Delhi High Court
Raj Bala & Anr vs Sumit Dahiya & Ors (M/S United India ... on 22 October, 2018
Equivalent citations: AIRONLINE 2018 DEL 1918, (2019) 1 TAC 760 (2019) 4 ACJ 2599, (2019) 4 ACJ 2599
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision: 22nd October, 2018
+ IN THE HIGH COURT OF DELHI AT NEW DELHI
MAC.APP. 462/2018
RAJ BALA & ANR ..... Appellants
Through: Ms. Neha Jain and Mr. Luv Manan,
Advocates
versus
SUMIT DAHIYA & ORS (M/S UNITED INDIA
INSURANCE CO. LTD) ..... Respondents
Through: Mr. Pradeep Gaur, Advocate
JUDGEMENT
1. The appellants have challenged the award of the Claims Tribunal whereby compensation of Rs.23,38,000/- has been awarded to the appellants.
2. On 28th December, 2012 at about 8:15 A.M, Manish Kumar was going on a motorcycle in front of Kali Mata Mandir, Main Bawana Road, Delhi when he was hit by a DTC bus bearing No. DL-1 PC 0113. The accident resulted in death of Manish Kumar. The police registered FIR No.465/2012 dated 28th December, 2012 under Sections 279/304A of IPC against the driver of the DTC bus.
3. The deceased aged 21 years at the time of accident, was a final year student of B.Tech. at Maharshi Dayanand University, Rohtak. The deceased MAC.APP.462/2018 Page 1 of 13 was survived by his parents who claimed compensation.
4. The Claims Tribunal took the earning capacity of the deceased as Rs.15,000/- per month, added 40% towards future prospects, deducted 50% towards his personal expenses and applied the multiplier of 18 to compute the loss of dependency as Rs.22,68,000/-. The Claims Tribunal awarded Rs.40,000/- towards loss of love and affection, Rs.15,000/- towards loss of estate and Rs.15,000/- towards funeral expenses. The total compensation awarded is Rs.23,38,000/-.
5. Learned counsel for the appellants urged at the time of the hearing that the earning capacity of deceased be taken as Rs.3,20,000/- per annum as per the appointment offer of the deceased and the future prospects be enhanced from 40% to 50%.
6. Learned counsel for the respondent urged at the time of hearing that income of the deceased has been fairly taken as Rs.15,000/- per month. It is further submitted that the notional income has to be taken as earning capacity of the deceased. It is further submitted that the deceased is not entitled to future prospects. It is further submitted that loss of love and affection is no more a permissible head in terms of principles laid down in National Insurance Co. Limited v. Pranay Sethi, (2017)16 SCC 680 and the compensation of Rs.40,000/- awarded under the head of loss of love and affection be set aside.
7. The law with respect to the earning capacity of a student pursuing a professional course is well-settled that the Claims Tribunal has to assess the earning capacity of the deceased considering the nature of the professional course being pursued by the deceased and the prospects of his income after completing the course. The relevant judgments on this principle are as MAC.APP.462/2018 Page 2 of 13 under:
7.1. In Oriental Insurance Company Ltd. v. Deo Patodi, (2009) 13 SCC 123, the accident dated 12th June, 2003 resulted in the death of a 22 year old brilliant student who had completed Business Administration Course and had a job offer from a US based company at the time of the accident. The Claims Tribunal took his earning capacity as Rs.18,000/- per month. The Supreme Court enhanced the earning capacity of the deceased from Rs.18,000/- per month to Rs.25,000/- per month.
7.2. In New India Assurance Company Limited v. Ganga Devi, MANU/DE/3623/2009, the accident dated 12th August, 2003 resulted in the death of an MBBS graduate who was doing internship and was getting a stipend of Rs.5,000/- per month. The Claims Tribunal took minimum wages of Rs.3,543/- per month in respect of a graduate.
This Court rejected the principle of minimum wages applied by the Claims Tribunal and took the earning capacity of the deceased as Rs.18,000/- per month and added 50% towards future prospects. This Court enhanced the compensation from Rs.9,60,352/- to Rs.21,36,000/-.
7.3. In Ramesh Chand Joshi v. New India Assurance Company Limited, MAC. APP. 212-13/2006 decided on 20th January, 2010, the accident dated 30th July, 2004 resulted in the death of a first year student of B. Tech in Delhi College of Engineering. The Claims Tribunal took the minimum wages of Rs.1,875/- per month which was challenged before this Court. This Court again rejected the principle of the minimum wages applied by the Claims Tribunal. Following the MAC.APP.462/2018 Page 3 of 13 Supreme Court judgment in Deo Patodi, (supra), this Court assessed the earning capacity of the deceased after completing the graduation course to be Rs.38,333/- per month and the compensation was enhanced from Rs.3,25,000/- to Rs.22,78,980/-. The relevant portion of the judgment is as under:
"7. The learned Tribunal has taken the notional income of the deceased as Rs.22,500/- per annum i.e. Rs.1,875/- per month which is less than even the minimum wages of a daily wager. The approach and finding of the learned Tribunal is absurd and without any basis. The law in this regard is well settled by catena of judgments. The minimum wages are permissible to be taken where the deceased is illiterate and does not possess any professional or technical qualification. Where the deceased is educated or is pursuing the professional course, income has to be taken on the basis of his earning. Reference in this regard may be made to judgment of Oriental Insurance Company Ltd. v. Deo Pataudi, 2009 (8) Scale 194, in which case the deceased aged 22 years was a student having a brilliant career and offer of employment from a US Based Company at the time of accident. The learned Tribunal took his earning capacity to be Rs.18,000/- per month. The High Court in appeal upheld the earning capacity of the deceased at 18,000/- per month. The Hon'ble Supreme Court enhanced the earning capacity of the deceased from Rs.18,000/- to Rs.25,000/- per month.
8. Section 168 of the Motor Vehicles Act provides that the learned Tribunal shall conduct an inquiry into the claim petition. Section 169 of the Motor Vehicles Act provides that the learned Tribunal shall follow such summary procedure as it deem fit to conduct such an inquiry. The inquiry stipulated in Section 168 of the Motor Vehicles Act is different from the civil trial. The learned Tribunal has not conducted any inquiry whatsoever for assessing the earning capacity of the MAC.APP.462/2018 Page 4 of 13 deceased. Be that as it may, this Court in appellate jurisdiction has the same power of conducting such an enquiry into this matter and, therefore, vide order dated 26th November, 2009, this Court issued a notice to the Dean of Delhi College of Engineering, Bawana to place on record the average salary of a fresh Engineering graduate of Delhi College of Engineering, in pursuance to which the Joint Registrar of Delhi College of Engineering (now known as Delhi Technological University) has filed an affidavit along with the chart of average salary drawn by a fresh engineering graduates of Delhi College of Engineering. The chart contains the names of different Companies and salaries offered by them in the year 2009 to fresh graduates in Bio- Technology from Delhi College of Engineering.
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9. The average salary of a graduate in Bio-Technology from Delhi College of Engineering during 2009 is 4.6 lacs per annum. The chart further shows that there were 18 eligible students who all got the job offers and the placement was 100%. The chart further shows that the minimum salary offered was Rs.3. lacs per annum and highest salary offered to an Engineering graduate in Bio- Technology was Rs.9 lacs per annum. 10. From the inquiry conducted by this Court as to the earning capacity of the deceased, it is held that the earning capacity of the deceased after completing graduation course would have been Rs.4.6 lacs per annum i.e. Rs.38,333/- per month."
(Emphasis Supplied) 7.4. In HDFC Ergo General Insurance Co. Ltd. v. Rattan Kumar Dwivedi, 2017 SCC OnLine Del 9874, the accident dated 21st July, 2008 resulted in the death of a national level sportsperson who was a student of B. Com. (Hons.). The Claims Tribunal awarded Rs.10,40,000/- by taking the earning capacity of the deceased as MAC.APP.462/2018 Page 5 of 13 Rs.10,000/- per month which was challenged on the ground that minimum wages should have been applied by the Claims Tribunal. Applying the principles laid down by the Supreme Court in Municipal Corporation of Delhi v. Association of Victims of Uphaar Tragedy, AIR 2012 SC 100, this Court rejected the application of minimum wages to such cases. Considering the brilliant record of the student as a sportsperson, this Court determined the earning capacity of the deceased as Rs.25,000/- per month and enhanced the compensation from Rs.10,40,000/- to Rs.24,50,000/-. The relevant portion of the judgment is as under:
"14. In the present case, the deceased Apoorva Dwivedi was a student of B.Com (Hons.) at Bharti College, Delhi University. She was a sports person having won 86 prizes/certificates in athletics, track and field, gymnastics, baseball, soft ball, basketball, cricket etc. The deceased had secured second place in team event at 40th Delhi State Gymnastics Championship, 2001; best athlete of the year 2003-2004 at school and zonal level and first position in baseball in 52nd National School Games conducted by School Games Federation of India held from 23rd December to 28th December, 2006. The deceased was sports captain of Holy Child Senior Secondary School, Tagore Garden, New Delhi for the academic year 2007-08. Judicial notice is taken of the notifications for government job for sports persons as well as advertisements in private jobs for sports persons, under which a graduate sports person can secure a job with a job in the pay scale of Rs.30,000/- to Rs.40,000/- per month. Considering that the deceased was a sports person with an extraordinary talent in various sports, namely, athletics, track and field, gymnastics, baseball, soft ball, basketball, cricket etc. and having been awarded 86 prizes/certificates, it is presumed that the MAC.APP.462/2018 Page 6 of 13 deceased would have earned Rs.25,000/- per month after completing her graduation. Deducting 50% towards the personal expenses of the deceased and applying the multiplier of 14 according to the age of her mother, the loss of dependency is computed as Rs.21,00,000/- [(Rs.25,000-50%)x12x14]. The compensation for loss of love and affection is enhanced from Rs.25,000/- to Rs.1,00,000/-; and compensation for pain and suffering is enhanced from Rs.25,000/- to Rs.1,00,000/-. Adding Rs.1,30,000/- towards medical expenses and Rs.20,000/- towards funeral expenses, total compensation is computed as Rs.24,50,000/- [21,00,000/- + 1,00,000/- + 1,30,000/- + 1,00,000/- + 20,000/-]. The Claims Tribunal has awarded interest @ 7.5% per annum which is on a lower side considering that the Supreme Court as well as this Court are consistently awarding interest @ 9% per annum. The rate of interest is enhanced from 7.5% to 9% per annum."
7.5. In HDFC Ergo General Insurance Co. Ltd. v. Lalta Devi, 2015 ACJ 2526, the accident dated 19th June, 2011 resulted in the death of a third year student of B. Tech. The Claims Tribunal awarded compensation of Rs.19,50,000/- by taking the earning capacity of the deceased as Rs.25,000/- per month. The insurance company and the claimants both challenged the award before this Court. This Court held the earning capacity of the deceased to be Rs.26,815/- per month by relying on the basic pay of a junior engineer and the compensation amount was enhanced from Rs.19,50,000/- to Rs.22,94,871/-.
7.6. In United India Insurance Company Limited v. Anita, 2017 SCC OnLine Del 11152, the accident dated 16th June, 2009 resulted in the death of a 21 year old student of B. Tech. (Mechanical and MAC.APP.462/2018 Page 7 of 13 Automation Engineering). The Claims Tribunal awarded Rs.34,65,689/- by taking the earning capacity of the deceased as Rs.26,815/- per month and 50% future prospects thereon, which was challenged by the insurance company. This Court upheld the award of the Claims Tribunal and dismissed the appeal. The relevant portion of the judgment is as under:
"5. The Claims Tribunal took the income of the deceased as Rs.26,851/- following the judgment of this Court in HDFC Ergo General Insurance Co. Ltd. v. Lalta Devi, 2015 ACJ 2526 in which this Court took the income of a B.Tech third year student in a similar university as Rs.26,851/- according to the salary drawn by a Junior Engineer. The learned Tribunal has also taken into consideration that the deceased had passed the 5th semester in December 2008 and had received the approval for six weeks industrial training with Indian Airlines. The Claims Tribunal also considered the mark sheets of the deceased for 3rd, 4th and 5th semester along with certificate of excellence for 3rd semester and deceased had stood first in the 3rd semester examination in December, 2007. The Claims Tribunal also considered the statement of PW-2 who was a class fellow of the deceased and had initially joined Maxim Group in 2011 at a monthly salary of Rs.16,000/- as Production Engineer and thereafter, another company with a package of Rs.4,34,000/- per annum with 18% increment in the salary.
6. This Court is of the view that the income of the deceased computed by the Claims Tribunal and the future prospects added thereon are fair and reasonable and does not warrant any interference."
7.7. In New India Assurance Co. Ltd. v. Dilip Kumar, 2018 SCC OnLine Del 9263, the accident dated 01st September, 2012 resulted in MAC.APP.462/2018 Page 8 of 13 the death of a 22 year old student of B.Sc.(Nautical Science) from Directorate General of Shipping and Indira Gandhi National Open University (IGNOU). The Claims Tribunal awarded compensation of Rs.26,40,000/- by taking the earning capacity as Rs.40,000/- per month. This Court held that the earning capacity of Rs.40,000/- per month was on a higher side and reduced the earning capacity of the deceased to Rs.25,000/-. The relevant portion of the judgment is as under:
2. On 1st March, 2012 at about 1:30 A.M, Prateek Kumar and his friends were going from Connaught Place to Saket in a Mahindra Scorpio car bearing No. HR-11C- 6677 being driven by respondent No. 3. Respondent No. 3 lost control of the vehicle near Gate No. 1 of National Gallery of Modern Art, India Gate Outer Circle, Delhi due to which the vehicle struck against a tree and turned turtle. The police registered FIR No. 33/2012 dated 1st March, 2012 against respondent no. 3 under Sections 279/337/338 of IPC at P.S. Tilak Marg.
3. Prateek was sitting in the back seat of the offending vehicle, suffered hemorrhage in left frontal region;
multiple fracture greated wing of sphenoid; fracture in left temporal parietal bone; fracture right mastoid with fracture sphenoid sinus; B/L hemothorax with collapse of B/L posterior basal segment; pneumothorax with multiple contusion; fracture of 6-7 and 8 ribs; diffuse axonal head injury with HPA suppression and spinal cord injury of D5-D6 vertebra. Prateek was taken to RML Hospital, where he was admitted for treatment. On 15th March, 2012, Prateek was shifted to Sir Ganga Ram Hospital for further treatment where he remained admitted till 03rd June, 2012. On 04th June, 2012, Prateek was taken to Nishant Hospital, Lucknow and he remained admitted there from 04th June, 2012 to 08th July, 2012; 26th July, 2012 to 27th July, 2012; 13thFebruary, 2013 to MAC.APP.462/2018 Page 9 of 13 1st March, 2013; 05th June, 2013 to 15th June, 2013; 18th June, 2014 to 25th June, 2014. He was admitted to NuTech MediWorld Hospital, New Delhi from 06th January, 2014 to 04th April, 2014.
4. The injuries suffered by Prateek resulted in 100% disability relating to Post-traumatic paraplegia with B/B involvement and loss of vision (left) as per the disability certificate dated 04th August, 2013 (PW-1/25). Prateek remained bedridden for about 27 months and could not recover from the injuries suffered by him. Prateek succumbed to his injuries on 04th July, 2014 at R.D.S.O. Hospital, Manak Nagar, Lucknow.
5. Prateek was aged 22 years at the time of the accident. He passed Senior Secondary School in the year 2008 with 82% marks and was pursuing B.Sc.(Nautical Science) six semester course jointly conducted by Directorate General of Shipping and Indira Gandhi National Open University (IGNOU). Prateek had completed the fifth semester of the six semester course. Prateek completed Pre-Sea Cadet course from Maritime Institute, Mumbai in the first and second semesters. Prateek completed 18 months training with Shipping Corporation of India in the third, fourth and fifth semesters and was getting a stipend of Rs. 10,000/- per month plus other perks.
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10. The Claims Tribunal held that the accident occurred due to the rash and negligent driving by respondent No. 3 which resulted in grievous injuries to Prateek who later succumbed to his injuries. The Claims Tribunal took the earning capacity of the deceased as Rs. 40,000/- per month, deducted 50% towards personal expenses and applied the multiplier of 11 according to the age of the mother to compute the loss of dependency as Rs. 26,40,000/-. The Claims Tribunal awarded Rs. 32,95,621/- towards medical treatment, Rs. 11,20,000/- towards loss of income during treatment, Rs. 3,50,000/- towards conveyance and attendant charges, Rs.
MAC.APP.462/2018 Page 10 of 131,00,000/- towards loss of love and affection, Rs. 10,000/- towards loss of estate and Rs. 25,000/- towards funeral expenses. The total compensation awarded is Rs. 75,40,621/-.
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20. In the present case, the deceased was a student of B.Sc. (Nautical Science). The deceased had successfully completed the Pre-Sea Cadet Course from Maritimes Training Institute and eighteen month On-Board training with Shipping Corporation of India and was getting stipend of Rs. 10,000/- per month excluding perks. On successful completion of B.Sc. (Nautical Science), the deceased would have had a successful career in Merchant Navy. As per the terms and conditions of the appointment of a fresh graduate, Shipping Corporation of India pays wages of Rs. 1,03,620/- per month (Rs. 3,454/- per day). This Court is of the view that the earning capacity of the deceased be taken as Rs. 25,500/- per month. Applying the well-settled principles of law laid down by Supreme Court and this Court in the aforesaid cases, the earning capacity of Rs. 40,000/- taken by the Claims Tribunal is reduced to Rs. 25,500/- per month.
21. Taking the income of the deceased as Rs. 25,500/- per month, adding 40% towards future prospects, deducting 50% towards his personal expenses, and applying the multiplier of 18, the loss of dependency is computed as Rs. 38,55,600/-."
(Emphasis Supplied)
8. In the present case, the deceased was a final year student of B.Tech., at Maharshi Dayanand University, Rohtak. The deceased had successfully completed three years of his four years degree programme. On successful completion of B.Tech., the deceased would have had a successful career. M/s Tech Indira IT Solutions Pvt. Ltd. had given placement offer of Rs.3,20,000/- per annum to the deceased. This Court is of the view that the MAC.APP.462/2018 Page 11 of 13 deceased would have certainly earned higher amount in his lifetime but the earning capacity of the deceased is taken as Rs.26,660/- per month (Rs.3,20,000/- per annum) since the claimants have restricted their claim to the above amount. This case is squarely covered by the well-settled principles of law laid down by Supreme Court and this Court in the aforesaid cases. The earning capacity of the deceased is taken as Rs.26,660/- per month (Rs.3,20,000/- per annum). The Claims Tribunal has taken future prospects of 40% which is fair and reasonable and is upheld.
9. The Claims Tribunal has awarded Rs. 40,000/- towards loss of love and affection which is not a permissible head in view of the judgment of the Supreme Court in Pranay Sethi (supra) and is therefore, set aside.
10. Taking the earning capacity of the deceased as Rs.26,660/- per month, adding 40% towards future prospects, deducting 50% towards personal expenses and applying the multiplier of 18, the loss of dependency is computed as Rs.40,30,992/-. Adding Rs.15,000/- towards loss of estate and Rs.15,000/- towards funeral expenses, the claimants are entitled to total compensation of Rs.40,60,992/- along with interest @ 9% per annum from the date of institution of the claim petition.
11. The appeal is allowed and the compensation amount is enhanced from Rs.23,38,000/- to Rs.40,60,992/- along with interest @ 9% per annum from the date of institution of the claim petition i.e. 10th May, 2013.
12. The enhanced amount be deposited by respondent No.3 with the Registrar General of this Court within four weeks from today.
13. The appellants shall furnish their PAN Card details to the counsel for the insurance company within one week from today.
14. List for disbursement of the enhanced award amount on 30th MAC.APP.462/2018 Page 12 of 13 November, 2018.
15. Respondent No.3 shall furnish the TDS certificate to the appellants on the next date of hearing.
16. The respondent no.3 has deposited Rs.31,57,082/- with the Claims Tribunal. The Claims Tribunal is directed to send the aforesaid amount to Registrar General of this Court before the next date of hearing.
17. The appellants shall remain present in Court on the next date of hearing along with the passbooks of their savings bank accounts near the place of their residence having necessary endorsement as directed vide order dated 25th July, 2018 as well as along with their PAN cards and Aadhaar cards.
18. Copy of this judgment be given dasti to the counsels for the parties under signature of the Court Master.
J.R. MIDHA (JUDGE) OCTOBER 22, 2018 ds MAC.APP.462/2018 Page 13 of 13