Delhi High Court
The New India Assurane Co. Ltd. vs Sh Anil Kaushik And Ors. on 26 February, 2015
Author: G.P. Mittal
$-25
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 26th February, 2015
+ MAC.APP. 1050/2013
THE NEW INDIA ASSURANE CO. LTD. ..... Appellant
Through: Mr.Pankaj Seth, Advocate
versus
SH ANIL KAUSHIK AND ORS. ..... Respondents
Through: Mr. Amit Kumar Pandey,
Advocate for Respondents no.1
& 2.
CORAM:
HON'BLE MR. JUSTICE G.P.MITTAL
JUDGMENT
G. P. MITTAL, J. (ORAL)
1. The appeal is directed against the judgment dated 27.09.2013
whereby compensation of Rs.14,45,000/- was awarded by the
Motor Accident Claims Tribunal (the Claims Tribunal) for the
death of Nitish Kaushik who died in a motor vehicular accident
which occurred on 15.04.2009 at about 2:30 p.m.
2. There is twin challenge to the judgment. First, that negligence
on the part of the driver of TATA 407 no.DL-1LG-7686 was
not proved and second, that the Claims Tribunal erred in taking
the potential income of a student pursuing LLB course to be
Rs.15,000/- per month, particularly when he was just a Ist Year
student pursuing five years course.
NEGLIGENCE:
3. The Respondents examined Gajender Kaushik(PW-2) as an eye
witness to the accident. He deposed that offending TATA
tempo dashed against the motorcycle from behind. It is urged
by the learned counsel for the Appellant that the FIR reveals
that there was no eye witness to the incident. It has now been
explained by the Respondents as to wherefrom Gajender
Kaushik surfaced as an eye witness. I have the Trial Court
record before me. I have perused the Affidavit and cross-
examination of Gajender Kaushik. Gajender Kaushik has
described the manner of accident. Nothing could be elicited in
the cross-examination of this witness to discredit his testimony.
The driver of the offending TATA tempo has not come forward
to give his version of the incident. In view of this, the
testimony of this witness has remained unchallenged and
unrebutted. Negligence under Section 166 of the Motor
Vehicles Act, 1988 is sufficiently established.
Compensation
4. As far as grant of compensation for a student pursuing
professional course is concerned, it is well settled that potential
income of a student can be taken into consideration. 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)
and the compensation of Rs.1,46,900/- was increased and
rounded off to Rs.1,50,000/- by the Hon'ble Apex Court.
5. 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 MBBS degree in a
short time, the Tribunal awarded a compensation of Rs.
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 Rs.5,000/- per month at the time of his death in the
accident, he would have ultimately joined as a doctor at a salary
ranging between Rs.16,000/- per month to Rs.25,000/- per
month. Thus, the average monthly income of the deceased was
taken as Rs.18,000/- and after adding 50% towards future
prospects, the compensation was enhanced to Rs. 21,36,000/-.
6. In this case, the accident occurred on 15.04.2009. The Claims
Tribunal adopted the potential income of the deceased who was
going to be a lawyer, as Rs.15,000/- per month, which, to my
mind, cannot be considered to be excessive. The computation
of compensation and grant of non-pecuniary damages awarded
by the Claims Tribunal is in consonance with Sarla Verma
(Smt.) & Ors. v. Delhi Transport Corporation & Anr., (2009) 6
SCC 121 and Rajesh & Ors. v. Rajbir Singh & Ors., (2013) 9
SCC 54 except compensation for the loss of gratuitous services.
The amount of Rs.50,000/- awarded towards loss of gratuitous
services was not permissible. At the same time, considering the
peculiar circumstances of the case that the deceased was the
only son, I am not inclined to interfere with the impugned
judgment.
7. The appeal is accordingly dismissed.
8. The amount deposited shall be released to the Respondents
(claimants) in terms of the orders passed by the Claims
Tribunal. The claimants shall be at liberty to approach the
Claims Tribunal for pre-mature withdrawal of the compensation
on satisfying need for the same.
9. The appeal is disposed of in above terms.
10. Pending applications, if any, also stand disposed of.
11. Statutory amount, if any, deposited shall be refunded to the
Appellant Insurance Company.
(G.P. MITTAL)
JUDGE
FEBRUARY 26, 2015
pst
