Delhi District Court
Baby Sanreeta D/O Sh. Ved Prakash vs Sh. Rohit Gupta on 27 August, 2016
IN THE COURT OF SHRI VINAY SINGHAL
ADDITIONAL DISTRICT & SESSIONS JUDGE,
JUDGE, MACT-2, (CENTRAL), DELHI.
Suit No. 56520-16
Unique Case ID No.02401C-0273882014
1. Baby Sanreeta D/o Sh. Ved Prakash
2. Sh. Ved Prakash S/o Late Sh. Jagdish
Both R/o H. No. 3762, Gali Mandir Wali,
Kucha Mohattar Khan,
MoriGate,
Delhi110006.
(The Petitioner No. 1 being minor through her father and
natural guardian Sh. Ved Prakash, Petitioner No. 2).
........PETITIONERS
Versus
Sh. Rohit Gupta
S/o Sh. Rajesh Kumar Gupta,
R/o H. No. 3613, Gali No. 5,
Narang Colony, Tri Nagar, Delhi-110035.(Driver)
Sh. Shiv Kumar Gupta
S/o Sh. Rameshwar Lal Aggarwal
R/o H. No. 3613, Gali No. 5, IInd Floor,
Narang Colony,Tri Nagar, Delhi-110035.( Regd. Owner)
Liberty Videocon General Insurance Company Ltd.
RO-10th Floor, Aggarwal City Cyber Plaza,
Netaji Subhash Place, Pitam Pura, North West District,
Delhi-110034.(Insurer)
Smt. Pista Devi W/o Late Sh. Khazan Singh
R/o H. No. 6735, Gali No. 2, Block No. 10,
Dev Nagar, Karol Bagh, Delhi-110005. (Performa Respondent)
.......RESPONDENTS
Suit No.5652016 Baby Sanreeta Vs Rohit Gupta Page 1 of 32
Date of filing of Claim Petition : 09.06.2014
Arguments heard on : 28.07.2016
Judgment pronounced on : 23.08.2016
JUDGMENT-CUM-AWARD:
INFORMATION IN TERMS OF PROVISIONS OF THE
MODIFIED
CLAIM TRIBUNAL AGREED PROCEDURE (MCTAP)
1 Date of Accident 09.05.2014
2 Date of intimation of the accident by the Provided by the IO on 10.05.2014
Investigation Officer to the Claims Tribunal
(Clasuse2)
3 Date of intimation of the accident by the 30.07.2014
Investigation Officer to the Insurance
Company (Clause2)
4 Date of filing of the Report under section 173 Not filed by the IO.
Cr.PC before the Metropolitan Magistrate
(Clause 10)
5 Date of filing of Detailed Accident Information 07.08.2014
Report(DAR) by the Investigation Officer
before Claims Tribunal (Clause)
6 Date of service of DAR on the Insurance 30.07.2014
Company (clause11)
7 Date of service of DAR on the claimant(s) 30.07.2014
(Clause11)
8 Whether DAR was complete in all respects? ( No.
Clause11)
9 If not state deficiencies in the DAR Final report not filed by the IO.
10 Whether the police has verified the Yes
Suit No.5652016 Baby Sanreeta Vs Rohit Gupta Page 2 of 32
documents filed with DAR? (clause4)
11 Whether there was any delay or deficiency on The petition was filed by the petitioner.
the part of the Investigation Officer? If so, Thereafter the police have filed the DAR
whether any action/ direction warranted? with the indulgence of the court.
12 Date of appointment of the Designated Officer Legal Offer stands filed by the insurnace
company.
by the Insurance Company
13 Name , address and contact number of the Not provided.
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 Yes.
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 Written statement filed by the insurance
the part of the Designated officer of the
company after 30 days.
Insurance Company? If so whether any
action/ direction warranted?
17 Date of response of the claimant(s) to the Not accepted by the claimants.
offer of the Insurance Company? (Clause 23)
18 Date of Award 23.08.2016
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 award '
the claimant(s) (Clause 28)
23 Next Date of compliance of the 25.10.2016
award(Clause30)
Suit No.5652016 Baby Sanreeta Vs Rohit Gupta Page 3 of 32
PART-A
BRIEF FACTS OF ACCIDENT
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.30,00,000/- (Rupees Thirty Lakh Only) in respect of accidental death of Smt. Kamini (since deceased) in a motor vehicular accident.
2. Brief facts of the case giving rise to the claim Petition are that on 09/05/2014, the deceased Smt. Kamini while on her way to her office was in front of Shiv Tribhuwan Mandir, DBG Road when she was hit by a Skoda Octivi Car bearing No DL-2F-DT-0067 owned by the Respondent No. 2 and driven by the Respondent No. 1 in a rash and negligent matter. As a consequence of the said collusion, the deceased suffered injuries and was taken to B. L.Kapoor from where she was shifted to Jeevan Mala Hospital and thereafter to RML Hospital, where she ultimately expired on 14/05/2014. FIR No.229/14 U/S 279/304A IPC was registered at PS DBG Road, Delhi.
It is further the case of the Petitioners that deceased aged about 26 years was a Matriculate and employed as sales Girl earning about Rs.12,000/- per month & survived by husband and a minor daughter ie. Petitioner No. 2 & 1 respectively.
Suit No.5652016 Baby Sanreeta Vs Rohit Gupta Page 4 of 32PART-B DEFENCE OF DRIVER AND OWNER RESPONDENT No. 1 & 2
3. In the Written Statement filed on behalf of Respondent No.1 & 2/driver and owner of the offending vehicle, it was submitted that there was no negligence on their part.
Suit No.5652016 Baby Sanreeta Vs Rohit Gupta Page 5 of 32PART-C DEFENCE OF INSURANCE COMPANY RESPONDENT No. 3
4. In the Written Statement, Respondent No. 3 Liberty Videocon General Insurance Company admitted the factum of the accident and contested the case only on the point of quantum of compensation.
Suit No.5652016 Baby Sanreeta Vs Rohit Gupta Page 6 of 32PART-D ISSUES
5. On the pleadings of the parties, following issues were framed for consideration vide order dated 19.12.2014 by ld. Predecessor:-
(i) Whether the deceased Smt. Kamini suffered fatal injuries in an accident that took place on 09/05/2014 at 07.15 a.m involving Car bearing No. DL-2FDT-0067 driven by the Respondent No. 1, owned by the Respondent No. 2 and insured with the Respondent No. 3?OPP
(ii) Whether the petitioner/petitioner is entitled for compensation, if so, to what amount and from whom?
(iii) Relief.Suit No.5652016 Baby Sanreeta Vs Rohit Gupta Page 7 of 32
PART-E PETITIONER'S EVIDENCE
6. In support of the claim, Petitioners examined Petitioner No. 2 as PW3 one eye witness Sh. Pappu Kashyap as PW-4, Sh. Gaurav Singh, Record Clerk from Dr. B.L.Kapoor Hospital as PW-1 and Sh. Gaurav Jain, Record Clerk from Jeevan Mala Hospital as PW-2 respectively.
PW-3 Ved Prakash testified on the lines of claim Petition regarding the accident and proved the documents ie the copy of ration card which is collectively Ex PW3/1, the DAR which is collectively Ex PW3/2, the copy of secondary school examination of the deceased which is Ex PW3/3, the copy of Adhar Card which is Ex PW3/4, the copy of Adhar Card of the daughter of the deceased which is Ex PW3/5 and the copy of birth certificate of the daughter of the deceased which is Ex PW3/6.
During cross-examination, he admitted that the deceased who was his wife and he himself were both employed and contributing in the household income, expenditure and saving.
Suit No.5652016 Baby Sanreeta Vs Rohit Gupta Page 8 of 32PART-F RESPONDENT'S EVIDENCE
7. Evidence was not led on behalf of the Respondents.
Suit No.5652016 Baby Sanreeta Vs Rohit Gupta Page 9 of 32PART-G FINDINGS/CONCLUSION
8. 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 Smt. Kamini suffered fatal injuries in an accident that took place on 09/05/2014 at 07.15 a.m involving Car bearing No. DL-2FDT-0067 driven by the Respondent No. 1, owned by the Respondent No. 2 and insured with the Respondent No. 3?OPP 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 Suit No.5652016 Baby Sanreeta Vs Rohit Gupta Page 10 of 32 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 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 Suit No.5652016 Baby Sanreeta Vs Rohit Gupta Page 11 of 32 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."
Counsel for insurance company contended that it has not been proved on record if the accident had been caused due to rash and negligent driving by Respondent No.1.
In the instant case, PW2 who is an eye witness to the accident categorically stated that the accident had been caused due to rash and negligent driving of Respondent No.1 at a high speed in a rash and negligent manner. It may also be noticed that testimony of PW2 has not been rebutted on record by Respondent No.1 as he failed to enter the witness box. Respondent No.1 also stands chargesheeted in the criminal proceedings for the offence punishable U/S 279/304A IPC and no complaint regarding false implication with Suit No.5652016 Baby Sanreeta Vs Rohit Gupta Page 12 of 32 any authority has been filed on record. The accident is also corroborated by attested copy of site plan. 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 of Respondent No.1. Issue No. 1 is decided in favour of the Petitioner and against the Respondents.
9. Issue No. (ii) Whether the petitioner/petitioner is entitled for compensation, if so, to what amount and from whom?
Counsel for Insurance Company contended that income of the deceased may be assessed on the basis of minimum wages of a Matriculate which is also admitted by the ld. Counsel for the petitioner.
For the purpose of assessment of compensation, the notional income of the deceased is accordingly assessed on the basis of minimum wages of a Matriculate as notified by Govt. of NCT of Delhi for the relevant period @ Rs.10,374/- per month since the Matriculation Certificate (Ex.PW3/3) of the deceased has been filed on record.
Suit No.5652016 Baby Sanreeta Vs Rohit Gupta Page 13 of 32(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 26 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 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 Suit No.5652016 Baby Sanreeta Vs Rohit Gupta Page 14 of 32 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 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 Suit No.5652016 Baby Sanreeta Vs Rohit Gupta Page 15 of 32 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:
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 Suit No.5652016 Baby Sanreeta Vs Rohit Gupta Page 16 of 32 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-
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) Suit No.5652016 Baby Sanreeta Vs Rohit Gupta Page 17 of 32 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, (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 Suit No.5652016 Baby Sanreeta Vs Rohit Gupta Page 18 of 32 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 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-
Suit No.5652016 Baby Sanreeta Vs Rohit Gupta Page 19 of 32out 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 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 Suit No.5652016 Baby Sanreeta Vs Rohit Gupta Page 20 of 32 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 Reshma Kumari (supra) was not brought to the notice of their Lordships.
15. The diver-
gence 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 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 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?
Suit No.5652016 Baby Sanreeta Vs Rohit Gupta Page 21 of 32(2) Whether for determination of the multiplicand, the Act provides for any criterion, particularly as regards determination of fu-
ture 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 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."
Suit No.5652016 Baby Sanreeta Vs Rohit Gupta Page 22 of 3216. Further, the divergence of opinion in Reshma Ku- mari & Ors. v. Madan Mohan & Anr., (2013) 9 SCC 65 and Rajesh & Ors. v. Ra- jbir Singh & Ors., (2013) 9 SCC 54 was noticed by the Supreme Court in another latest judgment in National Insurance Company Ltd. v. Pushpa & Ors., CC No.8058/2014, decided on 02.07.2014 and in concluding paragraph while making reference to the Larger Bench, the Supreme Court held as under:-
"Be it noted, though the decision in Reshma (supra) was rendered at ear- lier 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 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 Suit No.5652016 Baby Sanreeta Vs Rohit Gupta Page 23 of 32 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 quorum 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 Jus- tice 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 correctness of the view taken by the earlier Bench of coequal strength, where- upon 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 correct- ness 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 Suit No.5652016 Baby Sanreeta Vs Rohit Gupta Page 24 of 32 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:-
"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 Suit No.5652016 Baby Sanreeta Vs Rohit Gupta Page 25 of 32 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 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."
This Court in New India Assurance Co. Ltd. v. Harpal Singh & Ors., MAC APP.138/2011, decided on 06.09.2013, Suit No.5652016 Baby Sanreeta Vs Rohit Gupta Page 26 of 32 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.10,374/- per month. Even if it is taken that the deceased was working as a Sales Girl, there was no evidence with regard to her 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.
(b) Deduction towards personal and living expenses of the deceased:
As the deceased was a working woman, following the judgment of Hon'ble Karnatka High Court in the case of A.Manavalagan Vs A. Krishnamurthy cited as 1 (2005) ACC 304 followed by Delhi High Court in the mater of Keith Rowe Vs Prashant Sagar cited as II (2010) ACC 64, the petitioners are entitled to 1/3rd income of the deceased towards the loss of Estate besides Rs. 1,000/- per month towards loss of dependency for loss of services Suit No.5652016 Baby Sanreeta Vs Rohit Gupta Page 27 of 32 rendered by the deceased in managing the household.
Accordingly, taking the notional income of the deceased in terms of the decision of point b of above, the total loss of dependency per year comes to Rs. 12,000/- & the loss of Estate comes to Rs. 41,496/- (Rs. 10,374 X 12 X 1/3).
(c) Selection of multiplier:
As per the Matriculate Certificate (Ex.PW3/3) the date of birth of deceased was 04.01.1988 which is not disputed by counsel for Insurance Company. Since the accident occurred on 09.05.2014, following the judgment of Sarla Verma case for the purpose of selection of multiplier, the age of the husband which was 35 years as per Adhar Card Ex PW3/4, the multiplier is taken as of 16 for the purpose of assessment of computation.
10. 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 and Rs.25,000/- towards funeral expenses.
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.Suit No.5652016 Baby Sanreeta Vs Rohit Gupta Page 28 of 32
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).
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, Petitioners No. 1 & 2 are entitled to Rs.1 lakh towards loss of love and affection.
Also Petitioners are entitled to Rs.25,000/- towards funeral expenses of deceased.
11. Petitioners/claimants are accordingly entitled to compensation computed as under:
Loss of financial dependency( Rs 12000X 16) Rs. 1,92,000/ Loss of Estate (Rs. 41,496X16) Rs.6,63,936/- Loss of love and affection to Petitioners No. Rs.2,00,000/- 1&2 Loss of consortium Rs.1,00,000/-
Funeral Expenses Rs.25,000/-
________________
Total Rs. 11,80,936/-
________________
Suit No.5652016 Baby Sanreeta Vs Rohit Gupta Page 29 of 32
(Rupees Eleven Lacs Eighty Thousand Nine Hundred Thirty Six Only) The claimants/Petitioners are also entitled to interest @ 9% p.a. from the date of filing of claim Petition w.e.f. 09/06/2014 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.
12. 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.
13. For the purpose of disbursement, Petitioner no. 1 shall be entitled to 60% of the award amount whereas the Petitioner No. 2 shall be entitled to 40% of the award amount and proportionate interest thereon.
On realization, an amount of Rs.80,936/- (Rupees Eighty Thousand Nine Hundred Thirty Six Only) shall be released to Petitioner no. 2 Sh. Ved Prakash (Husband of the deceased) and remaining amount of his share along with proportionate up-to-date interest shall be kept in five fixed deposits of equal amount in his name for a period of one year, two years, three years, four years and five years without the facility of advance, loan or premature withdrawal with release of quarterly periodical interest in his Suit No.5652016 Baby Sanreeta Vs Rohit Gupta Page 30 of 32 account.
Further, the share of Petitioner No. 1 who is minor daughter of the deceased shall be kept in a fixed deposits in her name till she attains the age of 18 years without the facility of advance, loan or premature withdrawal with release of quarterly periodical interest to Petitioner No.2 being father for the welfare of minor child.
14. Relief Since the offending vehicle was duly insured, Respondent No.3/ Liberty Videocon General Insurance Company Ltd .is directed to deposit the award amount of Rs.11,80,936/- with interest @ 9% per annum from the date of filing of claim Petition i.e. 09.06.2014 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 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.3/ United India 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 Suit No.5652016 Baby Sanreeta Vs Rohit Gupta Page 31 of 32 granted.
File be consigned to Record Room.
A separate file be prepared for compliance and put up the same on 25/10/2016.
Announced in open court (VINAY SINGHAL) on 23.08.2016 Judge MACT-2 (Central), Tis Hazari Courts, Delhi.
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