MAC.APP.Nos.321 & 347/2008 Page 1 of 21 * IN THE HIGH COURT OF DELHI AT NEW DELHI Date of decision : 10th May, 2010 % + MAC.APP. 321/2008 COL RAJESHWAR SARAN (RETD) & ANR .... Appellants Through : Mr. S.C. Dhanda, Adv. versus MUNNA KHAN & ORS ..... Respondents Through : Mr. Rajvinder Singh, Mr. S.K. Gupta and Mr. Manish Gupta, Advs. + MAC.APP. 347/2008 SNEH PRABHA MALHOTRA & ORS ..... Appellants Through : Mr. S.C. Dhanda, Adv. versus MUNNA KHAN & ORS ..... Respondents Through : Mr. Rajvinder Singh, Mr. S.K. Gupta and Mr. Manish Gupta, Advs. CORAM :- THE HON'BLE MR. JUSTICE J.R. MIDHA 1. Whether Reporters of Local papers may YES be allowed to see the Judgment? 2. To be referred to the Reporter or not? YES 3. Whether the judgment should be YES reported in the Digest? JUDGMENT (Oral) 1. The appellants have challenged the award of the learned Tribunal whereby compensation of Rs.7,85,000/ has been awarded in respect of the death of Nishit Saran and Rs.10,46,000/- has been awarded in respect of the death of Shivali Malhotra. The appellants seek enhancement of the award amount. MAC.APP.Nos.321 & 347/2008 Page 2 of 21 2. The accident dated 24th April, 2002 resulted in the death of five persons travelling in car bearing No.DL-6CD- 9031 which was hit by truck bearing No.HR-38F-1622. Three claim petitions were filed before the Claims Tribunal relating to the death of Nishit Saran, Shivali Malhotra and Ashish Puri in respect of which a common award was passed by the Claims Tribunal. Two appeals have been filed in respect of the claims relating to the death of Nishit Saran and Shivali Malhotra. MAC.APP.No.321/2008 1. This appeal relates to the death of Nishit Saran who was survived by his parents. The deceased was aged 26 years at the time of the accident. Appellant No.1 is the mother of the deceased who appeared in the witness box before the Claims Tribunal as PW-8 and deposed with respect to the qualifications, occupation and income of the deceased which is as under:- “1. In this case I am Petitioner No.2. My husband Col Rajeshwar Saran is Petitioner No.1. We claim compensation on account of the death of our son Nishit Saran, aged 26 years, who died in an accident on 24th April, 2002 at 2:20 AM, caused due to rash and negligent driving of Truck No.HR-38F-1622, by Respondent No.1, who while driving the above said truck, struck against the Car No.DL 6CD 9031. Our son Nishit Saran was travelling in the car who was seriously injured and succumbed to the injuries at the spot itself. The accident took place at the crossing of Lodhi Road and Bhishma Ptamah Marg near Dayal Singh Inter college. The other occupants of the car in question, Shivali Malhotra, Pooja Mukherjee, Ashish Puri and Pankaj Kakkar died at the spot. MAC.APP.Nos.321 & 347/2008 Page 3 of 21 2. He was a brilliant student having excelled himself from early school stage to his last day as will be evident from the facts given below:- Academic Awards and Achievements (a) He always stood first in his class right from prep stage to class XII. The Army Public School Dhaula Kuan “Secondary School Academic Records” para 1(a) refers, Ext.PW8/1 (b) He passed Class X examination as a topper in the school with 93.6% marks getting distinctions in all five subjects. Mark sheet and Certificate of Merit for reasons of outstanding academic performance and for being among the 0.1 percent of successful candidates of All India Secondary School Examination 1992 is attached. Ext.PW8/2(1) to PW8/2(2) (c) He passed Class XII examination with 94% marks. Mark sheet is attached. Ext.PW8/3 (d) He was School Captain for year 1993-94. Extract from Army Public School Magazine is attached. Ext.PW8/4 (e) He was the recipient of the National Talent Search Scholarship for 1992 (awarded to only 250 students all over India). Merit Certificate Roll number 239026 is attached. Ext.PW8/5 (f) He was offered the Singapore Airlines Asian Scholarship for two years study in Singapore (inclusive of room, board, tution, travel and stipend) Singapore Airlines Limited letter of offer No.001/93 dated 04 Nov 1992 is attached. Ext.PW8/6 (g) Recipient of the National Merit Scholarship awarded by the HRD Ministry, Govt. of India. Para 5(c) of Ext PW8/1 refers. Ext.PW8/1 page 2 (h) Recipient of the Dhunichand Memorial Prize and the Shantidevi Memorial Prize, Both cash MAC.APP.Nos.321 & 347/2008 Page 4 of 21 prizes awarded by trusts for outstanding academic records. Para 5(d) of Ext PW8/1 refers. Ext.PW8/1 page 2 (j) Had won umpteen prizes and awards in writing, public speaking, declamation contests etc at local, State and National levels. Twenty certificates are attached. Ext.PW8/7(1) to PW8/7(20) 4. Having completed his class XI, he appeared in competitive examinations like TOEFL (test of English as Foreign Language) and SAT (Scholastic Aptitude Test) held by college Entrance Examination Board and Educational Testing Service USA. He had the distinction of achieving very high scores in these examinations. Based on these results and his academic background following American Universities made an offer of joining their colleges; (a) Dartmouth College Ext PW8/8 (b) Harvard University Ext PW8/9 (c) Massachusetts Institute of Technology Ext PW8/10 (d) Yale University Ext PW8/11 Examinees Score Records in respect of TOEFL and SAT tests are at Exhibit PW8/12, PW8/13 and PW8/14 respectively. 5. He joined Harvard University in 1994. As a senior Nishit Saran was elected to the Phi Beta Kappa the oldest academic honors society in the US. He was awarded BA magna cum laude with Highest Honors in Visual and Environmental Studies, was the recipient of the John Harvard scholarship, the Detur Book Prize, and the J Watumul Scholarship for academic excellence, The following documents are produced as Exhibits; (a) Harvard University Faculty of Arts Scholar certificate. Ext PW8/15 (b) Phi Beta Kappa membership certificate. Ext PW8/16 (c) Harvard University Degree Of Bachelor of Arts Magna cum laude with highest honours MAC.APP.Nos.321 & 347/2008 Page 5 of 21 in Visual and Environmental Studies. Ext PW8/17 6. He was Director of Summer in My Veins. This first film, a 41 minute personal documentary, was funded by a grant from the Harvard Film Society Centre. Completed in February 1999, it was shown at many film festivals across the world (including Boston, Toranto, San Francisco, Hamburg, Los Angeles and New Zealand) and was chosen to close the opening night of the Athens International Film And Video Festival. It had been heralded as a Masterful moment‟ in documentary film making, and it was picked up for distribution by Jane Balfour Films (one of the largest and most respected distributors of non-fiction film in the world) in an unprecedented three months after completion. Cassette cover of the film is attached. Ext PW8/18 The film was shown at the Indian Habitat Centre in August 1999, and had received rave reviews in many national newspapers, magazines and television shows. Handout given out at the screening of the film at The Auditorium of India Habitat Centre is attached. Ext PW8/19. The press clippings of The Hindu dated 29 Aug and Times of India dated 29 Aug are attached. Ext PW8/20(1) and PW 8/20(2) 7. TEACHING FELLOW at Harvard University Nishit Saran was awarded a prestigious teaching fellowship at the Harvard Film Department immediately after graduation. He taught a year long course in advanced film making (fiction, non-fiction and experimental) with American film maker Ross McElwee. The fellowship also provided access to free resources for Summer in My Veins. A condolence letter received from Mr. RossMcElwee, his professor, dated 18 May 2002 substantiates this fact and is attached. Ext PW8/21 8. He was the DIRECTOR of Project Flower. A short documentary commissioned by the Centre for AIDS Prevention Studies in San Francisco, about street children in the NIzamuddin area of Delhi. The film was shown at the world AIDS MAC.APP.Nos.321 & 347/2008 Page 6 of 21 conference in South Africa, 2000. A CVD of the film is attached. Ext PW8/22 9. He was the DIRECTOR of Perfect Days, The first digital feature film in India. Probable distinction of the youngest Indian director of a full length feature film. This film was co-produced by Digital Talkies, the production-distribution company launched by Shekhar Kapur and others. It premiered at the Digital Talkies International Film Festival in April 2001. Digital Talkies International Film Festival 2001 brochure along with the reviews in “The Hindu” and by “Hindustan Times” are attached. Ext PW8/23(a) to PW8/23(7) 10. FREELANCE COLUMNIST He wrote articles for various publications and dotcoms including The Indian Express, The pioneer, the new Sunday Review, Tehelka.com, Delhi Gossip.com and wahIndia.com. He also wrote a weekly column on popular culture for The Indian Express. A couple out of the lot are attached. Ext PW8/24(1) to 8/24(2) 11. AT HOME IN THE WORLD International Festival of Indian Literature was organized by ICCR at Vigyan Bhawan New Delhi from 18th to 23rd Feb 2002. This festival was inaugurated by Hon‟ble Prime Minister Shri Atal Behari Vajpayee. ICCR had commissioned Nishit Saran to produce a short film on Indian Writing which was screened at the beginning of the programme. Copy of the programme is attached. Ext.PW8/25(1) Correspondence between Nishit Saran and Mr. Himachal Shom, Director General ICCR is attached. Ex.PW8/25(2) to Ext.PW8/25(3) A video cassette of the Opening Film is attached. Ext.PW8/26 He was also invited by Public Service Broadcasting Trust to cover the event and make a documentary film on “At Home In The World” within a budget of MAC.APP.Nos.321 & 347/2008 Page 7 of 21 Rs.2,35,680.00. The Film At Home In The World was screened at the Auditorium, India Habitat Centre on August 26th at 7.00 pm as part of PSBT annual film festival THE OPEN FRAME. Letter written by Mr. Rajiv Mehrotra, Managing Trustee, PBST dt20 Aug inviting us to attend the screening of this film is attached. Ext.PW8/27 A video cassette of the film is attached. Ext.PW8/28 12. Details of payments received by Nishit Saran by cheque and deposited in his bank accounts are given below. He also carried out his business under a company (Proprietory concern) “FISH FILMS”, and had a bank account in HDFC Bank Sector 18 Noida A/C no 0882000004366. HDFC Bank NOIDA Nishit Saran A/C NO 0881000026839 Date Party issuing cheque Purpose Cheque No. Amount 17.04.2001 Jane Balfour Films ltd Royalty 6010757718 1,26,751.95 05.11.2001 Indian Express Fees 0255957 2847.00 17.11.2001 J&K Band Remix Fees 022616 2000.00 24.11.2001 LSR College Workshop 0234571 3000.00 20.12.2001 Indian Express Fees 0256273 2847.00 20.12.2001 Indian Express Outstanding 0266304 3559.00 28.12.2001 Mongoose film Editing 0714328 2517.0 charges 25.01.2002 PSBT At home in 0536653 1,15,436.00 the world: advance 25.01.2002 Indian Express Fees 0266788 2847.00 HDFC Bank NOIDA Fish Films A/C NO 0882000004366 04.12.2001 Vasal mix Editing charges 0491127 3000.00 17.12.2001 Mangoose film Editing charges 0158520 13250.00 22.12.2001 Text(100) Editing charges 0316825 4400.00 14.01.2002 Dance Worx Audio mix 0163430 1500.00 17.04.2002 ICCR Literary festival 0582008 53,300.00 opening film MAC.APP.Nos.321 & 347/2008 Page 8 of 21 Statement of accounts from HDFC Bank are attached ExtPW8/29(1) to PW8/29(2) 13. Negotiations were going on between my son Nishit Saran and Indian National Trust for Art and Cultural Heritage since Sep 2001 for producing a promotional film for their organization. A letter addressed to Mrs. Sunita Kohli, Member Governing Council dated 01 Apr 2002 on the subject is attached. Ext PW8/30 From the above it may please be noted that the earnings during the period 17 Apr 2001 to 17 Apr 2002, give an idea of what he had done, his potential and also the fact that with passage of time and with more exposure his genius would have bloosomed. God willing?” 2. The father of the deceased also appeared in the witness box as PW-6 and deposed about the occupation and income of the deceased, as under:- “2. My son, Nishit Saran, was working as a writer, producer, director and distributor of cinematographic films, both feature and documentary and had a very bright future which is evident from the fact that my son obtained 93- 5% marks in CBSE board examination for class XXII with science in 1994 by securing 94% marks. He consistently ranked first in his class. He was school captain. He was the national merit scholar, and National Talent search award winner. He won prized in writing and public speaking at the school, state and national level. My son completed his studies in India. He was admitted in Harward University, U.S.A. In June 1998, my son was awarded B.A. Magma-cum-Laude with highest honours in Visual and Environmental studies (films) from Harward University, U.S.A. He was elected to Phi Beta Kappa Academic Honour Society in USA. My son was also recipient of John Harward scholarship, the Detour Book Prize and J. WAtumull scholarship. My son was also given teaching fellowship by Harward University after graduation from Sept.1998 to February, 1999. MAC.APP.Nos.321 & 347/2008 Page 9 of 21 3. My son had produced and directed the following cinematographic films:- (i) He was director of the film “Summer in my Veins”. This was a 41 minute personal documentary, completed in February, 1999. This was the first film. This film was funded by a grant from Harward Film Study Centre. This film was shown in Boston, Toronto, San Francisco, Hamburg, Los Angles and New Zealand. It was also shown at India Habitat Centre, Delhi in August 1999. This film was appreciated by many national newspapers magazines and television shows. It was recently broadcast by Canal Plus in France, Monoco and Switzerland and free speech TV in USA between September 1998 to February, 1999. Apart from the film “Summer in my Veins” my son also directed the following films:- (a) Project flower for Aids Prevention Studies in San Francisco. (b) Perfect Day, coproduced by Digital Talkies of Mr. Sheikher Kapur. (c) “Branding at the Mukerjees” exhibited at Sr. Martin exhibition space in June 2001. My son was also busy in producing and directing other films. He had just completed a film “At home to the world” sponsored by Public Service Broadcasting Trust and Prasar Bharti. This film was screened at India Habitat Centre on 26/8/2002 during the film festival and „Forum 02‟ organized by PSBT-UNESCO-PRAISER BHARTI. My son was also Free Lance Columnist for Indian Express, The Pioneer, The New Sunday Review, Tehlka.com Delhi Gossip.Com Wah India.Com. 4. The income of the deceased, as per the deposits made by him in his account with HDFC bank from 1st June 2001 to 24-6-2002 was Rs.2,24,500/-. In addition to this an amount of Rs.1,95,300/- was still outstanding. Keeping in view the income of my deceased son for the first year of his working at Delhi would have been more than Rs.10,00,000/- per annum from Intech Films, more particularly after receiving grants and income from Intach film, Section 377 films and Alter-Cine-Foundation Grant. The car driver was MAC.APP.Nos.321 & 347/2008 Page 10 of 21 also negligent. We, the petitioners No.1 & 2, were depending on the income fo the deceased, Nishit Saran. The income of the deceased would have increased with the passage of time.” 3. The Assistant Manager of HDFC Bank appeared in the witness box as PW-9 and proved the statement of account of the deceased as Ex.PW9/A and Ex.PW9/B. 4. The Claims Tribunal held the income of the deceased as Rs.15,000/- per month, added 50% towards future prospects, deducted 1/2 towards his personal expenses and applied the multiplier of 5 to compute the loss of dependency at Rs.6,75,000/-. Rs.10,000/- was awarded towards funeral expenses and Rs.1,00,000/- was awarded towards loss of love and affection. The total compensation awarded is Rs.7,85,000/-. 5. The learned counsel for the appellant has urged the following grounds at the time of hearing of this appeal:- (i) The income of the deceased be taken as Rs.60,000/- per month. (ii) The multiplier be enhanced from 5 to 11. (iii) The compensation be awarded for loss of estate. 6. The deceased was a film director holding a professional qualification from the Harvard University. The deceased was also working as a Freelance Columnist. The deceased had directed a film titled as „Summer in My Veins‟ which was funded by the grant from the Harvard University and was shown at many film festivals across the world including MAC.APP.Nos.321 & 347/2008 Page 11 of 21 Boston, Toranto, San Francisco, Hamburg, Los Angeles and New Zealand and was chosen to close the opening night of the Athens International Film and Video Festivals. The film was also shown at the India Habitat Centre in August, 2002 and had received rave reviews in many national newspapers, magazines and television shows. The income of the deceased was proved by the statement of two bank accounts of the deceased. The deceased received a sum of Rs.3,37,254/- as professional fee for editing charges, audio mix and other services during the year 2001 – 2002. As per the statement of account Ex.PW8/29(1) to Ex.PW8/29(2), the monthly income of the deceased was Rs.33,000/- per month. Rs.3,000/- per month is deducted towards the Income-tax and the income of the deceased for computation of compensation is taken as Rs.30,000/- per month. The future prospects are not taken into consideration as the deceased was self employed. 7. The deceased was aged 26 years at the time of the accident and was survived by his parents. The age of the parents was 55 and 68 years at the time of the accident. The age of the mother was 55 years and the appropriate multiplier at the age of 55 years is 11. Following the judgment of the Hon‟ble Supreme Court in the case of Sarla Verma Vs. Delhi Transport Corporation, 2009 (6) Scale 129, the multiplier is enhanced from 5 to 11. MAC.APP.Nos.321 & 347/2008 Page 12 of 21 8. Taking the income of the deceased as Rs.30,000/- per month, deducting 1/2 towards his personal expenses and applying the multiplier of 11, the loss of dependency is computed to be Rs.19,80,000/- (Rs.30,000 x 1/2 x 12 x 11). 9. The Claims Tribunal has awarded Rs.10,000/- towards funeral expenses and Rs.1,00,000/- towards loss of love and affection. The amount awarded towards loss of love and affection is on a higher side and is, therefore, reduced to Rs.10,000/-. The learned Tribunal has not awarded any compensation towards loss of estate. Rs.10,000/- is awarded towards loss of estate. 10. The appellants are entitled to total compensation of Rs.20,10,000/- (Rs.19,80,000 + Rs.10,000 + Rs.10,000 + Rs.10,000). 11. The appeal is allowed with costs and the award amount is enhanced from Rs.7,85,000/- to Rs.20,10,000/-. The learned Tribunal has awarded interest @ 9% per annum which is not disturbed on the original award amount of Rs.7,85,000/-. However, on the enhanced award amount, the rate of interest shall be @7.5% per annum from the date of filing of the petition till realization. The cost of the appeal is assessed at Rs.22,000/- based on the memo of fees filed by the counsel for the appellant at the time of hearing of this appeal. MAC.APP.Nos.321 & 347/2008 Page 13 of 21 12. The enhanced award amount along with interest be deposited by respondent No.3 with UCO Bank A/c Rajeshwar Saran, Delhi High Court Branch through Mr. M.M. Tandon, Member-Retail Team, UCO Bank Zonal, Parliament Street, New Delhi (Mobile No. 09310356400) within 30 days. The cost of Rs.22,000/- of this appeal be deposited by respondent No.3 by means of separate cheque in the name of S.C. Dhanda, Advocate along with the deposit of the enhanced award amount. In view of the judgment of this Court in Sat Prakash vs. Jagdish, FAO.No.365/1999 decided on 26th March, 2010, the legal fee of the counsel for respondent No.3 be also deposited with UCO Bank by means of a separate cheque in the name of the counsel. 13. Upon the aforesaid amount being deposited, the UCO Bank is directed to release 10% of the same to the appellants by transferring the same to their Saving Bank Account. The remaining amount be kept in fixed deposit in the joint names of the appellants in the following manner:- (i) Fixed deposit in respect of 10% of the amount for a period of six months. (ii) Fixed deposit in respect of 10% of the amount for a period of one year. (iii) Fixed deposit in respect of 10% of the amount for a period of one and a half years. MAC.APP.Nos.321 & 347/2008 Page 14 of 21 (iv) Fixed deposit in respect of 10% of the amount for a period of two years. (v) Fixed deposit in respect of 10% of the amount for a period of two and a half years. (vi) Fixed deposit in respect of 10% of the amount for a period of three years. (vii) Fixed deposit in respect of 10% of the amount for a period of three and a half years. (viii) Fixed deposit in respect of 10% of the amount for a period of four years. (ix) Fixed deposit in respect of 10% of the amount for a period of four and a half years. 14. The interest on the aforesaid fixed deposits shall be paid monthly by automatic credit of interest in the joint Savings Account of the appellants. 15. Withdrawal from the aforesaid account shall be permitted to the appellants after due verification and the Bank shall issue photo Identity Card to the appellants to facilitate identity. 16. No cheque book be issued to the appellants without the permission of this Court. 14. The Bank shall issue Fixed Deposit Pass Book instead of the FDRs to the appellants and the maturity amount of the FDRs be automatically credited to the Saving Bank Account of the beneficiary at the end of the FDRs. MAC.APP.Nos.321 & 347/2008 Page 15 of 21 18. No loan, advance or withdrawal shall be allowed on the said fixed deposit receipts without the permission of this Court. 19. Half yearly statement of account be filed by the Bank in this Court. 20. On the request of the appellants, the Bank shall transfer the Savings Account to any other branch according to the convenience of the appellants. 21. The appellants shall furnish all the relevant documents for opening of the Saving Bank Account and Fixed Deposit Account to Mr. M.M. Tandon, Member-Retail Team, UCO Bank Zonal, Parliament Street, New Delhi. MAC.APP.No.347/2008 1. This appeal relates to the death of Shivali Malhotra survived by her mother and unmarried sister who filed the claim petition before the Claims Tribunal. The deceased was aged 23 years at the time of the accident and was student of M.A. (Pre) Philosophy in Lady Shri Ram College, New Delhi. 2. The mother of the deceased appeared in the witness box as Pw-1 and deposed as under:- “The deceased was a student of M.A. (Pre) Philosophy in L.S.R. college, New Delhi. She was also professional Dance instructor in the “The Dance Worx” performing Arts Academy, D-45/1 East of Kailash, New Delhi on a monthly salary of Rs.20,000/-. The Respondent No.1 is the driver, Respondent No.2 is the owner and Respondent No.3 is the insurance company of the offending truck. The post mortem examination was conducted on the body of the deceased in MAC.APP.Nos.321 & 347/2008 Page 16 of 21 AIIMS, New Delhi on 26-4-2002. We, the petitioners, were depending on the income of the deceased. The income of the deceased would have increased with the passage of time. The deceased had also obtained admission in Royal Holloway College, University of London for her Masters degree in Psychology. She had a very bright future. After completing her studies from University of London, her income would have gone up about Rs.1,00,000/- per month. She was also doing exceeding well in her career as a professional dance instructor. My daughter was 23 years old at the time of her death” 3. The Claims Tribunal took the income of the deceased as Rs.12,000/- per month, added 50% towards her future prospects, deducted 2/3rd towards her personal expenses and applied the multiplier of 13 to compute the loss of dependency at Rs.9.36,000/-. Rs.10,000/- was