Tribunal with the Bank and, therefore, no fixed receipts were prepared and no interest was released to the claimants/respondents No.1 to 6. It is submitted that the appellant is not liable to pay the interest after the date of the deposit. It is further submitted that the appellant had deducted the TDS while depositing 70% of the award amount with the Claims Tribunal and is not liable to again deposit the TDS amount. The submission of the learned counsel for the appellant is rejected. Since the cheques were not deposited by Nazir, the amount remained in the appellant's account due to which the claimants did not get any interest as directed by this Court. The deduction of TDS by the appellant at the time of depositing the amount with the Claims Tribunal was not justified. The law in this regard is well settled by the judgment of this Court in National Insurance Co. Ltd. v. Kanika Saboo, III (2010) ACC 29. In that view of the matter, the appellant was directed to deposit the amount afresh without deduction of the TDS.

11. Learned counsel for the appellant submits that he has deposited 70% of the award amount along with upto date interest without deducting the TDS with UCO Bank, Delhi High Court Branch in terms of order dated 3rd August, 2012. A photocopy of the cheque has been handed over to learned counsel for the respondent. A photocopy of the cheque is also placed on record.

The compliance of the order dated 3rd August, 2012 is taken on record.

12. For the reasons as aforesaid, the appeal is dismissed. However, the award amount is enhanced from `12,20,000/- to `14,42,500/- along with interest @ 9% p.a. from the date of the filing of the claim petition till deposit. The enhanced award amount along with up to date interest be deposited by the appellant with the UCO Bank, Delhi High Court Branch by means of a cheque in the name of UCO Bank A/c Rajni Ghai within 30 days.

13. With respect to `15,95,277/- deposited by the appellant with the UCO Bank in terms of the order dated 3rd August, 2012, the UCO Bank is directed to release 10% of the said amount i.e. `1,59,527/- to respondents No.1 to 3 (in equal shares) i.e. `53,177/- to respondent No.1, `53,177/- to respondent No.2 and `53,177/- to respondent No.3 by transferring the said amount to their respective saving bank accounts. The remaining amount be kept in fixed deposit in the following manner:

(i) Fixed deposit in respect of 5% of the award amount in favour of respondent No.1 for a period of one year.

(ii) Fixed deposit in respect of 5% of the award amount in favour of respondent No.2 for a period of two years.

(iii) Fixed deposit in respect of 5% of the award amount in favour of respondent No.3 for a period of three years.

(iv) Fixed deposit in respect of 5% of the award amount in favour of respondent No.1 for a period of four years.

(v) Fixed deposit in respect of 5% of the award amount in favour of respondent No.2 for a period of five years.

(vi) Fixed deposit in respect of 5% of the award amount in favour of respondent No.3 for a period of 6 years.

(vii) Fixed deposit in respect of 10% of the award amount in favour of respondent No.3 for a period of seven years.

(viii) Fixed deposit in respect of 10% of the award amount in favour of respondent No.4 for a period of eight years.

(ix) Fixed deposit in respect of 10% of the award amount in favour of respondent No.5 for a period of nine years.

(x) Fixed deposit in respect of 10% of the award amount in favour of respondent No.6 for a period of ten years.

14. The interest on the aforesaid fixed deposits shall be paid monthly by automatic credit of interest in the Savings Account of respondent No.3.

15. 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.

16. No cheque book be issued to the beneficiary without the permission of this Court.

17. 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 beneficiaries.

18. No loan, advance or withdrawal shall be allowed on the said fixed deposit receipts without the permission of this Court.

19. Half yearly statement of account be filed by the Bank in this Court.

20. On the request of the beneficiary, Bank shall transfer the Savings Account to any other branch according to their convenience.

21. The beneficiaries shall furnish all the relevant documents for opening of the Saving Bank Account and Fixed Deposit Account to AGM, UCO Bank, Delhi High Court Branch, New Delhi.

22. With respect to the enhanced award amount to be deposited by the appellant in terms of this judgment, UCO Bank is directed to keep the same in fixed deposit in the name of respondent No.3 for a

period of 5 years.

23. Respondent No.3 has saving bank account no.20114709598 with Bank of Maharashtra, Preet Vihar Branch, Delhi. UCO Bank is directed to transfer the monthly interest every month in the saving bank account of respondent No.3 with Bank of Maharashtra.

24. Upon deposit of the enhanced award amount by the appellant, the Registrar General is directed to refund the statutory amount back to the appellant.

25. Copy of this judgment be sent to AGM, UCO Bank, Delhi High Court Branch, New Delhi.

J.R. MIDHA, J SEPTEMBER 28, 2012 dk