Delhi High Court
New India Assurance Co. Ltd vs Beni Madhab Das & Ors on 25 May, 2012
Author: G.P. Mittal
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 22nd May, 2012
Pronounced on: 25th May, 2012
+ MAC.APP. 1075/2011
NEW INDIA ASSURANCE CO. LTD. ..... Appellant
Through Mr. K.K. Bhat, Advocate
versus
BENI MADHAB DAS & ORS ..... Respondents
Through Mr. S. Ghosh, Advocate for the
Respondents No.1 to 3.
CORAM:
HON'BLE MR. JUSTICE G.P.MITTAL
JUDGMENT
G. P. MITTAL, J.
1. The Appeal is for reduction of compensation of `71,28,574/-
awarded for the death of Mitashree Das in an accident which
occurred on 08.08.2010.
2. It is proved on record and is not disputed by the Appellant that
the deceased was a brilliant Scientist in Biotechnology
(Genetics). She was aged 35 years at the time of the accident.
She passed her B.Sc. and M.Sc. in 1996 and 1998 respectively
from University of Rajasthan in First Class. She did her M.Phil.
from Delhi University in the year 2002 in the First Division and
registered herself as a Research Fellow for completing her
Ph.D.
3. While doing her Ph.D., the deceased was conferred with the
Young Scientist Award in 2008 by Indian Society of Human
Genetics. During November, 2008 to October, 2009, she
worked as a Research Fellow in the Centre for Neurogenomics
and Cognitive Research (CNCR), Amsterdam, Netherland on a
Fellowship of Euro 2000 excluding Holiday Allowance and
Bonus @ 6.4%. Before completion of her Ph.D. in the
University of Delhi, she was offered an annual package of Euro
41,288 by the Department of Clinical Genetics, Netherland for
two years commencing from the date of her joining the
department i.e. from October, 2010.
4. The deceased died before she could accept or reject the offer
given by Dr. P. Heutink, Department of Clinical Genetics,
Netherland. Moreover, the offer of salary in a foreign country
cannot be accepted to determine the loss of dependency without
any evidence of liability towards Income Tax and personal and
living expenses of the deceased.
5. The Claims Tribunal by the impugned judgment took the
deceased's Fellowship during the period November, 2008 to
October, 2009 of Euro 2000, converted it into Indian currency,
added 50% towards future prospects, deducted 50% towards
personal and living expenses and applied a multiplier of 7 to
compute the loss of dependency as `66,22,000/-.
6. It is urged by the learned counsel for the Appellant that
although the deceased was a brilliant Scientist, she could have
got employment in India as a Scientist on a salary of about
`50,000/- per month. The compensation awarded on the basis
of the Fellowship in Euros during the year 2008-09 was not
reasonable as the deceased took up an assignment of Research
Fellow with the University of Delhi on a monthly Fellowship of
`18,200/-.
7. It has to be borne in mind that although the deceased was aged
35 years, she was in Academics, studying and carrying out
research since the year 1998 when she passed out her M.Sc. At
the same time, it has to be borne out that loss of dependency
could not have been granted in favour of the Respondents No.1
to 3 (the Claimants) on the basis of the Fellowship for Euro
2000 which was done by the deceased during the year 2008-09.
8. It is no longer res integra that the potential income of a
professional can be taken into consideration to award the loss of
dependency to the legal representatives.
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 Engineering (DCE) as ` 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 a salary fixed by the Government at the
entry level for such jobs.
12. From the deceased's profile, it was evident that she had
opportunity to earn not only in this country but abroad as well.
She had an offer for Euro 40000 per annum for a period of two
years from the date of her joining the Department of Clinical
Genetics, Netherland. In my view, with her research and
experience of 12 years after her Post Graduation, she could have
conveniently landed a job as an Assistant Professor in IIT or a
Scientist at middle level in any department or public sector
organization owned by the Government of India. In view of the
Division Bench Judgment of Andhra Pradesh High Court in
B.Ramulamma(supra), it would be appropriate to take her
potential salary as that of an Assistant Professor in IIT.
13. The starting salary of an Assistant Professor is in the Pay Scale
of `15,600/- to 39,100/- who are placed with the Basic Pay of
`30,000/- and a Grade Pay of `8,000/-. The total emoluments of
an Assistant Professor are `77,300/- (Basic Pay `30,000/- +
Grade Pay `8,000/- + Travel Allowance `3,200/- + Dearness
Allowance (65%) `24,700/- + House Rent Allowance (30%)
`11,400/-.
14. Since the deceased had an excellent Academic record and was a
brilliant Scientist, she would be entitled to an addition of 50%
towards future prospects on the basis of Sarla Verma & Ors. v.
Delhi Transport Corporation & Anr., (2009) 6 SCC 121.
15. The Claims Tribunal had selected a multiplier of '7' as per the
age of the deceased's parents. The father is normally not
considered as a dependent on an unmarried child. Although the
deceased had an unmarried sister, she would also be not
considered financially dependent on the deceased in the absence
of any evidence with regard to the same. The appropriate
multiplier, in the circumstances, would be 9 according to the
age of the deceased's mother(58 years on the date of the
accident). Thus, after making a deduction of Income Tax on the
amount excluding House Rent Allowance, making an addition
of 50% towards future prospects, deducting 50% towards
personal and living expenses, the loss of dependency would
come to `58,68,720/- (`77,300/- x 12 =927600 - 58160 (Income
Tax) + 50% x 1/2 x 9). The loss of dependency is thus
reduced from ` 66,22,000/- to ` 58,68,720/-.
16. The overall compensation stands reduced from `71,28,574/- to
`63,75,294/-.
17. By an order dated 01.12.2011, the execution of the award was
stayed subject to deposit of 50% of the award amount along
with upto date interest with State Bank of India, Saket District
Court Branch. The Appellant Insurance Company is directed to
deposit the balance amount along with interest @7.5% per
annum as per the award by the Claims Tribunal in the name of
the Appellants within six weeks with the State Bank of India,
Saket District Court Branch.
18. The amount awarded shall be disbursed in favour of the
Respondents No.1 to 3 in terms of the impugned judgment
dated 26.08.2011 passed by the Claims Tribunal.
19. The Appeal is allowed in above terms.
20. The statutory amount of `25,000/- shall be refunded to the
Appellant Insurance Company.
(G.P. MITTAL)
JUDGE
MAY 25, 2012
pst
