National Insurance Company Ltd & Anr. v. Mrs. Manjula Khanna & Ors.

BEFORE: HON'BLE MR. JUSTICE K.KANNAN Present: Mr. L.M.Suri, Senior Advocate with Mr. Neeraj Khanna, Advocate, for the National Insurance Company Ltd. Ms. Ekta Thakur, Advocate, for the claimants. None for the other respondents.

2. 3. Whether Reporters of local papers may be allowed to see the judgment? Yes/No To be referred to the Reporters or not?Yes/No Whether the judgment should be reported in the Digest? Yes/No K.Kannan, J.(Oral)

1. Both the appeals relate to the same accident where the Insurance Company is in appeal in FAO No. 2981 of 2004 and the claimants have filed the appeal i.e. FAO No. 1951 of 2004. F.A.O.NOs. 2981 & 1951 OF 2004 -2-

2. The claimants were parents and the deceased was a student of B.E.(Electronics & Communications), 7th semester, final year in the Birla Institute of Technology, Mesra Ranchi(Jharkhand State). He was said to be a topper in the college and the claimants said that they had high expectations from their son. The evidence was tendered before the Tribunal that there was a prospect of campus placement that would have put him on an income bracket of 2.5 to 4 lacs and the pre mature death of the boy robbed family of the felicity of seeing their son going up in his life. The Tribunal took the average income at Rs. 15,000/- per month, made a deduction of 1/3rd and adopted a multiplier of 12 and provided Rs. 20,000/- for funeral expenses. In total the Tribunal had awarded compensation of Rs. 14,60,000/-.

3. Learned counsel appearing on behalf of the claimants would contend that if the higher value of Rs. 3 to 4 lacs were to be taken the monthly income would have been at least Rs. 28,000/- and if a golden median were to be struck then monthly income would have been still Rs. 20,000/- and the Court could not have taken Rs. 15,000/- as income.

4. Learned counsel for the Insurance Company had applied under Section 170 of the Motor Vehicles Act(hereinafter referred to as the 'Act') to defend on all grounds since both the driver and the owner had remained ex parte. The application itself was not decided. The Tribunal was in error in not disposing of the application under F.A.O.NOs. 2981 & 1951 OF 2004 -3- Section 170 of the Act and under the circumstance where both the driver and the owner though had appeared earlier and remained ex parte, I would accord the permission to the insurer and had urged the senior counsel appearing on behalf of the Insurance Company to join issue on quantum of compensation.

5. Learned counsel in response to the contentions of counsel for the claimant would contend that the father-claimant was an IPS Officer and PW-1 mother of the deceased had no where stated that they were looking to the son for any financial support and without proof of dependence the Tribunal ought not to have determined even the compensation that it has, even apart from making provision for loss of love and affection for the son. Even the award of the Tribunal is excessive.

6. I would go through this case only on touch stone what has been laid down in the Hon'ble Supreme Court in Sarla Verma Vs. Delhi Transport Corporation and another (2009) 6 SCC 121 explained and considered in recent judgment of Shakti Devi vs. New India Insurance Co. Ltd. and another JT 2010 (12) SC 106. In the latter case the Hon'ble Supreme Court was also considering the case of a deceased who was a bachelor aged 22 years and the claimants were parents. The Court in that case has held that the multiplier would have to be with reference to the age of the claimant and not the age of the deceased. I would therefore, apply multiplier of 11. I will not accommodate the plea made on behalf of the claimants that F.A.O.NOs. 2981 & 1951 OF 2004 -4- multiplier of 18 as suggested in Sarla Verma's case(supra) is to be applied.

7. I will still proceed to examine the contention of the learned counsel appearing for the insurer that the claimants were not shown to be dependents on their son and therefore, even the compensation awarded was excessive. An academically bright and a brilliant boy who could have scaled massive heights in his career was bound to have brought immense happiness to the parent and the death must have definitely brought an overwhelming anguish to his parents. The contribution to the material wealth would be relevant, for after all a mother is also a legal heir and a loss of a son even if he was a bachelor results in loss to estate of the son. I would take the loss to be real and will discard the fact that the mother has not said in so many words that she was dependent on the son. The term dependence in this case, I would understand, the expectation of the parents from the son of the sheer joy of his continued living and the joys of their son occupying high positions and placed in reasonable comfort. In Indian social situations even a grown up boy holds to an emotional umbilical cord with his biological family. The compensation ought to therefore, exist for such a parent who has lost his son and the quantum of compensation will be in the same manner as suggested by the Hon'ble Supreme Court in Sarla Verma Vs. Delhi Transport Corporation and another (2009) 6 SCC 121 and later explained in Shakti Devi's case(supra). If the case would require F.A.O.NOs. 2981 & 1951 OF 2004 -5- reappraisal, it has to go for reduction of 50% for death of a boy and adopt a multiplier of 11 instead of 12 as the Tribunal has done. It cannot be very different if the income which the Tribunal at Rs. 15,000/- were to be taken at higher value of Rs. 20,000/-. Having regard to the specific evidence placed before the Court with reference to the placement prospects and income when the graduate going out of such a prestigious educational institution was likely to get, instead of increasing the income and making a deduction at 50% and adopting a multiplier of 12, I would retain the compensation as awarded by the Tribunal since it approximates to what would be arrived at, if a quantum were to be assessed in the manner suggested by the Hon'ble Supreme Court in the two decisions referred to above.

8. I maintain the award and dismissed the appeal filed by both the claimants and the insurer. 30th November, 2010 Shivani Kaushik [K.KANNAN] JUDGE