Delhi District Court
Smt. Mairoon Nisha vs Sh. Manoj Kumar S/O Sh. Rajendra Prasad on 12 July, 2017
IN THE COURT OF SHRI VINAY SINGHAL
ADDITIONAL DISTRICT & SESSIONS JUDGE,
JUDGE, MACT-2, (CENTRAL), DELHI.
Suit No. 57568-16
1. Smt. Mairoon Nisha
W/o Late Shri Mehandi Hassan
2. Baby Reshma D/o Late Shri Mehandi Hassan
3.Baby Salma D/o Late Shri Mehandi Hassan
4.Master Kurshid S/o Late Shri Mehandi Hassan
(Petitioners No. 2 to 4 are minors through
their natural guardian and mother Smt. Mairoon Nisha)
5. Smt. Kaseedani W/o Late Shri Dil Mohammad
All Residents of
H. No. 68/132, Majnu Ka Tilla
Delhi.
Permanent Address:
27K, Kohada, Tehsil Kasia
Distt. Khushinagar, UP274305.
........PETITIONERS
Versus
1. Sh. Manoj Kumar S/o Sh. Rajendra Prasad
R/o 14/174, Raj Nagar, Ghaziabad,UP-201001 (Drivercum Owner)
2. M/s Reliance General Insurance Company Ltd.
Tolstoy Road-202-210, Second Floor, Merchantile House,
15, K.G. Marg, New Delhi. (Insurer)
.......RESPONDENTS
Date of filing of Claim Petition : 15.12.2012
Arguments heard on : 10.07.2017
Judgment pronounced on : 12.07.2017
Suit No. 5756816 Smt. Mairoon Nisha Vs Manoj Kumar & Ors Page 1 of 33
JUDGMENT-CUM-AWARD:
INFORMATION IN TERMS OF PROVISIONS OF THE
MODIFIED
CLAIM TRIBUNAL AGREED PROCEDURE (MCTAP)
1 Date of Accident 13/07/2012
2 Date of intimation of the accident by the NA
Investigation Officer to the Claims Tribunal
(Clasuse2)
3 Date of intimation of the accident by the NA
Investigation Officer to the Insurance
Company (Clause2)
4 Date of filing of the Report under section 173 NA
Cr.PC before the Metropolitan Magistrate
(Clause 10)
5 Date of filing of Detailed Accident Information NA
Report(DAR) by the Investigation Officer
before Claims Tribunal (Clause)
6 Date of service of DAR on the Insurance NA
Company (clause11)
7 Date of service of DAR on the claimant(s) NA
(Clause11)
8 Whether DAR was complete in all respects? ( NA
Clause11)
9 If not state deficiencies in the DAR
10 Whether the police has verified the NA
documents filed with DAR? (clause4)
11 Whether there was any delay or deficiency on NA
the part of the Investigation Officer? If so,
whether any action/ direction warranted?
12 Date of appointment of the Designated Officer NA
by the Insurance Company
13 Name , address and contact number of the No
Suit No. 5756816 Smt. Mairoon Nisha Vs Manoj Kumar & Ors Page 2 of 33
Designated Officer of the Insurance
Company(Clause 19)
14 Whether the Designated officer of the No
insurance Company submitted his report
within 30 days of the DAR?(Clause 21)
15 Whether the Insurance Company admitted the No
liability? If so, whether the Designated Officer
of the Insurance Company fairly computed the
compensation in accordance with law.
(Clause22)
16 Whether there was any delay or deficiency on No
the part of the Designated officer of the
Insurance Company? If so whether any
action/ direction warranted?
17 Date of response of the claimant(s) to the NA
offer of the Insurance Company? (Clause 23)
18 Date of Award 12/07/2017
19 Whether the award was passed with the No
consent of the parties? (Clause 22)
20 Whether the claimants(s) examined at the Yes
time of passing of the award to ascertain his/
their financial condition? (Clause 26)
21 Whether the photographs, specimen Yes
signatures, proof of residence and particulars
of bank account of the injured/ legal heirs of
the deceased taken at the time of passing of
the award? (Clause26)
22 Mode of disbursement of the award amount to Mentioned in the award
the claimant(s) (Clause 28)
23 Next Date of compliance of the 12/09/2017
award(Clause30)
Suit No. 5756816 Smt. Mairoon Nisha Vs Manoj Kumar & Ors Page 3 of 33
PART-A
BRIEF FACTS OF ACCIDENT
1. Present claim has arisen on the basis of a petition filed u/s 166 r/w Section 140 of the MV Act claiming compensation for a sum of Rs. 15,00,000/- (Rupees Fifteen Lakh Only) in respect of accidental death of Mehandi Hassan (since deceased) in a motor vehicular accident.
2. Brief facts of the case giving rise to the claim Petition are that on 13/07/2012 while the deceased was crossing the road in front of IBF Compound Gate No. 2, Meeruth Road, Sihani Gate, Ghaziabad, UP, he was hit by a car bearing No. UP-14-AY-3300 owned and driven by the Respondent No. 1. As a result of the accident, the deceased suffered grievous injuries and was admitted in STC where MLC was prepared. The deceased remained admitted there till 27/08/2012 during which period he was operated upon for the treatment of the injuries sustained by him.
The deceased thereafter on being discharged from STC was taken to his native place at Khushi Nagar, where on account of his ill health he was admitted to Civil Hospital from where he was discharged on 22/11/2012. The deceased ultimately expired on 23/11/2012. FIR No.644/2012 U/S 279/338/304A IPC was registered at PS Sihani Gate, Ghaziabad, UP.
It is further the case of the Petitioners that deceased aged about 40 years was employed as a labourer in a factory at Ghaziabad Suit No. 5756816 Smt. Mairoon Nisha Vs Manoj Kumar & Ors Page 4 of 33 at a monthly salary of around Rs. 10,000/-. Further, deceased is survived by his aged mother, wife, two minor daughters and one minor son.
PART-B DEFENCE OF DRIVER CUM OWNER RESPONDENT No. 1
3. In the Written Statement filed on behalf of Respondent No.1/driver cum owner of the offending vehicle, it was submitted that the accident had occurred on account of negligence on the part of the deceased himself in crossing the road from a point which was not a zebra crossing coupled with the fact that there was also no red signal at the point where the accident took place.
PART-C DEFENCE OF INSURANCE COMPANY RESPONDENT No. 2
4. In the Written Statement, Respondent No. 2 submitted that thought indeed the vehicle in question was insured with it for the relevant period but at the same time by virute of an application u/o 6 rule 17 CPC filed by it on 26/02/2013, it has also taken a preliminary objection w.r.t the territorial jurisdiction of the Delhi Court to entertain and try the present petition on the ground that the deceased was a resident of UP Ghaziabad, the offending vehicle was registered within the territorial jurisdiction of UP coupled with the fact that even the insurance policy stand issued from the UP Office.
Suit No. 5756816 Smt. Mairoon Nisha Vs Manoj Kumar & Ors Page 5 of 33PART-D ISSUES
5. From the pleadings of the parties, following issues were framed for consideration vide order dated 23.04.2013 by ld. Predecessor:-
(i) Whether the deceased Mehandi Hassan died in a road traffic accident dated 13/07/2012 due to rash and negligent driving of the offending vehicle bearing No. UP-14 AY-3300 driven by respondent no. 1 as alleged?
(ii) What amount of compensation the petitioners are entitled to and from whom?
(iii) Relief.
PART-E PETITIONER'S EVIDENCE
6. In support of the claim, Petitioners examined Petitioner No. 1 as PW-1 and five other witnesses.
PW-1 Petitioner No. 1 who is the wife of the deceased deposed along the lines of the petition and also proved on record the ID proof of the deceased and the petitioners.
PW-1 has also proved on record the rent agreement executed in between the deceased and one Smt. Bimlesh in order to aver that at the time of accident the deceased was a resident of Delhi.
As far as the cross examination of PW-1 is concerned, she being not an eye witness to the accident has deposed as such qua her knowledge about the accident.
However, from her cross examination, it came on record that no postmortem was conducted after the death of the deceased in order to ascertain the cause of the death of the deceased as he had Suit No. 5756816 Smt. Mairoon Nisha Vs Manoj Kumar & Ors Page 6 of 33 expired at home and that too after about five months of the accident. She has also been examined as to the authenticity of the rent agreement.
PW-2 Smt. Bimlesh is stated to be the landlady in whose premises the deceased was allegedly residing prior to the accident. The said PW-2 reiterated the fact that indeed the rent agreement in question was executed in between herself and the deceased. However, a perusal of the said agreement brings to light the fact that against the thumb impressions, the name of one Sh. Rajak has been mentioned and accordingly, the said PW was re-summoned by the Court on its own vide order dated 03/10/2016 in order to clarify the said fact. The said PW-2 in pursuance to the court notice appeared on 10/07/2017 and during court examination again reiterated that the deceased had put his thumb impression on the rent agreement but she is not aware as to how the name of Rajak was mentioned therein.
PW-3- Vikram Singh is the eye witness who has given the details of the accident in question and despite thorough cross examination nothing adverse has come on record w.r.t his testimony.
PW-4-Anthony has been examined as he has claimed himself to be a co-worker with the deceased in M/s Bosch Ltd as well as was stated to be a person who had taken the deceased immediately after the accident to one Shivam Nursing Home and thereafter to STC, Delhi. Nothing adverse also came out of his cross examination.
PW-5-HC Sabhajit from PS Kasia, Khushi Nagar, UP who has been summoned to prove the death report of the deceased deposed that on receipt of the intimation of the death, they have conducted an enquiry and found the report of the death as correct.
Suit No. 5756816 Smt. Mairoon Nisha Vs Manoj Kumar & Ors Page 7 of 33PW-5,who should be PW-6, is Dr. Navneet Goel-Orthopadeics Specialist from Bhagwan Mahavir Hospital Delhi was earlier posted with STC, Delhi and part of the team under whom the deceased remained admitted. The said PW-5/6 is the most important witness. The said PW-5/6 has categorically deposed w.r.t injuries suffered by the deceased. He has deposed that on account of the accident, the petitioner suffered cervical spine injury with paralysis of all four limbs alongwith grievous chest injures. He also deposed that multiples surgeries were performed upon the deceased with no result as even at the time of discharge of the deceased from STC, Delhi, he was having the same degree of paralysis as at the time of admission. He also deposed that in the cases of nature of injuries suffered by the deceased, the chances of survival is almost nil as 30-40 patients having the same nature of injuries either die on the spot or on the way to the hospital or withing two years of the accident irrespective of the fact that they have received any treatment. The testimony of the said PW-5/6 could not be dented.
PART-F RESPONDENT'S EVIDENCE
7. Respondent No. 1 has not led any evidence.
8. The Respondent No. 2/Insurance Company has examined Sh. Ashok Kumar Pandey-Chief Pharmacists, District Khushi Nagar, UP as R2W1.The said witness deposed that indeed the deceased remained admitted with District Hospital from 27/09/2012 to 23/11/2012.
During cross examination, he deposed that even at the time of his discharge, the deceased condition was not stable as he was not Suit No. 5756816 Smt. Mairoon Nisha Vs Manoj Kumar & Ors Page 8 of 33 able to sit or stand.
PART-G FINDINGS/CONCLUSION
9. 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 Mehandi Hassan died in a road traffic accident dated 13/07/2012 due to rash and negligent driving of the offending vehicle bearing No. UP-14 AY-3300 driven by respondent no. 1 as alleged?
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. Suit No. 5756816 Smt. Mairoon Nisha Vs Manoj Kumar & Ors Page 9 of 33 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 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 Suit No. 5756816 Smt. Mairoon Nisha Vs Manoj Kumar & Ors Page 10 of 33 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 instant case, the factum of accident is not denied by the Respondent No. 1 in his written statement. The only defence taken by the Respondent No. 1 is that the deceased himself was negligent in crossing the road from a point which was not a zebra crossing.
However, the Respondent No. 1 had not cross examined eye witness-PW-3 w.r.t the said defence nor had led any evidence on his own to support the line of defence taken by him. Hence, considering the fact that negligence has to be assessed on touchstone of preponderance of probability and a holistic view is to be taken, it has been established that the accident was caused due to rash and negligent driving by Respondent No.1.
Suit No. 5756816 Smt. Mairoon Nisha Vs Manoj Kumar & Ors Page 11 of 3310. Now the next question remains whether the victim Sh. Mehandi Hassan has died on account of the accident itself or due to some other factor. The said question has arisen on account of the fact that the accident had taken place in the month of July, 2012 whereas he has expired in November,2012 coupled with the fact that no postmortem was conducted upon the body of the victim in order to ascertain cause of death.
11. In this respect the testimony of PW-5/6 who was the treating doctor at STC, Delhi where the victim was admitted and operated upon multiple times is of utmost importance. The said PW- 5/6 has categorically deposed that in the case of injuries of the nature sustained by the victim, the chances of survival is absolutely nil. As per the said testimony, such kind of victim either die on the spot or on the way to the hospital or within 2-3 years of the accident irrespective of the fact as to whether they have taken any treatment or not. It is very much clear from his testimony that the victim was operated upon multiple times at STC and also remained admitted at District Hospital, Khushi Nagar, UP for a considerable period of time and expired within one week of discharge from the district hospital. Accordingly, the fact that the postmortem was not conducted though could have been a relevant factor in other case but could not of any importance of the present case in view of the clear cut testimony of PW-5/6- the treating doctor. Accordingly, the Issue No. 1 is decided in favour of the Petitioners and against the Respondents.
12. Though no issue has been framed but by virute of application u/o 6 Rule 17 CPC filed 26/02/2013 and allowed vide Suit No. 5756816 Smt. Mairoon Nisha Vs Manoj Kumar & Ors Page 12 of 33 order of the even date, the Respondent No. 2-Insurance Company has taken a defence that the Delhi Court have no territorial jurisdiction to entertain and try the present petition on the ground that the accident had taken place in UP, the deceased's permanent address is of UP and the insurance policy has been issued from UP and hence, the Court deem it fit to decide this issue also before proceeding further to decide the Issue No. 2.
13. In order to invoke the jurisdiction of Delhi Court, the petitioner has relied upon the rent agreement dated 02/07/2011 executed between the PW-2 and the deceased.
PW-2 is the landlady of the house at Delhi where allegedly the deceased was residing prior to the accident. The said agreement has been challenged by the Respondent No.2/Insurance Company and on account of the discrepancies w.r.t the name of the person whose thumb impressions are there at point A on the said rent agreement, the Court on its own vide order dated 03/10/2016 had issued notice to the PW-2 for her re-examination. The said PW-2 had categorically stated that indeed the said rent agreement was executed but being not aware about the writing on the same, she is not in a position to explain as to how the name of Rajak against the thumb impressions of the deceased. However, as far as her stand w.r.t the execution of the rent agreement and the fact that the deceased resided as a tenant in a property and the goods of the deceased having lying there even after his death for a period of around one and half years is concerned, the same remains uncontroverted as the respondent has failed to prove otherwise. Merely mentioning of a wrong name against thumb impressions cannot be a ground to reject the other part of the testimony which clearly proves the veracity of the rent Suit No. 5756816 Smt. Mairoon Nisha Vs Manoj Kumar & Ors Page 13 of 33 agreement. Hence, the Court come to the conclusion that the present petition is very much maintainable within the territorial jurisdiction of Delhi Court.
14. Issue No. (ii) What amount of compensation the petitioners are entitled to and from whom?
Counsel for Insurance Company contended that income of the deceased may be assessed on the basis of minimum wages of an unskilled labourer working at UP since the accident had occurred within jurisdiction of PS: Sihan Gate, UP.
Admittedly, even the petitioner has also claimed that the deceased was working at Ghaziabad as a labourer as on the date of accident.
In these circumstances, for the purpose of assessment of compensation, the notional income of the deceased is accordingly assessed on the basis of minimum wages of an Unskilled Worker as notified by the Government of UP as Rs. 174.14/- per day.
(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 30 years but the same has been vehemently opposed by counsel for Insurance Company.
It may be observed that in Shashikala & Ors. v. Gangalakshmamma & Anr. 2015 (2) T.A.C. 867 (SC), separate judgments were passed by Hon'ble Mr. Justice R. Banumathi and Hon'ble Mr. Justice V. Gopala Gowda on the point of assessment of Suit No. 5756816 Smt. Mairoon Nisha Vs Manoj Kumar & Ors Page 14 of 33 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 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 Suit No. 5756816 Smt. Mairoon Nisha Vs Manoj Kumar & Ors Page 15 of 33 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:
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 Suit No. 5756816 Smt. Mairoon Nisha Vs Manoj Kumar & Ors Page 16 of 33 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 extracted hereunder:-
9. The learned counsel for the Claimants has referred to a three Judge Bench de-Suit No. 5756816 Smt. Mairoon Nisha Vs Manoj Kumar & Ors Page 17 of 33
cision 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 Trans- port Corporation & Anr., (2009) 6 SCC 121 was extended in Rajesh & Ors. v.
Rajbir Singh & Ors., (2013) 9 SCC 54 to hold that future prospects ought to be extended in all cases.
11. On the other hand, the learned coun- sel 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 Manager, 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 Sur- vey 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-
ala SRTC v. Susamma Thomas, Suit No. 5756816 Smt. Mairoon Nisha Vs Manoj Kumar & Ors Page 18 of 33 (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 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 imponder-
ables and uncertainties, we are in favour of adopting as a rule of thumb, an addition of 50% of ac-
tual salary to the actual salary in- come of the deceased towards fu-
ture prospects, where the deceased had a permanent job and was be-
low 40 years. (Where the annual income is in the taxable range, the words „actual salary‟ should be read as „actual 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 de-
ceased is more than 50 years.
Though the evidence may indicate a different percentage of in-
crease, it is necessary to standard- ise the addition to avoid different yardsticks being applied or differ- ent methods of calculation being adopted. Where the deceased 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 de-
parture therefrom should be made Suit No. 5756816 Smt. Mairoon Nisha Vs Manoj Kumar & Ors Page 19 of 33 only in rare and exceptional cases involving special circumstances."
39. The standardization of addi-
tion to income for future prospects shall help in achieving certainty in arriving at appropriate compensa-
tion. We approve the method that an addition of 50% of actual salary be made to the actual salary income of the deceased to-
wards 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 de-
ceased 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 with-
out any addition to income for future prospects will be appro-
priate. A departure from the above principle can only be justified in extraordinary circumstances 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 Commu- nity & 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 Suit No. 5756816 Smt. Mairoon Nisha Vs Manoj Kumar & Ors Page 20 of 33 in case of divergence of opinion in judg- ments of benches of co-equal strength, ear- lier 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 deal- ing 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 applica- bility of the multiplier and whether the in- flation 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 Trans- port Corporation & Anr., (2009) 6 SCC 121 with regard to the selection of multi- plier. 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 de-
ceased was self-employed or was getting a fixed salary without any provision of an- nual increment.
14. Of course, three Judge Bench of the Supreme Court in its later judgment in Ra- jesh relying on Santosh Devi v. National Insurance Company Ltd. & Ors., 2012 (6) SCC 421 observed that there would be ad- dition 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 Suit No. 5756816 Smt. Mairoon Nisha Vs Manoj Kumar & Ors Page 21 of 33 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 Roadways, (2014) 3 SCC 210. In paras 14 and 15, the Supreme Court ob-
served 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 (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 speci-
fied in the Second Schedule ap-
pended 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 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 Suit No. 5756816 Smt. Mairoon Nisha Vs Manoj Kumar & Ors Page 22 of 33 fixed salary without provision for an-
nual increments or who was self-em-
ployed 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 ex-
ceptional circumstances. Though the expression "exceptional and extraor- dinary 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 cer-
tainty of the regular employment of the deceased in a government depart-
ment following the retirement of his father was held to be a valid ground to compute the loss of income by tak-
ing into account the possible future earnings. The said loss of income, ac- cordingly, 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 latest judgment in National Insur- ance 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 ear- lier point of time, as is clear, the same has not been noticed in Rajesh (supra) and that is why divergent opinions Suit No. 5756816 Smt. Mairoon Nisha Vs Manoj Kumar & Ors Page 23 of 33 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 authori- tative pronouncement. Therefore, we think it appropriate to refer the mat- ter to a larger Bench."
17. Now, the question is which of the judg- ments ought to be followed awaiting an- swer 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 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 subsequent Bench of lesser or co-
equal strength.
(2) [Ed.: Para 12(2) corrected vide Offi- cial Corrigendum No. F.3/Ed.B.J./21/2005 dated 3- 3-2005.] A Bench of lesser quo- rum cannot 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 re- quest for the matter being placed for hear- ing before a Bench of larger quorum than Suit No. 5756816 Smt. Mairoon Nisha Vs Manoj Kumar & Ors Page 24 of 33 the Bench whose decision has come up for consideration. It will be open only for a Bench of coequal strength to express 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 consist- ing 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 Offi- cial Corrigendum No. F.3/Ed.B.J./7/2005 dated 17- 1-2005.] The above rules are subject to two exceptions: (i) the above- said 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 al-
ready 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 to hear the case and examine the correctness of the previous decision in question dispensing with the need of a spe- cific reference or the order of the Chief Justice constituting 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. Vaja- hath Hussain @ Fasi, (2011) 2 SCC 94 in para 27, the Supreme Court observed as under:-
Suit No. 5756816 Smt. Mairoon Nisha Vs Manoj Kumar & Ors Page 25 of 33"27. However, even assuming that the decision in WP No. 35561 of 1998 did not operate as res judi-
cata, 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 ear- lier WP No. 35561 of 1998 regard-
ing 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 consid-
ered 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 prac- tice is that the later Bench would re- fer 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 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 Suit No. 5756816 Smt. Mairoon Nisha Vs Manoj Kumar & Ors Page 26 of 33 settled that if a subsequent coordi-
nate 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 co-
ordinate 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 report in S.K. Kapoor (supra), the three Judge Bench decision in Reshma Kumari & Ors. (supra) shall be taken as a binding precedent."
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."
In 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 Suit No. 5756816 Smt. Mairoon Nisha Vs Manoj Kumar & Ors Page 27 of 33 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 is survived by his wife, mother and three minor children and as such deduction of 1/4 be made towards personal and living expenses.
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, 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:
As no educational qualification of the deceased is either claimed or proved, keeping in view the fact that as per the election ID Card of the deceased Ex PW1/4, his year of birth is mentioned as 1982 and the accident having taken place in the year 2012, the age of deceased was approximately 30 years as per Ex.PW1/4. Accordingly, as held in Sarla Verma (Smt.) & Ors. vs. Delhi Transport Corporation & Anr. (2009) 6 SCC 121, the multiplier of 17 is to be adopted for the purpose of assessment of compensation.Suit No. 5756816 Smt. Mairoon Nisha Vs Manoj Kumar & Ors Page 28 of 33
(d) Loss of financial dependency In the light of aforesaid facts, loss of financial dependency of the Petitioners comes to Rs. 8,10,404.25/-/-[i.e. (174.14 X 365) X 17 (multiplier) X 3/4 (dependency)]. The same is rounded off to Rs. 8,10,405/-.
15. 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 of estate.
However, in 2015 ACJ 1286 Asha Verman and others v. Maharaj Singh and others Hon'ble Apex Court has awarded a sum of Rs.1 lakh to each child relying upon judgement passed in Jiju Kuruvila v. Kunjujamma Mohan, 2013 ACJ 2141 (SC) and Rs.50,000/ to each parent for loss of love and affection relying upon judgement passed in M. Mansoor v. United India Insurance Co. Ltd., 2013 ACJ 2849 (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).
The petitioners have claimed funeral expenses/Loss of Estate to the tune of Rs. 50,000/- but in the absence of any specific proof w.r.t higher expnses incurred on these counts, the said plea is dismissed.Suit No. 5756816 Smt. Mairoon Nisha Vs Manoj Kumar & Ors Page 29 of 33
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 and 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.
Considering the facts and circumstances, all the petitioners are entitled to Rs. One Lac towards loss of love and affection. The sum of Rs. One Lac awarded to the petitioner No. 1 also includes the compensation towards loss of consortium. Also Petitioners are entitled to Rs.10,000/- towards loss of estate and Rs.25,000/- towards funeral expenses of deceased.
16. Petitioners/claimants are accordingly entitled to compensation computed as under:
Loss of financial dependency Rs. 8,10,405/- Loss of love and affection to each petitioner Rs.5,00,000/-
Loss of Estate Rs.10,000/-
Funeral Expenses Rs.25,000/-
________________
Total Rs. 13,45,405/-
________________
(Rupees Thirteen Lacs Forty Five Thousand Four Hundred Five only) The claimants/Petitioners are also entitled to interest @ 9% p.a. from the date of filing of claim Petition w.e.f. 15.12.2012 till realization.
The amount of interim award, if any, shall however be Suit No. 5756816 Smt. Mairoon Nisha Vs Manoj Kumar & Ors Page 30 of 33 deducted from the above amount, if the same has already been paid to the Petitioners.
17. It is further held that Respondent No.1 (Driver cum Owner), and Respondent No.2 (Insurer) of the offending vehicle are jointly and severally liable to make the payment of compensation to the Petitioners/claimants.
18. For the purpose of disbursement, Petitioner no. 1 to 5 shall be entitled to 20% each of the award amount and proportionate interest thereon.
On realization, an amount of only Rs.1,00,000/- (Rupees One Lac only) shall be released to Petitioners No. 1 & 5 for their immediate need.
19. The petitioners have claimed monthly expenditure of Rs. 15,000/- while being examined in terms of directions of Hon'ble High Court. However, in view of the fact that they have claimed monthly income of deceased as Rs. 10,000/(which also stand not proved) and the fact that monthly income is taken as Rs. 5200/- approximately. The said statement is not believable. Hence, monthly expenditure is taken as Rs. 2500/-.
20. The remaining amount of Rs. 2,49,081/-each to Petitioner No. 1 & 5 along with proportionate up-to-date interest shall be kept in FDRs for a period of 5 years in terms of the judgment of Hon'ble High Court of Delhi cited as Rajesh Tyagi Vs Jaiveer Singh in FAO No.842/2003 with SBI/PNB in 120 FDRs of equal amount of Rs. 4151.35/-each for the period for 1 to 60 months Suit No. 5756816 Smt. Mairoon Nisha Vs Manoj Kumar & Ors Page 31 of 33 with commulative interest with the following conditions :-
1. Original fixed deposit receipts be retained by the bank in safe custody, However, a statement containing FDR number, FDR amount, date of maturity of FDR and maturity amount of the FDRs be given to the claimant (s).
2. The maturity amount of the FDR be credited in the saving account of the claimant(s) near the place of their residence.
3. No cheque book be issued to the claimant(s) in the savings bank account without permission of the court.
4. No loan, advance or withdrawal be allowed on the fixed deposits without permission of the court.
5.The Bank shall not permit any joint names(s) to be be added in the savings bank account or fixed deposits accounts of the victim.
Further, the share of Petitioner no. 2 to 4, who are minor children of the deceased shall be kept in a fixed deposits in their names till they attain the age of majority without the facility of advance, loan or premature withdrawal with release of quarterly periodical interest to Petitioner No.1 being mother/guardian for the welfare of minor children.
21. Relief Since the offending vehicle was duly insured, Respondent No. 2 is directed to deposit the award amount of Rs.13,45,405/-with interest @ 9% per annum from the date of filing of claim Petition i.e. 15.12.2012 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.
Suit No. 5756816 Smt. Mairoon Nisha Vs Manoj Kumar & Ors Page 32 of 33Insurance Company/driver and owner of the offending 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 judgment be sent to Respondent No.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.
A separate file be prepared for compliance and put up the same on 12/09/2017.
Announced in open court (VINAY SINGHAL) on 12th July, 2017 Judge MACT-2 (Central), Tis Hazari Courts, Delhi.
Suit No. 5756816 Smt. Mairoon Nisha Vs Manoj Kumar & Ors Page 33 of 33