Arkesh Jain & Ors. vs Mohd. Ishrar & Ors
2015 Latest Caselaw 9551 Del

$~33
*    IN THE HIGH COURT OF DELHI AT NEW DELHI
                           Judgment Reserved on: December 17, 2015
%                          Judgment Delivered on: December 23, 2015
+                          MAC.APP. 339/2006

       ARKESH JAIN & ORS.                                      ..... Appellant
                     Through:            Mr.Anuj Jain, Advocate

                                     versus

       MOHD. ISHRAR & ORS                                  ..... Respondents
                    Through:            Mr.Tarkeshwar Nath, Mr.Saurabh
                                        Kumar Tuteja & Ms. Priyanka Parida,
                                        Advocates for R-3

PRATIBHA RANI, J.

MAC.APP. No.339/2006

1. Our Constitution guarantees every citizen the fundamental right to equality before law.

2. Article 14 of the Constitution of India provides:-

'The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.'

3. Article 15(1) of our Constitution further provides:-

'The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place or birth or any of them.'

4. A common saying that :

'A son is a son until he gets a wife. A daughter is a daughter throughout her life.'

has been quoted by the Supreme Court in the report Savita Samvedi (Ms) and Anr. vs. Union of India (UOI) & Ors. (1996) 2 SCC 380 while

striking down Railway Board Circular dated 11.08.1992 being violative of Article 14 of the Constitution of India.

5. The claim petition bearing Suit No.588/03/00 was filed by the parents and younger brother of the deceased Komal Jain seeking compensation for her death in a motor vehicular accident on 30.09.1999. The compensation has been denied by the learned Tribunal and even the case law cited on behalf of the claimants to claim just and reasonable compensation has not been discussed by the learned Tribunal observing that none of them dealt with the death of an unmarried girl.

6. The learned Tribunal felt it just and proper to award a sum of ₹2 lacs only under the head 'emotional loss'.

7. The observation made by the learned Tribunal for denying the claim to the parents has shocked the judicial conscience of this Court. The reasons for arriving at the above conclusion given by the learned Tribunal are extracted hereunder:-

"12. Petitioner No.1 examined herself as PW1 on the basis of her affidavit tendered as PW1/A vide which para No.6 of which she has referred to the educational and professional qualifications of the deceased and referred to some documents like education certificate, age proof certificate and employment proof as CW/____ (Left Blank) and as per her statement tendered her affidavit, no such documents were ever tendered either on the first occasion or on any subsequent date. Even so in the interest of justice, since duly attested copies of mark- sheet of secondary examination and also school leaving certificate are on record, the date of birth of deceased is taken to be proved as 21.10.1980 thus, implying that the deceased was 19 years of age when she died. Also the said mark-sheet reflects meritorious record of the deceased with her getting grades like A1, A2 B1 and B2 and not less in all subjects. Also the mark-sheet of senior secondary certificate reflects the same trend of her academic record. However, there is no record of employment or any other professional studies thereafter but the

deceased was certainly meritorious student and would have had a bright career had she continued to live. However, it is also a reality that deceased in due course of five or six years would also have got married off and her own marriage would have involved considerable expenses as per the social status of the parties. As such even if the deceased had turned into a bright professional with a rising career, her income contribution would in the normal circumstance have gone to her matrimonial home and not to her parents unless of course the parents would have proved otherwise. The petitioners have failed to prove their financial dependency upon their daughter particularly, as per the record, the petitioners themselves are young enough and the father of the deceased girl was only 47 years of age while the mother was around 41 years of age and there is no good reason shown as to why they were dependent on their studying daughter who was still and would have been married in due course of five-six years. It is true that petitioner No.1 has not been cross-examined by respondent No.3 also on any point whatsoever but financial dependency has to be made out and proved by the petitioners themselves which the petitioners have failed to prove in the present case.

13. Ld. Counsel for the petitioner has relied upon a plethora of judgments as being on the point of quantum of compensation in the case of bachelor. The same are as under:

1. 2003 ACJ 1783 Rajasthan

2. 2003 ACJ 105 Karnataka (D.B)

3. 2003 ACJ 213 Kerala (D.B)

4. 1980 AIR 1354 Supreme Court

5. 2003 ACJ 369 M.P (D.B)

6. 1996 ACJ 1044 Supreme Court

7. 1995 ACJ 560 M. (D.B)

8. 1994 ACJ 1 Supreme Court

9. 1996 ACJ 581 Supreme Court

10. 1996 ACJ 831 Supreme Court

11. 2002 ACJ 312 Delhi (D.B)

12. 2003 ACJ 1114 High Court Delhi

13. 2001 ACJ 1719 Supreme Court

14. 2001 ACJ 1735 Supreme Court

15. 2003 ACJ 2152 Supreme Court

16. 2004 ACJ 53 Supreme Court

17. 2003 ACJ 1631 High Court of Delhi

18. J.T. 1999(6) 10 Supreme Court

19. 2003 ACJ 680 Supreme Court

All these judgments have been perused but not even one of them is dealing or discussing the criteria of determining compensation in the case of an unmarried daughter aged about 19 years and as such not even one of the judgments cited and relied upon by Ld. Counsel for petitioner is of any help to the petitioner in the present case.

14. In view of the above discussion as per which the dependency itself of the petitioners parents of their deceased daughter has not been even made out, as from their own averments; the entire plethora of judgments cited above do not apply to the present case and of no help whatsoever to the petitioner. None of the mentioned judgments, otherwise also pertain to the aspect of compensation in the case of female child aged about 19 years. Even after taking the education record of the deceased to be meritorious, the hard reality in the present Indian social set up remains that under normal circumstances, a daughter in any family would be got married off by the age of 21 to 25, and once married whatever her income be would normally be contributed to her matrimonial home and not to her parental home. As parents in the present Indian set up shy away from taking the earning of daughters. However, it is not as if there are no cases where daughters are running the household, but then the burden to prove such exceptional circumstances would certainly lie upon the petitioners and unless and until that is done, the presumption in context of normal routine circumstances and social set up would have to be adopted for assessment. It also cannot be ignored that the daughter when married off particularly in the Jain Community would involve huge expenses to be incurred in the marriage itself and this hard fact cannot be disputed in the present social set up in our country. Had the deceased not expired in the said accident, no doubt her marriage expenses would also have been borne by the petitioners and as such whatever earning the deceased would have made, would also

have been used up if at all towards the said marriage expenses. In any case, since no dependency of the parents on their daughter has also been made out, the further question of the quantum does not even arise.

15. However, the emotional loss of the parents of the deceased is not compensable in terms of money and the same irreplaceable but even so for the purpose of this claim a sum of ` 2,00,000/- is being held just and fair in view of the fact that deceased was a young girl aged only 19 years, the loss of whose life would have given the parents tremendous and unmeasurable pain and mental agony. The unfortunate parents would also have incurred some expenses on the last rites of the deceased daughter and in the absence of any documentary evidence the same is being assessed at a sum of `10,000/-. The petitioners as such are held entitled to a sum of ` 2,10,000/- as compensation along with interest at the rate of 9% per annum from the date of institution till the date of this award."

8. The parents and younger brother of the deceased Komal Jain filed a claim petition seeking compensation of ₹ 16 lacs pleading that the deceased Komal Jain was a bright student, who was doing under graduation course from Delhi University and simultaneously also pursuing Diploma Course in Elementary Teacher Education. At the time of her death, she was 19 years old. On the unfortunate day i.e. on 30.09.1999 at about 3.00 pm Kumari Komal Jain was in the process of boarding the offending bus bearing registration No.DL-1P-A-1932 from Bus Stand Sector-8, Rohini. At that time another bus of Route No.879 was also in stationary position at the bus stand. When she was yet to fully enter the offending bus bearing registration No.DL-1P-A-1932 from the rear gate, the driver of the said bus with a view to overtake the stationary bus of Route No.879, started the bus and drove it in a rash and negligent manner, as a result of which Komal Jain came in between the stationary bus and the offending bus and suffered fatal

injuries.

9. The appellants also claimed that deceased Komal Jain used to give tuitions and was earning ₹5000/- per month. She was also contributing towards household expenses and paying tuition fee for her younger brother.

10. It is painful to note that the award has been penned down by a lady Presiding Officer who has treated the death of an unmarried daughter to be falling in a category which does not entitle the claimants/parents to seek compensation for her death.

11. The entire approach of the learned Presiding Officer in not even dealing with the case laws cited on behalf of the claimants observing that none of them dealt with death of unmarried daughter aged about 19 years, has to be termed as perverse.

12. For seeking compensation, Motor Vehicle Act does not lay down separate criteria for death of a male or female child. Thus, not considering the legal position laid down in various pronouncements relied upon by the claimants/appellants before the learned Tribunal (nineteen reports were cited) requires the learned Presiding Officer to be sensitized on her approach on gender issue.

13. The learned Tribunal while passing the award and awarding a pittance towards emotional loss perhaps did not realise that the observation made by her in the impugned award has the effect of rubbing salt on the wounds of the parents who had already lost their daughter in prime of her youth.

14. Since the impugned award denying compensation to the parents for the death of their unmarried daughter is not sustainable in the eyes of law, the same is set aside to that extent.

15. The finding of learned Tribunal regarding rash and negligent driving has not been challenged by the owner and driver of the offending vehicle

and the same has attained finality.

16. Now the question arises as to what should be the just and reasonable compensation which should have been awarded by the Tribunal. The learned Tribunal has not applied its mind on these aspects as the claim has been denied on account of the fact that deceased was 19 years old unmarried girl and there was no loss of dependency.

17. Though the circumstances require that the claim petition should be remanded to the Tribunal to deal with all aspects but taking into consideration the fact that death of Komal Jain had taken place on 30 th September, 1999, award has been passed on 26th May, 2005. Thereafter the appeal filed by the claimants was dismissed in default. In the SLP Nos. 10843-10845/2014 preferred before the Hon'ble Supreme Court, the appeal was restored desiring this Court to dispose of the appeal expeditiously.

18. Mr.Anuj Jain, Advocate appearing on behalf of the appellants has submitted that the deceased in this case was a young girl aged about 19 years and she was financially supporting her parents by giving tuitions. She was in the second year of ETE course from a prestigious institution and was a meritorious candidate. She was also pursuing graduation course from Delhi University. As she was pursuing a professional course, on completion of same her prospective income should be taken as ` 10,000/- per month.

19. Learned counsel for the appellants has relied upon V.Mekala Vs. M.Malathi, 2014 (6) JT 212, United India Insurance Co. Ltd. vs. Kalpana Mishra 2012 (9) AD (Delhi) 407, United India Insurance Company Ltd. vs. Dr.Jia lal Prashar & ORs. 2013 (133) DRJ 740 and B.Ramulamma & Ors. vs. Venkatesh Bus Union & Another 2011 ACJ 1702 in support of his contention that future prospects of the deceased should be considered and at

least the prospective income of ` 10,000/- should be enhanced by 50% for purpose of calculating the compensation.

20. Another contention raised on behalf of the appellants is that the multiplier applicable in the case has to be as per the death of the deceased which is specified not only in the second schedule of the Motor Vehicle Act but also as held in Munnal Lal Jain Vs. Vipin Kumar Sharma, 2015 (6) Scale 522. Learned counsel for the appellants further submitted that only 1/3rd of the income need to be deducted towards personal expenses as held in Munna Lal Jain's case (supra), thus while calculating the compensation and other non-pecuniary damages, compensation may be awarded. Learned counsel for the appellants has also referred to one advertisement of Delhi Subordinate Service Selection Board, which was an advertisement issued in the year 2000 inviting applications from the eligible candidates who have passed B.L.Ed. from Delhi University, JBT from SCERT and TTI (Dte of Education), ETE from SCERT and DBT from JMI and the pay-scale given therein is ` 4500-7000.

21. On behalf of the respondent No.3/Insurance Company, Mr.Tarkeshwar Nath, Advocate has submitted that the deceased was 12 th pass. She was pursuing B.Com.(Pass) course through correspondence and her mark-sheet does not reflect that she was a brilliant student. She was also pursing ETE Diploma Course from Rama Krishna Teachers Training Institute Course, Vikas Puri, Delhi run by State Council of Educational Research and Training, Varun Marg, Defence Colony, New Delhi-110024. Ranking of the said institute or the course pursued by her cannot be termed to be such as to treat the course as professional course that could have made her earn `10,000/- per month.

22. Learned counsel for the respondent No.3/Insurance Company has

urged that Elementary Teacher Education course would have made her eligible to teach nursery classes only. It has been submitted that in most of the Government/MCD schools the admissions start at the age of 5 years. The remuneration given to the nursery teacher in the nursery schools which are run privately is very low hence the notional income of the deceased cannot be treated to be ` 10,000/- pm with addition of 50% towards future prospects.

23. Learned counsel for the Insurance Company has also submitted that the multiplier has to be applied as per the age of the claimants for the reason that decision of Hon'ble Supreme Court in UPSRTC Vs. Trilok Chand (1996) 4 SCC 362 still holds good and the decision of the Munna Lal Jain's case (supra) cannot be relied upon to award compensation on the basis of age of the deceased.

24. I have considered the rival contentions and carefully gone through the record.

25. So far as case laws relied upon by learned counsel for the appellants is concerned, in the case V.Mekala Vs. M.Malathi (Supra), the deceased was held to be a brilliant student studying in 11th standard and considering ₹6000/- as monthly notional income to be too meagre, ₹10,000/- was taken as her monthly notional income keeping in mind her past results.

26. In the case United India Insurance Co. Ltd. vs. Kalpana Mishra (Supra) the deceased was working a part time Accountant as well pursuing B.Com and therefore the salary of LDC in the year 2000 considered as potential income by the Tribunal in appeal was considered to be not exorbitant by the High Court.

27. In the report B.Ramulamma & Ors. vs. Venkatesh Bus Union & Another (Supra) the deceased was a final year student of B.E. (Computers),

the salary of his classmates was considered observing that deceased also should have got the job, hence income earned by the classmates with similar education and technical qualifications would be relevant for taking it to be a guiding factor.

28. In the case United India Insurance Company Ltd. vs. Dr.Jia lal Prashar & Ors. (Supra) relied upon by learned counsel for the appellants, the deceased was a final year student of B.E., Industrial Production Engineering from BVB College of Engineering and Technology which was an old college. The Court took judicial notice of the salary of a Group 'A' Officer or of an Engineer with basic pay starting at ₹8000/- with all allowances.

29. The first question that arises for consideration is as to what should be taken as the income of the deceased for purpose of computing the compensation. In the claim petition, the income of the deceased has been stated to be `5000/- per month which she was earning by giving tuitions. The appellants/claimants have not led any evidence on this issue except making a bald statement.

30. So far as reliance placed by learned counsel for the appellants on the judgments cited above is concerned, suffice it to note here that the appellants have not examined any classmate of the deceased Komal Jain who have passed out from the same Institute from where the deceased was pursuing ETE Course and chances of their getting job/placement so as to assess the potential income of the deceased in this case.

31. Ms.Komal Jain (deceased) has expired in the year 1999. The parents of the deceased have not been able to state as to what she was charging as tuition fee and to how many children and of which standard she was giving tuitions. The deceased was pursing ETE course from Rama Krishna

Teachers Training Institute Course, Vikas Puri, Delhi run by State Council of Educational Research and Training, Varun Marg, Defence Colony, New Delhi-110024. Statement of marksheet of B.Com (Pass), Part-I Examination which the deceased was pursuing through correspondence course reveals that :-

"B.Com.(Pass) - Part-I Examination Year : 1999 Roll No.77758 Name of candidate : Komal Jain College : Correspondence Courses PAPER MAXIMUM MARKS MARKS OBTAINED

The above statement of marks does not reflect her academic record to be bright.

32. It may also be noted that recruitment of Nursery Teachers for Government Schools is not a regular process. Rather most of the Government/MCD Schools are not having nursery classes and they admit the students only in 1st standard.

33. Prospects of getting government job after doing this ETE course were not bright as this course would have made her eligible to teach nursery classes but not to earn `10,000/- per month as Nursery Teacher in the year 1999-2000. Even as on date i.e. almost after 16 years, the Nursery Teachers are not getting salary of `10,000/- in private schools.

34. There is no material before this Court to ascertain even approximately about how many students had been able to get government job in Nursery Schools or the placement of other pass out students from that Institute and their earnings during the relevant period.

35. Thus, the contention of learned counsel for the appellants/claimants that her income has to be treated as `10,000/- per month as she was undergoing professional course, has to be rejected.

36. In the circumstances, the minimum wages for 12th pass prevalent at the relevant time has to be considered for purpose of calculating the income of the deceased. The deceased Komal Jain has expired in the year 1999 and at that time, the minimum wages for a matriculate/12 th pass was ₹2796/- per month. Hence, taking the minimum wages for a matriculate/12th pass prevalent at the relevant time, the annual income of the deceased come to ₹33552/-.

37. The question of grant of future prospects was dealt with by a Co- ordinate Bench of this Court at great length in HDFC Ergo General Insurance Co. Ltd. v. Smt. Lalta Devi and Ors.,in MAC APP No. 189/ 2014, decided on 12.01.2015. Relevant para 8 of the report is extracted hereunder:

'8. It is no gainsaying that in appropriate cases some addition towards future prospects must be made in case of death or injury of a person pursuing a professional course. At the same time, it cannot be laid down as a uniform principle that every person pursuing professional course will have a bright future. There may be a student pursuing engineering from the reputed engineering colleges like Indian Institute of Technology (IIT), Regional Engineering College or any other reputed college. At the same time, a number of engineering Colleges have mushroomed where an engineering graduate may find it difficult to secure a job of an engineer. In the instant case, deceased Aditya, as stated earlier was a student of an unknown engineering college, i.e. Echelon Institute of Technology, Faridabad which is claimed to be affiliated to Maharshi Dayanand University, Rohtak. The Claimants have placed on record result-cum-detailed marks card of First and Second Semester. It may be noted that the deceased had secured just ordinary marks in seven subjects and he had to re-appear in

papers 1002 (Mathematical-I), 1006 (Foundation of Computer & Programming) and 1008 (Basics of Mechanical Engineering). Similarly, in the Second Semester the deceased was absent in one of the 12 papers and out of 11 subjects for which he had taken examination, he was to re-appear in four subjects. Thus, it will be difficult to say that the deceased was a brilliant student or that he was pursuing engineering from a well known or even mediocre college.'

38. In the case Reshma Kumari v. Madan Mohan (2013) 9 SCC 65 the three Judge Bench of Supreme Court reiterated the view taken in Sarla Verma v. DTC, (2009) 6 SCC 121 to the effect that in respect of a person who was on a fixed salary without provision for annual increments or who was self-employed the actual income at the time of death should be taken into account for determining the loss of income unless there are extraordinary and exceptional circumstances.

39. Further, the divergence of opinion in Reshma Kumari & Ors. v. Madan Mohan & Anr., (2013) 9 SCC 65 and Rajesh & Ors. v. Rajbir Singh & Ors., (2013) 9 SCC 54 was noticed by the Supreme Court in another judgment in National Insurance Company Ltd. v. Pushpa & Ors., CC No.8058/2014, decided on 02.07.2014 and in concluding paragraph while making reference to the Larger Bench, it was observed as under:-

"Be it noted, though the decision in Reshma (supra) was rendered at earlier point of time, as is clear, the same has not been noticed in Rajesh (supra) and that is why divergent opinions have been expressed. We are of the considered opinion that as regards the manner of addition of income of future prospects there should be an authoritative pronouncement. Therefore, we think it appropriate to refer the matter to a larger Bench."

40. So far as the contention of the learned Counsel for the

appellants/claimants regarding future prospects of the deceased is concerned, the deceased was 12th pass and was doing ETE Diploma Course as well as B.Com.(Pass) through correspondence Course. She was undergoing ETE Diploma course from Rama Krishna Teachers Training Institute Course, Vikas Puri, Delhi and only on completion of the said course she would have been eligible to teach Nursery Classes in the Nursery Schools which are being run privately. There is no evidence of good future prospects so as to make addition on this count in the notional income.

41. The next question to be considered by this Court is about the multiplier applicable in this case. The submission made by learned counsel for the appellants that multiplier has to be as per the age of the deceased as referred to in the IInd Schedule as well in view of the latest decision of the Supreme Court in Munna Lal's case (Supra), is liable to be rejected in view of the decision of Supreme Court in UPSRTC Vs. Trilok Chand (1996) 4 SCC 362.

42. The Co-ordinate Bench of this Court in Maneesha Karantak & Ors. in MAC APP.655/2014, decided on 20.03.2015 has laid down that the three Judge Bench decision in U.P.State Road Transport Corporation & Ors. vs. Trilok Chandra & Ors. (1996) 4 SCC 362 shall be a binding precedent. The logic of taking the age of the deceased or the Claimant as laid down in Susamma Thomas (Mrs.) (supra) and Trilok Chandara, (supra) was not brought to the notice of the Supreme Court in Munna Lal Jain & Anr. (supra). Otherwise also, in view of the judgment in Safiya Bee v. Mohd. Vajahath Hussain @ Fasi, (2011) 2 SCC 94 and Union of India and Ors. v. S.K. Kapoor, (2011) 4 SCC 589, the law laid down in U.P. SRTC v. Trilok Chandara, (1996) 4 SCC 362 shall be taken as binding precedent.

43. Thus, in the instant case, the age of the mother has to be considered

for selection of multiplier. As per the copy of the ration card place on record, the age of Smt. Uma Jain - mother of the deceased was 35 years, however the date of issue is not mentioned in the ration card. In the circumstances, the age given by mother of the deceased i.e. appellant No.2 Smt.Uma Jain at the time of examination of PW-1 in the claim petition has to be considered by this Court for purpose of applying the multiplier. PW-1 Smt.Uma Jain has been examined on 28.08.2003 and she has given her age as 42 years on that date. The accident in this case has occurred in the year 1999, hence in the year 1999, the age of appellant No.2 Smt.Uma Jain was 38 years.

44. The Hon'ble Supreme Court in Sarla Verma vs. Delhi Transport Corporation 2009 (6) Scale 129 reviewed the law with regard to the selection of multiplier and deduction towards personal and living expenses and held that uniformity has to be achieved in payment of the compensation. The Supreme Court in the said report has laid down the following principles for grant of compensation in death cases:-

I. DEDUCTION FOR PERSONAL AND LIVING EXPENSES:

Deceased - unmarried
(i)     Deduction towards personal expenses         -    1/2 (50%)
(ii)    Deduction where the family of the bachelor
        is large and dependent on the income of the
        deceased.                                   -    1/3rd (33.33%)

Deceased - married
(i)     2 to 3 dependent family members             -    1/3rd

(ii)    4 to 6 dependent family members             -    1/4th

(iii)   More than 6 family members                  -    1/5th
(iv)    Subject to the evidence to the


        contrary                                    -      Father, brother
                                                          and sisters will not
                                                          be considered as
                                                          dependents.
II.    MULTIPLIER

              Age of the deceased (in        Multiplier
                      years)

19. In view of the decision in Sarla Verma's case (Supra), the multiplier applicable in this case is '15'. The deceased was unmarried at the time of death. Hence, the loss of dependency will therefore, come to ₹2,51,640/- (₹2796 X 12 X 15 X 1/2).

20. In addition, the appellants are also entitled to a sum of ₹1,00,000/- towards love and affect, ₹25,000/- towards funeral expenses and ₹10,000/- towards loss to estate in view of the three Judge Bench decision of the Supreme Court in Rajesh vs. Rajbir Singh & Ors. (2013) 9 SCC 54.

21. The overall compensation, thus, comes to ₹3,86,640/-.

22. After adjusting the amount of ₹2,10,000/- awarded by the learned Tribunal, if already paid/deposited, the insurance company/respondent No.3 is directed to deposit the compensation amount with interest @ 7.5% per annum from the date of filing of the claim petition till its realisation. The

compensation amount shall be apportioned equally between appellants No.1 and 2 i.e. father and mother of the deceased.

23. After deposit of compensation amount by the insurance company/respondent No.3, ₹1 lac each shall be released to the appellants No.1 and 2 and remaining amount shall be kept in the form of FDR for a period of five years. However, the appellants No.1 and 2 shall withdraw the quarterly interest accrued thereon.

24. Appeal stands allowed in above terms.

25. In view of the observation made above in paras No.12 and 13, a copy of this order be transmitted to the Chairman, Inspecting Committee.

26. LCR be sent back alongwith copy of this order.

27. As prayed, copy of the order be given dasti to learned counsel for the parties.

PRATIBHA RANI (JUDGE) DECEMBER 23, 2015 'st'