Delhi District Court
Shobha Devi W/O Late Shri Mithun Das vs Mohd. Feroz S/O Mohd. Kallou on 17 February, 2016
IN THE COURT OF ANOOP KUMAR MENDIRATTA,
JUDGE, MACT-1 (CENTRAL), DELHI.
Suit No.107/13
Unique Case ID No.02401C-0085782013
1. Shobha Devi W/o Late Shri Mithun Das
2. Poonam D/o Late Shri Mithun Das
3. Shiv Kumar S/o Late Shri Mithun Das
All R/o Surender Colony, Part II, Village Jharoda Majra,
Near Balmiki Mandir, Burari
(Petitioner No.2 & 3 being minor through their mother/natural
guardian Smt. Shobha Devi)
4. Zhoti Das S/o Shri Bhabichan Das
5. Aneeta Devi W/o Shri Zhoti Das
Both R/o H.No.24, VPO Birnama Tola, District Samastipur,
Bihar
........PETITIONERS
Versus
1. Mohd. Feroz S/o Mohd. Kallou
R/o Narola Banya Thar Sambhal, Moradabad (UP)
(Driver)
2. Shri Kallu S/o Shri Mateen Shah
R/o H.No.51, Gali No.4, New Hindon Vihar,
Ghaziabad (UP) (Owner)
Suit No.107/13 - Shobha Devi vs. Mohd. Feroz & Ors. Page 1 of 34
3. Shriram General Insurance Company Ltd.
1001, LGF, Naiwala, Arya Samaj Road, Naiwala,
Karol Bagh, New Delhi - 110 005 (Insurer)
.......RESPONDENTS
Date of filing of Claim Petition : 22.02.2013
Arguments heard on : 10.02.2016
Judgment pronounced on : 17.02.2016
JUDGMENT
1. Present claim petition has been preferred under Section 166 and 140 of Motor Vehicles Act, 1988 (hereinafter referred to as 'the Act') claiming compensation for a sum of Rs.20,00,000/- (Rupees Twenty Lakh Only) in respect of accidental death of Mithun Das (since deceased) in a motor vehicular accident.
2. Brief facts of the case giving rise to the claim petition are that on 28.09.2012 about 1.30PM at Lohia Park cut Rajender Nagar, Shahibabad, Ghaziabad (UP), Mithun Das (deceased) was hit by three wheeler bearing no. UP 14 BT 9485 driven by R1 in a rash and negligent manner. Consequently, Mithun Das suffered grievous injuries and was admitted at Ambay Hospital, Shahibabad (UP) and further referred to GTB Hospital, Shahdara, Delhi wherein he succumbed to injuries on 30.09.2012. Postmortem of the body of deceased was conducted at GTB Hospital, Shahdara, Delhi. FIR No.765/12 u/s 279/304A IPC was registered at PS: Shahibabad (UP).
Suit No.107/13 - Shobha Devi vs. Mohd. Feroz & Ors. Page 2 of 34It is further the case of petitioners that the deceased was working as a carpenter and earning about Rs.12,000/- per month.
2. Respondent No.1 & 2 were served by way of publication and were proceeded ex parte vide order dated 30.10.2013 since they failed to appear despite service.
3. In the Written Statement filed on behalf of Respondent No.3 Shriram General Insurance Company Ltd., it was submitted that the petition is beyond the territorial jurisdiction since the accident took place at Shahibabad and Respondent No.1 & 2 were not residents of Delhi. It was further submitted that the offending vehicle bearing no. UP 14 BT 9485 was being plied by Respondent No.1 without holding a proper and valid DL and permit at the time of accident and further the DL was issued in the name of Rashid Hussain and not in the name of Mohd. Feroz. The accident was claimed to have arisen due to negligence of deceased as he was crossing the road without taking necessary precautions. However, it was admitted that offending vehicle bearing registration No. UP 14 BT 9485 was insured in the name of R2 for the period 25.01.2012 to 24.01.2013. The compensation claimed was further stated to be Suit No.107/13 - Shobha Devi vs. Mohd. Feroz & Ors. Page 3 of 34 exaggerated and exorbitant.
3. On the pleadings of the parties, following issues were framed for consideration by ld. Predecessor :-
(i) Whether the deceased Shri Mithun Das Ji had died due to injuries sustained by him in an accident which took place on 28.09.2012 at 01.30 PM within the jurisdiction of PS Sahibabad (UP) due to rash and negligent driving of vehicle bearing Regn. No. UP-14BT-9485 by respondent No.1?
(ii) Whether the petitioners are entitled to any compensation, if so, to what amount and from whom?
(iii) Relief.
In support of the claim, petitioners examined PW1 Shobha Devi (petitioner no.1-wife of deceased) and PW2 Deepak (eyewitness).
PW-1 Shobha Devi testified on the lines of claim petition and proved certified copy of criminal record (colly Ex.PW1/1), copy of ration card (Ex.PW1/2), certificate issued by Gram Pradhan regarding identity of petitioners (Ex.PW1/3), copy Suit No.107/13 - Shobha Devi vs. Mohd. Feroz & Ors. Page 4 of 34 of election I-card of petitioner no.4 Zhoti Das (Ex.PW1/4), copy of election I-card of petitioner no.5 Aneeta Devi (Ex.PW1/5), copy of Swasthya Bima Yojna (Ex.PW1/6) and copy of Aadhar card of Shobha Devi (Ex.PW1/7).
During cross-examination, PW1 admitted that she was not an eyewitness to the accident and her husband was residing at Sahibabad at relevant time. She further admitted that no document had been filed on record to show if deceased was working at Jharoda or to prove his income. She further denied the suggestion that her husband was working at Sahibabad and not at Jharoda. She also denied the suggestion that she was not residing at Delhi at the time of filing of claim petition.
PW2 Deepak testified that he was running a tea stall at Lohia Park cut Rajender Nagar Sahibabad on 28.09.2012 and was present at the tea stall about 1.30PM. He further testified that deceased was hit by offending three wheeler which was driven rashly and negligently and further, the deceased was taken to hospital by the police after the accident.
During cross-examination, he deposed that FIR in the present case was lodged by Akhilesh Kumar (brother-in-law of deceased Mithun) who was known to him. He further clarified that police had recorded his statement and deceased was also known to him as he used to visit his shop for consuming tea. He denied the suggestion that he was not present at the spot at the time of accident or the deceased was crossing the road.
Respondent No.3 Insurance Company examined Suit No.107/13 - Shobha Devi vs. Mohd. Feroz & Ors. Page 5 of 34 R3W1 Shri Rohit Sharma, Legal Officer, Shriram General Insurance Company Ltd.
R3W1 Shri Rohit Sharma testified that vehicle No. UP-14BT-9485 was insured in the name of Kallu for the period 25.01.2012 to 24.01.2013. Further, a notice u/o 12 Rule 8 CPC dated 03.07.2014 was issued through Shri S.K. Tyagi, Advocate on the last known address of the respondents to produce the DL of the driver, permit, fitness and policy of the offending vehicle. He further proved the copy of insurance policy (Ex.R3W1/1), notice u/o 12 rule 8 CPC (Ex.R3W1/2), original postal receipts (Ex.R3W1/3 to Ex.R3W1/5), unserved returned envelope (Ex.R3W1/6 to Ex.R3W1/8), photocopy of DL of the offending vehicle (Mark X), RTI report regarding DL of offending vehicle (Ex.R3W1/9). He further testified that as per letter dated 06.04.2013 replied by Transport Authority, Muradabad, U.P., the DL No.8502 was issued in name of Rashid Hussain, S/o Sh.Ahmad and as such the DL is fake.
5. I have heard arguments addressed on behalf of the petitioners, counsel for respondent Insurance Company and perused the record.
My Issue-wise findings are as under :-
Issue No. (i) Whether the deceased Shri Mithun Das Ji had died due to injuries sustained by him in an accident which took place on 28.09.2012 at 01.30 Suit No.107/13 - Shobha Devi vs. Mohd. Feroz & Ors. Page 6 of 34 PM within the jurisdiction of PS Sahibabad (UP) due to rash and negligent driving of vehicle bearing Regn. No. UP-14BT-9485 by respondent No.1?
In Bimla Devi and Ors. V. Himachal Road Transport Corporation and Ors., (2009) 13 SC 530, it was held that in a petition u/s 166 of the Motor Vehicles Act, 1988 the Claim Tribunal has to decide the negligence on the touchstone of preponderance of probability and holistic view is to be taken while dealing with the Claim Petition. In New India Assurance Co. Ltd. V. Sakshi Bhutani & ors, MAC APP. 550/2011 decided on 02.07.2012 by Hon'ble Mr. Justice G.P. Mittal (Delhi High Court), it was observed that it has to be borne in mind that the Motor Vehicles Act does not envisage holding a trial for a petition preferred under Section 166 of the Act. Under Section 168 of the Act, a Claims Tribunal is enjoined to hold an inquiry to determine compensation which must appear to it to be just. Strict rules of evidence are not applicable in an inquiry conducted by the Claims Tribunal. Further in State of Mysore Vs. S.S. Makapur, 1993 (2) SCR 943, Hon'ble Supreme Court held that the Tribunals exercising quasi-judicial functions are not courts and are not bound by strict rules of evidence. The relevant portion of the report is extracted hereunder:
".......that tribunals exercising quasi- judicial functions are not courts and that therefore they are not bound to follow the procedure prescribed for trial of actions in Suit No.107/13 - Shobha Devi vs. Mohd. Feroz & Ors. Page 7 of 34 courts nor are they bound by strict rules of evidence. They can unlike courts, obtain all information for the points under the enquiry from all sources, and through all channels, without being fettered by rules and procedure, which govern proceedings in court. The only obligation which the law casts on them is that they should not act on any information which they may receive unless they put it to the party against whom it is to be used and give him a fair opportunity to explain it. What is a fair opportunity depend on the facts and circumstances of each case but where such an opportunity has been given, the proceedings are not open to attack on the ground that the enquiry was not conducted in accordance with the procedure followed in courts."
Reference may also be made to 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 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 Suit No.107/13 - Shobha Devi vs. Mohd. Feroz & Ors. Page 8 of 34 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."
Counsel for insurance company contended that the rash and negligent driving has not been proved on record and statement of PW2 Deepak is unreliable in view of his statement recorded during course of investigation u/s 161 Cr.P.C.
On the other hand, the contentions were refuted by counsel for petitioners on the ground that PW2 has not been confronted with any such statement recorded u/s 161 Cr.P.C.
In the instant case, the site plan prepared during the course of criminal investigation as placed on record reflects that deceased was moving on the left side of the road and had been hit by the offending vehicle from behind. Testimony of PW2 Deepak could not be dented during cross-examination. Admittedly, PW2 was not confronted with his statement u./s 161 Cr.P.C. to take Suit No.107/13 - Shobha Devi vs. Mohd. Feroz & Ors. Page 9 of 34 note of the discrepancy contended by counsel for insurance company. Testimony of PW2 or his presence cannot be disbelieved merely because no document was placed on record to show that he was running a tea stall near the site of accident. It may also be observed that Respondent No.1 failed to contest the proceedings and no evidence has been led on record to dispute the statement of PW2 on the manner of accident. Respondent No.1 also stands chargesheeted in the criminal proceedings for the offence punishable u/s 279/338/304A IPC and no complaint regarding false implication has been filed on record. Considering the fact that negligence has to be assessed on touchstone of preponderance of probability, it has been established that the accident was caused due to rash and negligent driving of three wheeler bearing No.UP-14BT-9485 by Respondent No.1. Issue No. 1 is decided in favour of the petitioners and against the respondents.
6. Issue No. (ii) Whether the petitioners are entitled to any compensation, if so, to what amount and from whom?
As per evidence of PW1, deceased was working as a car painter and earning about Rs.12,000/- per month. However, admittedly no evidence has been led on record to prove running of workshop, if any or where the deceased was employed as car Suit No.107/13 - Shobha Devi vs. Mohd. Feroz & Ors. Page 10 of 34 painter. Further no documentary evidence has been placed on record to prove by way of receipts or otherwise in case income of deceased was Rs.12,000/- per month. At least the petitioner could have led evidence of garage owner in case the deceased was working in any particular garage or shop for purpose of painting of cars and earning about Rs.12,000/-. There is nothing on record to prove that deceased was working at Jharoda as claimed by petitioners except for the bald statement of Shobha Devi. Admittedly, deceased was residing at Sahibabad at the time of accident as admitted by PW1 in cross-examination and the accident took place at Sahibabad, UP. The claim had been filed at Delhi only since the the insurance policy had been issued from Delhi within the jurisdiction of this Tribunal. In the facts and circumstances, I agree with the submissions made by counsel for insurance company that income of the deceased has to be assessed on the basis of wages of semi-skilled labourer at the rates notified by Government of UP for the relevant period @ Rs.5,061/- per month.
(a) If addition in income towards future prospects is to be made Petitioners have claimed that addition towards future prospects to the extent of 50% be made considering the fact that deceased was aged about 33 years but the same has been vehemently opposed by counsel for Insurance Company.
It may be observed that in Shashikala & Ors. v.
Suit No.107/13 - Shobha Devi vs. Mohd. Feroz & Ors. Page 11 of 34Gangalakshmamma & Anr. 2015 (2) T.A.C. 867 (SC), separate judgements were passed by Hon'ble Mr. Justice R. Banumathi and Hon'ble Mr. Justice V. Gopala Gowda on the point of assessment of addition to the income of the deceased towards the future prospects in case of salaried persons vis-a-vis where the deceased was self employed or on fixed wages. The case was directed to be placed before the Hon'ble Chief Justice of India for appropriate orders towards constitution of a suitable larger Bench since the issue already stood referred to a larger Bench in the case of National Insurance Company Ltd. v. Pushpa S.L.P. (C) No. 16735/2014. Hon'ble Apex Court in aforesaid case adverted to the judgements passed in Reshma Kumar & Ors. v. Madan Mohan & Anr., VII (2013) S.L.T. 489 (rendered on 2nd April, 2013) and Rajesh vs. Rajbir Singh, (2013) 9 S.C.C. 54 (rendered on 12th April, 2013 in which the judgement passed in Reshma Kumari's case was not noticed). Reference was also made to the judgements passed in Sarla Verma & Ors. v. Delhi Transport Corporation & Anr., 162 (2009) D.L.T. 278, Santosh Devi v. National Insurance Co. Ltd. & Ors., 2012 6 S.C.C. 421, Sanjay Verma v. Haryana Roadways, (2014) 3 S.C.C. 210, National Insurance Co. Ltd. v. Pushpa, S.L.P. (C) No. 16735/2014 (whereby the matter in relation to future prospects was referred to larger Bench). It may further be noticed that Hon'ble Apex Court in Shashikala's case did not provide addition towards future prospects pendente lite the aforesaid issue, wherein the deceased was an income tax payee carrying business of newspapers and had relied upon Income Tax Returns for the Suit No.107/13 - Shobha Devi vs. Mohd. Feroz & Ors. Page 12 of 34 Assessment Years 2005-06 and 2006-07.
In the aforesaid context, reliance may be further placed upon MAC 79 of 2014 Bharti AXA General Insurance Company Ltd. vs. Smt. Poonam & Ors. decided on 27.05.2015 by Hon'ble Mr. Justice G.P. Mittal (Delhi High Court) wherein the judgements passed by the Hon'ble Apex Court in Munna Lal Jain & Anr. Vs. Vipin Kumar Sharma & Ors., Civil Appeal No.4497 of 2015 decided on 15.05.2015 {II (2015) ACC 806 (SC)} was also duly referred but the addition towards future prospects was denied in the absence of any evidence of bright future prospects. Reliance was therein placed upon Reshma Kumari & Others vs. Madan Mohan & Anr. (2013) 9 SCC 65 and HDFC Ergo General Insurance Company Ltd. vs. Smt. Lalta Devi & Others MAC APP No.189/2014 decided on 12.01.2015.
The observations made by the Hon'ble High Court on the aspect of addition of future prospects as discussed in para 21 to 23 of MAC No. 79 of 2014 Bharti AXA General Insurance Company Ltd. vs. Smt. Poonam & Ors. decided on 27.05.2015 (supra) may be beneficially quoted:
21. As far as future prospects are concerned, there is no evidence on record that the deceased had bright future prospects. The question of grant of future prospects was dealt with by this Court at great length in HDFC Ergo General Insurance Co. Ltd. v. Smt. Lalta Devi and Ors., MAC APP No. 189/2014, decided on 12.01.2015. Paras 8 to 21 of the report in Lalta Devi (supra) are extracted hereunder:Suit No.107/13 - Shobha Devi vs. Mohd. Feroz & Ors. Page 13 of 34
8.It is no gainsaying that in appropriate cases some addition towards future prospects must be made in case of death or injury of a person pursuing a professional course. At the same time, it cannot be laid down as a uniform principle that every person pursuing professional course will have a bright future. There may be a student pursuing engineering from the reputed engineering colleges like Indian Institute of Technology (IIT), Regional Engineering College or any other reputed college. At the same time, a number of engineering Colleges have mushroomed where an engineering graduate may find it difficult to secure a job of an engineer. In the instant case, deceased Aditya, as stated earlier was a student of an unknown engineering college, i.e. Echelon Institute of Technology, Faridabad which is claimed to be affiliated to Maharshi Dayanand University, Rohtak. The Claimants have placed on record result-
cum-detailed marks card of First and Second Semester. It may be noted that the deceased had secured just ordinary marks in seven subjects and he had to re-appear in papers 1002 (Mathematical-I), 1006 (Foundation of Computer & Programming) and 1008 (Basics of Mechanical Engineering). Similarly, in the Second Semester the deceased was absent in one of the 12 papers and out of 11 subjects for which he had taken examination, he was to re-appear in four subjects. Thus, it will be difficult to say that the deceased was a brilliant student or that he was pursuing engineering from a well known or even mediocre college.
"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 Suit No.107/13 - Shobha Devi vs. Mohd. Feroz & Ors. Page 14 of 34 extracted hereunder:-
9. The learned counsel for the Claimants has referred to a three Judge Bench deci-
sion 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 get- ting 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 Trans- port Corporation & Anr., (2009) 6 SCC 121 was extended in Rajesh & Ors. v. Ra-
jbir Singh & Ors., (2013) 9 SCC 54 to hold that future prospects ought to be extend- ed 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 Mo-
han & Anr., (2013) 9 SCC 65 wherein while approving the ratio with regard to fu- ture prospects in Sarla Verma (Smt.) & Ors. (supra) and relying on General Man- ager, Kerala State Road Transport Corpo- ration, 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 Gen- eral, 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 deci-
sions in Susamma Thomas [Ker-
Suit No.107/13 - Shobha Devi vs. Mohd. Feroz & Ors. Page 15 of 34ala SRTC v. Susamma Thomas, (1994) 2 SCC 176 : 1994 SCC (Cri) 335], Sarla Dixit [(1996) 3 SCC 179] and Abati Bezbaruah [Abati Bezbaruah v. Geological Survey of India, (2003) 3 SCC 148 : 2003 SCC (Cri) 746] and in para 24 of the Report held as un- der: (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 imponder- ables 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 „ac- tual salary‟ should be read as „ac- tual salary 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 in- dicate a different percentage of increase, it is necessary to standard- ise the addition to avoid different yardsticks being applied or different methods of calculation being adopt- ed. Where the deceased was self-em- ployed or was on a fixed salary (without provision for annual incre- ments, 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 ex- ceptional cases involving special circumstances."Suit No.107/13 - Shobha Devi vs. Mohd. Feroz & Ors. Page 16 of 34
39. The standardization of addition to income for future prospects shall help in achieving certainty in arriv-
ing at appropriate compensation.
We approve the method that an ad-
dition of 50% of actual salary be made to the actual salary income of the deceased towards future prospects where the deceased had a permanent 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 provision 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 jus-
tified in extraordinary circum-
stances and very exceptional cases."
12. The learned counsel for the Insurance Company relies upon a Constitutional Bench judgment of the Supreme Court in Central Board of Dawoodi Bohra Community & Anr. v. State of Maharashtra & 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 divergence of opinion in judgments of bench- es 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 Suit No.107/13 - Shobha Devi vs. Mohd. Feroz & Ors. Page 17 of 34 with a reference 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 multi- plier. 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 mul- tiplier. It further laid down that addition to- wards 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 getting a fixed salary without any provision of annual increment.
14. Of course, three Judge Bench of the Supreme Court in its later judgment in Ra- jesh relying on Santosh Devi v. National In- surance Company Ltd. & Ors., 2012 (6) SCC 421 observed that there would be addi- tion of 30% and 50%, depending upon the age of the deceased, towards future prospects even in the case of self-employed persons. It may, however, be noted that in Rajesh, the three Judge Bench decision in Reshma Kumari (supra) was not brought to the notice of their Lordships.
15. The divergence of opinion was noted by another three Judge Bench of the Supreme Court in Sanjay Verma v. Haryana Road-
ways, (2014) 3 SCC 210. In paras 14 and 15, the Supreme Court observed as under:-
"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 Suit No.107/13 - Shobha Devi vs. Mohd. Feroz & Ors. Page 18 of 34 (Cri) 1044], a two-Judge Bench of this Court while considering the following questions took the view that the issue(s) needed resolu- tion by a larger Bench: (SCC p. 425, para
10) "(1) Whether the multiplier speci-
fied in the Second Schedule append-
ed 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 re-
gards determination 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 un- less there are extraordinary and excep- tional circumstances. Though the ex-
pression "exceptional and extraordi- nary circumstances" is not capable of any precise definition, in Shakti Devi v. New India Insurance Co. Ltd. [(2010) 14 SCC 575 : (2012) 1 SCC (Civ) 766 :
(2011) 3 SCC (Cri) 848] there is a practical application of the aforesaid principle. The near certainty of the reg-
ular employment of the deceased in a government department following the retirement of his father was held to be a valid ground to compute the loss of in-
Suit No.107/13 - Shobha Devi vs. Mohd. Feroz & Ors. Page 19 of 34come by taking into account the possi-
ble future earnings. The said loss of in- come, accordingly, was quantified at double the amount that the deceased was earning at the time of his death."
16. Further, the divergence of opinion in Reshma 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 lat- est judgment in National Insurance Compa- ny 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 pro- nouncement. Therefore, we think it appropriate to refer the matter to a larg- er Bench."
17. Now, the question is which of the judg- ments ought to be followed awaiting answer to the reference 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 Se- nior Counsel for the parties and hav- ing examined the law laid down by the Constitution Benches in the abovesaid Suit No.107/13 - Shobha Devi vs. Mohd. Feroz & Ors. Page 20 of 34 decisions, we would like to sum up the legal position in the following terms:
(1) The law laid down by this Court in a decision delivered by a Bench of larger strength is binding on any sub-
sequent Bench of lesser or coequal strength.
(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 can- not disagree 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 deci- sion has come up for consideration. It will be open only for a Bench of coequal strength to express an opinion doubting the correct- ness 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 decision 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 it- self 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 Suit No.107/13 - Shobha Devi vs. Mohd. Feroz & Ors. Page 21 of 34 to hear the case and examine the correctness of the previous decision in question dispens- ing with the need of a specific reference or the order of the Chief Justice constituting the Bench and such listing. Such was the sit- uation in Raghubir Singh [(1989) 2 SCC 754] and Hansoli Devi [(2002) 7 SCC 273]."
19. Similarly, in Safiya Bee v. Mohd. Vaja- hath Hussain @ Fasi, (2011) 2 SCC 94 in para 27, the Supreme Court observed as un- der:-
"27. However, even assuming that the decision in WP No. 35561 of 1998 did not operate as res judicata, we are to 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 interpre- tation of Section 2(c) of the Act and its application to the petition schedule property, judicial discipline and prac- tice required them to refer the issue to a larger Bench. The learned Judges were not right in overruling the state- ment of the law by a coordinate Bench of equal strength. It is an ac- cepted rule or principle that the state-
ment 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-
Suit No.107/13 - Shobha Devi vs. Mohd. Feroz & Ors. Page 22 of 34ordinate strength can only make a reference to a larger Bench. In para 9 of the report, 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 dif- ferent view, it can only refer the mat- ter 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 decision is a judgment per incuriam. The decision in S.N. Narula case [(2011) 4 SCC 591] was binding on the subsequent Bench of equal strength and hence, it could not take a contrary view, as is settled by a series 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 re- port in S.K. Kapoor (supra), the three Judge Bench decision in Reshma Kumari & Ors.
(supra) shall be taken as a binding prece- dent."
21.In the instant case, the deceased's actual or potential income is taken as Rs.20,000/- per month. Even if it is taken that the deceased was working with 'Dainik Janwani Samachar Patra', there was no evidence with regard to his good future prospects or that the deceased was in permanent employment.
22.Thus, in absence of any evidence of good future prospects, no addition towards future prospects ought to have been made by the Claims Tribunal."
Suit No.107/13 - Shobha Devi vs. Mohd. Feroz & Ors. Page 23 of 34In view of the legal position as discussed by the Hon'ble High Court and in absence of any evidence with regard to good future prospects of deceased, addition of income towards future prospects cannot be made for the purpose of compensation.
(b) Deduction towards personal and living expenses of the deceased:
Counsel for petitioners submitted that deceased Mithun is survived by his wife Rekha, daughter Poonam, son Shiv Kumar, father Zhoti Dass and mother Aneeta Devi.
As per Sarla Verma (Smt.) & Ors. vs. Delhi Transport Corporation & Anr. (2009) 6 SCC 121, the deduction towards personal and living expenses of the deceased should be one-third (1/3rd) where the number of dependent family members is 2 to 3, 1/4th where the number of dependent family members is 4 to 6 and 1/5th where the number of dependent family member exceeds 6.
Since the deceased is survived by five dependents, i.e. wife, two children and parents, the deduction towards personal and living expenses of the deceased shall be 1/4th as held in Sarla Verma's case (supra).
(c) Selection of multiplier:
Suit No.107/13 - Shobha Devi vs. Mohd. Feroz & Ors. Page 24 of 34Age of deceased is reflected to be 30 years in the petition while in the postmortem report, age of deceased is reflected as 35 years. However, in the ration card (Ex.PW1/2) age of deceased is reflected as 29 years which is admitted to have been issued in 2008 by PW1. Since the accident occurred on 28.09.2012, the age of deceased would have been approximately 33 years. Relying upon Ex.PW1/2 age of deceased for purpose of assessment of compensation is taken as 33 years. Accordingly, as held in Sarla Verma (Smt.) & Ors. vs. Delhi Transport Corporation & Anr. (2009) 6 SCC 121, the multiplier of 16 is to be adopted for the purpose of assessment of compensation.
(d) Loss of financial dependency In the light of aforesaid facts, loss of financial dependency of the petitioners comes to Rs.7,28,784/-[i.e. Rs.5,061/- (notional income) X 12 (months) X 16 (multiplier) X 3/4 (dependency)].
7. Compensation under non-pecuniary heads:
It has been held by the Hon'ble Apex Court in Rajesh & Ors. v. Rajbir Singh & Ors., (2013) 9 SCC 54 that the compensation is to be awarded for a sum of Rs.1 lakh each towards loss of love and affection and loss of consortium, Rs.25,000/- towards funeral expenses and Rs.10,000/- towards loss Suit No.107/13 - Shobha Devi vs. Mohd. Feroz & Ors. Page 25 of 34 of estate.
However, Hon'ble Supreme Court awarded Rs. 1,00,000/- towards loss of estate in the case of Asha Verman & Others v. Maharaj Singh & Others, 2015 ACJ 1286 relying upon Kalpanaraj v. State of Tamil Nadu State Trans. Corpn., 2014 ACJ 1388 (SC). Further, Hon'ble Supreme Court awarded Rs. 50,000/- to each parent for loss of love and affection in M. Mansoor v. United India Insurance Co. Ltd., 2013 ACJ 2849 (SC). Also, the Hon'ble Apex Court awarded a sum of Rs.1 lakh to each child in Jiju Kuruvila v. Kunjujamma Mohan, 2013 ACJ 2141 (SC). Further, interest @ 9% per annum was awarded on the award amount by the Hon'ble Apex Court in Municipal Corporation of Delhi v. Association of Victims of Uphaar Tragedy, 2012 ACJ 48 (SC). Though a wide discretion in determination of compensation is given but the amplitude of such powers has to be exercised in consonance with settled principles. It needs to be borne in mind that compensation is neither expected to be windfall or bonanza or source of profit but at the same time should not be pittance.
Petitioners are accordingly entitled to Rs.1 lakh towards loss of estate, Rs.1 lakh towards loss of consortium to wife, Rs.1 lakh towards loss of love and affection to each child, Rs.50,000/-each towards loss of love and affection to mother and father of deceased and Rs.25,000/- towards funeral expenses.
8. The petitioners/claimants are accordingly entitled Suit No.107/13 - Shobha Devi vs. Mohd. Feroz & Ors. Page 26 of 34 to compensation computed as under:
Loss of financial dependency Rs.7,28,784/-
Medical Treatment Rs. NIL
Loss of Consortium to Wife Rs.1,00,000/-
Loss of love and affection to children Rs.2,00,000/-
Loss of Love and affection to parents Rs.1,00,000/-
Loss of Estate Rs.1,00,000/-
Funeral Expenses Rs.25,000/-
________________
Total Rs.12,53,784/-
________________
(Rupees Twelve Lakh Fifty Three Thousand Seven Hundred & Eighty Four Only) The claimants/petitioners are also entitled to interest @ 9% p.a. from the date of filing of claim petition w.e.f. 22.02.2013 till realization.
The amount of interim award, if any, shall however be deducted from the above amount, if the same has already been paid to the petitioners.
9. It is further held that Respondent No.1 (Driver), Respondent No.2 (Owner) and Respondent No.3 (Insurer) of the offending vehicle are jointly and severally liable to make the payment of compensation to the petitioners/claimants.
10. For the purpose of disbursement, petitioner no. 1 Shobha Devi (wife of deceased) shall be entitled to 40% and Suit No.107/13 - Shobha Devi vs. Mohd. Feroz & Ors. Page 27 of 34 petitioner no. 2 to 5 shall be entitled to 15% each of the award amount and proportionate interest thereon.
On realization, an amount of Rs.50,000/- (Rupees Fifty Thousand Only) shall be released to petitioner no.1 Shobha Devi (wife of deceased) and remaining amount of her share along with proportionate up-to-date interest shall be kept in fifteen fixed deposits of equal amount in her name for a period of one year, two years, three years, four years, five years, six years, seven years, eight years, nine years, ten years, eleven years, twelve years, thirteen years, fourteen years and fifteen years respectively without the facility of advance, loan or premature withdrawal with release of quarterly periodical interest in her account.
Further, out of the respective shares of petitioner no. 4 Zhoti Das (father of deceased) & petitioner no.5 Aneeta Devi (mother of deceased), an amount of Rs.25,000/- (Rupees Twenty Five Thousand Only) each shall be released to petitioner no. 4 & 5 respectively and remaining amount of their respective shares along with up-to-date proportionate interest shall be kept in seven fixed deposits of equal amount in their respective names for a period of one year, two years, three years, four years, five years, six years and seven years respectively without the facility of advance, loan or premature withdrawal with release of quarterly periodical interest in their accounts.
However, the total amount of share of petitioner no. 2 Poonam & petitioner no. 3 Shiv Kumar (i.e. minor children of deceased) along with up-to-date proportionate interest shall be Suit No.107/13 - Shobha Devi vs. Mohd. Feroz & Ors. Page 28 of 34 fixed deposited in their respective names with a nationalised bank till they attain the age of 21 years without the facility of advance, loan or premature withdrawal with release of quarterly periodical interest in the account of petitioner no. 1 Shobha Devi being mother/natural guardian for benefit of minor children.
11. Liability to satisfy the claim Counsel for Insurance Company disputed the liability of the Insurance Company on the ground that the driver of the offending vehicle was not holding a valid Driving Licence on the date of accident and the same was in fact revealed to be fake. In support of contentions counsel for Insurance Company further relied upon evidence of R3W1 Rohit Sharma, Legal Officer, M/s Shriram General Insurance Company Ltd, who proved the notice Under Order 12 Rule 8 CPC issued to driver and owner of the offending vehicle Ex.R3W1/2 along with letter dated 06.04.2013 issued by Transport Authority, Muradabad, U.P. whereby it was informed that DL no.8502 was issued in the name of one Rashid Hussain S/o Ahmad and not in name of Feroz. As such it was contented by counsel for Insurance Company that since driver of the offending vehicle Mohd.Firoz was not holding a driving licence to drive the offending vehicle at the time of accident there was willful breach and violation of the terms and conditions of the Insurance Policy by Respondent No.1 & 2.
Suit No.107/13 - Shobha Devi vs. Mohd. Feroz & Ors. Page 29 of 3412. In MAC. APP.1008/2011 Reliance General Insurance Company Ltd. v. Nawab Jan & Ors. decided on 27.03.2014, the witness of the insurance company proved that the notice under Order 12 Rule 8 CPC served upon the owner whereby he was asked to produce the permit of the offending vehicle in the court but he failed to do so and was proceeded ex parte. It was therein observed:
"6. The factum of the notice has been proved by the appellant. Therefore, there is nothing on record whether the offending vehicle was having valid permit at the time of accident or not. In such eventuality, adverse inference had to be drawn against the owner of the offending vehicle. However, Ld. Tribunal failed to do so.
7. In view of the abovementioned facts, I am of the considered opinion that Ld. Tribunal has wrongly held that the breach of terms of the policy has not been established. Therefore, appellant is at liberty to recover the amount from the respondent no. 7, i.e. the owner of the offending vehicle."
Further, in New India Assurance Co. Ltd. v. Sanjay Kumar & Ors. ILR 2007 (II) Delhi 733, the Hon'ble High Court observed as under:
"23. Where the assured chooses to run away from the battle i.e. fails to defend the allegation of having breached the terms of the insurance policy by opting not to defend the proceedings, a presumption could be drawn that he has done so because of the fact that he has no case to defend. It is trite that a party in possession of best evidence, if he withholds the same, an adverse inference can be drawn against him that had the evidence been produced, the same would have been against said person. AS knowledge is personal to the person possessed of the knowledge, his absence at the trial would entitle the insurance company to a presumption against the owner.Suit No.107/13 - Shobha Devi vs. Mohd. Feroz & Ors. Page 30 of 34
24. That apart, what more can the insurance company do other than to serve a notice under Order 12 Rule 8 of the Code of Civil Procedure calling upon the owner as well as the driver to produce a valid driving license. If during trial such a notice is served and proved to be served , non response by the owner and the driver would fortify the case of the insurance company."
It is also well settled that in such cases the insurance company would first have to satisfy the liability towards the third party though it may subsequently recover the amount from the insured. The issue was considered at length by the Hon'ble High Court of Delhi in Sanjay v. Suresh Chand & Ors. F.A.O. No. 445/2000 decided on 03.08.2012 and it was observed:
"The issue of satisfying the third party liability even in case of breach of the terms of insurance policy is settled by three Judge Bench report in Sohan Lal Passi v. P. Sesh Reddy, (1996) 5 SCC
21. As per Section 149(2) of the Motor Vehicles Act (the Act), an insurer is entitled to defend the action on the grounds as mentioned under Section 149(2)(a)(i)(ii) of the Act. Thus, the onus is on the insurer to prove that there is breach of the condition of policy. It is well settled that the breach must be conscious and willful. Even if a conscious breach on the part of the insured is established, still the insurer has a statutory liability to pay the compensation to the third party and will simply have the right to recover the same from the insured/tortfeasor either in the same proceedings or by independent proceedings as the case may be, as ordered by the Claims Tribunal or the Court. The question of statutory liability to pay the compensation was discussed in detail by a two Judge Bench of the Supreme Court in Skandia Insurance Company Limited v. Kokilaben Chandravadan, (1987) 2 SCC 654 where it was held that exclusion clause in the contract of insurance must be read down being in conflict with the main statutory provision enacted for protection of victim of accidents. It was laid Suit No.107/13 - Shobha Devi vs. Mohd. Feroz & Ors. Page 31 of 34 down that the victim would be entitled to recover the compensation from the insurer irrespective of the breach of the condition of policy. The three Judge Bench of the Supreme Court in Sohan Lal Passi analyzed the corresponding provisions under the Motor Vehicles Act, 1939 and the Motor Vehicles Act, 1988 and approved the decision in Skandia. In New India Assurance Co., Shimla v. Kamla and Ors., (2001) 4 SCC 342, the Supreme Court referred to the decision of the two Judge Bench in Skandia, the three Judge Bench decision in Sohan Lal Passi and held that the insurer who has been made liable to pay the compensation to third parties on account of issuance of certificate of insurance, shall be entitled to recover the same if there was any breach of the policy condition on account of the vehicle being driven without a valid driving licence.
20. This Court in MAC APP. No. 329/2010 Oriental Insurance Company Limited v. Rakesh Kumar and Others and other Appeals decided by a common judgment dated 29.02.2012, noticed some divergence of opinion in National Insurance Company Limited v. Kusum Rai & Ors., (2206) 4 SCC 250, National Insurance Company Limited v. Vidhyadhar Mahariwala & Ors., (2008) 12 SCC 701; Ishwar Chandra & Ors. v. The Oriental Insurance Company Limited & Ors., (2007) 10 SCC 650 and Premkumari & Ors. v. Prahalad Dev & Ors., (2008) 3 SCC 193 and held that in view of the three Judge Bench decision in Sohan Lal Passi (supra) and Swaran Singh, the liaility of the insurance company successfully proves the conscious breach of the terms of the policy, then it would be entitled to recovery rights against the owner or driver, as the case may be."
In view of above, if the insurance company proves conscious breach of the terms of the policy, it would be entitled to recovery rights.
Suit No.107/13 - Shobha Devi vs. Mohd. Feroz & Ors. Page 32 of 3413. In the present case Respondent No.1 & 2 were proceeded ex parte vide order dated 30.10.2015 after they were served by way of publication and have failed to step into the witness box or produce driving licence before the court or the Insurance Company. Since no evidence has been led on record to controvert the claim of the Insurance Company an adverse inference has to be drawn against the driver and owner of the offending vehicle. As such, prima facie there has been breach of terms and conditions of the policy by the owner/driver of the offending vehicle and as such the recovery rights are granted in favour of the Insurance Company. Accordingly, the Insurance Company has to first satisfy the liability towards the third party and shall be thereafter entitled to recover the amount from the insured Respondent No.2 Kallu and Respondent No.1/driver of the offending vehicle Mohd. Feroz in view of the law as discussed in preceding paragraphs.
14. Relief Since the offending vehicle was duly insured, Respondent No.3/Shriram General Insurance Company Ltd. is directed to deposit the award amount of Rs.12,53,784/- with interest @ 9% per annum from the date of filing of claim petition i.e. 22.02.2013 till realization with Nazir of this Court within 30 days under intimation to the petitioners, failing which the Insurance Company shall be liable to pay interest @ 12% per annum for the period of delay beyond 30 days.
Insurance Company/driver and owner of the offending Suit No.107/13 - Shobha Devi vs. Mohd. Feroz & Ors. Page 33 of 34 vehicle are also directed to place on record the proof of deposit of the award amount, proof of delivery of notice in respect of deposit of the amount with the Tribunal to the claimants and complete details in respect of calculations of interest etc. in the court within 30 days from today.
A copy of this judgement be sent to Respondent No.3/ Shriram General Insurance Company Ltd. 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 (Anoop Kumar Mendiratta) on 17th February, 2016 Judge MACT-1 (Central), Tis Hazari Courts, Delhi.
Suit No.107/13 - Shobha Devi vs. Mohd. Feroz & Ors. Page 34 of 34