Full Text
HIGH COURT OF DELHI
Date of Decision: 9th August, 2017
HDFC ERGO GENERAL INSURANCE CO LTD ..... Appellant
Through: Mr. Shrey Mehta, Advocate
Through: Ms. Shanta Devi Raman and Mr. Arihant Jain, Advocates
RATTAN KUMAR DWIVEDI & ORS ..... Appellants
Through: Ms. Shanta Devi Raman and Mr. Arihant Jain, Advocates
INSURANCE CO LTD & ORS ..... Respondents
Through: Mr. Shrey Mehta, Advocate for respondent No.1
JUDGMENT
1. The Motor Accident Claims Tribunal has awarded compensation of Rs.10,40,000/- which is under challenge in these appeals. The appellant in MAC. APP. 993/2013 is seeking reduction whereas the appellants in MAC. APP. 241/2016 are seeking enhancement of the award amount to 2017:DHC:4344 MAC.APP.993/2013 & 241/2016 Rs.66,55,000/-.
2. On 21st July, 2008 at about 09:00 AM, Apoorva Dwivedi left her house for her college and was standing at the central verge of the road near Tagore Garden Metro Station when she was hit by a Santro Car bearing No.HR-06Q-7117 which resulted in grievous injuries. Apoorva was first taken to Kukreja Hospital and thereafter, shifted to Maharaja Agrasen Hospital where she remained un-conscious and ultimately succumbed to the injuries six days later on 27th July, 2008. The police registered FIR No.370/2008 under Sections 279/304A IPC at P.S. Rajouri Garden.
3. The deceased was aged about 18 years (17 years 11 months and 27 days) at the time of the accident and was pursuing B.Com. (Hons.) from Bharti College, Delhi University. The deceased was survived by her parents and brother, who filed an application for compensation. The Claims Tribunal assumed the income of the deceased as Rs.10,000/- per month, deducted 50% towards her personal expenses and applied the multiplier of 14 to compute the loss of dependency as Rs.8,40,000/-. The Claims Tribunal awarded Rs.1,30,000/- towards medical expenses, Rs.25,000/towards loss of love and affection, Rs.25,000/- towards pain and sufferings and Rs.20,000/- towards funeral expenses. The total compensation awarded is Rs.10,40,000/- along with interest @ 7.5% per annum from date of filing of petition.
4. Learned counsel for the appellant in MAC. APP. 993/2013 urged at the time of hearing that the deceased was unemployed and the income of the deceased be taken as minimum wages of Rs.4,393/- in respect of a graduate.
5. Learned counsel for the appellants in MAC. APP. 241/2016 urged that the earning capacity of the deceased be computed according to her ambition to pursue MBA. Learned counsel for the claimants urged that the deceased had excelled in the field of sports and had won 86 certificates and prizes in athletics, track and field, gymnastics, baseball, soft ball, basketball, cricket etc. The deceased secured second place in team event at 40th Delhi State Gymnastics Championship, 2001. The deceased was selected as the best athlete of the year 2003-2004 at the school and as well as zonal level. The deceased secured first position in baseball in 52nd National School Games, 2006 conducted by School Games Federation of India. The deceased was sports captain for the academic year 2007-08 of Holy Child Senior Secondary School, Tagore Garden, New Delhi. PW-4 from Holy Child Senior Secondary School appeared and proved the certificates as Ex.PW- 4/A. The deceased was giving two tuitions and was earning Rs.3,800/- per month which was proved by PW-1 and PW-2 who were paying her Rs.2,000/- and Rs.1,800/- per month respectively.
6. Learned counsel for the claimants urged that the earning capacity of the deceased be taken as Rs.50,000/- per month and 50% be added towards future prospects. Without prejudice, it is submitted that even assuming that the deceased would have completed B. Com (Hons.), she would have got the job in the range of Rs.25,000/- to Rs.30,000/- on the basis of her sports excellence. Reliance is placed on the employment notification of the Government of India dated 13/01/2017, Chief Commissioner of Customs which advertised the post of a Tax Assistant for the sports persons in the pay scale of Rs.25,000/- to Rs.81,000/-. Reliance is also placed on advertisement of Indo-Tibetan Border Police Force dated 1/10/2016 for the post of constable under the sports quota in the pay scale of Rs.21,700/- to Rs.69,100/- Reliance is also placed on advertisement of Hawkins for the job of Management Trainees for fresh gradutates in the pay scale of Rs.30,000/to Rs.40,000/-. The claimants seek enhancement of compensation of pain and sufferings from Rs.25,000/- to Rs.[1] lakh and the compensation for the loss of love and affection from Rs.25,000/- to Rs.[1] lakh. The claimants also seek enhancement of rate of interest from 7.5% to 18% per annum.
7. The father of the deceased appeared in the witness box as PW-8 and deposed that the deceased was very hard working and bright girl and had achieved excellent laurels in sports as well as academics. PW-8 deposed that the deceased had started earning Rs.4,000/- to Rs.4,500/- per month since the year 2006 to 2007 by imparting tuitions to young children. According to him, the deceased was extremely confident girl and was aiming to pursue MBA and work in corporate world. PW-1, Mukesh Sahni proved that the deceased was teaching his three children during the year 2007-08 for which he was paying Rs.2,000/- per month. PW-2, Yogesh Jagia proved that the deceased was giving tuition to his two children for which he was paying Rs.1,800/- per month.
8. PW-4 from Holy Child Senior Secondary School proved the certificates, Ex.PW-4/B and Ex.PW-4/C with respect to the excellence of the deceased in sports. Ex.PW-4/B issued by the Principal of Holy Child Sr. Sec. School is reproduced hereunder: “HOLY CHILD SR. SEC.
SCHOOL Tagore Garden New Delhi – 110027 Apoorva Dwivedi was a student of Holy Child School. She was a good athlete and Sports head of School. As a student she was sincere, responsible and hardworking. She was interested in school programmes and participated in sports activities at intersection level and won various positions. She took part in Relay race, Discuss throw, Shot put, Basket Ball, Javelin throw, Baseball and Cricket at zonal level and got 1st and 2nd positions; also took part in Softball Match and Discuss throw at National level and won 1st and 2nd position. She always expressed her respect for staff and school mates. Sd/- Principal Dated: 14.02.2008”
9. Ex.PW-4/C issued by Holy Child Senior Secondary School, Tagore Garden is reproduced hereunder: “HOLY CHILD SENIOR SECONDARY SCHOOL TAGORE GARDEN, NEW DELHI – 110027 Phone Off.: 5193922 / 5457879 RES.: 5192414 TO WHOMSOEVER IT MAY CONCERN This is to certify that Miss Apoorva Dwivedi d/o Mr. Rattan Dwivedi and Mrs. Neeru Dwivedi, bearing Roll No.6235743 was a student of this school and she has obtained the following certificates:
1. Participation certificate for CBSE Basket Ball Tournament in the year 2004-05.
2. First prize for Relay Race at Zonal Athletic meet in the year 2004-05.
3. First prize for Zonal Basket Ball in the year 2005-06.
4. Second Prize for Javelin throw at Zonal Athletic meet in the year 2005-06.
5. Participation certificate for CBSE Basket Ball tournament in the year 2005-06.
6. Runner‟s up in Zonal Basket Ball in the year 2006-07.
7. Winners position in Zonal Cricket in the year 2006-07.
8. Winners position in Zonal Baseball in the year 2006-07.
9. Runner‟s up in Inter Zonal Baseball in the year 2006-07.
10. Participation certificate for Baseball in 52nd National School Games in the year 2006-07.
11. Participation certificate for Soft ball in 52nd National School Games in the year 2006-07.
12. Winner position for Baseball in 52nd National School Games in the year 2006-07.
13. Second position for Soft ball in 52nd National School Games in the year 2006-07.
14. All Rounder in sports in the year 2007-08.
15. Sports Head Prefect in the year 2007-08.
16. Second prize for Discuss throw in Zonal Athletic Meet in the year 2007-08.
17. First prize for Shot Put in Zonal Athletic Meet in the year 2007-08.
18. Second prize for Relay Race Zonal Athletic Meet in the year 2007-08.
19. First prize for Zonal Baseball.
20. First prize for Zonal soft ball.
21. Second prize for Zonal Basket ball.
22. Winners position for Golden Jubilee Soft ball Tournament. I wish her God‟s Blessings and every succession in her future. Sd/- (SR. THERESE) Principal Holy Child Sr. Sec. School Tagore Garden, New Delhi-110027. Dated: 11.06.2008”
10. The claimants have relied upon an employment notification of the Commissioner of Customs for sportspersons, which is reproduced hereunder: - “GOVERNMENT OF I NDIA OFFICE OF THE CHIEF COMMISSIONER OF CUSTOMS 15/1, STRAND ROAD, CUSTOM HOUSE, KOLKATA- 700 001 F.No.S51(Misc.)-272/2014-Estt. Date 13-01-2017 EMPLOYMENT NOTIFICATION NO. 01/2017 APPLICATIONS ARE INVITED FROM MERITORIOUS SPORTS PERSONS IN DIFFERENT SPORTS DISCIPLINES MENTIONED AT TABLE-01 FOR APPOINTMENT IN THE GRADE OF TAX ASSISTANT, HAVALDAR AND MULTI TASKING STAFF IN THE PAY SCALES MENTIONED IN TABLE-02 UNDER THE JURISDICTION OF CHIEF COMMISSIONER OF CUSTOMS, KOLKATA ZONE.
THE DETAILS OF THE SPORTS DISCLIPINES AND NUMBER OF POSTS AND ELIGIBILITY CRITERIA ARE FURNISHED BELOW:- TABLE-01
┌──────────────────────────────────────────────────────────────────────────────────────────────────────────────────────────┐ │ SL. NO. NAME OF THE SPORTS DISCIPLINE TOTAL NUMBER OF VACANCIES │ │ a) FOOTBALL- MALE │ │ b) CRICKET- MALE 19 │ │ c) HOCKEY- MALE │ │ TABLE-02 │ │ (i) TAX General Central Level-4 (Rs.25,000- 07 EDUCATIONAL 18-27 years │ │ ASSISTANT Service Group-„C‟ Rs.81,000) in the Pay QUALIFICATION crucial dat │ │ non-Gazetted Matrix, as per CCS determining │ │ Ministerial (REVISED PAY) RULES, Degree from a shall be cl │ │ 2016 recognised University of rece │ │ or equivalent application │ │ Candidate(s │ │ Note: Outst │ │ Sports pers │ │ be │ │ relaxation │ │ age limit b │ │ years (10 y │ │ MAC.APP.993/2013 & 241/2016 Page 7 of 17 │ │ 2017:DHC:4 │ │ Non-Ministerial. (REVISED PAY) RULES, Matriculation or shall be clos │ │ 2016 equivalent from any of receip │ │ recognised Board. application │ │ Candidate(s) │ │ Note:- Candidates will │ │ be required to possess Note: Outstan │ │ the physical standards Sports person │ │ and pass physical test be │ │ as specified below: relaxation in │ │ age limit by │ ├──────────────────────────────────────────────────────────────────────────────────────────────────────────────────────────┤ │ 1. Physical Standard years (10 yea │ │ (minimum):- SC/ST candida │ │ Height:- 157.5 cms. │ │ (relaxable by 5 cms in │ │ the case of Garhwalis, │ │ Assamese, Gorkhas │ │ and members of the │ │ Schedule Tribe) │ │ Chest:- 81 cms (fully │ │ expanded with │ │ minimum expansion of │ │ 5 cms.). │ │ 2. Physical Test:- │ │ Walking-1600 Metres │ │ in 15 minutes │ │ Cycling- 8kms, in 30 │ │ minutes. │ │ (iii) MULTI General Central Level-1 (Rs.18,000- 03 EDUCATIONAL 18-27 years. │ │ TASKING Service Group-„C‟ Rs.56,900) in the Pay QUALIFICATION crucial date │ │ STAFF (MTS) non-Gazetted Matrix, as per CCS determining t │ │ Ministerial (REVISED PAY) RULES, Matriculation or shall be clos │ │ 2016 equivalent from any of receip │ │ recognised Board. application │ │ Candidates. │ │ Note: Outstan │ │ Sports person │ │ be │ │ relaxation in │ │ age limit by │ │ years (10 yea │ │ 2. ELIGIBILITY:- │ │ The following categories of sports persons will be │ │ considered as meritorious and will be eligible for appointment │ │ subject to fulfilment of other conditions laid down below:- │ │ MAC.APP.993/2013 & 241/2016 Page 8 of 17 │ │ 2017:DHC:4344 │ │ Sportspersons who have represented:- │ │ (i) The country in an international competition; │ │ (ii) A state in a national competition; │ │ (iii) Their universities in the inter-university tournaments │ │ conducted by the inter-university Sport Board; │ │ (iv) The State School teams in the national sports/games for │ │ schools conducted by the All India School Games │ │ Federation. │ └──────────────────────────────────────────────────────────────────────────────────────────────────────────────────────────┘
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 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.
15. MAC.APP. 241/2016 is allowed and the compensation amount is enhanced from Rs.10,40,000/- to Rs.24,50,000/- along with interest @ 9% per annum from the date of filing of the claim petition till realization. MAC.APP. 993/2013 is dismissed.
16. HDFC Ergo General Insurance Company Ltd. is directed to deposit the enhanced award amount along with upto date interest with UCO Bank, Delhi High Court Branch by means of a cheque drawn in the name of UCO Bank A/c Nirupama Dwivedi within 30 days.
17. Upon receipt the UCO Bank, Delhi High Court Branch is directed to disburse the aforesaid amount as under:- (a) Rs.15,00,000/- be kept in 120 FDRs of Rs.12,500/- each for the period of 1 month to 120 months respectively in the name of Nirupama Dwivedi along with cumulative interest. (b) Rs.1,00,000/- be released to Nirupama Dwivedi and Rs.[1] lakh be released to Rattan Kumar Dwivedi by transferring the same to their savings bank accounts near the place of their residence.
(c) The balance amount, after keeping Rs.15,00,000/- in FDR as mentioned in para 17 (a) and releasing Rs.1,00,000/- each to Nirupama Dwivedi and Rattan Kumar Dwivedi as mentioned in para 17(b) above, be kept in FDR in the name of Nirupama Dwivedi for 10 years. Upon maturity, the bank shall release the interest amount to Nirupama Dwivedi by transferring same to her savings bank account and the principal amount be kept in monthly FDRs of Rs.25,000/- each i.e. Rs.25,000/- for 1 month, Rs.25,000/- for 2 months and so on, in the name of Nirupama Dwivedi along with cumulative interest. Any amount short of Rs.25,000/-, if any, be released to Nirupama Dwivedi by transferring the same to her savings bank accounts near the place of her residence.
18. The maturity amounts along with cumulative interest of the FDRs be transferred to the individual savings bank account of Nirupama Dwivedi near place of residence.
19. All the original FDRs shall be retained by Bank. However, the statement containing FDR number, FDR amount, date of maturity and the maturity amount be furnished to claimants.
20. UCO Bank, Delhi High Court Branch shall ensure that the savings bank account of respondent is an individual account and not joint account.
21. No cheque book or debit card be issued to the claimants without permission of this Court. However, in case, the debit card/cheque book have already been issued, the Concerned Bank shall cancel the debit card and/or cheque book.
22. No loan, advance or pre-mature discharge shall be permitted without the permission of this Court.
23. Liberty is given to the claimant to approach this Court for premature release of the amount in case of any financial exigency.
24. List for reporting compliance on 15th September, 2017.
25. Copy of this judgment be given dasti to learned counsels for the parties.
26. Copy of this judgment be sent to UCO Bank, Delhi High Court Branch.
AUGUST 9, 2017 ak J.R. MIDHA, J.