Delhi District Court
Smt. Meena Goel (Wife) vs Rajesh Kumar on 30 January, 2016
IN THE COURT OF ANOOP KUMAR MENDIRATTA,
JUDGE, MACT-1 (CENTRAL), DELHI.
Suit No.391/10
Unique Case ID No.02401C-0402672010
1. Smt. Meena Goel (Wife)
2. Smt. Pooja Goel (Married Daughter)
3. Miss Neha Goel (Major Daughter)
4. Miss Shilki Goel (Major Daughter)
5. Shri Kishan Kumar Goel (Father)
All R/o:
B-48, Near Som Bazar, Vikas Nagar,
Ranoula Road, Vill-Hastshal,
Uttam Nagar, New Delhi
............. PETITIONERS
VersuS
1. Rajesh Kumar
S/o Ashri Kishan Lal
R/o Vill-Shahria, Dist-Hissar, Haryana
(Driver of Car)
2. Narender Khandelwal
S/o Shri Satya Narayan
R/o Plot No.5, Block-C, Vikas Nagar,
Uttam Nagar, New Delhi - 110 059
(Owner of Car)
3. The National Insurance Company Ltd.
Div. 10, Flat No.101-106,
N-1, BMC House,
Connaught Place, New Delhi - 110 001
(Insurer of Car)
.......RESPONDENTS
Suit No.391/10 - Meena Goel & Ors. Vs. Rajesh Kumar & Ors. Page 1 of 31
Date of filing of Claim Petition : 25.08.2010
Arguments heard on : 30.01.2016
Award passed on : 30.01.2016
JUDGEMENT
1. Present claim petition has been preferred by the petitioners under Section 166 and 140 of Motor Vehicles Act 1988 (hereinafter referred to as 'the Act') claiming compensation of a sum of Rs.45,00,000/- (Rupees Forty Five Lakh Only) in respect of accidental death of Ashok Kumar Goel in a motor vehicular accident.
As per case of the petitioners, on 02.01.2010 at about 22.30 hrs., Ashok Kumar Goel (since deceased) along with his friends was returning to Delhi from Jaisalmer in a Maruti Alto car bearing registration No. DL 9C QS 5919. The car was driven by Respondent No.1 in a rash and negligent manner at a high speed and dashed into a truck bearing registration No. RJ 19GA 4531 which was parked on the road near P.S.-BAP, Distt-Jodhpur, Rajasthan. Consequently, Ashok Kumar Goel suffered fatal injuries. FIR No.01/2010, P.S. BAP (Rajasthan) u/s 279/337/304A IPC was registered regarding the accident.
It is further the case of the petitioners that deceased Ashok Kumar Goel was a Real Estate Consultant & Finance Advisor and earning about Rs.23,000/- per month.
2. In the Written Statement filed on behalf of Suit No.391/10 - Meena Goel & Ors. Vs. Rajesh Kumar & Ors. Page 2 of 31 Respondent No.1 Rajesh Kumar/driver of the offending vehicle, it was submitted that Respondent No.1 had borrowed the Maruti Alto car bearing No. DL 9C QS 5919 from Respondent No. 2 Narender Khandelwal and other three friends approached him to accompany for new year celebrations. Further, while returning from Jaisalmer to Delhi Respondent No.1 was driving the vehicle at a normal speed and at about 22.30 hrs. when the car reached near BAP, he lost control due to flash light of a vehicle which was coming from opposite direction and hit a truck which was parked wrongly on the road. It was further submitted that negligence was on the part of the truck driver who had wrongly parked the truck on National Highway but the truck was let off by the police. It was further stated that Maruti Alto car bearing registration No. DL 9C QS 5919 was insured with Respondent No.3.
In the Written Statement filed on behalf of Respondent No.2/owner of the offending vehicle, it was submitted that Respondent No.1 was handed over the car for journey which was duly insured with Respondent No.3. Further, liability on the part of Respondent No.2 was denied and it was submitted that Respondent No.2 was wrongly implicated in the case.
In the Written Statement filed on behalf of Respondent No.3/National Insurance Company Ltd., it was submitted that petition is bad for non-joinder of necessary parties as driver, owner and insurer of truck bearing Registration No. RJ-19-CA-4531 had not been impleaded in the petition. It was further submitted that Respondent No.3 would not be liable to pay Suit No.391/10 - Meena Goel & Ors. Vs. Rajesh Kumar & Ors. Page 3 of 31 compensation in case the driver of the offending vehicle was not holding a valid and effective licence or there was no valid and effective permit at the time of accident or there was violation of terms and conditions of the insurance policy. However, it was admitted that the vehicle was insured in the name of Narender Khandelwal for the period 10.04.2009 to 09.04.2010 which covers the period of accident. Further, the compensation claimed by the petitioners was stated to be excessive and exaggerated.
3. On the pleadings of the parties, following issues were framed for consideration by ld. Predecessor vide order dated 06.01.2011:-
(i) Whether the deceased Shri Ashok Kumar Goel had died due to the injuries sustained by him in an accident which took place on 02/01/2010 because of rash and negligent driving of vehicle bearing no.
DL 9C QS 5919 by respondent no.1, who dashed against the truck bearing registration no. RJ 19 GA 4531 parked on the road near PS BAP, Dist. Jodhpur, Rajasthan?
(ii) Whether the petitioners are entitled to any compensation, if so, to what amount and from whom?
(iii) Relief.
Suit No.391/10 - Meena Goel & Ors. Vs. Rajesh Kumar & Ors. Page 4 of 314. In support of the claim, petitioners led evidence of petitioner no. 1 Meena Goel (wife of deceased).
PW1 Smt. Meena Goel testified on the lines of claim petition. She further testified that deceased aged about 45 years is survived by petitioner no. 1 (wife) along with three daughters, Kishan Kumar Goel (father) and the deceased was earning about Rs.23,500/- as professional consultant. She further proved certified copies of criminal record (53 pages Ex.PW1/1 colly), Income Tax Return for the AY 2009-10 filed on 07.06.2009 before the accident (Ex.PW1/2), copy of her Election I-Card (Ex.PW1/3) and copy of ration card (Ex.PW1/4).
During cross-examination, she admitted that she was not an eyewitness to the accident. Further, her daughter petitioner no.2 Pooja Goel was married and her father-in-law Kishan Kumar Goel was running a shop which was later on closed. She denied the suggestion that her father in law was not residing with them or was not financially dependent upon the deceased. She further deposed that she did not have any document to prove that deceased was working as Property Consultant except the Income Tax Return filed on record. She also stated that body of the deceased was not subjected to postmortem and denied the suggestion that no such accident had taken place due to rash and negligent driving of the car.
Evidence was not led on behalf of the respondents and were proceeded ex parte vide order dated 04.09.2015.
Suit No.391/10 - Meena Goel & Ors. Vs. Rajesh Kumar & Ors. Page 5 of 315. I have heard arguments addressed on behalf of the petitioners, counsel for Respondent No. 3 and perused the record.
My Issue-wise findings are as under :-
Issue No. (i) Whether the deceased Shri Ashok Kumar Goel had died due to the injuries sustained by him in an accident which took place on 02/01/2010 because of rash and negligent driving of vehicle bearing no. DL 9C QS 5919 by respondent no.1, who dashed against the truck bearing registration no. RJ 19 GA 4531 parked on the road near PS BAP, Dist. Jodhpur, Rajasthan?
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 Suit No.391/10 - Meena Goel & Ors. Vs. Rajesh Kumar & Ors. Page 6 of 31 compensation which must appear to it to be just. Strict rules of evidence are not applicable in an inquiry conducted by the Claims Tribunal. Further in State of Mysore Vs. S.S. Makapur, 1993 (2) SCR 943, Hon'ble Supreme Court held that the Tribunals exercising quasi-judicial functions are not courts and are not bound by strict rules of evidence. The relevant portion of the report is extracted hereunder:
".......that tribunals exercising quasi-judicial functions are not courts and that therefore they are not bound to follow the procedure prescribed for trial of actions in 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.
Suit No.391/10 - Meena Goel & Ors. Vs. Rajesh Kumar & Ors. Page 7 of 31"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."
In the instant case, admittedly, eyewitness to the accident has not been examined on behalf of the petitioners. PW1 is not an eyewitness to the accident and her testimony on the point of negligence is only based upon the information received and Suit No.391/10 - Meena Goel & Ors. Vs. Rajesh Kumar & Ors. Page 8 of 31 hearsay. In the aforesaid background, reference may be made to certified copies of the criminal record (Ex.PW1/1 colly) relied upon by the petitioners. Admittedly, FIR was registered regarding the accident and driver of the offending car/Respondent No.1 stands chargesheeted u/s 279/337/304A IPC. The Site Plan prepared during the course of criminal investigation clearly reflects that the car hit against truck No. RJ 19 GA 4531 which was parked on the side of the road due to breakdown and even stones were placed around it. Nothing has come up on record to assume that the truck had been wrongly parked and the accident had resulted owing to the negligence in parking of the truck which had a breakdown. No other intervening circumstance has been brought on record to presume that accident was not caused due to negligence of Respondent No.1 which is apparent from the facts and circumstances of the case. Respondent No.1 has failed to enter the witness box and controvert the circumstances on record.
Since the negligence is to be determined on the touchstone of preponderance of probability and holistic view is to be taken while dealing with the Claim Petition, it has been established on record that the accident was caused due to rash and negligent driving of driver of the offending car bearing registration no. DL 9C QS 5919. Issue No. 1 is accordingly decided in favour of the petitioners.
6. Issue No. (ii) Whether the petitioners are entitled to any compensation, if so, to what amount and from Suit No.391/10 - Meena Goel & Ors. Vs. Rajesh Kumar & Ors. Page 9 of 31 whom?
(a) For the purpose of assessment of income, it is contended by counsel for petitioners that deceased Ashok Kumar Goel aged about 46/47 years was engaged in business as Property Consultant and earning Rs.23,000/- per month. Further for the purpose of income of deceased, reliance is placed upon Income Tax Return for the Assessment Year 2009-10 filed on 01.06.2009 (Ex.PW1/2) wherein the gross total income of the deceased is reflected as Rs.2,76,500/- on which a tax of Rs.2,730/- was paid. Accordingly, it is claimed that the net income of the deceased was about Rs.2,73,770/- per annum or Rs.22,814.17 per month.
There is no reason to doubt or disbelieve the aforesaid Income Tax Return, original of which has been produced at the time of arguments and the same gives an indication of the income of the deceased for the financial year 01.04.2008 to 31.03.2009. In view of above, for the purpose of assessment of compensation, income of the deceased is accordingly taken as Rs.2,73,770/- per annum or Rs.22,814.17 per month.
(b) If addition in income towards future prospects is to be made Counsel for petitioners urged that addition towards future prospects be made by 30% while assessing the income of deceased which has been opposed by counsel for insurance company.
Suit No.391/10 - Meena Goel & Ors. Vs. Rajesh Kumar & Ors. Page 10 of 31It may be observed 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. 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 Suit No.391/10 - Meena Goel & Ors. Vs. Rajesh Kumar & Ors. Page 11 of 31 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 General Insurance Co. Ltd. v.
Smt. Lalta Devi and Ors., MAC APP No. 189/2014, decided on 12.01.2015.
Suit No.391/10 - Meena Goel & Ors. Vs. Rajesh Kumar & Ors. Page 12 of 31Paras 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 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-
Suit No.391/10 - Meena Goel & Ors. Vs. Rajesh Kumar & Ors. Page 13 of 31appear 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-
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 Transport 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 ra- tio with regard to future prospects in Sarla Verma (Smt.) & Ors. (supra) and Suit No.391/10 - Meena Goel & Ors. Vs. Rajesh Kumar & Ors. Page 14 of 31 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 Survey of India & Anr., 2003 (3) SCC 148, the Supreme Court held as under:-
"38. With regard to the addi-
tion 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 de-
cisions in Susamma Thomas [Kerala SRTC v. Susamma Thomas, (1994) 2 SCC 176 :
1994 SCC (Cri) 335], Sarla Dixit [(1996) 3 SCC 179] and Abati Bezbaruah [Abati Bezbaruah v. 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 [Sar-
la 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-Suit No.391/10 - Meena Goel & Ors. Vs. Rajesh Kumar & Ors. Page 15 of 31
come of the deceased towards fu- ture prospects, where the de-
ceased had a permanent job and was below 40 years. (Where the annual income is in the taxable range, the words „actual salary‟ should be read as „actual salary less tax‟). The addition should be only 30% if the age of the de-
ceased was 40 to 50 years. There should be no addition, where the age of the deceased is more than 50 years. Though the evidence may indicate a different percent-
age of increase, it is neces-
sary to standardise the addition to avoid different yardsticks being applied or different 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 involving spe- cial circumstances."
39. The standardization of addi-
tion to income for future prospects shall help in achieving certainty in arriving at appropri-
ate compensation. We approve the method that an addition 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 Suit No.391/10 - Meena Goel & Ors. Vs. Rajesh Kumar & Ors. Page 16 of 31 40 years and the addition should be only 30% if the age of the de-
ceased was 40 to 50 years and no addition should be made where the age of the deceased is more than 50 years. Where the annual income is in the taxable range, the actual salary shall mean actu-
al salary less tax. In the cases where the deceased was self-em-
ployed or was on a fixed salary without provision for annual increments, the actual income at the time of death without any ad-
dition to income for future prospects will be appropriate.
A departure from the above prin-
ciple can only be justified in ex-
traordinary circumstances and very exceptional cases."
12. The learned counsel for the Insur- ance Company relies upon a Constitu- tional Bench judgment of the Supreme Court in Central Board of Dawoodi Bohra Community & Anr. v. State of Ma- harashtra & Anr., (2005) 2 SCC 673;
Safiya Bee v. Mohd. Vajahath Hussain @ Fasi, (2011) 2 SCC 94; and Union of In- dia & 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 judgment will be taken as a binding precedent.
13. It may be noted that in Reshma Ku-
mari & 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 Suit No.391/10 - Meena Goel & Ors. Vs. Rajesh Kumar & Ors. Page 17 of 31 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 mul- tiplier. The three Judge Bench approved the two Judge Bench decision of the Supreme Court in Sarla Verma (Smt.) & Ors. v. Delhi Transport Corporation & Anr., (2009) 6 SCC 121 with regard to the selection of multiplier. It further laid down that addition towards future prospects to the extent of 50% of the ac- tual salary shall be made towards future prospects when the deceased had a per- manent 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 annual increment.
14. Of course, three Judge Bench of the Supreme Court in its later judgment in Rajesh relying on Santosh Devi v. Nation- al Insurance Company Ltd. & Ors., 2012 (6) SCC 421 observed that there would be addition of 30% and 50%, depending upon the age of the deceased, towards fu- ture 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 Suit No.391/10 - Meena Goel & Ors. Vs. Rajesh Kumar & Ors. Page 18 of 31 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 follow- ing 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 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-
Suit No.391/10 - Meena Goel & Ors. Vs. Rajesh Kumar & Ors. Page 19 of 31ployed the actual income at the time of death should be taken into account for determining the loss of income unless there are extraordinary and exceptional circumstances. Though the expression "exceptional and ex- traordinary 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 princi-
ple. The near certainty of the regular 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 income by taking into account the possible future earnings. The said loss of income, 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 latest judgment in Na- tional Insurance Company Ltd. v. Pushpa & Ors., CC No.8058/2014, decided on 02.07.2014 and in concluding paragraph while making reference to the Larger Bench, the Supreme Court held as under:-
"Be it noted, though the decision in Reshma (supra) was rendered at ear-Suit No.391/10 - Meena Goel & Ors. Vs. Rajesh Kumar & Ors. Page 20 of 31
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 re-
gards the manner of addition of in-
come of future prospects there should be an authoritative pro-
nouncement. Therefore, we think it appropriate to refer the matter to a larger Bench."
17. Now, the question is which of the judgments ought to be followed awaiting answer to the reference made by the Supreme Court in Pushpa & Ors. (supra).
18. In Central Board of Dawoodi Bohra Community & Anr. v. State of Maharash- tra & Anr., (2005) 2 SCC 673 in para 12, the Supreme Court observed as under:-
"12. Having carefully considered the submissions made by the learned Senior Counsel for the par- ties and having 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 Suit No.391/10 - Meena Goel & Ors. Vs. Rajesh Kumar & Ors. Page 21 of 31 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 Justice and request for the matter being placed for hearing before a Bench of larger quorum than the Bench whose decision has come up for consideration. It will be open only for a Bench of co-
equal strength to express an opinion doubting the correctness of the view tak- en by the earlier Bench of coequal strength, whereupon the matter may be placed for hearing before a Bench con- sisting 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 excep- tions: (i) the abovesaid rules do not bind the discretion of the Chief Justice in whom vests the power of framing the ros- ter 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 herein- above, if the matter has already come up for hearing before a Bench of larger quorum and that Bench itself feels that the view of the law taken by a Bench of lesser quorum, which view is in doubt, needs correction or reconsideration then by way of exception (and not as a rule) and for reasons given by it, it may pro- ceed to hear the case and examine the Suit No.391/10 - Meena Goel & Ors. Vs. Rajesh Kumar & Ors. Page 22 of 31 correctness of the previous decision in question dispensing with the need of a specific 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. Va- jahath 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 judica- ta, 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 re- quired them to refer the issue to a larger Bench. The learned Judges were not right in overruling the statement of the law by a coordi-
nate 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 num-
ber of Judges. In case of doubt or disagreement about the decision of the earlier Bench, the well-accept- ed and desirable practice is that Suit No.391/10 - Meena Goel & Ors. Vs. Rajesh Kumar & Ors. Page 23 of 31 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 deci-
sion in S.N. Narula case [(2011) 4 SCC 591] was prior to the decision in T.V. Patel case [(2007) 4 SCC 785 : (2007) 2 SCC (L&S) 98] . It is well settled that if a subsequent coordinate Bench of equal strength wants to take a different view, it can only refer the matter to a larger Bench, otherwise the prior decision of a coordinate Bench is binding on the subsequent Bench of equal strength. Since, the decision in S.N. Narula case [(2011) 4 SCC 591] was not noticed in T.V. Patel case [(2007) 4 SCC 785 : (2007) 2 SCC (L&S) 98] , the latter decision is a judgment per incuriam. The deci- sion in S.N. Narula case [(2011) 4 SCC 591] was binding on the sub-
sequent Bench of equal strength and hence, it could not take a con- trary 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 Suit No.391/10 - Meena Goel & Ors. Vs. Rajesh Kumar & Ors. Page 24 of 31 APP.138/2011, decided on 06.09.2013, went into this question and held that in view of the report in S.K. Kapoor (supra), the three Judge Bench decision in Resh- ma Kumari & Ors. (supra) shall be taken as a binding precedent."
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, 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 the deceased:
Counsel for petitioners submitted that since petitioner no. 1 to 5 were fully dependent upon income of the deceased, deduction of 1/4th be made towards the personal expenses of deceased and loss of dependency be accordingly considered as per age of deceased at the time of accident.
However, the same is disputed by counsel for insurance Suit No.391/10 - Meena Goel & Ors. Vs. Rajesh Kumar & Ors. Page 25 of 31 company and it is submitted that petitioner no. 2 Pooja Goel was married at the time of accident and as such she cannot be considered as dependent. The dependency of petitioner no. 5 Kishan Kumar Goel (father of deceased) is also disputed.
It may be observed that so far as petitioner no. 2 Pooja Goel is concerned, it is admitted by counsel for petitioners that she may not be treated as dependent as she had been married prior to death of deceased. Further, so far as petitioner no. 5 Kishan Kumar Goel is concerned, nothing has come up in cross-examination of PW1 to assume that either he was not residing with the deceased or was financially independent. Considering the totality of facts and circumstances, the number of dependents for the purpose of deduction is taken as 4.
As per Sarla Verma (Smt.) & Ors. vs. Delhi Transport Corporation & Anr. (2009) 6 SCC 121, it has been held that 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, the deduction towards personal and living expenses of the deceased shall be 1/4th as held in Sarla Verma's case (supra).
(d) Selection of multiplier:
As per copy of ration card (Ex.PW1/4), the year of birth of deceased is reflected as 1963 and as such the age of the Suit No.391/10 - Meena Goel & Ors. Vs. Rajesh Kumar & Ors. Page 26 of 31 deceased on the date of accident was about 46 years which has not been disputed by counsel for respondents. Accordingly, as held in Sarla Verma (Smt.) & Ors. vs. Delhi Transport Corporation & Anr. (2009) 6 SCC 121, the multiplier of 13 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.26,69,257.89 i.e. Rs. 22,814.17 (notional income per month) X 12 (months) X 13 (multiplier) X 3/4 (dependency)].
7. Compensation under non-pecuniary heads:
It has been held by the Hon'ble Apex Court in Rajesh & Ors. v. Rajbir Singh & Ors., (2013) 9 SCC 54 that the compensation is to be awarded for a sum of Rs.1 lakh each towards loss of love and affection and loss of consortium, Rs. 25,000/- towards funeral expenses and Rs.10,000/- towards loss 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). Further, interest @ 9% per annum was awarded on the Suit No.391/10 - Meena Goel & Ors. Vs. Rajesh Kumar & Ors. Page 27 of 31 award amount by the Hon'ble Apex Court in Municipal Corporation of Delhi v. Association of Victims of Uphaar Tragedy, 2012 ACJ 48 (SC). Though a wide discretion in determination of compensation is given but the amplitude of such powers has to be exercised in consonance with settled principles. It needs to be borne in mind that compensation is neither expected to be windfall or bonanza or source of profit but at the same time should not be pittance.
Petitioners are accordingly entitled to Rs.1 lakh towards loss of estate, Rs.1 lakh towards loss of consortium to wife, Rs.1 lakh towards loss of love and affection to children who are major daughters, Rs.50,000/- towards loss of love and affection to father of deceased and Rs.25,000/- towards funeral expenses.
8. The petitioners/claimants are accordingly entitled to compensation computed as under:
Loss of financial dependency Rs.26,69,257.89 Loss of Estate Rs.1,00,000/-
Loss of Consortium to wife Rs.1,00,000/- Loss of love and affection to children Rs.1,00,000/- Loss of Love and affection to father Rs.50,000/-
Funeral Expenses Rs.25,000/-
Medical Treatment Rs. NIL
________________
Total Rs.30,44,257.89
________________
(Rounded off to Rs.30,44,258/-)
Suit No.391/10 - Meena Goel & Ors. Vs. Rajesh Kumar & Ors. Page 28 of 31
(Rupees Thirty Lakh Forty Four Thousand Two Hundred & Fifty Eight Only) 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.
The claimant/petitioners are also entitled to interest @ 9% p.a. from the date of filing of petition i.e. w.e.f. 25.08.2010 till realization.
9. It is further held that Respondent No.1 (Driver), Respondent No.2 (Owner) and Respondent No.3 (Insurer) of the offending vehicle are jointly and severally liable to make the payment of compensation to the petitioners/claimants.
10. For the purpose of disbursement, petitioner no.1 Smt. Meena Goel (wife of deceased) shall be entitled to 45% of the award amount, petitioner no. 2 Pooja Goel (married daughter of deceased) shall be entitled to 10% AND petitioner no.3, 4 & 5 shall be entitled to 15% each of the award amount and proportionate interest thereon.
On realization, an amount of Rs.1,00,000/- (Rupees One Lakh Only) shall be released to petitioner no.1 Smt. Meena Goel (wife of deceased) and remaining amount of her share along with proportionate up-to-date interest shall be kept in ten fixed deposits of equal amount in her name with a nationalised bank for a period of one year, two years, three years, four years, five Suit No.391/10 - Meena Goel & Ors. Vs. Rajesh Kumar & Ors. Page 29 of 31 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 her account.
Further, an amount of Rs.50,000/- (Rupees Fifty Thousand Only) each shall be released to petitioner no. 2, 3 & 4 (daughters of deceased) from their respective shares and the remaining amount of their respective shares with proportionate up- to-date interest shall be kept in a fixed deposit with a nationalised bank for a period of three years without the facility of advance, loan or premature withdrawal with release of quarterly periodical interest in their account.
An amount of Rs.50,000/- (Rupees Fifty Thousand Only) shall be released to petitioner no.5 Kishan Kumar Goel (father of 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 with a nationalised bank for a period of one year, two years, three years, four years and five years respectively without the facility of advance, loan or premature withdrawal with release of quarterly periodical interest in his account.
11. Relief Since the offending vehicle was duly insured on the date of accident, Respondent No.3 (National Insurance Company Ltd.) is directed to deposit the award amount of Rs.30,44,258/- with interest @ 9% p.a. from the date of filing of claim petition i.e. Suit No.391/10 - Meena Goel & Ors. Vs. Rajesh Kumar & Ors. Page 30 of 31 w.e.f. 25.08.2010 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 to the petitioners/claimants and complete details in respect of calculations of interest etc. within 30 days from today.
A copy of this judgement be sent to Respondent No.3/Insurance Company for compliance within the time granted, failing which General Manager of the Insurance Company will show reasons for non-compliance.
Nazir is directed to place a report on record in the event of non-receipt/deposit of the compensation amount within the time granted.
File be consigned to Record Room.
Announced in open court (Anoop Kumar Mendiratta) on 30th January, 2016 Judge MACT-1 (Central), Tis Hazari Courts, Delhi.
Suit No.391/10 - Meena Goel & Ors. Vs. Rajesh Kumar & Ors. Page 31 of 31