Subodh Kumar And Anr. vs Mohd. Arif And Ors.
2011 Latest Caselaw 3418 Del

                                        REPORTED
*    IN THE HIGH COURT OF DELHI AT NEW DELHI

+                    MAC. APP. 436/2010


SUBODH KUMAR AND ANR.                        ..... Appellants
                              Through:   Mr. Rajnish K. Jha, Advocate

                     versus

MOHD. ARIF AND ORS.                          ..... Respondents
                              Through:   Ms. Gurkirat Kaur and
                                         Ms. Sukanya, Advocates for the
                                         respondent No.3


%                             Date of Decision : July 19, 2011

CORAM:
HON'BLE MS. JUSTICE REVA KHETRAPAL
1. Whether reporters of local papers may be allowed
   to see the judgment?
2. To be referred to the Reporter or not?
3. Whether judgment should be reported in Digest?

                              JUDGMENT

: REVA KHETRAPAL, J.

1. The present appeal has been preferred by the appellants against

the judgment and award of the Motor Accident Claims Tribunal dated

15.04.2010 seeking enhancement of the awarded amount.

2. The facts relevant for the decision of the present appeal are that

on 03.03.2009, Shri Saurabh Jain (hereinafter referred to as "the

deceased") along with his friend Gaurav Jain was going to attend his

C.A. class at Shah Auditorium on motorcycle bearing No.HR13 B-

3423, which was registered in the name of Gaurav Jain and was being

driven by the latter with the deceased as the pillion rider. At about

7.00 a.m., when they reached near Tis Hazari at the crossing towards

Rajpura Road, all of a sudden the offending tempo Tata-407 bearing

No.DL-1L-B-0254 came from behind and hit the rear side of the

motorcycle with great force. The deceased sustained fatal injuries

and though removed to the Trauma Centre was declared brought

dead. A case bearing FIR No.60/09 was registered at Police Station

Kashmere Gate under Sections 279/337/304A IPC against the

respondent No.1, the driver of the said offending tempo.

3. A claim petition was filed by the appellants, who are the

parents of the deceased, under Sections 166 and 140 of the Motor

Vehicles Act, 1988 claiming compensation for the untimely demise of

their son. In the said claim petition, the factum of accident was not

disputed by the respondent No.1, who was the driver of the offending

vehicle, and the respondent No.2, the owner thereof, though it was

denied that the accident was caused due to the rash and negligent

driving of the respondent No.1. The respondent No.3, M/s. Oriental

Insurance Company Ltd. admitted that the offending tempo Tata-407

was insured with it in the name of the respondent No.2 and that the

accident had occurred during the period of validity of the insurance

policy issued by it.

4. The Claims Tribunal after appraisal of the evidence on record,

held the respondents No.1 and 2 liable to pay compensation to the

appellants in the sum of ` 8,27,000/- with interest @ 7.5% per annum

from the date of the filing of the petition, i.e., 09.04.2009 till the date

of dispatch of the notice to the claimants and their counsel intimating

the deposit of the award amount. Feeling aggrieved by the

inadequacy of the amount of compensation, the appellants preferred

the present appeal against the judgment and award of the Tribunal

dated 15.04.2010.

5. The principal ground urged by Mr. Rajnish K. Jha., the learned

counsel for the appellants at the time of the hearing of this appeal was

that the income of the deceased for the purpose of computation of

compensation payable to the appellants be taken to be ` 50,000/- per

month, keeping in mind the fact that the deceased would have earned

the said amount within a year of his death, had he remained alive. It

is submitted that the deceased was 22 years of age at the time of the

accident and was a student of M. Com. and in the final year of

Chartered Accountancy, working as an Article Trainee with M/s.

GSA & Associates. It was further submitted that he had received

several offer letters from various companies, like M/s. Bajaj Ajay &

Co. and M/s. GSA & Associates, offering him a sum of ` 3 lakhs per

annum as salary on completion of C.A. final year. Reference was

made by the learned counsel to the testimony of PW-1 Shri Subodh

Kumar, the father of the deceased, who proved on record the

educational certificates and mark-sheets of the deceased of his 10th

and 12th class and B. Com.(H), collectively marked as Ex.PW-1/3, as

well as the certificates of the deceased regarding his PEE Part-I

examination and PEE Part-II examination and the mark-sheet and

admit card thereof as Ex.PW-1/4, the copies of the registration letters,

acknowledgment letters for payment of fee, eligibility certificates for

PEE-II and confirmation of Registration of Articleship-cum-Final

year course of C.A., and the letter issued by the Institute of Chartered

Accountants of India collectively marked as Ex.PW-1/5. Reference

was also made by the learned counsel for the appellants to the

certificate issued by M/s. GSA & Associates Ex.PW-1/6 and the

professional certificate issued by Topper's Classes Pvt. Ltd. as

Ex.PW-1/7. The learned counsel submitted that all the aforesaid

documents showed that the deceased had a brilliant academic record

and would have most certainly cleared his final year C.A. to earn a

sum of ` 3 lakhs per annum, as evidenced by the offers held out to

him by M/s. GSA & Associates and M/s. Bajaj Ajay & Co.

6. In support of his contention that the anticipated income of the

deceased was ` 3 lakhs per annum as evidenced by the offer letters

issued by M/s. GSA & Associates and M/s. Bajaj Ajay & Co., the

learned counsel for the appellants relied upon the following

precedents:

(i) Oriental Insurance Co. Ltd. vs. Deo Patodi and Ors.,

2009 ACJ 2359.

(ii) Shakti Devi vs. New India Assurance Co. Ltd. and

Anr., 2011 ACJ 15.

(iii) Archana Jha vs. Oriental Insurance Co. Ltd. and Ors.,

2009 ACJ 1690.

(iv) Veerpal Pawar & Anr. vs. Sushil Kumar & Ors., MAC.

APP. No.571/2009 decided on 25.11.2009.

(v) Arvind Kumar Mishra vs. New India Assurance Co.

Ltd. and Anr., JT 2010 (10) SC 254.

7. Another contention raised by the learned counsel for the

appellants was that the multiplier adopted by the Tribunal for the

purpose of ascertainment of loss of dependency of the appellants was

the multiplier of 11. According to him, keeping in view the age of the

mother of the deceased, the multiplier of 13 ought to have been

applied to the multiplicand constituting the annual loss of dependency

of the appellants. It was pointed out by him that the election card as

well as the ration card of the appellants was on record, which clearly

showed that the mother of the deceased was around 46-47 years of

age on the date of the accident, and for the age group of the victims

between 46 years to 50 years, the appropriate multiplier in

consonance with the judgment of the Hon'ble Supreme Court in Smt.

Sarla Verma and Ors. Vs. Delhi Transport Corporation and Anr.

(2009) 6 SCC 121, would be the multiplier of 13.

8. Ms. Gurkirat Kaur, the learned counsel for the respondent

No.3-Insurance Company, in reply, submitted that the learned

Tribunal had rightly assessed the income of the deceased in the sum

of ` 12,000/- per month and there was no warrant for assuming that

the deceased would have completed his Chartered Accountancy and

earned a sum of ` 50,000/- per month, as was sought to be urged by

the learned counsel for the appellants. She sought to support the

award in its entirety.

9. A look first at the manner in which the learned Tribunal

assessed the loss of dependency of the appellants. The learned

Tribunal, after referring to the document Ex.PW-1/5, viz., the letter

issued by the Institute of Chartered Accountants of India (comprising

five pages) and the testimony of PW-3, Shri Sateyndra Singh Bisht

from the said Institute, who produced the record (Ex.PW-3/1)

pertaining to the Article Registration No.CRO-0152992 of the

deceased Saurabh Jain, which showed that he was enrolled for

Articleship-cum-Final course of C.A. on 05.09.2007 under Mr. Arun

Kumar Aggarwal, Chartered Accountant (after having cleared his PE-

I & II examination in November, 2005 and May, 2007 respectively),

held that the aforesaid documents established that the deceased was

pursuing the professional course of Chartered Accountancy.

10. The learned Tribunal then referred to the testimony of PW-4

Shri Virender Bhatia, Senior Accountant, M/s. GSA & Associates,

Malviya Nagar and the statement made by him that the deceased was

working as an Article Trainee on a stipend of ` 5,670/- at the time of

the accident, but observed that the offer letter dated 05.01.2009

purportedly issued by M/s. GSA & Associates to the deceased, which

had been brought on record collectively as Ex.PW-1/6, "as per PW-4

was not a document which was admitted by the said representative of

the Company". The Tribunal further observed that the offer letter

issued by M/s. Bajaj Ajay & Co. dated 15.12.2008 though admitted

by PW-5 Shri Ayush Garg (partner of M/s. Bajaj Ajay & Co.), but no

acceptance letter had been given by the deceased. Thus, the said offer

letter at best remained "a contingent offer letter, which would come

into effect only if the deceased completed his final year C.A., for the

completion of which obviously there was yet time".

11. The Tribunal thereafter proceeded to assess the "mean income"

of the deceased to be ` 12,000/- per month, on the basis that since the

deceased was getting a stipend of ` 5,670/- per month, he would

definitely have secured a job where he would have got a salary of at

least double the amount which he was getting as stipend. Deducting

50% towards the personal and living expenses of the deceased, the

Tribunal thus assessed the annual loss of dependency of the

appellants to be ` 6,000/- x 12 = ` 72,000/- per annum. To this

multiplicand, constituting the annual loss of dependency, the Tribunal

applied the multiplier of 11, and held that the compensation payable

to the appellants for the loss of dependency worked out to

` 7,92,000/- (i.e., ` 72,000/- x 11). This pecuniary compensation was

sought to be augmented by the Tribunal by awarding a sum of

` 35,000/- towards non-pecuniary damages and funeral expenses, in

all, a sum of ` 8,27,000/- with interest thereon was awarded to the

appellants.

12. It may be noted at this juncture that though the mark-sheets of

the deceased showed that he had secured good if not excellent marks,

the Tribunal held that from the assessment of the mark-sheets "the

academic record of the deceased was nowhere near excellence".

13. For the purpose of assessing what would constitute just and fair

compensation to the legal representatives of the deceased in a

particular case, in my opinion, no rigid or inflexible formulae can be

laid down. What is just and fair in one case may be highly unjust and

unfair in another case. A single fact or circumstance may make all

the difference in applying the yardstick of "just and fair". Then

again, the case must be viewed as a cumulative whole keeping in

mind the entire factual background, the family background of the

deceased, the academic qualifications of the deceased, his social

status, his marital status, his academic record and capabilities and a

host of other circumstances which are incapable of being enumerated.

14. In the instant case, it is an admitted fact that the deceased was a

student of C.A. Final year, and if not a student of academic brilliance

and excellence was at the very least a student with a good academic

record, who had sailed through all his examinations till the C.A. Final

year examination securing good marks. It is also an admitted fact that

at the time of the accident the deceased was working as an Article

Trainee with M/s. GSA & Associates and was drawing a stipend of `

5,670/- per month. No doubt, PW-4, the authorized representative of

M/s. GSA & Associates, in the course of his cross-examination,

stated that the first two pages of document Ex. PW-1/6, though issued

by their firm under the signatures of one of the partners of the firm,

had been issued after the death of the deceased, but admittedly the

third page of document Ex.PW-1/6 was issued on 5th January, 2009,

i.e., much prior to the date of the accident which took place on

03.03.2009. The said document, which is on the record of the learned

Tribunal, reads as follows:

"GSA & Associates CHARTERED ACCOUNTANTS 5th January 2009 To, Saurabh Jain S/o Sh. Subodh Kumar Jain Sut Ki Mandi Kasganj Uttar Pradesh

Sub: OFFER LETTER

Dear Saurabh,

We are pleased to put on record appreciating your outstanding performance on CA article training served with us over a past period of Fifteen months wherein you had worked with commitment and due diligence on the work assigned to you.

Further it is informed that after completion of your Chartered Accountancy course we express our willingness to appoint you as a audit manager in our firm with the salary of 3 Lacs per annum subject to our terms and conditions.

Shubha Arya (Partner)

GSA & Associates Chartered Accounts"

15. From the aforesaid, it is clear that the anticipated earnings of

the deceased after completion of his Chartered Accountancy Final

year were ` 25,000/- per month. This is also borne out by the offer

letter dated 15.12.2008 issued by M/s. Bajaj Ajay & Co., much prior

to the date of death of the deceased. This offer letter was

unequivocally admitted in evidence by PW-5 Shri Ayush Garg,

partner of M/s. Bajaj Ajay & Co., Lajpat Nagar, New Delhi. The said

Company had uncontrovertibly held out an offer of ` 3 lakhs per

annum to the deceased on his completing his final year of Chartered

Accountancy. The deceased, as stated above, had sailed through his

entire academic career without break and there was no reason to

suppose that he would not have cleared his final year Chartered

Accountancy examinations. Had this been the case, there would have

been no occasion for the aforesaid offer letters to have been issued to

him by the two companies mentioned hereinabove. Even otherwise,

judicial notice may be taken of the fact that the earning capacity of a

Chartered Accountant in Government service after the Sixth Pay

Commission is in the range of ` 50,000/- per month and there is,

therefore, no reason to assume that a Chartered Accountant in private

service would not draw even half of the said amount. I, therefore, see

no justification for the Tribunal to have brushed aside even the offer

letter of M/s. Bajaj Ajay & Co. by terming it to be "a contingent offer

letter" and by stating that it was uncertain whether the said offer

would have subsisted by the time the deceased completed his

Chartered Accountancy and, therefore, no assessment on the basis

thereof could be made at this juncture.

16. Accordingly, keeping in view the fact that the deceased was on

the verge of qualifying as a full-fledged Chartered Accountant and

already had with him offer letters from two Companies with one of

which he was working as an Article Trainee, extending an offer of a

salary of ` 3,00,000/- per annum to him, the income of the deceased

for the purpose of ascertainment of loss of dependency of the

appellants is taken to be in the sum of ` 3,00,000/- per annum.

17. I am fortified in coming to the above conclusion by the

judgment in 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 ` 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 ` 18,000/- to ` 25,000/- per month.

18. Relying upon the aforesaid judgment of the Hon'ble Supreme

Court, in a recent decision rendered in Ramesh Chand Joshi & Anr.

vs. New India Assurance Co. Ltd. & Anr., MAC. APP. No.212-

13/2006 on 20th January, 2010, a learned Single Judge of this Court in

the case of a first year student of Bachelor of Engineering (Bio-

Technology), in Delhi College of Engineering, aged 19 years at the

time of the accident, held, on the basis of the placement records

provided by the college, that the earning capacity of the deceased

after completing the graduation course would have been ` 4.6 lakhs

per annum, i.e., ` 38,333/- per month.

19. Adverting next to the contention of the learned counsel for the

appellants with regard to the suitable multiplier to be adopted in the

instant case, indisputably the age of the mother of the deceased was

46-47 years on the date of the accident. As noticed above, the

appropriate multiplier for the age group of persons between 46 years

and 50 years of age, as laid down by the Hon'ble Supreme Court in

the case of Sarla Verma's case (supra) is the multiplier of 13. There

was, therefore, in my view, no justification for the Tribunal to have

adopted the multiplier of 11 in the present case.

20. In view of the foregoing, it has become necessary to undertake

the exercise of re-computing the compensation payable to the

appellants. On the basis that the annual income of the deceased

would have been ` 3 lacs per annum, the income of the deceased after

deducting 30% towards the income tax payable by him comes to

` 2,10,000/- per annum. Deducting one-half therefrom towards the

personal expenses and maintenance of the deceased who was a

bachelor, the income of the deceased for the purpose of loss of

dependency of the appellants comes to ` 1,05,000/- per annum. This

multiplicand must be augmented by the use of an appropriate

multiplier, which has already been adjudged to be the multiplier of

13. Thus calculated, the loss of dependency of the appellants works

out to ` 1,05,000/- X 13 = 13,65,000/-. Apart from the aforesaid

pecuniary damages, the appellants are held entitled to the non-

pecuniary damages of ` 35,000/-, as awarded by the Tribunal, in all, a

sum of ` 14,00,000/- with interest at the rate of 7.5% as awarded by

the Tribunal.

21. The Insurance Company shall deposit the enhanced amount of

compensation with interest thereon with the learned Tribunal within

30 days of the receipt of this order.

22. The appeal is accordingly allowed.

23. The records of the Tribunal be sent back forthwith.

REVA KHETRAPAL (JUDGE) July 19, 2011 km/sk