IN THE HIGH COURT OF JUDICATURE AT PATNA MA No.115 of 2006 1. Saiyada Shahida Bono, W/o Sayed Imtayaz Ali Rizwi 2. Sayed Imtayaz Ali Rizwi, S/o Late Sayed Mohd. Zakki Both are resident of Village-Chainpur, P.O.- Damodarpur, P.S.-Kanti, District-Muzaffarpur. ………..Serial no. 1 and 2 are applicants)……........... Appellants Versus 1. Sri Ramdhari Pd. Gupta, S/o Sri Mahabir Pd. Gupta. 2. Sri Ram Babu Pd. Gupta, S/o Sri Acchelal Pd. Gupta. Both resident of Sakari Saraiya, P.S.-Kurhani, District-Muzaffarpur. …………(Opposite Party no. 1 & 2 respectively) ……….. Respondents 3. The Divisional Manager, The Oriental Insurance Company Ltd. at Motijheel, Muzaffarpur. …………… (Opposite Party no. 3) …………… Respondent ----------- 10 12/5/2009 Heard counsel for the appellants, counsel for the respondent-Insurance Company as also counsel for the respondent-Owner of the Vehicle. What would be the income or future prospective income of a qualified person to be taken into account for payment of compensation in case of death in an accident by motor vehicle has to primarily be decided in the light of the evidence on record, but then there can be also no rule of thumb that the moment such income is not proved in words and figures by the claimants, the tribunal must resort to fixed standard notional income. Counsel for the appellant has submitted that there is no consideration by the tribunal on the special features of the present case where admittedly life of the deceased, a young man of 24 years, having completed the degree in master of business administration was cut short on account of an unfortunate read accident. He would, therefore, submit that the tribunal had to consider the issue of future prospective earning capacity of the 2 deceased especially when evidences were brought on the record to show that soon after completion of his M.B.A. course he had also been given first job offer from a private institution. Counsel for the appellant in this context had also placed reliance on few judgments to contend that normally the Courts have assessed even the income of a student undergoing specialized course on higher footing than an average literate person. In this context learned counsel has placed reliance on the Division Bench judgment of Madhya Pradesh High Court in the case of ‘Tamarajdhwaj Dahayat & Anr Vs. Ramvaran Patel & Ors’ reported in 2008 ACJ 2782 where income of a student of first year of BCA ( Bachelor of Computer applications) was assessed at Rs.4,000/- per month. He has further placed reliance on the judgment of the Division Bench of Karnataka High Court in the case of ‘H.S. Chetan Vs. Chandra Mouli & Anr’ reported in 2008 ACJ 191 where the deceased on the verge of completion of his law degree with a plan to pursue legal profession was assessed of his earning capacity @ Rs. 7,000/- per month. Yet again he has placed reliance on the judgment of Single Bench of Punjab and Haryana High Court in the case of ‘Ratna Chaudhuri Vs. State of Haryana & Ors’ reported in 2006 ACJ 2700 where prospective income of a third year MBA student was assessed at Rs. 8,000/- per month. Mr. Ashok Priyadarshi, learned counsel appearing on behalf of the Insurance Company on the other hand would submit that here in this case the issue of future earning capacity of the 3 deceased was not raised because the claimants themselves had confined their claim by taking a plea of his fixed income @ Rs. 3,000/- per month. The Counsel thus submits that the whole case had proceeded on the basis of the income of the deceased of Rs.3,000/- per month and therefore, in absence of any evidence on this score as to what would be future prospective income or the earning capacity of the deceased, the tribunal had not committed any error in applying theory of notional income. He would further submit that as a matter of fact even if the tribunal had applied multiplier of 18, the Insurance Company having taken into account the totality of the circumstances did not choose to assail that part of the erroneous finding even though mother of the deceased, the claimant being in the age group of 50 to 55, was entitled to the multiplier of 8. In this context he would refer to a judgment of the Apex Court in the case of ‘Ramesh Singh & Anr Vs. Satbir Singh & Anr’ reported in AIR 2008 S.C. 1233. There is no doubt that while fixing the income of a student or a person who is yet to mature into his full earning capacity after completing his education, the Court/Tribunal have to examine totality of the circumstances including prospective career of future of the deceased. A boy who is student of MBA course had unfortunately met an accident, cannot be however held to be circumscribed or limited by the concept of notional income and for such persons, the future prospective earning capacity will have to be taken into account for assessing loss of the dependent 4 family members. Similarly, categorization will have also to be made between the qualified or unqualified person, technically qualified or non technical person, matric or simple B.A and a student on the same footing in the matter of prospective earning capacity as that of MBA or Engineer or Doctor. Keeping all these thing into consideration, if this Court goes into evidence on record it would find that it is beyond the dispute that the deceased whose date of birth is 12th May, 1975 and had passed his matriculation examination in the second Division in the year 1989 having completed his MBA Course from the Bihar University in the first Division in the examination held in the month of May, 2002 had a prospect of being well placed in his life and in this context his aptitude of being a true qualified professional in life is also borne out from his training certificate of the Government of India Programme which was produced in evidence by the claimant petitioner before the tribunal. All these evidences, therefore, would go to show that the deceased had even capacity to get the job soon after completing his MBA course and that is why the offer of appointment as a sales representative in a Delhi Export Firm was in his pocket as would be apparent from letter dated 17th April, 2003 informing the deceased about his placement in the Company. True it is that the death came only 11 days after such offer of placement dated 17.4.2003 was issued and therefore at least there is no direct documentary evidence to show as to what was the salary offered to the deceased or whether he 5 had even joined the said post. Though in oral evidence some of the evidence had claimed that he went to Delhi for joining the training in course of his placement in the Company, there being however nothing on the record by way of documentary evidence, this Court will have to go by the evidence on the basis of which it can only be held that the appellant was a qualified person having MBA degree and job offer was in his pocket and he met an accident before joining the assignment. If that be the consideration what would be the future prospect of earning or income of a qualified MBA in the year 2003. The fact that the deceased had passed the M.B.A course from the Bihar University, of course in the first Division, but had otherwise an average career as would be evident from the marks obtained by him in the matriculation and other examinations would by itself be pointer to the fact that he was not an extra ordinary student so as to be equated with a M.B.A. student of Indian Institute of Management (I.I.M) or any established business schools. Thus in this background when ratio of the judgment referred to and relied by counsel for the appellant is taken into consideration, this Court would come to a conclusion that having completed the training course the deceased could receive stipend or fixed salary of Rs. 3,000/- as is claimed by the appellants themselves and as such the future prospective income of such a person can also not exceed Rs.5,000/- per month in the beginning of his career. This Court considering the prospect and 6 earning capacity of a fresher M.B.A in the State of Bihar where the deceased was selected to get a job as also taking into consideration the minimum wages fixed under the Minimum Wages Act of a sales representative, having been categorized as skilled job, would find that in the year 2003 when death of the deceased had taken place, was at best entitled to Rs.89/- per day. Thus on an over all analysis of materials on record, this Court by taking into account that the deceased was a M.B.A and thus better qualified would hold the prospective income of the appellant to be at best be Rs. 150/- per day, i.e, Rs.4,500/- per month. There being no dispute on the issue that the mother of the deceased, the claimant oppellant no.1 was aged about 55 years, she would be entitled to a multiplier of ‘8’ as this much is admitted case that mother had already completed 55 years of age and was running in her 56th years age. Obviously, for such person multiplier of 18 could not have been applied and to that extent impugned judgment of the tribunal must be held to be bad. This Court, therefore, having come to a conclusion that the earning capacity of the deceased ought to have been assessed at Rs. 4,500/- per month would find that 1/3rd of the same has to be deducted towards expenses on himself which would leave a sum of Rs. 3,000/- per month towards dependency i.e. Rs. 36,000/- per annum and applying multiplier of ‘8’, the payable amount of Corporation would be Rs. 2,88,000/-. Of course the said amount will also earn interest at the rate of 9% per annum from 7 the date of filing of the claim till the date of its realization. Counsel for the appellant would inform that the Insurance Company has already paid Rs. 1, 88,000/- with 9% interest and therefore now only balance amount will be payable with 9% interest. This Court would therefore allow the appeal by modifying the amount of award in the aforementioned terms by directing the Respondent Insurance Company to pay an additional sum of Rs. 1,00,000/- along with interest @9% per annum within three months from today. The appeal therefore succeeds only to the extent indicated above and is disposed of accordingly. Abhay Kumar (Mihir Kumar Jha, J.)