Delhi High Court
New India Assurance Co. Ltd vs Bharat Singh @ Bharat Kumar @ ... on 8 August, 2012
Author: G.P. Mittal
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 8th August, 2012
+ MAC. APP. 137/2012
NEW INDIA ASSURANCE CO. LTD. ..... Appellant
Through: Mr. Pankaj Seth, Adv.
versus
BHARAT SINGH @ BHARAT KUMAR @ BHARAT KUMAR
BILWAL & ORS. ...... Respondents
Through Mr. Amit Kumar Pandey, Adv. for R-1 &
R-2.
CORAM:
HON'BLE MR. JUSTICE G.P.MITTAL
JUDGMENT
G. P. MITTAL, J. (ORAL)
1. The Appeal is for reduction of compensation of `19,10,492/- awarded by
the Motor Accident Claims Tribunal (the Claims Tribunal) for the death
of Abhilasha, a B.Com student in Aurobindo College, Delhi University.
2. In the absence of any Appeal by the driver, owner and the Insurer, the
finding on negligence has attained finality.
3. The following contentions are raised on behalf of the Appellant:-
(i) The deceased was only a first year student in B.Com, the Claims
Tribunal erred in accepting her income to be `10,000/- per month
and making addition of another `10,000/- to take potential income
as `20,000/- per month.
(ii) The compensation of `75,000/- towards loss of love and affection
and `25,000/- towards funeral expenses is excessive and
exorbitant.
4. In Paras 5 and 6 of the Claim Petition filed by Respondents No.1 and 2
before the Claims Tribunal it was stated that the deceased was a self
employed person as a tutor and was earning `8,000/- per month. During
the evidence, the Respondents examined PW-2 Deepak Malhotra, who
testified that the deceased Abhilasha was working as an Assistant
Accountant with him and he was paying a salary of `10,000/- per month
to her. In cross-examination, the witness admitted that no appointment
letter was issued to the deceased. The salary was being paid by cash. He
could not give the date when the deceased joined his office. He denied
the suggestion that the documents have been manipulated.
5. The deceased was a full time student in Aurobindo College, Delhi
University and was a resident of Faridabad. It is not conceivable that the
deceased would travel from Faridabad to Delhi, attend classes for the
whole day and would then look after the accounts of PW-2 and would
then travel to Faridabad. Further, the evidence produced is contrary to the
stand taken in the Claim Petition. In the circumstances, I am not inclined
to believe PW-2's testimony that the deceased was working as an
Account Assistant and getting a salary of `10,000/- per month.
6. I have before me the Trial Court Record including the mark sheet
(Ex.PW-1/3) of 12th standard. Deceased Abhilasha scored about 87%
marks in 12th examination conducted by the Central Board of Secondary
Education (CBSE) in the year 2008. On the basis of her good
performance, the deceased was able to get admission in Aurobindo
College in Delhi University.
7. It is well settled that potential income of a victim can be taken into
consideration to award loss of dependency.
8. In the case of Haji Zainullah Khan (Dead) by Lrs. v. Nagar Mahapalika,
Allahabad, 1994 (5) SCC 667, death of a young boy, aged 20 years took
place in an accident which happened in the year 1972. The deceased was
a student of B.Sc Ist year (Biology), a compensation of `1,46,900/- was
increased and rounded off to ` 1,50,000/-.
9. In Ganga Devi & Ors. v. New India Assurance Co. Ltd. & Ors., MAC
APP. 359/2008, decided by this Court on 23.11.2009, which related to the
death of a student (studying medicine) who was doing internship and was
to be awarded the MBBS degree in a short time, the Tribunal awarded a
compensation of ` 9,35,352/- on the basis of the minimum wages of a
Graduate. This Court observed that although the deceased was getting a
stipend of ` 5,000/- per month at the time of his death due to the accident,
he would have ultimately joined as a doctor at a salary ranging between `
16,000/- per month to ` 25,000/- per month. Thus, the average monthly
income of the deceased was taken as ` 18,000/- and after adding 50%
towards future prospects, the compensation was enhanced to ` 21,36,000/
10. In Ramesh Chand Joshi v. New India Assurance Company MAC
APP.212-213/2006 decided on 20.01.2010 this Court took the potential
income of a BE (Bio-Technology) First year student of Delhi College of
Engineer (DCE) `38,333/- per month.
11. A Division Bench of Andhra Pradesh High Court in B.Ramulamma &
Ors. v. Venkatesh, Bus Union, Rep. by A.M. Velu Mudaliyar & Anr., 2011
ACJ 1702, held that it was very difficult to determine the income of a
student who was allowed to complete his course. It was observed that it
was appropriate and reasonable to take salary at the entry level fixed by
the Govt. for such jobs.
12. Considering that the deceased Abhilasha was a meritorious student. After
completing her Graduation, she would have got some job as an Assistant
Accountant or Accounts Clerk in any Govt. or any public sector
company. She would have easily got a salary of `15,000/- per month.
Since she was not doing any professional course from any prestigious
Institution, it would not be possible to make any addition towards the
future prospects.
13. Thus, the loss of dependency on potential income of `15,000/- on
applying the multiplier of '15' as per the age of the deceased's mother
(37 years) would comes to `13,15,000/- (15,000/- x 12 x 1/2 x 15).
14. The Claims Tribunal awarded a sum of `75,000/- towards loss of love
and affection. Normally, when full compensation towards loss of
dependency is granted only a nominal sum is awarded towards loss of
love and affection. The trend of the High Courts and the Supreme Court
is to grant a sum of `25,000/- under this head. Such a sum was granted
by the Supreme Court in Sunil Sharma v. Bachitar Singh (2011) 11 SCC
425 and in Baby Radhika Gupta v. Oriental Insurance Company Limited
(2009) 17 SCC 627 towards love and affection. However, in a later
judgment in Amrit Bhanu Shali & Ors. v. National Insurance Company Ltd.
& Ors. (2012) 6 SCALE 1, in case of a death of bachelor, a compensation of
`1,00,000/- was awarded by the Supreme Court.
15. In the circumstances, I would not interfere with the award of
compensation of `75,000/- towards loss of love and affection.
16. The compensation towards funeral expenses is awarded on actual basis.
No evidence was led by Respondents No.1 and 2 as to the actual
expenditure on funeral expenses. In the circumstances of the case, I
would not interfere with the award of compensation under this head.
17. In view of the above discussion, the compensation awarded stands
reduced from `19,10,492/- to `14,25,492/-.
18. The excess amount of `4,85,000/- along with proportionate interest and
the interest accrued, if any, during the pendency of the Appeal shall be
refunded to the Appellant Insurance Company. Rest of the compensation
shall be disbursed in terms of the order passed by the Claims Tribunal.
19. The statutory amount of `25,000/- shall be refunded to the Appellant
Insurance Company.
20. The Appeal is allowed in above terms.
21. Pending Applications stand disposed of.
(G.P. MITTAL)
JUDGE
AUGUST 08, 2012
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