MAC.APP.No.212-13/2006 Page 1 of 10 31 *IN THE HIGH COURT OF DELHI AT NEW DELHI + MAC.APP.No.212-13/2006 Date of Decision: 20th January, 2010 % RAMESH CHAND JOSHI & ANR. ..... Appellants Through: Mr. Raj Pal Singh, Adv. versus NEW INDIA ASSURANCE CO.LTD. & ..... Respondents Through: Ms. Ambika Roy, Adv. for R-1. Mrs. Avnish Ahlawat and Ms. Latika Chaudhary, Advs. for Delhi College of Engineering. Mr. Kanwal Choudhary, amicus curiae. 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 reported in the Digest? YES JUDGMENT (Oral) 1. The appellants have challenged the award of the learned Tribunal whereby compensation of Rs.3,25,000/- has been awarded to the appellants. The appellants seek enhancement of the award amount. 2. The accident dated 30th July, 2004 resulted in the death of Gaurav Joshi. The deceased was survived by his parents who filed the claim petition before the learned Tribunal. 3. The deceased was aged about 19 years and 24 days at the time of the accident and was First Year student of the Bachelor of Engineering (Bio Technology) in Delhi College of Engineering. MAC.APP.No.212-13/2006 Page 2 of 10 4. The learned Tribunal took the average notional income of the deceased to be Rs.22,500/-, deducted 1/3rd towards the personal expenses of the deceased and applied the multiplier of 15 to compute the loss of dependency at Rs.2,25,000/-. The learned Tribunal has awarded Rs.1,00,000/- towards funeral expenses, loss of love and affection, loss of estate, mental shock and agony. The total compensation awarded by learned Tribunal is Rs.3,25,000/-. 5. The only ground urged by learned counsel for the appellant at the time of hearing of this appeal is that the income of the deceased for computation of compensation be taken to be Rs.50,000/- per month according to his earning capacity. It is submitted that the deceased was a student of first year of Bachelor of Engineering (Bio technology) in Delhi College of Engineering and after completion of the engineering course, the deceased would have earned at least Rs.50,000/- per month. 6. The learned counsel for respondent No.1, in reply, submits that the deceased would not have earned more than Rs.8,000/- per month. 7. The learned Tribunal has taken the notional income of the deceased as Rs.22,500/- per annum i.e. Rs.1,875/- per month which is less than even the minimum wages of a daily wager. The approach and finding of the learned Tribunal is absurd and without any basis. The law in this regard is well settled by catena of judgments. The minimum wages are permissible to be taken where the deceased is illiterate and does not possess any MAC.APP.No.212-13/2006 Page 3 of 10 professional or technical qualification. Where the deceased is educated or is pursuing the professional course, income has to be taken on the basis of his earning. Reference in this regard may be made to judgment of Oriental Insurance Company Ltd. Vs. Deo Pataudi, 2009 (8) Scale 194, in which case the deceased aged 22 years was a student having a brilliant career and offer of employment from a US Based Company at the time of accident. The learned Tribunal took his earning capacity to be Rs.18,000/- per month. The High Court in appeal upheld the earning capacity of the deceased at 18,000/- per month. The Hon’ble Supreme Court enhanced the earning capacity of the deceased from Rs.18,000/- to Rs.25,000/- per month. 8. Section 168 of the Motor Vehicles Act provides that the learned Tribunal shall conduct an inquiry into the claim petition. Section 169 of the Motor Vehicles Act provides that the learned Tribunal shall follow such summary procedure as it deem fit to conduct such an inquiry. The inquiry stipulated in Section 168 of the Motor Vehicles Act is different from the civil trial. The learned Tribunal has not conducted any inquiry whatsoever for assessing the earning capacity of the deceased. Be that as it may, this Court in appellate jurisdiction has the same power of conducting such an enquiry into this matter and, therefore, vide order dated 26th November, 2009, this Court issued a notice to the Dean of Delhi College of Engineering, Bawana to place on record the average salary of a fresh Engineering graduate of Delhi College of Engineering, in pursuance to which the Joint Registrar of Delhi MAC.APP.No.212-13/2006 Page 4 of 10 College of Engineering (now known as Delhi Technological University) has filed an affidavit along with the chart of average salary drawn by a fresh engineering graduates of Delhi College of Engineering. The chart contains the names of different Companies and salaries offered by them in the year 2009 to fresh graduates in Bio-Technology from Delhi College of Engineering. As per the said chart, all the 18 students of Bio-Technology from Delhi College of Engineering were offered placement as per details given hereunder:- Sl. No. Name of Company Number of Students Salary Package (in Rs. LPA) 1. TCS (B) 4 3.15/3.33 2. Wipro (B) 2 3.15 3. HCL (B) 3 3 4. Evalue Serve (A) 2 4.25 5. Dunnhumby (A+) 1 6 6. The Smart Cube (A+) 1 5.6 7. ZS Associates(+) 2 9 8. Musigma (A) 1 4.4 9. Mobicules (A) 1 4 10. Akash Edu. Ser. (No Category) 1 7.5 Total 18 Eligible Students 18 Palacement% 100 Average Package(lpa) 4.6 9. The average salary of a graduate in Bio-Technology from Delhi College of Engineering during 2009 is 4.6 lacs per annum. The chart further shows that there were 18 eligible students who all got the job offers and the placement was 100%. The chart further shows that the minimum salary offered was Rs.3. lacs per annum and highest salary offered to an Engineering graduate in MAC.APP.No.212-13/2006 Page 5 of 10 Bio-Technology was Rs.9 lacs per annum. 10. From the inquiry conducted by this Court as to the earning capacity of the deceased, it is held that the earning capacity of the deceased after completing graduation course would have been Rs.4.6 lacs per annum i.e. Rs.38,333/- per month. Mr. Kanwal Choudhary, learned amicus curiae submits that the deceased joined the engineering course in July, 2004 and would have completed the course in December, 2008 and, therefore, the loss of income should be computed from 2009 onwards. 11. Learned counsel for the appellant submits that the future prospects be also taken into consideration. According to the judgment of the Hon’ble Supreme Court in the case of Sarla Verma Vs. Delhi Transport Corporation, 2009 (6) Scale 129, the future prospects are taken into consideration, if the deceased has a permanent job at the time of accident. In the present case, the deceased was still a student of engineering and had no permanent job and, therefore, the future prospects are not granted in this matter. 12. Learned counsel for the appellant refers to relies upon the subsequent judgment of the Hon’ble Supreme Court in the case of R.K. Malik vs. Kiran Pal, 2009(8) Scale 451 where future prospects have been awarded in respect of the death of a minor children. The learned counsel submits that the future prospects have been awarded to minor children and on the same analogy, the same should be awarded to the deceased who was pursuing a professional course in engineering. This Court is not inclined to MAC.APP.No.212-13/2006 Page 6 of 10 award the future prospects in the present case. 13. The earning capacity of the deceased has been held to be Rs.38,333/- out of which the Income Tax has to be deducted. Deducting 30% towards the Income Tax, the balance amount comes to Rs.26,833.1 (Rs.38,333 - (30% of Rs.38,333)]. 14. The deceased was unmarried at the time of accident and according to the judgment of Hon’ble Supreme Court in the case of Sarla Verma vs. DTC (Supra), 50% of the income has to be deducted towards the personal expenses of the deceased. The learned Tribunal has deducted 1/3rd which is not in accordance with law. The personal expenses are, therefore, reduced from 1/3rd to 1/2. 15. The learned Tribunal has applied the multiplier of 15. The deceased was aged 19 years at the time of accident and was survived by his parents. The father was aged 51 years and the mother was aged 44 years at the time of the accident. Following the judgment of the Hon’ble Supreme Court, the appropriate multiplier according to the age of mother is 14. The learned Tribunal has applied the multiplier of 15 which is reduced to 14. 16. Taking the earning capacity of the deceased to be Rs.26,833.1, deducting 1/2 towards the personal expenses and applying the multiplier of 14, the loss of dependency is computed to be Rs.22,53,980/- (Rs.26,833.1 x 12 x 14 x 1/2). 17. The learned Tribunal has awarded Rs.1,00,000/- towards the funeral expenses, loss of love and affection, mental shock and agony, loss to estate, which is on a higher side and is, therefore, MAC.APP.No.212-13/2006 Page 7 of 10 set aside. Rs.10,000/- is awarded towards loss of love and affection, Rs.10,000/- towards loss of estate and Rs.5,000/- towards funeral expenses. The total compensation computed to be Rs.22,78,980/- (Rs.22,53,980 + Rs.10,000 + Rs.10,000 + Rs.5,000). The appellants are entitled to total compensation of Rs.22,78,980/-. 18. The appeal is allowed and the award amount is enhanced from Rs.3,25,000/- to Rs.22,78,980/-. The appellants shall be entitled to interest @ 7.5% per annum on the non-pecuniary compensation from the date of filing of the petition till realization. With respect to loss of income of Rs.22,53,980/-, the appellants are not entitled to interest till the deceased would have completed the engineering course in December, 2008. The interest on the loss of income of Rs.22,53,980/- is awarded w.e.f. 1st January, 2009 till realization. 19. Respondent no.1 is directed to deposit the enhanced award amount along with interest with UCO Bank, Delhi High Court Branch A/c Ramesh Chand Joshi within 30 days. 20. Upon the enhanced award amount being deposited, the UCO bank is directed to release 10% of the enhanced award amount by transferring the same in the joint Bank Accounts of the appellants. The remaining 90% of the enhanced award amount be kept in fixed deposit as per the details given hereunder:- (i) Fixed deposit in respect of 10% of the enhanced award in the joint names of the appellants for a period MAC.APP.No.212-13/2006 Page 8 of 10 of one year. (ii) Fixed deposit in respect of 10% of the enhanced award in the joint names of the appellants for a period of two years. (iii) Fixed deposit in respect of 10% of the enhanced award in the joint names of the appellants for a period of three years. (iv) Fixed deposit in respect of 10% of the enhanced award in the joint names of the appellants for a period of four years. (v) Fixed deposit in respect of 10% of the enhanced award in the joint names of the appellants for a period of five years. (vi) Fixed deposit in respect of 10% of the enhanced award in the joint names of the appellants for a period of six years. (vii) Fixed deposit in respect of 10% of the enhanced award in the joint names of the appellants for a period of seven years. (viii) Fixed deposit in respect of 10% of the enhanced award in the joint names of the appellants for a period of eight years. (ix) Fixed deposit in respect of 10% of the enhanced award in the joint names of the appellants for a period of nine years. MAC.APP.No.212-13/2006 Page 9 of 10 21. The interest on the aforesaid fixed deposits shall be paid monthly by automatic credit of interest in the joint Savings Bank Account of the appellants. 22. 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. 23. No cheque book be issued to the appellants without the permission of this Court. 24. The original fixed deposit receipts shall be retained by the Bank in the safe custody. However, the original Pass Book shall be given to the appellants along with the photocopy of the FDRs. 25. The original fixed deposit receipts shall be handed over to the appellants on the expiry of the period of the FDRs. 26. No loan, advance or withdrawal shall be allowed on the said fixed deposit receipts without the permission of this Court. 27. Half yearly statement of account be filed by the Bank in this Court. 28. On the request of the appellants, the Bank shall transfer the Savings Account to any other branch of UCO Bank according to their convenience. 29. 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. 30. This Court appreciates the assistance rendered by Mr. Kamal Chaudhary, amicus curiae in this matter. This Court also MAC.APP.No.212-13/2006 Page 10 of 10 appreciates the assistance rendered by Ms. Latika Choudhary, Advocate who has appeared on behalf of Delhi College of Engineering (now Delhi Technological University) and has furnished a very comprehensive affidavit and chart on the basis of which this Court has been able to assess the earning capacity of the deceased precisely. 31. Copy of this order be given ‘Dasti’ to learned counsel for the both the parties. 32. Copy of this order be also sent to Mr. M.M. Tandon, Member- Retail Team, UCO Bank Zonal, Parliament Street, New Delhi (Mobile No. 09310356400) through the UCO Bank, High Court Branch under the signature of Court Master. J.R. MIDHA, J JANUARY 20, 2010 HL