Full Text
HIGH COURT OF DELHI
Date of Decision: 22nd October, 2018 HIGH COURT OF DELHI
MAC.APP. 462/2018
RAJ BALA & ANR ..... Appellants
Through: Ms. Neha Jain and Mr. Luv Manan, Advocates
Through: Mr. Pradeep Gaur, Advocate
JUDGMENT
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 2018:DHC:6830 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 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 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:
7.4. 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 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:
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 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:
7.7. In New India Assurance Co. Ltd. v. Dilip Kumar, 2018 SCC OnLine Del 9263, the accident dated 01st September, 2012 resulted in 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-D[6] 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 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.
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. 1,00,000/- 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/-.
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 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
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 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
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