Orissa High Court
Santosh Kumar Bhukta vs Arun Ku. Pati & Anr on 20 December, 2024
Author: Biraja Prasanna Satapathy
Bench: Biraja Prasanna Satapathy
IN THE HIGH COURT OF ORISSA AT CUTTACK
MACA Nos.845 & 24 of 2016
In the matter of an appeal under Section 173 of the Motor
Vehicles Act, 1988 and Rules framed thereunder.
..................
Santosh Kumar Bhukta .... Appellants
@Maharathy @ Maharathi
-versus-
Arun Ku. Pati & Anr. .... Respondents
For Appellants : M/s. H.N. Mohapatra.
For Respondents : Adv for Resp. No.3
Mr. M.C. Nayak, Adv.
PRESENT:
THE HONBLE JUSTICE BIRAJA PRASANNA SATAPATHY
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Date of Hearing: 20.12.2024 and Date of Judgment:20.12.2024
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Biraja Prasanna Satapathy, J.
1. This matter is taken up through Hybrid
Arrangement (Virtual/Physical) Mode.
2. Since both the appeals arise out of a common order,
both are heard analogously and disposed of by the
present common order.
// 2 //
3. Perused the office note available in the connected
MACA No. 24/2016. In spite of due service of notice on
Respondent No. 4, who is the owner of the offending
vehicle, no appearance has been made on his behalf.
4. While MACA No. 845 of 2016 has been filed by the
Claimants seeking enhancement of the compensation so
awarded by the Tribunal vide its Judgment
dtd.09.10.2015 in MAC No. 165 of 2013, MACA No. 24 of
2016 has been filed by the Insurer challenging the
aforesaid Judgment.
5. In support of the enhancement of the award, learned
counsel appearing for the Claimant contended that the
deceased while was prosecuting B. Tech in Mechanical
Engineering in Pathani Samanta College of Engineering &
Technology, he died in the road accident in question and
such certificate was exhibited vide Ext. 11.
5.1. It is also contended that the deceased was the only
son of the Appellants and because of the death of the
deceased, the Appellants who happens to be the parents
of the deceased were deprived from their love and
affection for their entire life. It is also contended that
even though evidence was laid showing the fact that the
deceased was prosecuting 2nd year B.Tech, but the
Tribunal wrongly held the income of the deceased at Rs.
5,000/- per month and accordingly compensation was
assessed at Rs.7,60,000/-.
Page 2 of 11
// 3 //
5.2. It is contended that with regard to the income of a
B.Tech./ Engineering Student, this Court in MACA No.
484 of 2019 has held the income at Rs.15,000/- per
month. It is also contended that in a similar issue while
determining the income of an Engineering student,
Hon’ble Apex Court in a Civil Appeal held the income at
Rs.20,000/- per month. It is also contended that in a
similar issue High Court of Delhi in its Judgment
dtd.22.10.2018 held the income of the deceased
Engineering student at Rs.15,000/- per month.
5.3. Learned counsel appearing for the Claimants
accordingly contended that in view of the decision
governing the field and the deceased being an
Engineering student, which is not disputed, his monthly
income should have been taken at Rs.15,000/- per
month at least. But the Tribunal without proper
appreciation of the same, while holding the income of the
deceased at Rs.5,000/- per month assessed the
compensation at Rs.7,60,000/-. It is accordingly
contended that the award so passed is required to be
enhanced taking into account the income of the deceased
at Rs.15,000/- per month.
5.4. Learned counsel for the appellant relied on the
decisions in the case of Daniel Edward Harris &
Another vs. Mahendra Kumar Das & Another and
Raja Bala & Others vs. Sumit Dahiya & Others.
Page 3 of 11
// 4 //
5.5. In Para-5 of the decision in the case of Daniel
Edward Harris & Another vs. Mahendra Kumar Das
& Another, the Hon’ble Apex Court held as follows:-
“5. On perusal of the Award passed by the Claims Tribu
nal, it is revealed that for death of a young boy aged
21 years pursuing Mechanical Engineering (Third Year)
from KIIT University, Bhubaneswar, earning was
fixed at ₹20,000/ per annum; 40 per cent was added
for future prospects and 1/2 was deducted towards
personal expenses as he was a bachelor. The
Tribunal applied the multiplier of 18 and calculated
loss of dependency at ₹30,24,000/. Further, adding
₹70,000/ towards loss of consortium, loss of estate
and funeral expenses, the Tribunal awarded
a total sum of ₹30,94,000/. In the appeal, the
High Court reduced the same to ₹24,00,000/, recording
the consent of both the counsel appearing for the
parties. The penal interest of 12% per annum, as
levied by the Tribunal, was reduced to 6% per annum”.
5.6. In Para-7.4, 7.5, 7.6, 7.7 & 8 of the decision in the
case of Raja Bala & Others vs. Sumit Dahiya &
Others, the Hon’ble Court held as follows:-
“7.4. In HDFC Ergo General Insurance Co. Ltd. v. Rattan
Kumar Dwivedi, 2017 SCC OnLine Del 9874, the accident
dated 21st July, 2008 resulted in the death of a national
level sportsperson who was a student of B. Com. (Hons.). The
Claims Tribunal awarded Rs.10,40,000/- by taking the
earning capacity of the deceased as Rs.10,000/- per month
which was challenged on the ground that minimum wages
should have been applied by the Claims Tribunal. Applying
the principles laid down by the Supreme Court in Municipal
Corporation of Delhi v. Association of Victims of Uphaar
Tragedy, AIR 2012 SC 100, this Court rejected the application
of minimum wages to such cases. Considering the brilliant
record of the student as a sportsperson, this Court
determined the earning capacity of the deceased as
Rs.25,000/- per month and enhanced the compensation from
Rs.10,40,000/- to Rs.24,50,000/-. The relevant portion of the
judgment is as under:
“14. In the present case, the deceased Apoorva Dwivedi was
a student of B.Com (Hons.) at Bharti College, Delhi
University. She was a sports person having won 86Page 4 of 11
// 5 //prizes/certificates in athletics, track and field, gymnastics,
baseball, soft ball, basketball, cricket etc. The deceased had
secured second place in team event at 40th Delhi State
Gymnastics Championship, 2001; best athlete of the year
2003-2004 at school and zonal level and first position in
baseball in 52nd National School Games conducted by School
Games Federation of India held from 23rd December to 28th
December, 2006. The deceased was sports captain of Holy
Child Senior Secondary School, Tagore Garden, New Delhi for
the academic year 2007-08. Judicial notice is taken of the
notifications for government job for sports persons as well as
advertisements in private jobs for sports persons, under
which a graduate sports person can secure a job with a job in
the pay scale of Rs.30,000/- to Rs.40,000/- per month.
Considering that the deceased was a sports person with an
extraordinary talent in various sports, namely, athletics,
track and field, gymnastics, baseball, soft ball, basketball,
cricket etc. and having been awarded 86 prizes/certificates,
it is presumed that the deceased would have earned
Rs.25,000/- per month after completing her graduation.
Deducting 50% towards the personal expenses of the
deceased and applying the multiplier of 14 according to the
age of her mother, the loss of dependency is computed as
Rs.21,00,000/- [(Rs.25,000-50%)x12x14]. The compensation
for loss of love and affection is enhanced from Rs.25,000/- to
Rs.1,00,000/-; and compensation for pain and suffering is
enhanced from Rs.25,000/- to Rs.1,00,000/-. Adding
Rs.1,30,000/- towards medical expenses and Rs.20,000/-
towards funeral expenses, total compensation is computed as
Rs.24,50,000/- [21,00,000/- + 1,00,000/- + 1,30,000/- +
1,00,000/- + 20,000/-]. The Claims Tribunal has awarded
interest @ 7.5% per annum which is on a lower side
considering that the Supreme Court as well as this Court are
consistently awarding interest @ 9% per annum. The rate of
interest is enhanced from 7.5% to 9% per annum.”
7.5. In HDFC Ergo General Insurance Co. Ltd. v. Lalta Devi,
2015 ACJ 2526, the accident dated 19th June, 2011 resulted
in the death of a third year student of B. Tech. The Claims
Tribunal awarded compensation of Rs.19,50,000/- by taking
the earning capacity of the deceased as Rs.25,000/- per
month. The insurance company and the claimants both
challenged the award before this Court. This Court held the
earning capacity of the deceased to be Rs.26,815/- per
month by relying on the basic pay of a junior engineer and
the compensation amount was enhanced from
Rs.19,50,000/- to Rs.22,94,871/-.
7.6. In United India Insurance Company Limited v. Anita,
2017 SCC OnLine Del 11152, the accident dated 16th June,
2009 resulted in the death of a 21 year old student of B.
Tech. (Mechanical and Automation Engineering). The Claims
Page 5 of 11
// 6 //
Tribunal awarded Rs.34,65,689/- by taking the earning
capacity of the deceased as Rs.26,815/- per month and 50%
future prospects thereon, which was challenged by the
insurance company. This Court upheld the award of the
Claims Tribunal and dismissed the appeal. The relevant
portion of the judgment is as under:
“5. The Claims Tribunal took the income of the deceased as
Rs.26,851/- following the judgment of this Court in HDFC
Ergo General Insurance Co. Ltd. v. Lalta Devi, 2015 ACJ
2526 in which this Court took the income of a B.Tech third
year student in a similar university as Rs.26,851/- according
to the salary drawn by a Junior Engineer. The learned
Tribunal has also taken into consideration that the deceased
had passed the 5th semester in December 2008 and had
received the approval for six weeks industrial training with
Indian Airlines. The Claims Tribunal also considered the
mark sheets of the deceased for 3rd, 4th and 5th semester
along with certificate of excellence for 3rd semester and
deceased had stood first in the 3rd semester examination in
December, 2007. The Claims Tribunal also considered the
statement of PW-2 who was a class fellow of the deceased
and had initially joined Maxim Group in 2011 at a monthly
salary of Rs.16,000/- as Production Engineer and thereafter,
another company with a package of Rs.4,34,000/- per
annum with 18% increment in the salary.
6. This Court is of the view that the income of the deceased
computed by the Claims Tribunal and the future prospects
added thereon are fair and reasonable and does not warrant
any interference.”
7.7. In New India Assurance Co. Ltd. v. Dilip Kumar, 2018
SCC OnLine Del 9263, the accident dated 01st September,
2012 resulted in the death of a 22 year old student of
B.Sc.(Nautical Science) from Directorate General of Shipping
and Indira Gandhi National Open University (IGNOU). The
Claims Tribunal awarded compensation of Rs.26,40,000/- by
taking the earning capacity as Rs.40,000/- per month. This
Court held that the earning capacity of Rs.40,000/- per
month was on a higher side and reduced the earning
capacity of the deceased to Rs.25,000/-. The relevant portion
of the judgment is as under:
2. On 1st March, 2012 at about 1:30 A.M, Prateek Kumar and
his friends were going from Connaught Place to Saket in a
Mahindra Scorpio car bearing No. HR-11C- 6677 being driven
by respondent No. 3. Respondent No. 3 lost control of the
vehicle near Gate No. 1 of National Gallery of Modern Art,
India Gate Outer Circle, Delhi due to which the vehicle struck
against a tree and turned turtle. The police registered FIR No.Page 6 of 11
// 7 //33/2012 dated 1st March, 2012 against respondent no. 3
under Sections 279/337/338 of IPC at P.S. Tilak Marg.
3. Prateek was sitting in the back seat of the offending
vehicle, suffered hemorrhage in left frontal region; multiple
fracture greated wing of sphenoid; fracture in left temporal
parietal bone; fracture right mastoid with fracture sphenoid
sinus; B/L hemothorax with collapse of B/L posterior basal
segment; pneumothorax with multiple contusion; fracture of
6-7 and 8 ribs; diffuse axonal head injury with HPA
suppression and spinal cord injury of D5-D6 vertebra.
Prateek was taken to RML Hospital, where he was admitted
for treatment. On 15th March, 2012, Prateek was shifted to
Sir Ganga Ram Hospital for further treatment where he
remained admitted till 03rd June, 2012. On 04th June, 2012,
Prateek was taken to Nishant Hospital, Lucknow and he
remained admitted there from 04th June, 2012 to 08th July,
2012; 26th July, 2012 to 27th July, 2012; 13thFebruary,
2013 to 1st March, 2013; 05th June, 2013 to 15th June,
2013; 18th June, 2014 to 25th June, 2014. He was admitted
to NuTech MediWorld Hospital, New Delhi from 06th January,
2014 to 04th April, 2014.
4. The injuries suffered by Prateek resulted in 100%
disability relating to Post-traumatic paraplegia with B/B
involvement and loss of vision (left) as per the disability
certificate dated 04th August, 2013 (PW-1/25). Prateek
remained bedridden for about 27 months and could not
recover from the injuries suffered by him. Prateek succumbed
to his injuries on 04th July, 2014 at R.D.S.O. Hospital,
Manak Nagar, Lucknow.
5. Prateek was aged 22 years at the time of the accident. He
passed Senior Secondary School in the year 2008 with 82%
marks and was pursuing B.Sc.(Nautical Science) six semester
course jointly conducted by Directorate General of Shipping
and Indira Gandhi National Open University (IGNOU). Prateek
had completed the fifth semester of the six semester course.
Prateek completed Pre-Sea Cadet course from Maritime
Institute, Mumbai in the first and second semesters. Prateek
completed 18 months training with Shipping Corporation of
India in the third, fourth and fifth semesters and was getting
a stipend of Rs. 10,000/- per month plus other perks.
xxx xxx xxx
10. The Claims Tribunal held that the accident occurred due
to the rash and negligent driving by respondent No. 3 which
resulted in grievous injuries to Prateek who later succumbed
to his injuries. The Claims Tribunal took the earning capacity
of the deceased as Rs. 40,000/- per month, deducted 50%
towards personal expenses and applied the multiplier of 11
Page 7 of 11
// 8 //
according to the age of the mother to compute the loss of
dependency as Rs. 26,40,000/-. The Claims Tribunal
awarded Rs. 32,95,621/- towards medical treatment, Rs.
11,20,000/- towards loss of income during treatment, Rs.
3,50,000/- towards conveyance and attendant charges, Rs.
1,00,000/- towards loss of love and affection, Rs. 10,000/-
towards loss of estate and Rs. 25,000/- towards funeral
expenses. The total compensation awarded is Rs.
75,40,621/-.
Xxx xxx xxx
20. In the present case, the deceased was a student of B.Sc.
(Nautical Science). The deceased had successfully completed
the Pre-Sea Cadet Course from Maritimes Training Institute
and eighteen month On-Board training with Shipping
Corporation of India and was getting stipend of Rs. 10,000/-
per month excluding perks. On successful completion of B.Sc.
(Nautical Science), the deceased would have had a successful
career in Merchant Navy. As per the terms and conditions of
the appointment of a fresh graduate, Shipping Corporation of
India pays wages of Rs. 1,03,620/- per month (Rs. 3,454/-
per day). This Court is of the view that the earning capacity of
the deceased be taken as Rs. 25,500/- per month. Applying
the well-settled principles of law laid down by Supreme Court
and this Court in the aforesaid cases, the earning capacity of
Rs. 40,000/- taken by the Claims Tribunal is reduced to Rs.
25,500/- per month. 21. Taking the income of the deceased
as Rs. 25,500/- per month, adding 40% towards future
prospects, deducting 50% towards his personal expenses,
and applying the multiplier of 18, the loss of dependency is
computed as Rs. 38,55,600/-.” (Emphasis Supplied)
8. In the present case, the deceased was a final year student
of B.Tech., at Maharshi Dayanand University, Rohtak. The
deceased had successfully completed three years of his four
years degree programme. On successful completion of
B.Tech., the deceased would have had a successful career.
M/s Tech Indira IT Solutions Pvt. Ltd. had given placement
offer of Rs.3,20,000/- per annum to the deceased. This Court
is of the view that the deceased would have certainly earned
higher amount in his lifetime but the earning capacity of the
deceased is taken as Rs.26,660/- per month (Rs.3,20,000/-
per annum) since the claimants have restricted their claim to
the above amount. This case is squarely covered by the well-
settled principles of law laid down by Supreme Court and
this Court in the aforesaid cases. The earning capacity of the
deceased is taken as Rs.26,660/- per month (Rs.3,20,000/-
per annum). The Claims Tribunal has taken future prospects
of 40% which is fair and reasonable and is upheld”.
Page 8 of 11
// 9 //
6. Mr. Nayak, learned counsel appearing for the Insurer
on the other hand while challenging the impugned award
contended that even though it was brought to the notice
of the Tribunal that the offending vehicle was not having
any permit, but while disposing the matter no right of
recovery was allowed. It is also contended that award of
interest at 7% per annum is on the higher side. Learned
counsel however does not dispute the decisions so relied
on by the learned counsel for the appellant.
7. Having heard learned counsel appearing for the Parties
and considering the submissions made, this Court
placing reliance on the decisions as cited (supra) is of the
view that income of the deceased he being a 2nd year
Engineering Student should have been taken at
Rs.15,000/- per month. While holding the income of the
deceased at Rs.15,000/- per month, this Court assessed
the compensation by enhancing the award so passed to
Rs.22,80,000/-. However, taking into account the rate of
interest prevailing at that point of time, this Court is
inclined to allow interest @ 6% per annum on the
awarded compensation amount of Rs.22,80,000/-.
7.1. Therefore, this Court directs the Appellant-Insurer in
the connected MACA No. 24 of 2016 to deposit the
compensation amount of Rs.22,80,000/- along with
interest @ 6% per annum payable from the date of
application till its realization before the Tribunal within a
period of eight (8) weeks from the date of receipt of this
Page 9 of 11
// 10 //
order. On such deposit of the amount the Tribunal shall
do well to disburse the same in favour of the Claimants
proportionately in terms of the Judgment
dtd.09.10.2015.
7.2. However, it is observed that if the amount as
directed will not be deposited by the Appellant-
Company within the aforesaid time period of eight (8)
weeks, the compensation amount of Rs22,80,000/-
shall carry interest @ 7% per annum for the period
starting from the expiry of the period of eight (8) weeks
till its payment.
7.3. It is further observed that on deposit of the entire
award amount statutory deposit made in MACA No. 24 of
2016 be refunded along with accrued interest if any on
proper identification.
7.4. It is also observed that since from the materials
available on record it is found that offending vehicle was
not having the permit and the same was also brought to
the notice of the Tribunal, but no order since has been
passed allowing right of recovery, this Court in absence of
the Owner-Respondent is inclined to allow right of
recovery as against the Owner-Respondent and allows
the same accordingly. However, if any application is
made to recover the amount from the
Owner/Respondent, the Tribunal shall do well to dispose
of the application in accordance with law and by giving
due opportunity of hearing.
Page 10 of 11
// 11 //
8. Both the appeals are accordingly disposed of.
9. Photo copy of the order be placed in the connected
case records.
(Biraja Prasanna Satapathy)
Judge
Orissa High Court, Cuttack
Dated the 20th of December, 2024/Subrat
Signature Not Verified
Digitally Signed
Signed by: SUBRAT KUMAR BARIK
Reason: Authentication
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 23-Dec-2024 18:53:02
Page 11 of 11