New India Assurance Co Ltd v. Bharat Singh @ Bharat Kumar @ Bharat Kumar Bilwal & Ors

J U D G M E N T G. P. MITTAL, J. (ORAL)

¶1The 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.

¶2In the absence of any Appeal by the driver, owner and the Insurer, the finding on negligence has attained finality.

¶3The 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.

¶4In 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.

¶5The 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.

¶6I 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.

¶7It is well settled that potential income of a victim can be taken into consideration to award loss of dependency.

¶8In 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/-.

¶9In 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/

¶10In 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.

¶11A 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.

¶12Considering 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.

¶13Thus, 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).

¶14The 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.

¶15In the circumstances, I would not interfere with the award of compensation of `75,000/- towards loss of love and affection.

¶16The 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.

¶17In view of the above discussion, the compensation awarded stands reduced from `19,10,492/- to `14,25,492/-.

¶18The 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.

¶19The statutory amount of `25,000/- shall be refunded to the Appellant Insurance Company.

¶20The Appeal is allowed in above terms.

¶21Pending Applications stand disposed of.

(G.P. MITTAL) JUDGE AUGUST 08, 2012 vk

* IN THE HIGH COURT OF DELHI AT NEW DELHI Date of decision: 8th August, 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