Delhi High Court
Bharti Axa General Insurance ... vs Upender Kumar Shastri & Ors on 7 March, 2018
$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision: 07th March, 2018
14
+ MAC. APP. 376/2017 and C.M. Appl. 14647/2017
BHARTI AXA GENERAL
INSURANCE COMPANY LTD ..... Appellant
Through: Mr. Navneet Kumar and Mr. Vikas
Bhadana, Advocates
versus
UPENDER KUMAR SHASTRI & ORS ..... Respondents
Through: Mr. S.N. Parashar, Advocate for
respondent No.1 to 4
15
+ MAC. APP. 126/2018
UPENDER KUMAR SHASTRI & ORS ..... Appellants
Through: Mr. S.N. Parashar, Advocate
versus
BHARTI AXA GENERAL INSURANCE CO LTD ..... Respondent
Through: Mr. Navneet Kumar and Mr. Vikas
Bhadana, Advocates
CORAM:
HON'BLE MR. JUSTICE J.R. MIDHA
JUDGMENT (ORAL)
1. The appellants have challenged the award of the Claims Tribunal
whereby the compensation of Rs.30,05,000/- has been awarded to the
appellants in MAC APP.126/2018. The appellant in MAC APP. 376/2017 is
seeking reduction of the compensation amount whereas the appellants in
MAC APP.126/2018 are seeking enhancement of the compensation amount.
2. The accident dated 01st September, 2014 resulted in the death of
Deepti. The deceased was aged 18 years at the time of the accident and was
a student of B.A. (Hons) in Kamla Nehru College, Delhi University. The
Claims Tribunal took the earning capacity of the deceased as Rs.40,000/-
considering her brilliant academic record and her aspiration to join Indian
Police Service. Relevant portion of the award is reproduced hereunder: -
"As far as the income of the deceased is concerned, admittedly
she was a student when she met with an accident and died. In
order to assess her notional income her academic record is
required to be seen. PW-1 in his affidavit has alleged that he
deceased was doing BA hon. 1st year course from Kamla
Nehru College, she was brilliant in her studies and
extraordinary in sport and since her childhood she was
maintaining a good academic record and was doing very well
at sports at state and national level and secured top positions.
It is stated that the deceased has secured 90% marks in her
XIIth class and she secured 99% marks in Geography and
secured all India top position, she was congratulated by the
then HRD Minster Smt. Smriti Zuben Irani vide letter dated
02.06.2014 i.e. Ex.PW1/5. It is stated that the deceased was
sincere, hard working student and she was preparing for civil
services examination as she wanted to join Indian Police
Services. Her educational and sports record were proved as
Ex.PW1/6 (Colly) which shows that the deceased was a
brilliant student, both in education as well as in sports and it
can be safely assumed that she was having a bright future. Her
various certificates of merits have been proved on record with
respect to her various achievements in sports and education.
But it is known to all that life is full of probabilities and
improbabilities and nothing can be said with certainly about
anyone's future and the same is with the deceased also but
having regard to her achievements in her educational carrier
as well as in supports and the fact that she was studying in
well reputed college of Delhi University, it can be said with
certainly that had she lived longer she must have achieved
success in her life. In the totality of facts and circumstances, of
the case, the evidence on record and having regard to the
uncertainities of life and the fact that the deceased was a girl
and she would have married after completing her education
and establishing in her carrier in all probabilities and the fact
that her parents were not financially dependent upon her at the
time of her death, I am of the opinion that it cannot be
assumed at this stage that she in all circumstances, would have
cleared civil services examination in future, but it can be said
with some certainly that even if she would not have cleared he
civil services examination, she would have had a great future.
Even if she would have worked in a private sector or even if
she would have cleared a clerical exam in Govt. Sector, after
completing her education she must have got an initial salary of
Rs.40,000/- per month. Therefore, the loss of estate would
come to Rs.40,000/- x 12 x 18 = Rs.86,40,000/-."
(Emphasis supplied)
3. The Claims Tribunal awarded loss of estate of Rs.28,80,000/- by
taking the earning capacity of Rs.40,000/- per month, applying the multiplier
of 18 and taking the loss of estate as 1/3. The Claims Tribunal awarded Rs.1
lakh towards loss of love and affection and Rs.25,000/- towards funeral
expenses. The total compensation awarded is Rs.30,05,000/-.
4. Learned counsel for the appellant in MAC APP. 376/2017 urged at the
time of hearing that the minimum wages be taken into consideration to
compute the compensation. It is submitted that the earning capacity of
Rs.40,000/- per month taken by the Claims Tribunal is on a higher side.
5. In the recent judgment dated 09th August, 2017 in MAC. APP.
993/2013 titled HDFC Ergo General Insurance Co. Ltd. v. Rattan Kumar
Dwivedi, this Court has taken the earning capacity of a student of B.Com
(Hons.) with an extraordinary brilliant record of sports as Rs.25,000/- per
month. Relevant portion of the judgment is reproduced hereunder: -
"14. In the present case, the deceased Apoorva Dwivedi was a
student of B.Com (Hons.) at Bharti College, Delhi University.
She was a sports person having won 86 prizes/certificates in
athletics, track and field, gymnastics, baseball, soft ball,
basketball, cricket etc. The deceased had secured second place
in team event at 40th Delhi State Gymnastics Championship,
2001; best athlete of the year 2003-2004 at school and zonal
level and first position in baseball in 52nd National School
Games conducted by School Games Federation of India held
from 23rd December to 28th December, 2006. The deceased
was sports captain of Holy Child Senior Secondary School,
Tagore Garden, New Delhi for the academic year 2007-08.
Judicial notice is taken of the notifications for government job
for sports persons as well as advertisements in private jobs for
sports persons, under which a graduate sports person can
secure a job with a job in the pay scale of Rs.30,000/- to
Rs.40,000/- per month. Considering that the deceased was a
sports person with an extraordinary talent in various sports,
namely, athletics, track and field, gymnastics, baseball, soft
ball, basketball, cricket etc. and having been awarded 86
prizes/certificates, it is presumed that the deceased would have
earned Rs.25,000/- per month after completing her
graduation........."
(Emphasis supplied)
6. The present case relates to an accident dated 01st September, 2014
whereas Rattan Kumar Dwivedi (supra) related to the accident of the year
2008. This Court is of the view that the earning capacity of Rs.40,000/-
taken by the Claims Tribunal is on a higher side. The earning capacity of
the deceased is reduced to Rs.27,600/- per month. The deceased was
unmarried and, therefore, 50% has to be deducted towards her personal
expenses. The deceased was 18 years of age, therefore the multiplier of 18
has to be applied according to the age of the deceased in terms of National
Insurance Co. Ltd. v. Pranay Sethi 2017 SCC Online SC 1270.
7. Taking the earning capacity of Rs.27,600/- per month, deducting 50%
towards the personal expenses and applying the multiplier of 18, the loss of
dependency is computed as Rs.29,80,800/-. Rs.24,200/- is awarded towards
loss of estate and funeral expenses. The appellants in MAC APP.126/2018
are entitled to a total compensation of Rs.30,05,000/-.
8. For the reasons stated above, the compensation of Rs.30,05,000/-
along with interest @ 9% per annum from the date of institution of the claim
application i.e. 11th November, 2014 is awarded to the appellants in MAC
APP.126/2018. However, the computation of compensation by the Claims
Tribunal is set aside. The appeals as well as cross-objections are disposed of.
9. The appellant in MAC APP.376/2017 has deposited the entire award
amount with the Claims Tribunal in terms of the order dated 22 nd May, 2017
out of which Rs.12 lakh along with interest have been released to
respondents No.1 and 2 in MAC APP.376/2017and the balance amount is
lying in fixed deposit. The Claims Tribunal is directed to send the status of
the balance amount lying in the FDR.
10. The appellants in MAC APP.126/2018 shall remain present in Court
on the next date of hearing along with the documents mentioned in the order
dated 18th January, 2018.
11. Statutory amount be refunded back to the appellant in MAC
APP.376/2017.
12. Pending application is disposed of.
13. List on 27th April, 2018 at 02:30 p.m.
14. Copy of this judgment be given dasti to counsels for the parties under
signatures of the Court Master.
.
MARCH 07, 2018 J.R. MIDHA, J.
rsk
