Delhi High Court
Cholamandalam Ms General ... vs Smt Dhanwanti & Ors on 12 January, 2016
$~13
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 12th January, 2016
+ MACA 521/2013
CHOLAMANDALAM MS GENERAL
INSURANCE CO LTD ..... Appellant
Through: Ms. Suman Bagga, Adv.
versus
SMT DHANWANTI & ORS ..... Respondents
Through: Mr. S. K. Pandey and Mr. P. K.
Dwivedi, Advs. for R-1 to 3.
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT
R.K.GAUBA, J (ORAL):
1. This motor accident claim appeal raises a short point for
consideration.
2. By judgment rendered on 24.01.2013 in MACT case no.34/2012,
later corrected by order dated 14.02.2013, the Accident Claims Tribunal
(hereinafter referred to as "the Tribunal") allowed the claim petition
under Section 140 read with Section 166 of Motor Vehicles Act, 1988
(hereinafter referred to as " M. V. Act") and awarded in favour of the
respondent nos. 1 to 3 herein compensation in the sum of Rs.38,64,839/-
apportioning it in the ratio of 65%, 5% and 30 % respectively in their
favour, on account of death of Raj Kishore son of Kalu Ram in a motor
vehicular accident that occurred on 18.06.2010 at Panna Satna Road
near Mohangarhi Panna, Madhya Pradesh, subject matter of FIR No.
249/2010 under Sections 279/304-A of Indian Penal Code, 1860 of
police station Panna (Madhya Pradesh). The deceased Raj Kishore was
aged 51 years working as Assistant in Airport Authority of India, Civil
Aviation Ministry, posted at Khajuraho (Madhya Pradesh) at the time of
his death. The claimants (respondent nos.1 to 3) are his wife (widow),
married daughter and son respectively. In arriving at the amount to be
directed to be paid as compensation, the Tribunal, having reached a
finding that the annual income of the deceased was Rs.5,66,904/- at the
time of death, allowed a deduction to the extent of one third on account
of personal living expenses. It is the rate of this deduction which is the
bone of contention in the appeal at hand. The appellant/insurer argues
that since the claimants included a married daughter and a working son,
the deduction should have been made @ 50% for the reason only the
widow could be treated as the dependent who deserved to be
compensated.
3. I have heard arguments of both sides but on facts find no
substance in the contention raised in the appeal.
4. The material on record clearly shows that the son was aged about
21 years when Raj Kishore died. His date of birth is indicated in the
documents on record as 20.01.1989. The claim petition pleaded that he
was a dependent on his father. At the time of inquiry into the claim
petition, the widow (respondent no.1) submitted the affidavit
(Ex.PW1/A) sworn on 17.10.2012, clearly stating that all the claimants,
including the son were dependant on Raj Kishore. It was during her
cross-examination on 17.10.2012 that she conceded that the son
(respondent no.3) was working in the office of the SDM, Defence
Colony. From this concession itself, it cannot be assumed that the son
was gainfully employed at the time his father died. No further inquiry
was made to ascertain from the witness (PW1) as to what was the level
of income earned by the son from the said employment which she
clarified was on "contract basis". Her statement, thus, clearly indicated
that son has not been secured any regular employment so as to be treated
as self reliant or, to put it conversely not dependent on his father at the
time of his death. It was not even enquired of PW1 as to when the son
had secured the contractual employment in the office of SDM or as to
what was the nature of the said employment or, for that matter, whether
it was commensurate with his qualifications or not.
5. In view of above facts and circumstances, the contention of the
appellant that the number of dependants left behind by the deceased was
only one, namely the widow, is not correct.
6. For the foregoing reasons, the appeal is devoid of substance and
is, thus, dismissed.
7. By order dated 30.05.2013, the appellant insurance company was
directed to deposit entire awarded amount with upto-date interest with
the Registrar General of this court and upon the said deposit being made
the Registrar General was directed to release 60 % of the awarded
amount in favour of the claimants as per terms and conditions fixed in
the impugned order. The claimants submit through counsel that no
amount was withdrawn in terms of the said directions. They now press
for release of the entire deposited amount to which appellant has no
objections. Learned counsel for appellant submits that alongwith the
appeal, the appellant had deposited Rs.25,000/-, in terms of first proviso
of Section 173(1) of M. V. Act. Learned counsel submits that the said
amount being statutory deposit will have to be released in favour of the
appellant. Counsel for respondents has no objection to this prayer.
8. Both requests are accordingly allowed. The statutory deposit be
refunded to the appellant after confirming that it has satisfied the award.
The respondent nos.1 to 3 shall be entitled to release of the amount
deposited with the Registrar General and in case there is any amount
outstanding, they may press for its recovery by taking out execution
before the tribunal, following appropriate procedure.
R.K. GAUBA
(JUDGE)
JANUARY 12, 2016/ssc
