MAC.APP./238/2012 of MEENU TOGNATTA & ORS Vs NATIONAL INSURANCE CO LTD

* IN THE HIGH COURT OF DELHI AT NEW DELHI

Date of decision: 20[th] April, 2012MAC. APP. No. 238/2012MEENU TOGNATTA & ANR. ..... Appellants Through: Mr. R.K.Kohli, Adv. with Mr. K.R. Pamei, Adv.

+ MAC. APP. No. 238/2012

versus

NATIONAL INSURANCE CO. LTD. & ORS...... Respondents Through Mr. S.L. Gupta, Adv. with Mr. Ram Ashray, Adv. for R-1.

+ MAC. APP. No. 249/2012

GROUP CAPT. RAJENDER KUMAR AGARWAL & ORS.

..... Appellants Through: Mr. R.K.Kohli, Adv. with Mr. K.R. Pamei, Adv.

versus

NATIONAL INSURANCE CO. LTD. & ORS...... Respondents Through Mr. S.L. Gupta, Adv. with Mr. Ram Ashray, Adv. for R-1.

CORAM:

HON'BLE MR. JUSTICE G.P.MITTAL

J U M N T

G. P. MITTAL, J. (ORAL)

1.By virtue of this judgment, the Cross-Objections which are registered as MAC APPL.238/2012 and MAC APP.249/2012 are being decided as common question of law and facts is involved in both the Appeals. registered as MAC APPL.238/2012 and MAC APP.249/2012 are being decided as common question of law and facts is involved in both the Appeals.

2.Two young girls Disha Tognatta and Chhavi Aggarwal, who were the Second year students of BE in Information Technology Engineering and BE in Electronics & Communication Engineering respectively from Modi College of Engineering & Technology, Sikar, lost their life in motor accident which occurred on 19.11.2004. Both the girls were quite brilliant in their studies. In 10[th] standard Disha scored 79% marks in aggregate and 90% in Science subjects with an ‘A’ Grade in all the subjects. She passed her 12[th] standard from highly reputed Institution i.e. MGD Girls School, Jaipur. She was involved in extra curricular activities in the fields of music and communication skills and in sports. Her father was qualified Engineer and mother was Post Graduate in Hotel Management. were the Second year students of BE in Information Technology Engineering and BE in Electronics & Communication Engineering respectively from Modi College of Engineering & Technology, Sikar, lost their life in motor accident which occurred on 19.11.2004. Both the girls were quite brilliant in their studies. In 10[th] standard Disha scored 79% marks in aggregate and 90% in Science subjects with an ‘A’ Grade in all the subjects. She passed her 12[th] standard from highly reputed Institution i.e. MGD Girls School, Jaipur. She was involved in extra curricular activities in the fields of music and communication skills and in sports. Her father was qualified Engineer and mother was Post Graduate in Hotel Management.

3.Chhavi Aggawal scored 86% marks with an ‘A+’ Grade in all subjects in her 10[th] class examination. She completed her schooling from various reputed schools i.e. National Public School, Bangalore; Army School, Ambala; Air Force Bal Bharti, New Delhi and Central School, Bareily as her father was an Aeronautical Engineer and served in Indian Air Force. subjects in her 10[th] class examination. She completed her schooling from various reputed schools i.e. National Public School, Bangalore; Army School, Ambala; Air Force Bal Bharti, New Delhi and Central School, Bareily as her father was an Aeronautical Engineer and served in Indian Air Force.

4.Obviously, the deceased did not have any income on the date of the accident. The Claims Tribunal after holding that the accident was caused on account of rash and negligent driving of the Tata Tanker, bearing registration No.RJ-23G-0843 driven by Om Prakash (the Respondent No.4 in the main MAC the accident. The Claims Tribunal after holding that the accident was caused on account of rash and negligent driving of the Tata Tanker, bearing registration No.RJ-23G-0843 driven by Om Prakash (the Respondent No.4 in the main MAC

APP.1094/2006 & MAC APP.1095/2006) relied on the judgments in Fateh Narain Hajela v. Rawal Singh, 1978 ACJ 345; Haji Zainullah Khan (Dead) by LR’s v. Nagar Mahapalika, Allahabad, 1994 SSC 487; Delhi Transport Corporation v. Sudershan Yadav, 1995 ACJ 393; K. Murugesh v. M. Palappa, 1999 ACJ 1961; Dr. Harminder Singh v. Sukhpinder Singh, 1999 ACJ 512; M.S. Grewal v. Deep Chand Sood, 2001 ACJ 1719; Lata Wadhwa v. State of Bihar, 2001 ACJ 1735; Vanitha B. Mehta v. Thiruvalluvar Transport Corporation 2002 ACJ 2078; Smt. Kanta Bhandari v. Karam Ellahi, 113 (2004) Delhi Law Times 809; Municipal Corporation of Greater Bombay v. Laxman Iyer 2004 ACJ 53; Assn. of Victims of Uphaar Tragedy v. Union of India Common Cause v. Govt. of NCT of Delhi II (2003) ACC 114 (DB), to hold that the potential income of person pursuing professional course can be taken into consideration to award the loss of dependency.

The Claims Tribunal accordingly took the deceased’s potential income to be `1,50,000/- per annum and awarded compensation of `8,85,000/- in each of the two cases.

6.The contention raised on behalf of the Appellants are twofold:-

(i)The potential income of `1,50,000/- taken by the Claims Tribunal was very low. Tribunal was very low.

(ii)The multiplier applied was low, it should have been taken

according to the age of the deceased’s mother.

7.It was established during inquiry before the Claims Tribunal that the deceased were pursing Engineering in Communication / Information Technology from the prestigious Institution and they had an excellent educational record apart from participation in extra curricular activities. The Claims Tribunal referred to and relied on number of decisions and took the income of `1,50,000/- per annum or say `12,500/- per month.

8.No evidence was adduced by the Appellants to show the placement offers in the relevant year or even in the year of the death of the deceased. placement offers in the relevant year or even in the year of the death of the deceased.

9.In the case of Haji Zainullah Khan (Dead) by Lrs. v. Nagar Mahapalika, Allahabad, 1994 (5) SCC 667, death of young boy, aged 20 years took place in an accident which happened in the year 1972. The deceased was student of B.Sc Ist year (Biology), compensation of `1,46,900/- was increased and rounded off to ` 1,50,000/-. Mahapalika, Allahabad, 1994 (5) SCC 667, death of young boy, aged 20 years took place in an accident which happened in the year 1972. The deceased was student of B.Sc Ist year (Biology), compensation of `1,46,900/- was increased and rounded off to ` 1,50,000/-.

10.In 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 student (studying medicine) who was doing internship and was to be awarded the MBBS degree in short time, the Tribunal awarded compensation of `9,35,352/- on the basis of the minimum wages of Graduate. This Court observed that although the deceased was getting MAC APP. 359/2008, decided by this Court on 23.11.2009, which related to the death of student (studying medicine) who was doing internship and was to be awarded the MBBS degree in short time, the Tribunal awarded compensation of `9,35,352/- on the basis of the minimum wages of Graduate. This Court observed that although the deceased was getting

stipend of ` 5,000/- per month at the time of his death due to the accident, he would have ultimately joined as doctor at 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/-.

11.In 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 BE (Bio-Technology) First year student of Delhi College of Engineer (DCE) `38,333/- per month. APP.212-213/2006 decided on 20.01.2010 this Court took the potential income of BE (Bio-Technology) First year student of Delhi College of Engineer (DCE) `38,333/- per month.

12.The gross salary of Group ‘A’ officer in the Central and the State Govt. on the date of the accident i.e. 19.11.2004 on the basic pay of `8,000/- was `17,980/- per month. If qualified degree holder Engineer joined Govt. service in the year 2004, he would get salary of `8,000/- plus all allowances. The placements in Private Sectors were on much higher salary. State Govt. on the date of the accident i.e. 19.11.2004 on the basic pay of `8,000/- was `17,980/- per month. If qualified degree holder Engineer joined Govt. service in the year 2004, he would get salary of `8,000/- plus all allowances. The placements in Private Sectors were on much higher salary.

13.A 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 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. 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 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.

14.Since the deceased were exceptionally bright and pursuing BE

from very prestigious institution in hot selling branch, the Appellants were also entitled to be granted 50% increase towards future prospects.

15.The Claims Tribunal erred in applying the multiplier of ‘11’ in each case. The age of the mother of deceased Disha in MAC APP. 238/2012 was ‘42’ years on the date of the accident, therefore, appropriate multiplier for this age was ‘14’. each case. The age of the mother of deceased Disha in MAC APP. 238/2012 was ‘42’ years on the date of the accident, therefore, appropriate multiplier for this age was ‘14’.

16.Similarly, the age of the mother of deceased Chhavi Aggarwal in MAC APP.249/2012 on the date of the accident was 47 years and the appropriate multiplier for this age was ‘13’. in MAC APP.249/2012 on the date of the accident was 47 years and the appropriate multiplier for this age was ‘13’.

COMPENSTION IN MAC APP.238/2012

17.The loss of dependency which works out in the case of deceased Disha thus comes to `22,68,000/- (18,000/- + 50% x 1/2 x 12 x 14). Disha thus comes to `22,68,000/- (18,000/- + 50% x 1/2 x 12 x 14).

18.On adding notional sums of `25,000/- towards Loss of Love and Affection, `10,000/- towards Loss to Estate and `10,000/- towards Funeral Expenses, the overall compensation comes to `23,13,000/-. and Affection, `10,000/- towards Loss to Estate and `10,000/- towards Funeral Expenses, the overall compensation comes to `23,13,000/-.

19.The compensation is thus enhanced from `8,85,000/- to `23,13,000/- which shall carry interest @7.5% per annum from the date of filing of the Petition till the date of deposit. `23,13,000/- which shall carry interest @7.5% per annum from the date of filing of the Petition till the date of deposit.

COMPENSTION IN MAC APP.249/2012

20.The loss of dependency which works out in the case of deceased Chhavi Aggarwal thus comes to `21,06,000/- (18,000/- + 50% x 1/2 x 12 x 13). Chhavi Aggarwal thus comes to `21,06,000/- (18,000/- + 50% x 1/2 x 12 x 13).

21.On adding notional sums of `25,000/- towards Loss of Love and Affection, `10,000/- towards Loss to Estate and `10,000/- towards Funeral Expenses, the overall compensation comes to `21,51,000/-. and Affection, `10,000/- towards Loss to Estate and `10,000/- towards Funeral Expenses, the overall compensation comes to `21,51,000/-.

22.The compensation is thus enhanced from `8,85,000/- to `21,51,000/- which shall carry interest @7.5% per annum from the date of filing of the Petition till the date of deposit. `21,51,000/- which shall carry interest @7.5% per annum from the date of filing of the Petition till the date of deposit.

23.Respondent No.1 National Insurance Company Limited is directed to make the deposit of the enhanced compensation alongwith interest within six weeks with UCO Bank, Delhi High Court Branch, New Delhi in the proportion as awarded by the Claims Tribunal in the name of the Appellants. directed to make the deposit of the enhanced compensation alongwith interest within six weeks with UCO Bank, Delhi High Court Branch, New Delhi in the proportion as awarded by the Claims Tribunal in the name of the Appellants.

24.The enhanced compensation shall be released in favour of the Appellants in terms of the Tribunal order. Appellants in terms of the Tribunal order.

25.The Appeals are allowed in above terms.

APRIL 20, 2012 vk

(G.P. MITTAL) JUDGE