MAC.APP.No.401/2007 Page 1 of 9 *IN THE HIGH COURT OF DELHI AT NEW DELHI + MAC.APP.No.401/2007 Date of Decision: 7th April, 2010 % ORIENTAL INSURANCE COMPANY LTD. ..... Appellant Through : Ms. Manjusha Wadhwa, Adv. versus AKBARI BEGUM & ORS ..... Respondents Through : Mr. Ambar Qamaruddin, Adv. for R-1 to R-5. CORAM :- THE HON'BLE MR. JUSTICE J.R. MIDHA 1. Whether Reporters of Local papers may YES be allowed to see the Judgment? 2. To be referred to the Reporter or not? YES 3. Whether the judgment should be YES reported in the Digest? JUDGMENT (Oral) 1. The appellant has challenged the award of the learned Tribunal whereby compensation of Rs.13,67,000/- has been awarded to claimants/respondents No.1 to 5. The claimants have filed the counter claim and seek enhancement of the award amount. 2. The accident dated 25th October 2003 resulted in the death of Fariduddin. The deceased was survived by his widow, two sons, one daughter and mother, who filed the claim petition before the learned Tribunal. 3. The deceased was aged 52 years at the time of the accident and was working as Train engine driver with Northern Railway earning Rs.14,000/- per month. The learned MAC.APP.No.401/2007 Page 2 of 9 Tribunal took the income of the deceased as 14,000/-, deducted 1/3rd towards the personal expenses of the deceased and applied the multiplier of 8 to compute the loss of dependency at Rs.13,44,000/-. Rs.3,000/- has been awarded as funeral expenses and Rs.20,000/- towards loss of consortium and loss of love and affection. The learned Tribunal has awarded total compensation of Rs.13,67,000/- to claimants. 4. The learned counsel for the appellants has urged that the deceased was aged 52 years at the time of the accident and, therefore, the future prospects could not be taken into consideration in view of the judgment of Hon’ble Supreme Court in the case Sarla Verma Vs. Delhi Transport Corporation, 2009 (6) Scale 129. 5. The learned counsel for the respondent Nos. 1 to 5 has urged on the following grounds at the time of hearing of this appeal:- (i) The deduction towards the personal expenses of the deceased be reduced from 1/3rd to 1/4th. (ii) The multiplier be enhanced from 8 to 11. (iii) The compensation awarded for funeral expenses be enhanced. (iv) The compensation be awarded for loss of estate. (v) The rate of interest be enhanced from 7% to 7.5% per annum. (vi) The compensation of Rs.33,600/- as medical MAC.APP.No.401/2007 Page 3 of 9 expenses of the deceased be awarded up to his death. 6. The deceased was aged 52 years at the time of accident and was working as Train engine driver with Northern Railway and was earning Rs.14,000/- per month. The deceased has left behind five legal representatives. According to the judgment of Hon’ble Supreme Court in the case of Sarla Verma Vs. Delhi Transport Corporation, 2009 (6) Scale 129, the deceased is not entitled to future prospects. However, the appropriate deduction towards the personal expenses is 1/4th and the appropriate multiplier is 11. Following the aforesaid judgment of Hon’ble Supreme Court, the future prospects are set aside, the personal expenses of the deceased are reduced from 1/3rd to 1/4th and the multiplier is enhanced from 8 to 11. 7. The learned counsel for the appellant submits that the widow of the deceased is receiving pension which should be deducted from the compensation awarded to her. The pension being received by the widow of the deceased is not deductable from the compensation in view of the judgment of this Court in the case of National Assurance Co. Ltd. vs. Neelam Widow, 2009 ACJ 992. The findings of this Court in this regard are as under:- “27. The important question for consideration is when the widow of deceased and her two children are getting family pension amounting to Rs. 3200/- per month and the widow has also been given a job by the Maruti Udyog Ltd. on MAC.APP.No.401/2007 Page 4 of 9 compassionate grounds, can these benefits are required to be correspondingly reduced from the amount of total compensation payable or not? 28. In Mrs.Helen C.Rebello and others v. Maharashtra State Road Transport Corpn. and another, AIR 1998 SC 3191, about pensionary benefits, the Apex Court in para 16 referred to the case of the Grand Trunk Railway of Canada v. Jenning, (1888) 13 AC 800 and held as under:- "At the Common Law, pecuniary benefits from insurance policies, whatever the source, and pension schemes whether contributory or non-contributory, were deducted. The various English Courts' decisions reveal the unsettled state of adjudication regarding the deductions from the compensation payable under the Fatal Accidents Act, 1846. Various divergent opinions were expressed, some favourable to the claimant to exclude any sum payable on life insurance or pensions from deduction out of the compensation payable to the claimant and other not to deduct till, as aforesaid, the matter was set at rest by various legislations culminating into the Fatal Accidents Act, 1959. Till before this, within the limitation of the restrictive language of the Act and in the absence of any motivating and guiding words under the statute the general principles under the common law was applied to ascertain the pecuniary loss and gain. Thus, the 'pecuniary advantage' from whatever source comes to the claimant by reason of the death, was interpreted giving its widest meaning. This amplitude of large sphere has been the cause of concern of the Courts, Legislative and the Jurists and reference to the insurance, pension, gratuity etc. whether it is a pecuniary gain deductible, if it is, whether one‟s conscience, equity and fairness are eroded, specially if it is applied with reference to the provisions of Motor Vehicles Act? To salvage from this onslaught, some decisions declined to interpret for deduction and some other, even after holding deductible, expressed their MAC.APP.No.401/2007 Page 5 of 9 conscience in favour of the sufferer. This we find both in the English decisions and the Indian decisions." The Apex Court further in para 36 has pointed out about the family pension as under; “Similarly, family pension is also earned by an employee for the benefit of his family in the form of his contribution in the service in terms of the service conditions receivable by the heirs after his death. The heirs receive family pension even otherwise than the accidental death. No co-relation between the two.” 29. This Court in Delhi Transport Corporation v. Meena Chaturvedi and others, 2006 ACJ 406, held that deductions on account of life insurance, provident fund, pension, etc. are not admissible in view of the decision of the Apex Court in Helen C.Rebello (supra). 30. In case of N.Sivammal and others v. The Managing Director, Pandian Roadways Corpn. and another, AIR 1985 106, the Apex Court pointed out that the reduction of monetary benefit of pension from the amount of compensation is without justification. 31. In Savitri Devi & Ors. v. Pala Ram & Ors., II (2000) ACC 152 (DB), the Punjab and Haryana High Court has taken the view that the pension/family pension payable to the widow could not be taken into consideration for reducing the dependency of the claimants. 32. In view of the aforesaid principles laid down by the various judgments, the question is no more res integra and the Tribunal exercising jurisdiction under the Motor Vehicles Act is required to consider the payment of damages/compensation to the person concerned on the basis of income and the loss that others would suffer irrespective of benefits, such as, insurance, provident fund, pension, etc.” 8. The Claims Tribunal has awarded Rs.3,000/- towards funeral expenses which are enhanced to Rs.10,000/-. The Claims Tribunal has not awarded any compensation towards MAC.APP.No.401/2007 Page 6 of 9 to loss of estate. Rs.10,000/- is awarded towards loss of estate. 9. The claimants/respondents No.1 to 5, incurred a sum of Rs.33,600/- on medical expenditure on the treatment of the deceased. The medical bills were produced by the claimants before the Claims Tribunal and same has been recorded in para 15 of the award. However, the Claims Tribunal erred in not awarding the said amount to the claimants. Rs.33,600/- is awarded towards medical expenses. 10. The total compensation is computed to be Rs.14,59,600/- [(14,000 x 3/4 x 12 x 11) + Rs.10,000 + Rs.20,000 + Rs.10,000 + Rs.33,600] 11. The Claims Tribunal has awarded interest @ 6% per annum. Following the judgment of Hon’ble Supreme Court in the case of Dharampal & Ors. vs. U.P. State Road Transport Corporation, III 2008 ACC (1) SC, the rate of interest is enhanced from 6% to 7.5% per annum. 12. The appeal and the cross objections are partially allowed. The award amount is enhanced from Rs.13,67,000/- to Rs.14,59,000/- along with interest @7.5% per annum from the date of filing of the claim petition up to the date of notice of deposit under Order XXI Rule 1 of the Code of Civil Procedure. 13. The appellant has deposited 50% of the amount awarded by the Claims Tribunal in terms of the order dated 12th July, 2007 and the same has been released by the MAC.APP.No.401/2007 Page 7 of 9 Claims Tribunal to the claimants. The balance amount awarded by the Claims Tribunal as well as the enhanced award amount along with up to date interest be deposited by the appellant with State Bank of India A/c Akbari Begum, Tis Hazari Branch, Delhi through Mr. H.S. Rawat, Relationship Manager (Mb: 09717044322) within 30 days. 14. Upon the aforesaid amount being deposited, State Bank of India is directed to release 10% of the amount 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 award amount in the name of respondent No.2 for a period of one year. (ii) Fixed deposit in respect of 10% of the award amount in the name of respondent No.3 for a period of two years. (iii) Fixed deposit in respect of 10% of the award amount in the name of respondent No.4 for a period of three years. (iv) Fixed deposit in respect of 10% of the award amount in the name of respondent No.4 for a period of four years. (v) Fixed deposit in respect of 10% of the award amount in the name of respondent No.5 for a MAC.APP.No.401/2007 Page 8 of 9 period of five years. (vi) Fixed deposit in respect of 10% of the award amount in the name of respondent No.5 for a period of six years. (vii) Fixed deposit in respect of 10% of the award amount in the name of respondent No.1 for a period of seven years. (viii) Fixed deposit in respect of 10% of the award amount in the name of respondent No.1 for a period of eight years. (ix) Fixed deposit in respect of 10% of the award amount in the name of respondent No.1 for a period of nine years. 15. The respondents are permanent residents of Allahabad and, therefore, State Bank of India, Tis Hazari Branch is directed to transfer the interest on the aforesaid fixed deposits monthly by automatic credit of interest in the Savings Account of appellant No.1 with State Bank of India, Allahabad Branch. 16. Withdrawal from the aforesaid account shall be permitted to appellants No.1 to 5 after due verification and the Bank shall issue photo Identity Card to appellants No.1 to 5 to facilitate identity. 17. No cheque book be issued to appellants No.1 to 5 without the permission of this Court. MAC.APP.No.401/2007 Page 9 of 9 18. The Bank shall issue Fixed Deposit Pass Book instead of the FDRs to appellants No.1 to 5 and the maturity amount of the FDRs be automatically credited to the Saving Bank Account of the beneficiary at the end of the FDR. 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 appellants No.1 to 5, the Bank shall transfer the Savings Account to any other branch according to the convenience of appellants No.1 to 5. 22. Appellants No.1 to 5 shall furnish all the relevant documents for opening of the Saving Bank Account and Fixed Deposit Account to Mr. H.S. Rawat, Relationship Manager, Tis Hazari Branch, Tis Hazari (Mb: 09717044322). 23. Copy of the order be given dasti to counsel for both the parties under signatures of the Court Master. 24. Copy of this order be also sent to Mr. H.S. Rawat, Relationship Manager, Tis Hazari Branch, Tis Hazari (Mb: 09717044322) under the signature of Court Master. J.R. MIDHA, J APRIL 07, 2010