Delhi District Court
Shri Sanjay Kumar vs Shri Subhash Chander on 18 May, 2015
IN THE COURT OF ANOOP KUMAR MENDIRATTA,
JUDGE, MACT-1 (CENTRAL), DELHI.
Suit No. 109/11
Unique Case ID No.02401C0105042011
Shri Sanjay Kumar
S/o Shri Malkhan Singh,
R/o A-53, Brij Vihar,
Prem Nagar-III, Delhi.
..........Petitioner
Versus
1. Shri Subhash Chander
S/o Shri Virender Singh,
C/o Depot Manager, U.P. Roadways,
Itawa Depot, Uttar Pradesh
2. The Depot Manager,
U.P. Roadways, Itawa Depot, Uttar Pradesh
[Bus No. UP-75-K-9332]
........Respondents
Date of Institution of the suit : 23.02.2011
Arguments heard on : 18.05.2015
Judgment pronounced on : 18.05.2015
JUDGMENT
1. The present claim petition has been preferred by the petitioner U/s 166 and 140 of Motor Vehicle Act (hereinafter referred to as 'the Act') claiming compensation of sum of Rs. 10,00,000/- in respect of injuries suffered by him in the motor vehicle accident.
Suit No. 109/11 - Sanjay Kumar vs. Subhash Chander Page 1 of 292. Brief facts of the case giving rise to the present claim petition are that on 15.08.2010 at about 1:30AM, petitioner was driving TATA-407 Tempo bearing registration no. HR-46-A-8402 and when he reached at Village Netrampuri, Sikandarabad (U.P.), suddenly a bus bearing registration no. UP-75-K-9332 being driven by Respondent No.1 at a very high speed, in a rash and negligent manner hit the Tempo. Consequently, petitioner sustained grievous injuries and FIR No.340/11 dated 15.08.2010 was registered at PS:
Sikandarabad, U.P. regarding the accident.
It is further the case of the petitioner that he was initially admitted at Civil Hospital, Bulandshahar, UP for treatment but was immediately referred to Safdarjung Hospital, New Delhi and was discharged on 28.08.2010.
It is further the claim of petitioner that he was employed as a Driver on Tempo Number HR 46A 8402 and drawing a salary of Rs.8,000/- per month. Further, after having suffered multiple fractures in both the legs after the accident he has been unable to lead a normal life. During course of proceedings, petitioner obtained disability certificate which reflects the disability suffered by the petitioner as follows:
"........... is a case of Post Traumatic ® Stiff Knee c ® Stiff Ankle c (L) Stiff Ankle. He is physically disabled and has 86% (Eighty Six Percent) Permanent physical Disability. Note :-Suit No. 109/11 - Sanjay Kumar vs. Subhash Chander Page 2 of 29
1. This condition is not likely to improve.
2. Re-assessment is not recommended........."
3. Both the respondents contested the case by placing on record joint Written Statement whereby negligence on the part of Respondent No. 1 was denied. It was submitted that Respondent No. 1 was driving the bus No. UP 75K 9332 at a normal speed from Etawa to Delhi and when the bus reached Village Netampuri, Sikandarabad, a TATA 407 vehicle bearing No. HR 46A 8402 came from opposite direction being driven rashly and negligently. Further, petitioner himself was negligent as he tried to overtake the truck and in the process came on the wrong side of the road and struck against the bus which was stopped by Respondent No.1 at the said time. It was also submitted that petition was bad for non- joinder of parties and mis-joinder of necessary parties.
4. On pleadings of the parties, vide order dated 22.07.2011, following issues were framed :-
(i) Whether the petitioner Sh. Sanjay Kumar had suffered grievous injuries in road traffic accident on 15.8.2010 at about 1:30 am due to rash and negligent driving of the vehicle bearing registration no. UP-75-K9332 by Respondent no.1?
(ii) Whether the petitioner is entitled to any compensation, if so, to what amount and from whom?Suit No. 109/11 - Sanjay Kumar vs. Subhash Chander Page 3 of 29
(iii) Relief.
5. In support of the claim, petitioner examined himself as PW-1 and testified on the lines of claim petition. He further proved original referral letter issued by Civil Hospital, Bulandshahar (UP) for treatment at Safdarjung Hospital due to his critical condition after the initial treatment at Civil Hospital (Ex.PW1/2), photocopy of discharge slip issued by Safdarjung Hospital (Ex.PW1/3), original OPD cards (Ex.PW1/4 and Ex.PW1/5), Medical Bills (Ex.PW1/6 & Ex.PW1/8) and photocopy of driving licence (Ex.PW1/7).
During cross-examination he clarified that he was going from Sikandarabad to Bulandshahar while driving TATA 407 bearing registration no. HR 46A 8402 at a speed of 40-50 Kms. per hour. He denied that the accident occurred due to his negligence or that he was driving the tempo at a speed of 60-70 Kms. per hour. He further stated that he had no documentary proof to show that he was earning Rs.8,000/- per month.
PW2 Dr. Aseem Taneja proved the disability certificate issued to petitioner (Ex.PW2/B). During cross- examination he stated that the disability is not likely to improve and the petitioner would not be able to walk and run as a normal person throughout his life.
Suit No. 109/11 - Sanjay Kumar vs. Subhash Chander Page 4 of 29Respondent No.1 Subhash Chander/driver of the offending vehicle led his evidence (examination-in-chief) as R1W1 by way of affidavit. He testified on the lines of Written Statement and stated that the bus was driven by him at normal speed while TATA 407 came from opposite direction driven in a rash and negligent manner. Further, in the process of overtaking a truck, TATA 407 came on the wrong side of the road and struck the bus which was stopped by R1W1.
During cross-examination, he clarified that there was no divider between the road at the time of accident and he did not disclose the fact that tempo driven by the petitioner had hit the bus while coming on the other side of the lane on which the bus was approaching. He further stated that the width of the road at the place of accident was about 20 feet and denied that the accident had been caused due to his rash and negligent driving.
6. I have heard arguments addressed by the counsel for the petitioner, respondents and perused the record.
Counsel for petitioner made submissions on the lines of claim petition and urged that petitioner has suffered permanent disability of 86% and the same be accordingly construed as functional disability.
Suit No. 109/11 - Sanjay Kumar vs. Subhash Chander Page 5 of 29On the other hand, counsel for respondents contended that the petitioner failed to prove his income @ Rs.8,000/- per month, as claimed in the petition. Further, the medical bills submitted by petitioner were also disputed. Also, the disability certificate obtained by the petitioner was challenged and the functional disability was claimed to be on the lower side.
7. My Issue-wise findings are as under :-
Issue No. (i) Whether the petitioner Sh. Sanjay Kumar had suffered grievous injuries in road traffic accident on 15.8.2010 at about 1:30 am due to rash and negligent driving of the vehicle bearing registration no. UP-75-K9332 by Respondent no.1?
In a petition U/s 166 of the Motor Vehicle Act, 1988, the claim tribunal has to decide negligence on the touchstone of preponderance of probability.
Reference may be made to the observations in Ranu Bala Paul & Others vs. Bani Chakraborty 1999 ACJ 634 Gauhati wherein the claim was allowed after consideration of FIR before the Tribunal.
"In deciding a matter Tribunal should bear in mind the caution struck by the Apex Court that a Suit No. 109/11 - Sanjay Kumar vs. Subhash Chander Page 6 of 29 claim before the Motor Accident Claims Tribunal is neither a criminal case nor a civil case. In a criminal case in order to have conviction, the matter is to be proved beyond reasonable doubt and in a civil case the matter is to be decided on the basis of preponderance of evidence, but in a claim before the Motor Accident Claim Tribunal the standard of proof is much below than what is required in a criminal case as well as in a civil case. No doubt before the Tribunal, there must be some material on the basis of which the Tribunal can arrive or decide things necessary to be decided for awarding compensation. But the Tribunal is not expected to take or to adopt the nicety of a civil or of a criminal case. After all, it is a summary enquiry and this is a legislation for the welfare of the society. In N.K.V. Bros. (P) Ltd. v. M. Marumai Ammal, 1980 ACJ 435 (SC), the Supreme Court pointed out that the Accidents Claims Tribunal must take special care to see that innocent victims do not suffer and persons liable do not escape liability merely because of some doubt here and some obscurity there. The court should not succumb to niceties, technicalities and mystic maybes. The court is bound to take broad view of the whole matter."
In the present case, petitioner relied upon certified copies of the charge sheet consisting of FIR, Mechanical Inspection Report of the offending vehicle as well as TATA 407 and Site Plan.
Suit No. 109/11 - Sanjay Kumar vs. Subhash Chander Page 7 of 29It is pertinent to note that testimony of PW1 Sanjay Kumar could not be dented during cross-examination. The testimony of PW1 has to be seen in conjunction with the certified copy of the Site Plan which was prepared during the course of investigation. The Site Plan clearly points out that the bus crossed over to the other side of the lane which was meant for the approaching traffic wherein the TATA 407 was driven by petitioner. The curve in which the bus moved on the other side of the lane at the time of accident reflects that in fact Respondent No. 1 was wrongly overtaking some other vehicle and the accident had taken place due to sole negligence of the offending bus. It is difficult to presume that TATA 407 had moved on the other side of the lane in the process of overtaking a truck as claimed in the evidence of R1W1. The evidence of R1W1 is self serving and untrustworthy in view of circumstances pointed out above and does not inspire confidence.
In view of above, issue No.1 is decided in favour of the petitioner and against the respondents.
8. Issue No. (ii) Whether the petitioner is entitled to any compensation, if so, to what amount and from whom?
Suit No. 109/11 - Sanjay Kumar vs. Subhash Chander Page 8 of 29In Raj Kumar v. Ajay Kumar & Anr., 2011 Volume 1, ACJ 1, Hon'ble Supreme Court of India has observed that the object of awarding damages is to make good the loss suffered as a result of the wrong done as far as money can do in a fair, reasonable and equitable manner. Paras 4 and 5 of the judgment are further extracted below as the same explains the various heads under which the compensation is to be assessed:-
"4. The provision of the Motor Vehicles Act, 1988 ('the Act' for short) makes it clear that the award must be just, which means that compensation should, to the extent possible, fully and adequately restore the claimant to the position prior to the accident. The object of awarding damages is to make good the loss suffered as a result of wrong done as far as money can do so, in a fair, reasonable and equitable manner. The court or tribunal shall have to assess the damages objectively and exclude from consideration any speculation or fancy, though some conjecture with reference to the nature of disability and its consequences, is inevitable. A person is not only to be compensated for the physical injury, but also for the loss which he suffered as a result of such injury. This means that he is to be compensated for his inability to lead a full life, his inability to enjoy those normal amenities which he would have enjoyed but for the injuries, and his inability to earn as much as he used Suit No. 109/11 - Sanjay Kumar vs. Subhash Chander Page 9 of 29 to earn or could have earned. [See C.K. Subramonia Iyer v. T. Kunhikuttan Nair, AIR 1970 SC 376, R.D. Hattangadi v. Pest Control (India) (P) Ltd., 1995 (1) SCC 551 and Baker v. Willoughby, 1970 AC 467.
5. The heads under which compensation is awarded in personal injury cases are the following:
Pecuniary damages (Special damages)
(i) Expenses relating to treatment, hospitalisation, medicines, transportation, nourishing food, and miscellaneous expenditure.
(ii) Loss of earnings (and other gains) which the injured would have made had he not been injured, comprising:
(a) Loss of earning during the period of treatment;
(b) Loss of future earnings on account of permanent disability.
(iii) Future medical expenses.
Non-pecuniary damages (General damages)
(iv) Damages for pain, suffering and trauma as a consequence of the injuries.
(v) Loss of amenities (and/or loss of prospects of marriage).
(vi) Loss of expectation of life (shortening of normal Suit No. 109/11 - Sanjay Kumar vs. Subhash Chander Page 10 of 29 longevity).
In routine personal injury cases, compensation will be awarded only under heads (i), (ii)
(a) and (iv). It is only in serious cases of injury, where there is specific medical evidence corroborating the evidence of the claimant, that compensation will be granted under any of the heads (ii)(b), (iii), (v) and (vi) relating to loss of future earnings on account of permanent disability, future medical expenses, loss of amenities (and/or loss of prospects of marriage) and loss of expectation of life."
Now the important factors relevant for calculation of compensation consequent to accidental injuries sustained by the petitioner may be considered.
LOSS OF EARNING CAPACITY For purpose of assessing the loss of earning capacity, the income of the petitioner/injured needs to be assessed along with the functional disability suffered by him due to the injuries sustained by him in the accident.
(a) Assessment of income of the petitioner Suit No. 109/11 - Sanjay Kumar vs. Subhash Chander Page 11 of 29 At the time of accident, petitioner claims to be earning Rs.8,000/- per month. Counsel for petitioner has candidly admitted that there is no document to show that the petitioner was drawing a salary of Rs.8,000/- per month. He submits that the petitioner was in possession of driving licence and as such the minimum wages of skilled labourer as on 15.08.2010 @ Rs.6,448/- per month may be considered for the purpose of compensation.
In the facts and circumstances, the income of the petitioner for purpose of assessment is taken as Rs.6,448/- per month.
(b) If addition in income towards future prospects is to be made Counsel for the petitioner claimed that addition towards future prospects to the extent of 50% be considered for purpose of assessing the income of the injured. However, the same is opposed on behalf of respondents and it is submitted that no addition towards future prospects is permissible in absence of any evidence with regard thereto.
As far as the addition towards the future prospects is concerned, the issue has been examined at great length by the Hon'ble High Court of Delhi in various judgements wherein the law laid down in Sarla Verma (Smt.) & Ors. vs. Delhi Transport Suit No. 109/11 - Sanjay Kumar vs. Subhash Chander Page 12 of 29 Corporation & Anr. (2009) 6 SCC 121 and Reshma Kumari & Ors. Vs. Madan Mohan & Anr. (2013) 9 SCC 65 has been analysed in detail. Reference may be made to MAC APP. 325/2013 decided on 28th January, 2015 U.P. State Road Transport Corporation vs. Shahida & Ors. by Hon'ble Mr. Justice G.P. Mittal. In the aforesaid case, deceased Shaukat Ali aged about 37 years was alleged to be supplying milk and earning Rs.10,000/- per month and the Tribunal had awarded addition of 30% towards future prospects of the income of the deceased. However, it was held by the Hon'ble High Court that no addition of 30% towards future prospects was permissible in the absence of any evidence with regard to future prospects. The observations made by the Hon'ble High Court on the aspect of calculation of future prospects as discussed in para 7 of aforesaid judgement in this regard may be quoted for reference:
"7. As far as addition towards future prospects is concerned, the issue has been examined at great length by this Court in HDFC ERGO General Insurance Co. Ltd. v. Smt. Lalta Devi &Ors. (supra). Paras 9 to 21 of the report in Lalta Devi are extracted hereunder:-
9. The learned counsel for the Claimants has referred to a three Judge Bench decision of the Supreme Court in Rajesh & Ors. v. Rajbir Singh & Ors., (2013) 9 SCC 54 to contend that the future prospects have to be added in all cases where a person is getting fixed wages or is a seasonal employee or is a student.
10. It is urged by the learned counsel for the Claimants that the law laid down in Sarla Verma (Smt.) & Ors. v. Delhi Transport Corporation & Anr., (2009) 6 SCC 121 was extended in Ra-
jesh & Ors. v. Rajbir Singh & Ors., (2013) 9 Suit No. 109/11 - Sanjay Kumar vs. Subhash Chander Page 13 of 29 SCC 54 to hold that future prospects ought to be extended in all cases.
11. On the other hand, the learned counsel for the Insurance Company refers to a three Judge Bench decision of the Supreme Court in Reshma Kumari & Ors. v. Madan Mohan & Anr., (2013) 9 SCC 65 wherein while approving the ratio with regard to future prospects in Sarla Verma (Smt.) & Ors. (supra) and relying on General Manag- er, Kerala State Road Transport Corporation, Trivandrum v. Susamma Thomas (Mrs.) and Ors. (1994) 2 SCC 176; Sarla Dixit v. Balwant Yadav, (1996) 3 SCC 179 and Abati Bezbaruah v. Dy. Director General, Geological Survey of India & Anr., 2003 (3) SCC 148, the Supreme Court held as under:-
"38. With regard to the addition to income for future prospects, in Sarla Verma [Sarla Verma v. DTC, (2009) 6 SCC 121 : (2009) 2 SCC (Civ) 770 :
(2009) 2 SCC (Cri) 1002], this Court has noted the earlier decisions in Susamma Thomas [Kerala SRTC v.
Susamma Thomas, (1994) 2 SCC 176 :
1994 SCC (Cri) 335], Sarla Dixit [(1996) 3 SCC 179] and Abati Bezbaruah [Abati Bezbaruah v. Geo-
logical Survey of India, (2003) 3 SCC 148 : 2003 SCC (Cri) 746] and in para 24 of the Report held as under:
(Sarla Verma case [Sarla Verma v.
DTC, (2009) 6 SCC 121 : (2009) 2 SCC (Civ) 770 : (2009) 2 SCC (Cri) 1002] , SCC p. 134):
"24. ... In view of the imponderables and uncertainties, we are in favour of adopting as a rule of thumb, an addition of 50% of actual salary to the actual salary income of the deceased towards future prospects, where the deceased had a permanent job and was below 40 years. (Where the annual income is in the taxable range, the words "actual salary" should be read as "actual salary Suit No. 109/11 - Sanjay Kumar vs. Subhash Chander Page 14 of 29 less tax)". The addition should be only 30% if the age of the deceased was 40 to 50 years. There should be no addition, where the age of the deceased is more than 50 years. Though the evidence may indicate a different percentage of increase, it is necessary to standardise the addition to avoid different yardsticks being applied or different methods of calculation being adopted. Where the de-
ceased was self-employed or was on a fixed salary (without provision for an- nual increments, etc.), the courts will usually take only the actual income at the time of death. A departure therefrom should be made only in rare and exceptional cases involving special cir- cumstances."
39. The standardization of addition to income for future prospects shall help in achieving certainty in arriving at ap- propriate compensation. We approve the method that an addition of 50% of actu-
al salary be made to the actual salary income of the deceased towards future prospects where the deceased had a per- manent job and was below 40 years and the addition should be only 30% if the age of the deceased was 40 to 50 years and no addition should be made where the age of the deceased is more than 50 years. Where the annual income is in the taxable range, the actual salary shall mean actual salary less tax. In the cases where the deceased was self-employed or was on a fixed salary without provi-
sion for annual increments, the actual income at the time of death without any addition to income for future prospects will be appropriate. A departure from the above principle can only be justi-
fied in extraordinary circumstances and very exceptional cases."
12. The learned counsel for the Insurance Com- pany relies upon a Constitutional Bench judgment of the Supreme Court in Central Board of Dawoo- di Bohra Community & Anr. v. State of Maha-
Suit No. 109/11 - Sanjay Kumar vs. Subhash Chander Page 15 of 29rashtra & Anr., (2005) 2 SCC 673; Safiya Bee v. Mohd. Vajahath Hussain @ Fasi, (2011) 2 SCC 94; and Union of India & Ors. v. S.K. Kapoor, (2011) 4 SCC 589 to contend that in case of diver- gence of opinion in judgments of benches of co- equal strength, earlier judgment will be taken as a binding precedent.
13. It may be noted that in Reshma Kumari & Ors. v. Madan Mohan & Anr., (2013) 9 SCC 65; the three Judge Bench was dealing with a refer- ence made by a two Judge Bench (S.B. Sinha and Cyriac Joseph, J.J.). The two Hon‟ble Judges wanted an authoritative pronouncement from a Larger Bench on the question of applicability of the multiplier and whether the inflation was built in the multiplier. The three Judge Bench approved the two Judge Bench decision of the Supreme Court in Sarla Verma (Smt.) & Ors. v. Delhi Transport Corporation & Anr., (2009) 6 SCC 121 with regard to the selection of multiplier. It fur- ther laid down that addition towards future prospects to the extent of 50% of the actual salary shall be made towards future prospects when the deceased had a permanent job and was below 40 years and addition of 30% should be made if the age of the deceased was between 40-50 years. No addition towards future prospects shall be made where the deceased was self-employed or was get- ting a fixed salary without any provision of annual increment.
14. Of course, three Judge Bench of the Supreme Court in its later judgment in Rajesh relying on Santosh Devi v. National Insurance Company Ltd. & Ors., 2012 (6) SCC 421 observed that there would be addition of 30% and 50%, depending upon the age of the deceased, towards future prospects even in the case of self-employed per- sons. It may, however, be noted that in Rajesh, the three Judge Bench decision in Reshma Ku- mari (supra) was not brought to the notice of their Lordships.
15. The divergence of opinion was noted by an- other three Judge Bench of the Supreme Court in Sanjay Verma v. Haryana Roadways, (2014) 3 SCC 210. In paras 14 and 15, the Supreme Court observed as under:-
Suit No. 109/11 - Sanjay Kumar vs. Subhash Chander Page 16 of 29"14. Certain parallel developments will now have to be taken note of. In Reshma Kumari v. Madan Mohan [(2009) 13 SCC 422 : (2009) 5 SCC (Civ) 143 : (2010) 1 SCC (Cri) 1044], a two-Judge Bench of this Court while considering the following questions took the view that the issue(s) needed resolution by a larger Bench: (SCC p. 425, para 10) "(1) Whether the multiplier specified in the Second Schedule appended to the Act should be scrupulously applied in all the cases?
(2) Whether for determination of the multiplicand, the Act provides for any criterion, particularly as regards de-
termination of future prospects?"
15. Answering the above reference a three- Judge Bench of this Court in Reshma Kumari v. Madan Mohan [(2013) 9 SCC 65 : (2013) 4 SCC (Civ) 191 : (2013) 3 SCC (Cri) 826] (SCC p. 88, para 36) reiterated the view taken in Sarla Verma [Sarla Verma v. DTC, (2009) 6 SCC 121 : (2009) 2 SCC (Civ) 770 : (2009) 2 SCC (Cri) 1002] to the effect that in respect of a person who was on a fixed salary without provision for annual increments or who was self-employed the actual income at the time of death should be taken into account for determining the loss of income unless there are extraordinary and exceptional circumstances. Though the expression "exceptional and extraordinary circumstances" is not capable of any precise definition, in Shakti Devi v. New India Insur-
ance Co. Ltd. [(2010) 14 SCC 575 : (2012) 1 SCC (Civ) 766 : (2011) 3 SCC (Cri) 848] there is a practical application of the afore- said principle. The near certainty of the reg- ular employment of the deceased in a gov- ernment department following the retirement of his father was held to be a valid ground to compute the loss of income by taking into account the possible future earnings. The said loss of income, accordingly, was quantified at double the amount that the de-
Suit No. 109/11 - Sanjay Kumar vs. Subhash Chander Page 17 of 29ceased was earning at the time of his death."
16. Further, the divergence of opinion in Resh- ma Kumari & Ors. v. Madan Mohan & Anr., (2013) 9 SCC 65 and Rajesh & Ors. v. Rajbir Singh & Ors., (2013) 9 SCC 54 was noticed by the Supreme Court in another latest judgment in Na- tional Insurance Company Ltd. v. Pushpa & Ors., CC No.8058/2014, decided on 02.07.2014 and in concluding paragraph while making reference to the Larger Bench, the Supreme Court held as under:-
"Be it noted, though the decision in Reshma (supra) was rendered at earlier point of time, as is clear, the same has not been noticed in Rajesh (supra) and that is why divergent opinions have been expressed. We are of the considered opinion that as regards the manner of addition of income of future prospects there should be an authoritative pronouncement. Therefore, we think it ap-
propriate to refer the matter to a larger Bench."
17. Now, the question is which of the judgments ought to be followed awaiting answer to the ref- erence made by the Supreme Court in Pushpa & Ors. (supra).
18. In Central Board of Dawoodi Bohra Community & Anr. v. State of Maharashtra & Anr., (2005) 2 SCC 673 in para 12, the Supreme Court observed as under:-
"12. Having carefully considered the submissions made by the learned Senior Counsel for the parties and having ex-
amined the law laid down by the Con-
stitution Benches in the abovesaid deci-
sions, we would like to sum up the legal po- sition in the following terms:
(1) The law laid down by this Court in a de-
cision delivered by a Bench of larger strength is binding on any subsequent Bench of lesser or coequal strength.
Suit No. 109/11 - Sanjay Kumar vs. Subhash Chander Page 18 of 29(2) [Ed.: Para 12(2) corrected vide Official Corrigendum No. F.3/Ed.B.J./21/2005 dated 3- 3-2005.] A Bench of lesser quorum cannot dis- agree or dissent from the view of the law taken by a Bench of larger quorum. In case of doubt all that the Bench of lesser quorum can do is to invite the attention of the Chief Justice and request for the matter being placed for hearing before a Bench of larger quorum than the Bench whose de- cision has come up for consideration. It will be open only for a Bench of coequal strength to ex- press an opinion doubting the correctness of the view taken by the earlier Bench of coequal strength, whereupon the matter may be placed for hearing before a Bench consisting of a quorum larger than the one which pronounced the deci- sion laying down the law the correctness of which is doubted.
(3) [Ed.: Para 12(3) corrected vide Official Corrigendum No. F.3/Ed.B.J./7/2005 dated 17- 1-2005.] The above rules are subject to two exceptions: (i) the abovesaid rules do not bind the discretion of the Chief Justice in whom vests the power of framing the roster and who can direct any particular matter to be placed for hearing before any particular Bench of any strength; and
(ii) in spite of the rules laid down hereinabove, if the matter has already come up for hearing before a Bench of larger quorum and that Bench itself feels that the view of the law taken by a Bench of lesser quorum, which view is in doubt, needs correction or reconsideration then by way of exception (and not as a rule) and for reasons given by it, it may proceed to hear the case and examine the correctness of the previous decision in question dispensing with the need of a specific reference or the order of the Chief Justice con- stituting the Bench and such listing. Such was the situation in Raghubir Singh [(1989) 2 SCC 754] and Hansoli Devi [(2002) 7 SCC 273]."
19. Similarly, in Safiya Bee v. Mohd. Vajahath Hussain @ Fasi, (2011) 2 SCC 94 in para 27, the Supreme Court observed as under:-
"27. However, even assuming that the decision in WP No. 35561 of 1998 did not operate as res judicata, we are to Suit No. 109/11 - Sanjay Kumar vs. Subhash Chander Page 19 of 29 observe that even if the learned Judges who decided WP No. 304 of 2001 did not agree with the view taken by a coordinate Bench of equal strength in the earlier WP No. 35561 of 1998 regarding the interpretation of Section 2(c) of the Act and its application to the petition schedule property, judicial discipline and practice required them to refer the issue to a larger Bench. The learned Judges were not right in overruling the statement of the law by a coordinate Bench of equal strength. It is an accepted rule or principle that the statement of the law by a Bench is con-
sidered binding on a Bench of the same or lesser number of Judges. In case of doubt or disagreement about the decision of the earlier Bench, the well- accepted and desirable practice is that the later Bench would refer the case to a larger Bench."
20. In Union of India & Ors. v. S.K. Kapoor, (2011) 4 SCC 589 while holding that the decision of the Co- ordinate Bench is binding on the subsequent Bench of equal strength, held that the Bench of Co-ordinate strength can only make a reference to a larger Bench. In para 9 of the re- port, the Supreme Court held as under:-
"9. It may be noted that the decision in S.N. Narula case [(2011) 4 SCC 591] was prior to the decision in T.V. Patel case [(2007) 4 SCC 785 : (2007) 2 SCC (L&S) 98]. It is well settled that if a subsequent coordinate Bench of equal strength wants to take a different view, it can only refer the matter to a larger Bench, otherwise the prior decision of a coordinate Bench is binding on the subsequent Bench of equal strength. Since, the decision in S.N. Narula case [(2011) 4 SCC 591] was not noticed in T.V. Patel case [(2007) 4 SCC 785 :
(2007) 2 SCC (L&S) 98], the latter de-
cision is a judgment per incuriam. The de- cision in S.N. Narula case [(2011) 4 SCC 591] was binding on the subsequent Bench of equal strength and hence, it could not Suit No. 109/11 - Sanjay Kumar vs. Subhash Chander Page 20 of 29 take a contrary view, as is settled by a se- ries of judgments of this Court."
21. This Court in New India Assurance Co. Ltd. v. Harpal Singh & Ors., MAC APP.138/2011, decided on 06.09.2013, went into this question and held that in view of the report in S.K. Kapoor (supra), the three Judge Bench decision in Resh- ma Kumari & Ors. (supra) shall be taken as a binding precedent."
In the present case, in view of the law as settled by the Hon'ble High Court, in absence of any reliable evidence with regard to future prospects, addition of income towards future prospects cannot be made for the purpose of assessment of compensation.
(c) Functional Disability It may be observed that in certain cases the permanent disability may not impact the earning capacity of the injured/victim and in such cases the victim may not be entitled to compensation towards loss of earning capacity on account of disability. However, in other cases even on account of less permanent disability, an injured may be completely incapacitated to carry out his vocation and as such the functional disability may be more than the actual disability suffered by the injured/victim. Hon'ble Supreme Court of India has elucidated with an example that if the left hand of claimant, who is driver by profession is amputated, the actual loss of earning capacity may be virtually 100%.
Observations of the Hon'ble Supreme Court in the case Suit No. 109/11 - Sanjay Kumar vs. Subhash Chander Page 21 of 29 of Raj Kumar Vs. Ajay Kumar, (supra) whereby the methodology for determining the functional disability has been discussed in paragraph 14 may be quoted:-
"14. Ascertainment of the effect of the permanent disability on the actual earning capacity involves three steps. The Tribunal has to first ascertain what activities the claimant could carry on in spite of the permanent disability and what he could not do as a result of the permanent disability (this is also relevant for awarding compensation under the head of loss of amenities of life). The second step is to ascertain his avocation, profession and nature of work before the accident, as also his age. The third step is to find out whether (i) the claimant is totally disabled from earning any kind of livelihood, or (ii) whether in spite of the permanent disability, the claimant could still effectively carry on the activities and functions, which he was earlier carrying on, or (iii) whether he was prevented or restricted from discharging his previous activities and functions, but could carry on some other or lesser scale of activities and functions so that he continues to earn or can continue to earn his livelihood. For example, if the left hand of a claimant is amputated, the permanent physical or functional disablement may be assessed around 60%. If the claimant was a driver or a carpenter, the actual loss of earning capacity may virtually be hundred percent, if he is neither able to Suit No. 109/11 - Sanjay Kumar vs. Subhash Chander Page 22 of 29 drive or do carpentry. On the other hand, if the claimant was a clerk in government service, the loss of his left hand may not result in loss of employment and he may still be continued as a clerk as he could perform his clerical function; and in that event the loss of earning capacity will not be 100% as in the case of a driver or carpenter, nor 60% which is the actual physical disability, but far less. In fact, there may not be any need to award any compensation under the head of 'loss of future earnings', if the claimant continues in government service, though he may be awarded compensation under the head of loss of amenities as a consequence of losing his hand. Sometimes the injured claimant may be continued in service, but may not found suitable for discharging the duties attached to the post or job which he was earlier holding, on account of his disability, and may therefore, be shifted to some other suitable but lesser post with lesser emoluments, in which case there should be a limited award under the head of loss of future earning capacity, taking note of the reduced earning capacity. It may be noted that when compensation is awarded by treating the loss of future earning capacity as 100% (or even anything more than 50%), the need to award compensation separately under the head of loss of amenities or loss of expectation of life may disappear and as a result, only a token or nominal amount may have to be awarded under the head of loss of amenities or loss of expectation of life, as otherwise there may be a duplication in the award of Suit No. 109/11 - Sanjay Kumar vs. Subhash Chander Page 23 of 29 compensation. Be that as it may."
In the present case, as per Disability Certificate Ex.PW2/B, the petitioner has suffered 86% permanent disability which is unlikely to improve. Further, the petitioner shall not be able to walk and run as a normal person throughout his life as deposed by PW2 Dr. Aseem Taneja. Considering the fact that the petitioner is driver by vocation and shall not be able to take up the same vocation throughout his life but may be able to undertake some other vocations, the functional disability is considered at 60% for purpose of assessment of compensation.
(d) Applicable Multiplier As per driving licence, the date of birth of the petitioner is 17.08.1978. Accordingly, the age of the petitioner on the date of accident was approximately 32 years which is not disputed by the respondents. In view of Sarla Verma & Ors. v/s Delhi Transport Corporation 2009, ACJ 1298, the relevant multiplier of 16 is applicable for the purpose of assessment in the present case.
(e) The loss of earning capacity is accordingly assessed at Rs.7,42,809.60 (i.e. Rs.6,448/- X 12 (months) X 60% (functional disability) X 16 (applicable multiplier according to age).
9. Loss of Income on account of accident Suit No. 109/11 - Sanjay Kumar vs. Subhash Chander Page 24 of 29 Counsel for the petitioner contended that the petitioner remained hospitalized for 13 days and further remained under OPD treatment for about 14 months and was further unable to undertake any activity due to multiple compound fractures and needed a support person regularly for day-to-day activities. It can be reasonably assumed that on account of fractures sustained in the accident, the petitioner may not have been in a position to carry any job for a period of about 04 months.
Considering the facts and circumstances the petitioner is awarded damages of Rs.25,792/- for the period of 04 months for which he was not able to perform his job {i.e. Rs.6,448/- (income for one month) X 04 months= Rs.25,792/-}.
10. Loss of amenities of life and Expectation of Life It was observed in Raj Kumar v. Ajay Kumar & Anr., 2011 Volume 1, ACJ 1 by Hon'ble Supreme Court of India as under:
"15. It may be noted that when compensation is awarded by treating the loss of future earning capacity as 100% (or even anything more than 50%), the need to award compensation separately under the head of 'loss of amenities or loss of expectations of life' may disappear and as a result only a token or nominal amount may have to be Suit No. 109/11 - Sanjay Kumar vs. Subhash Chander Page 25 of 29 awarded under the head "loss of amenities or loss of expectation of life", as otherwise there may be a duplication in the award of compensation."
In view of above, petitioner is awarded a sum of Rs. 10,000/- (Rupees Ten Thousand only) on account of loss of amenities and expectation of life.
11. Pain and Suffering & Mental Agony As the petitioner suffered permanent disability of 86% and remained incapacitated from performing normal activities, he is awarded a sum of Rs.50,000/- towards pain, suffering and mental agony.
12. Medicines and Medical Treatment Counsel for petitioner submits that a sum of Rs. 46,022.21 was spent towards medical expenses which is not disputed by counsel for respondents. Therefore, a sum of Rs. 46,022.21 is awarded towards medicines and medical treatment.
13. Conveyance & Special Diet In view of the injuries sustained by the petitioner and considering the fact that he had sustained 86% disability as Suit No. 109/11 - Sanjay Kumar vs. Subhash Chander Page 26 of 29 described in Ex.PW2/B, a sum of Rs.10,000/-is granted towards conveyance and Rs.10,000/- towards special diet.
14. Attendant Charges Hon'ble High Court of Delhi in DTC V/s Lalit AIR 1981 Delhi 558 held that the victim is entitled to compensation even if no attendant is hired as some family member renders gratuitous services.
Further, in the case of United India Insurance Co. Ltd. v. Rama Swamy and Others 2012 (2) T.A.C. 34 (Del.), value of gratuitous services rendered by family member of the claimant was assessed at Rs.2,000/- per month.
I am of the considered view that even if the gratuitous services were rendered by some or the other family members, the claimant cannot be deprived of its benefit on the gain of the tortfeasor. Considering the nature of injuries, the compensation of Rs.15,000/- is awarded in lump-sum towards the attendant charges/gratuitous services rendered by the family members.
15. As discussed above, the overall compensation is tabulated as under:
Suit No. 109/11 - Sanjay Kumar vs. Subhash Chander Page 27 of 29Loss of Earning Capacity Rs.7,42,809.60 Loss of Income on Account of accident Rs.25,792/- Loss of amenities and expectation of life Rs.10,000/-
Pain and Suffering Rs.50,000/-
Medicines & Medical Treatment Rs.46,022.21
Conveyance Rs.10,000/-
Special Diet Rs.10,000/-
Attendant Charges Rs.15,000/-
Total Rs.9,09,623.81
(Rounded off to Rs.9,09,624/-)
(Rupees Nine Lac Nine Thousand Six Hundred and Twenty Four only).
The claimant/petitioner is also entitled to get interest @ 9% p.a. from the date of filing of petition i.e. w.e.f. 23.02.2011 till realization.
Further, Respondent No.1 & 2 are jointly and severally liable to make the payment of compensation to the petitioner/claimant.
Relief In the facts and circumstances, Respondent No. 1 & 2 are directed to deposit the award of Rs.9,09,624/- with interest @ 9% p.a. from the date of filing of claim petition i.e. w.e.f.Suit No. 109/11 - Sanjay Kumar vs. Subhash Chander Page 28 of 29
23.02.2011 till realization.
Respondent No. 1 & 2 are directed to deposit the award amount with Nazir within 30 days, failing which they shall be liable to pay interest @ 12% per annum for the period of delay beyond 30 days .
A copy of this judgement be given to Respondent No.1 & 2 for compliance, within the time granted.
Nazir is directed to place a report on record in the event of non-receipt/deposit of the compensation amount within the time granted.
File be consigned to Record Room.
Announced in open court (A.K. Mendiratta) on 18th May, 2015 Judge, MACT-1 (Central), Delhi Suit No. 109/11 - Sanjay Kumar vs. Subhash Chander Page 29 of 29