Ramesh Chand Joshi & Anr. vs New India Assurance Co.Ltd. &
2010 Latest Caselaw 289 Del

31
*IN THE HIGH COURT OF DELHI AT NEW DELHI

                   +     MAC.APP.No.212-13/2006

                                 Date of Decision: 20th January, 2010
%

      RAMESH CHAND JOSHI & ANR.           ..... Appellants
                   Through: Mr. Raj Pal Singh, Adv.
              versus

    NEW INDIA ASSURANCE CO.LTD. &        ..... Respondents
                  Through: Ms. Ambika Roy, Adv.
                             for R-1.
                             Mrs. Avnish Ahlawat and
                             Ms. Latika Chaudhary, Advs. for
                             Delhi College of Engineering.
                             Mr. Kanwal Choudhary, amicus
                             curiae.
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
        reported in the Digest?                              YES

                          JUDGMENT (Oral)

1. The appellants have challenged the award of the learned

Tribunal whereby compensation of Rs.3,25,000/- has been

awarded to the appellants. The appellants seek enhancement of

the award amount.

2. The accident dated 30th July, 2004 resulted in the death of

Gaurav Joshi. The deceased was survived by his parents who

filed the claim petition before the learned Tribunal.

3. The deceased was aged about 19 years and 24 days at the

time of the accident and was First Year student of the Bachelor of

Engineering (Bio Technology) in Delhi College of Engineering.

4. The learned Tribunal took the average notional income of

the deceased to be Rs.22,500/-, deducted 1/3rd towards the

personal expenses of the deceased and applied the multiplier of

15 to compute the loss of dependency at Rs.2,25,000/-. The

learned Tribunal has awarded Rs.1,00,000/- towards funeral

expenses, loss of love and affection, loss of estate, mental shock

and agony. The total compensation awarded by learned Tribunal

is Rs.3,25,000/-.

5. The only ground urged by learned counsel for the appellant

at the time of hearing of this appeal is that the income of the

deceased for computation of compensation be taken to be

Rs.50,000/- per month according to his earning capacity. It is

submitted that the deceased was a student of first year of

Bachelor of Engineering (Bio technology) in Delhi College of

Engineering and after completion of the engineering course, the

deceased would have earned at least Rs.50,000/- per month.

6. The learned counsel for respondent No.1, in reply, submits

that the deceased would not have earned more than Rs.8,000/-

per month.

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. Vs.

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 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.

As per the said chart, all the 18 students of Bio-Technology from

Delhi College of Engineering were offered placement as per

details given hereunder:-

Salary Sl. Number of Name of Company Package No. Students (in Rs. LPA)

1. TCS (B) 4 3.15/3.33

2. Wipro (B) 2 3.15

4. Evalue Serve (A) 2 4.25

6. The Smart Cube (A+) 1 5.6

8. Musigma (A) 1 4.4

10. Akash Edu. Ser. (No 1 7.5 Category)

Average Package(lpa) 4.6

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. Mr.

Kanwal Choudhary, learned amicus curiae submits that the

deceased joined the engineering course in July, 2004 and would

have completed the course in December, 2008 and, therefore,

the loss of income should be computed from 2009 onwards.

11. Learned counsel for the appellant submits that the future

prospects be also taken into consideration. According to the

judgment of the Hon'ble Supreme Court in the case of Sarla

Verma Vs. Delhi Transport Corporation, 2009 (6) Scale

129, the future prospects are taken into consideration, if the

deceased has a permanent job at the time of accident. In the

present case, the deceased was still a student of engineering and

had no permanent job and, therefore, the future prospects are

not granted in this matter.

12. Learned counsel for the appellant refers to relies upon the

subsequent judgment of the Hon'ble Supreme Court in the case

of R.K. Malik vs. Kiran Pal, 2009(8) Scale 451 where future

prospects have been awarded in respect of the death of a minor

children. The learned counsel submits that the future prospects

have been awarded to minor children and on the same analogy,

the same should be awarded to the deceased who was pursuing a

professional course in engineering. This Court is not inclined to

award the future prospects in the present case.

13. The earning capacity of the deceased has been held to be

Rs.38,333/- out of which the Income Tax has to be deducted.

Deducting 30% towards the Income Tax, the balance amount

comes to Rs.26,833.1 (Rs.38,333 - (30% of Rs.38,333)].

14. The deceased was unmarried at the time of accident and

according to the judgment of Hon'ble Supreme Court in the case

of Sarla Verma vs. DTC (Supra), 50% of the income has to be

deducted towards the personal expenses of the deceased. The

learned Tribunal has deducted 1/3rd which is not in accordance

with law. The personal expenses are, therefore, reduced from

1/3rd to 1/2.

15. The learned Tribunal has applied the multiplier of 15. The

deceased was aged 19 years at the time of accident and was

survived by his parents. The father was aged 51 years and the

mother was aged 44 years at the time of the accident. Following

the judgment of the Hon'ble Supreme Court, the appropriate

multiplier according to the age of mother is 14. The learned

Tribunal has applied the multiplier of 15 which is reduced to 14.

16. Taking the earning capacity of the deceased to be

Rs.26,833.1, deducting 1/2 towards the personal expenses and

applying the multiplier of 14, the loss of dependency is computed

to be Rs.22,53,980/- (Rs.26,833.1 x 12 x 14 x 1/2).

17. The learned Tribunal has awarded Rs.1,00,000/- towards the

funeral expenses, loss of love and affection, mental shock and

agony, loss to estate, which is on a higher side and is, therefore,

set aside. Rs.10,000/- is awarded towards loss of love and

affection, Rs.10,000/- towards loss of estate and Rs.5,000/-

towards funeral expenses. The total compensation computed to

be Rs.22,78,980/- (Rs.22,53,980 + Rs.10,000 + Rs.10,000 +

Rs.5,000). The appellants are entitled to total compensation of

Rs.22,78,980/-.

18. The appeal is allowed and the award amount is enhanced

from Rs.3,25,000/- to Rs.22,78,980/-. The appellants shall be

entitled to interest @ 7.5% per annum on the non-pecuniary

compensation from the date of filing of the petition till realization.

With respect to loss of income of Rs.22,53,980/-, the appellants

are not entitled to interest till the deceased would have

completed the engineering course in December, 2008. The

interest on the loss of income of Rs.22,53,980/- is awarded w.e.f.

1st January, 2009 till realization.

19. Respondent no.1 is directed to deposit the enhanced award

amount along with interest with UCO Bank, Delhi High Court

Branch A/c Ramesh Chand Joshi within 30 days.

20. Upon the enhanced award amount being deposited, the

UCO bank is directed to release 10% of the enhanced award

amount by transferring the same in the joint Bank Accounts of

the appellants. The remaining 90% of the enhanced award

amount be kept in fixed deposit as per the details given

hereunder:-

(i) Fixed deposit in respect of 10% of the enhanced

award in the joint names of the appellants for a period

of one year.

(ii) Fixed deposit in respect of 10% of the enhanced

award in the joint names of the appellants for a period

of two years.

(iii) Fixed deposit in respect of 10% of the enhanced

award in the joint names of the appellants for a period

of three years.

(iv) Fixed deposit in respect of 10% of the enhanced

award in the joint names of the appellants for a period

of four years.

(v) Fixed deposit in respect of 10% of the enhanced

award in the joint names of the appellants for a period

of five years.

(vi) Fixed deposit in respect of 10% of the enhanced

award in the joint names of the appellants for a period

of six years.

(vii) Fixed deposit in respect of 10% of the enhanced

award in the joint names of the appellants for a period

of seven years.

(viii) Fixed deposit in respect of 10% of the enhanced

award in the joint names of the appellants for a period

of eight years.

(ix) Fixed deposit in respect of 10% of the enhanced

award in the joint names of the appellants for a period

of nine years.

21. The interest on the aforesaid fixed deposits shall be paid

monthly by automatic credit of interest in the joint Savings Bank

Account of the appellants.

22. Withdrawal from the aforesaid account shall be permitted to

the appellants after due verification and the Bank shall issue

photo Identity Card to the appellants to facilitate identity.

23. No cheque book be issued to the appellants without the

permission of this Court.

24. The original fixed deposit receipts shall be retained by the

Bank in the safe custody. However, the original Pass Book shall

be given to the appellants along with the photocopy of the FDRs.

25. The original fixed deposit receipts shall be handed over to

the appellants on the expiry of the period of the FDRs.

26. No loan, advance or withdrawal shall be allowed on the said

fixed deposit receipts without the permission of this Court.

27. Half yearly statement of account be filed by the Bank in this

Court.

28. On the request of the appellants, the Bank shall transfer the

Savings Account to any other branch of UCO Bank according to

their convenience.

29. The appellants shall furnish all the relevant documents for

opening of the Saving Bank Account and Fixed Deposit Account

to Mr. M.M. Tandon, Member-Retail Team, UCO Bank Zonal,

Parliament Street, New Delhi.

30. This Court appreciates the assistance rendered by Mr.

Kamal Chaudhary, amicus curiae in this matter. This Court also

appreciates the assistance rendered by Ms. Latika Choudhary,

Advocate who has appeared on behalf of Delhi College of

Engineering (now Delhi Technological University) and has

furnished a very comprehensive affidavit and chart on the basis

of which this Court has been able to assess the earning capacity

of the deceased precisely.

31. Copy of this order be given 'Dasti' to learned counsel for the

both the parties.

32. Copy of this order be also sent to Mr. M.M. Tandon, Member-

Retail Team, UCO Bank Zonal, Parliament Street, New Delhi

(Mobile No. 09310356400) through the UCO Bank, High Court

Branch under the signature of Court Master.

J.R. MIDHA, J

JANUARY 20, 2010 HL