Delhi District Court
Rina vs Sher Mohd on 15 December, 2015
IN THE COURT OF ANOOP KUMAR MENDIRATTA,
JUDGE, MACT-1 (CENTRAL), DELHI.
Suit No.344/14
Unique Case ID No.02401C-0531922014
1. Rina
W/o Late Shri Mintu
2. Gautam
S/o Late Shri Mintu
3. Bala
W/o Shri Ramesh
4. Ramesh
S/o Late Shri Sori
All R/o: H. No.385, Village Bhagwan Pur, Majaramojibad,
Nangal3, Tehsil: Badaut, Distt. Baghpat, U.P.
250645
(Petitioner No.2 being minor is represented through his
mother & natural guardian Smt. Rina/petitioner no.1)
........PETITIONERS
Versus
1. Sher Mohd.
S/o Murityaz
R/o Vilalge Khiwai, PS: Saroor Pur,
Rohta Road, Distt. Meerut, UP.
Also at: Village Pavi Sadakpur,
PS: Loni, Distt. Ghaziabad, UP. (Driver)
Suit No.344/14 - Rina & Ors. vs. Sher Mohd. & Ors. . Page 1 of 30
2. Mustak Ali,
S/o Munsa
R/o Village Niwada, PS & Tehsil: Baghpat,
Distt: Baghpat, UP.
Also at: H. No. 123, Village Pavi Sadakpur,
PS: Loni, Distt. Ghaziabad, UP. (Owner)
3. National Insurance Company Ltd.
3rd Floor, Deendayal Upadhyayay Bhawan,
7-E, Jhandewalan, Karol Bagh,
New Delhi (Insurer)
.......RESPONDENTS
Date of filing of Claim Petition : 28.10.2014
Arguments heard on : 15.12.2015
Award passed on : 15.12.2015
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 of a sum of Rs. 40,00,000/- (Rupees Forty Lakh Only) in respect of accidental death of deceased Mintu Kumar in a motor vehicular accident.
2. Brief facts of the case are that on 22.09.2014 about 11AM Mintu Kumar (since deceased) along with his son were waiting for bus near City Hospital Chowki Kasba PS Loni Distt Ghaziabad. In the meanwhile a dumper bearing registration no. HR-38E-8687 driven in a rash and negligent manner by Suit No.344/14 - Rina & Ors. vs. Sher Mohd. & Ors. . Page 2 of 30 Respondent No.1 Sher Mohd. came from Tiraha side and rammed into autos/three wheeler scooter No.UP-14CT-8474, UP-14CT-9745, UP-14X-9412 and thereafter hit Mintu Kumar along with his son. Consequently, Mintu Kumar sustained fatal injuries and expired at the spot. FIR NO. 1613/2014 was registered regarding the accident at PS Loni, Distt. Ghaziabad.
It is further the case of the petitioners that deceased Mintu Kumar aged about 25 years was working as a Salesman of general items in the area of Nand Nagri and earning about Rs. 15,000/- to Rs.20,000/- per month. Further, the petitioners were dependent on the income of the deceased.
3. In the WS filed on behalf of Respondent No.1 & 2, it was submitted that the accident occurred since the three TSRs were racing with each other and hit the offending vehicle due to which the deceased who was sitting in one of the TSRs received injuries. As such, it was claimed that Respondent No.1 has been falsely implicated. The petition was further stated to be bad for non impleadment of driver and owners of the three TSRs bearing registration nos. UP-14CT-8474, UP-14CT-9745 and UP-14X-9412 and claim was denied on merits.
In the written statement filed on behalf of Respondent No.3 National Insurance Company Ltd., it was submitted that the contributory negligence on the part of deceased cannot be ruled out. It was further submitted that the insurance company is not liable in case the Respondent No.1 was not holding any valid driving licence at the time of accident or there Suit No.344/14 - Rina & Ors. vs. Sher Mohd. & Ors. . Page 3 of 30 was any breach of the conditions of the policy. The manner of accident was further denied. However, it was admitted that the offending truck no. HR-38E-8687 was insured for the period 31.10.2013 to 30.10.2014. The claim was further stated to be excessive and exaggerated.
4. On the pleadings of the parties, following issues were framed for consideration by ld. Predecessor vide order dated 18.12.2014:
1. Whether the deceased Sh. Mintu Kumar had died due to injuries sustained by him in an accident which took place on 22.09.2014 at 11.00 AM within the jurisdiction of PS Loni, Distt.
Ghaziabad (UP) due to rash and negligent driving of vehicle bearing Regn. No. HR-38E-8687 by respondent No.1?
2. Whether the petitioners are entitled to any compensation, if so, to what amount and from whom?
3. Relief.
5. In support of the claim, petitioners led evidence of PW1 Rina (wife of deceased Mintu Kumar) and PW2 Vinod Kumar (eyewitness to the accident).
Suit No.344/14 - Rina & Ors. vs. Sher Mohd. & Ors. . Page 4 of 30PW1 Smt. Rina testified on the lines of claim petition and further proved photocopy of DL of deceased Mintu Kumar (Ex.PW1/1), copy of Election Identity Card of deceased Mintu Kumar (Ex.PW1/2), copy of Election Identity Card of petitioner no. 3 Bala (Ex.PW1/3), copy of Election Identity Card of petitioner no. 4 Ramesh (Ex.PW1/4), copy of ration card (Ex.PW1/5), certified copy of criminal case i.e. chargesheet, FIR, Site Plan, Mechanical Inspection Report and PMR (Ex.PW1/6 colly).
During cross-examination, she clarified that she was not an eyewitness to the accident. She further stated that her husband used to supply toys and earn about Rs.15,000/- - Rs. 20,000/- per month.
PW2 Shri Vinod Kumar testified that he was an eyewitness to the accident and deposed on the lines of the claim petition.
During cross-examination, he stated that he was sitting at his brother's shop at the spot of accident. He further deposed that dumper was coming at a speed of 40-50 Kms per hour from the side of Loni to Ghaziabad and had hit Mintu Kumar followed by other vehicles on the road. He further deposed that his statement was recorded by the police at the spot itself and denied the suggestion that accident had taken place due to fault of deceased.
No evidence was led on behalf of respondents despite Suit No.344/14 - Rina & Ors. vs. Sher Mohd. & Ors. . Page 5 of 30 opportunity.
6. I have heard arguments addressed by counsel for petitioners, Ms. Shelly Rohtagi, Advocate for insurance company and perused the record.
My Issue-wise findings are as under :-
Issue No. (i) Whether the deceased Sh. Mintu Kumar had died due to injuries sustained by him in an accident which took place on 22.09.2014 at 11.00 AM within the jurisdiction of PS Loni, Distt. Ghaziabad (UP) due to rash and negligent driving of vehicle bearing Regn. No. HR-38E-8687 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 Suit No.344/14 - Rina & Ors. vs. Sher Mohd. & Ors. . Page 6 of 30 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, the 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 Suit No.344/14 - Rina & Ors. vs. Sher Mohd. & Ors. . Page 7 of 30 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 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."Suit No.344/14 - Rina & Ors. vs. Sher Mohd. & Ors. . Page 8 of 30
In the present case, testimony of eyewitness PW2 (Vinod Kumar) could not be dented during cross-examination and he categorically deposed that the accident took place as the offending vehicle hit the deceased and TSRs standing on the road. Further, his evidence has not been rebutted by driver of the offending vehicle by entering the witness box. The manner of accident is also corroborated by the certified copy of the Site Plan prepared during the course of investigation which clearly reflects that the offending truck deviated from the main road and hit the deceased along with other TSRs on the extreme left side of the road. In the facts and circumstances, the accident could not have occurred but for the rash and negligent driving by the Respondent No.1 which is implicit from the evidence on record.
For the foregoing reasons, I do not find any grounds to disbelieve the manner of accident as deposed by PW2 and hold that the accident occurred due to rash and negligent driving by Respondent No.1. Issue No. 1 is accordingly decided in favour of the petitioners and against the respondents.
7. Issue No. (ii) Whether the petitioners are entitled to any compensation, if so, to what amount and from whom?
Counsel for petitioners made submissions on the lines of claim petition and urged that income of the deceased be Suit No.344/14 - Rina & Ors. vs. Sher Mohd. & Ors. . Page 9 of 30 considered at Rs.15,000/- per month for purpose of assessment of compensation.
On the other hand, Counsel for Insurance Company vehemently contended that income of the deceased cannot be considered @ Rs.15,000/- per month on bare averment in the absence of any corroboratory documents or evidence to support that the deceased was capable of earning income of Rs.15,000/- per month by selling of toys. It was further submitted that since deceased was a resident of Ghaziabad, the minimum wages as notified in UP may be taken into consideration as there is nothing to prove on record that the deceased was selling toys in Delhi and the claim petition has been preferred at Delhi only for claiming enhanced compensation.
I am of the considered opinion that in the absence of any cogent evidence as to the employment/income of deceased, the same cannot be accepted as Rs.15,000/- per month as claimed by the petitioners. The income of the deceased has to be assessed on the basis of minimum wages as notified by the Govt. of UP since the deceased was a resident of UP, accident had taken place in UP and there is no cogent evidence to prove that he was earning an income of Rs.15,000/- per month by selling toys in Delhi. No evidence has been led to show in case the deceased was procuring the toys from any particular outlet in Delhi and thereafter selling the same by producing any bills of procurement of toys. The minimum wages notified by the Government of NCT of Delhi cannot be considered for purpose of assessment of compensation, as contended by the counsel for petitioners since Suit No.344/14 - Rina & Ors. vs. Sher Mohd. & Ors. . Page 10 of 30 deceased was neither resident of Delhi nor employed at Delhi. However, it is pertinent to note that the deceased was in possession of a driving licence for LMV whereby he could have been employed for driving a car.
In the facts and circumstances, the notional income of deceased is considered @ Rs.7,840/- per month on the basis of minimum wages of a skilled labourer notified by the Government of UP for the relevant period, as per photocopy of notification placed by counsel for Insurance Company.
(b) 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 25 years and was a salesman.
It may be noticed that in Shashikala & Ors. v. Gangalakshmamma & 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. Suit No.344/14 - Rina & Ors. vs. Sher Mohd. & Ors. . Page 11 of 30 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 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 Suit No.344/14 - Rina & Ors. vs. Sher Mohd. & Ors. . Page 12 of 30 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 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 Suit No.344/14 - Rina & Ors. vs. Sher Mohd. & Ors. . Page 13 of 30 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 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-
Suit No.344/14 - Rina & Ors. vs. Sher Mohd. & Ors. . Page 14 of 30jbir 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-
ala 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 Suit No.344/14 - Rina & Ors. vs. Sher Mohd. & Ors. . Page 15 of 30 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 stan- dardise the addition to avoid differ- ent yardsticks being applied or dif- ferent methods of calculation being adopted. Where the deceased was self-employed or was on a fixed salary (without provision for annual increments, etc.), the courts will usually take only the actual income at the time of death. A departure therefrom should be made only in rare and exceptional cases involv- ing special circumstances."
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 Suit No.344/14 - Rina & Ors. vs. Sher Mohd. & Ors. . Page 16 of 30 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 benches of co-equal strength, earlier judg- ment will be taken as a binding precedent.
13. It may be noted that in Reshma Kumari & Ors. v. Madan Mohan & Anr., (2013) 9 SCC 65; the three Judge Bench was dealing with a 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 multiplier. The three Judge Bench approved the two Judge Bench decision of the Supreme Court in Sarla Verma (Smt.) & Ors. v. Delhi Transport Corporation & Anr., (2009) 6 SCC 121 with regard to the selec- tion of multiplier. It further laid down that addition towards future prospects to the ex- tent of 50% of the actual salary shall be made towards future prospects when the de- ceased had a permanent job and was below Suit No.344/14 - Rina & Ors. vs. Sher Mohd. & Ors. . Page 17 of 30 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 in- crement.
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 (Cri) 1044], a two-Judge Bench of this Court while considering the following ques-
tions 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 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-
Suit No.344/14 - Rina & Ors. vs. Sher Mohd. & Ors. . Page 18 of 30 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- come 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 Suit No.344/14 - Rina & Ors. vs. Sher Mohd. & Ors. . Page 19 of 30 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 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 Suit No.344/14 - Rina & Ors. vs. Sher Mohd. & Ors. . Page 20 of 30 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 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:-
Suit No.344/14 - Rina & Ors. vs. Sher Mohd. & Ors. . Page 21 of 30"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 inter- pretation 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 considered binding on a Bench of the same or lesser number of Judges. In case of doubt or disagreement about the decision of the earlier Bench, the well-accepted and desirable practice is that the later Bench would refer the case to a larger Bench."
20. In Union of India & Ors. v. S.K. Kapoor, (2011) 4 SCC 589 while holding that the decision of the Co- ordinate Bench is binding on the subsequent Bench of equal strength, held that the Bench of Co- ordinate strength can only make a reference to a larger Bench. In para 9 of the 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 different view, it can only refer the matter to a larger Bench, otherwise the prior decision of a coordinate Suit No.344/14 - Rina & Ors. vs. Sher Mohd. & Ors. . Page 22 of 30 Bench is binding on the subsequent Bench of equal strength. Since, the de-
cision in S.N. Narula case [(2011) 4 SCC 591] was not noticed in T.V. Pa-
tel 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."
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 future prospects cannot be made for the purpose of compensation.
(c) Deduction towards personal and living expenses of Suit No.344/14 - Rina & Ors. vs. Sher Mohd. & Ors. . Page 23 of 30 the deceased:
Deceased is survived by wife, son and parents. Counsel for insurance company submitted that father of deceased cannot be considered to be dependent upon the deceased since he was aged about 48 years and can be presumed to be independently earning.
I find merits in the submissions made by counsel for insurance company since generally the father is not considered to be dependent upon the son unless he is aged or is inflicted with some illness due to which he may not be in a position to support himself. It has further come in cross-examination of PW1 that her in-laws were taking care of household expenses. In the facts and circumstances, I am of the considered view that number of dependents has to be considered as three for the purpose of deduction towards personal and living expenses.
As per Sarla Verma (Smt.) & Ors. vs. Delhi Transport Corporation & Anr. (2009) 6 SCC 121, it was held that where the deceased was married, 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.
Accordingly deduction towards personal and living expenses of the deceased shall be 1/3rd considering the number of Suit No.344/14 - Rina & Ors. vs. Sher Mohd. & Ors. . Page 24 of 30 dependents as 3 as held in Sarla Verma (supra).
(d) Selection of multiplier:
As per copy of driving licence of the deceased (Ex.PW1/1), the date of birth of deceased was 07.08.1989 and as such he was aged about 25 years 01 month approximately on the date of accident. 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.
(e) Loss of financial dependency In the light of aforesaid facts, loss of financial dependency of the petitioners comes to Rs.10,66,240/-{i.e. Rs.7,840/- (monthly income) X 12 (months) X 17 (multiplier) X 2/3 (dependency)}.
8. 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.344/14 - Rina & Ors. vs. Sher Mohd. & Ors. . Page 25 of 30 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, 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).
Accordingly, petitioners are 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 children, Rs.50,000/ towards loss of love and affection to each parent and Rs.25,000/ towards funeral expenses.
10. The petitioners/claimants are accordingly entitled to compensation computed as under:
Suit No.344/14 - Rina & Ors. vs. Sher Mohd. & Ors. . Page 26 of 30Loss of financial dependency Rs.10,66,240/-
Loss of love and affection to children Rs.1,00,000/
Loss of consortium to wife Rs.1,00,000/
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.14,91,240/
________________
(Rupees Fourteen Lakh Ninety One Thousand Two Hundred and Forty Only) The claimants/petitioners are also entitled to interest @ 9% p.a. from the date of filing of petition i.e. w.e.f. 28.10.2014 till realization.
The amount of interim award, if any, shall 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 Suit No.344/14 - Rina & Ors. vs. Sher Mohd. & Ors. . Page 27 of 30 payment of compensation to the petitioners/claimants.
10. For the purpose of disbursement, petitioner no.1 Smt. Rina (wife of deceased) shall be entitled to 55% and petitioner no. 2 to 4 (i.e. minor son and parents of deceased) 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) each shall be released to petitioner no. 1, 3 & 4 and remaining amount of their respective shares along with proportionate up-to-date interest shall be kept in ten fixed deposits of equal amount in their respective names with a nationalised bank for a period of one year, two years, three years, four years, five years, six years, seven years, eight years, nine years and ten years respectively without the facility of advance, loan or premature withdrawal with release of quarterly periodical interest in their account.
Further, the amount of share of petitioner no. 2 Gautam (minor son of deceased) along with proportionate up-to- date interest shall be kept in a fixed deposit till he attains the age of 25 years without the facility of advance, loan or premature withdrawal with release of quarterly periodical interest in the account of petitioner no. 1 Smt. Rina being mother/natural guardian for welfare of petitioner no. 2 since it is averred in the petition that he is a mentally challenged child.
Suit No.344/14 - Rina & Ors. vs. Sher Mohd. & Ors. . Page 28 of 3011. Relief Since the offending vehicle was duly insured, Respondent No.3/National Insurance Company Ltd. is directed to deposit the award amount of Rs.14,91,240/ with interest @ 9% per annum from the date of filing of claim petition i.e. 28.10.2014 till realization with Nazir 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/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 this amount with the Tribunal to the claimant 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/ National 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.
Suit No.344/14 - Rina & Ors. vs. Sher Mohd. & Ors. . Page 29 of 30Announced in open court (Anoop Kumar Mendiratta) on 15th December, 2015 Judge MACT-1 (Central), Tis Hazari Courts, Delhi Suit No.344/14 - Rina & Ors. vs. Sher Mohd. & Ors. . Page 30 of 30