Delhi District Court
Smt. Prema Devi vs Shri Prakash Bahadur on 28 February, 2015
IN THE COURT OF ANOOP KUMAR MENDIRATTA,
JUDGE, MACT1, (CENTRAL), DELHI.
SUIT NO.38/14
Unique Case ID No.02401C0251522010
1. Smt. Prema Devi
W/o Sh. Kaushal Pati Tiwari (Mother)
2. Sh.Kaushal Pati Tiwari
S/o Shri Shivamurat Tiwari, (Father)
3. Anita
W/o Late Sh. Dhananjay (Wife)
All R/o
H. No. 34, Panserwan Town Village,
Anchal Mohaniyo, Distt. Kaimur,
Bhabua821 109
.......Petitioners
Versus
1. Shri Prakash Bahadur,
S/o Sh. Hira Bahadur,
R/o 336, Rishi Nagar, Rani Bagh,
Delhi. ........(Driver)
2. Mrs. Anita Dahiya,
W/o Sh.Yogesh Dahiya,
Ro/451, Police Colony Qtr.
Ahata Kedara, Chamelian Road,
Sadar Bazar, Delhi6 ........(Owner)
Suit No.38/14 - (Smt. Prema Devi & Ors.Vs. Shri Prakash Bahadur & Ors.) 1 of 26
3. The New India Assurance Company Ltd.
Address: 1/704, G.T. Road,
Shahdara, Delhi. .......(Insurer)
....... RESPONDENTS
Date of Institution of the suit :13.05.2010
Date of reserving judgment : 26.02.2015
Date of pronouncement : 28.02.2015
JUDGMENT
1. The present claim petition has been preferred by the petitioners U/s 166 and 140 of Motor Vehicle Act 1988 (hereinafter referred to as 'the Act') claiming compensation of a sum of Rs. 50,00,000/ in respect of the accidental death of Dhananjay (deceased) in the motor vehicle accident.
Brief facts of the case as averred in the claim petition are that on 13.04.2010 at about 9:45 P.M. deceased Dhananjay was proceeding on his motorcycle bearing registration No. DL 3S BD 0177 to his residence from office at 114, Inder Prakash Building, 21, Barakhamba Road, Connaught Place, New Delhi. When he reached in Suit No.38/14 - (Smt. Prema Devi & Ors.Vs. Shri Prakash Bahadur & Ors.) 2 of 26 front of Jhandewalan Naaj Cinema, Near Delhi Jal Board Office, DBG Road, Delhi motorcycle was hit by bus bearing registration No. DL 1 PA 6622 driven by Respondent No.1 in a rash and negligent manner at a high speed.. Consequently Dhananjay sustained fatal injuries and was declared brought dead at RML Hospital. FIR No.88/2010, U/s 279/304A IPC P.S. Paharganj was accordingly registered and investigated by the police.
2. Common Written Statement was filed on behalf of the Respondent No.1/Driver (Prakash Bahadur) and Respondent No. 2 (Anita Dahiya)/Owner of the offending vehicle but were thereafter proceeded exparte vide order dated 11.01.2011.
In the Written Statement filed on behalf of Respondent Nos.1 & 2, the accident was denied. It was further submitted that the offending vehicle was duly insured with the Respondent no. 3 at the time of accident.
In the Written Statement filed on behalf of Respondent No. 3 (M/s The New India Assurance Company Ltd.), it was admitted that offending vehicle No. DL 1PA 6622 was insured with the Insurance Company in the name of Respondent No. 2 w.e.f. 16.08.2009 to 15.08.2010. However, the accident as well as the vicarious liability on behalf of Respondent No. 3 was denied. It was further submitted that the amount claimed by the petitioners was high and exorbitant. Suit No.38/14 - (Smt. Prema Devi & Ors.Vs. Shri Prakash Bahadur & Ors.) 3 of 26
3. On the pleadings of the parties the following issues were framed vide order dated 17.01.11 and issue no.1 was further corrected vide order dated 169.08.11 as follows:
(i) Whether the deceased Shri Dhananjay had died due to injuries sustained by him in an accident which took place on 13.04.2010 because of rash and negligent driving of vehicle bearing Regn. No. DL 1 PA 6622 (Bus) by Respondent No.1?
(ii) Whether the petitioner is entitled to any compensation, if so, to what amount and from whom?
(iii) Relief.
4. In support of the claim, petitioners examined PW1 Kaushal Pati Tiwari, father of the deceased (Petitioner No.2), PW2 Kamlesh Tiwari (friend of deceased) and PW3 Anil Kumar, Manager (M/s Honey & Company wherein the deceased was working as Field Boy prior to his death).
PW1 Kaushal Pati Tiwari tendered his examinationin Suit No.38/14 - (Smt. Prema Devi & Ors.Vs. Shri Prakash Bahadur & Ors.) 4 of 26 chief by way of affidavit Ex.PW1/A on the lines of claim petition. He further proved on record copy of ration card Ex.PW1/1, Election Icard PW1/1A, DAR Ex.PW1/2 and MLC of the deceased Ex.PW1/3. During crossexamination he stated that he was not an eyewitness to the accident. He further stated that name of the widow of his son is Anita but he had not brought the Voter Icard of Anita as her name is not mentioned in the Voter list. He further clarified that no application had been filed to include her name in the Voter list. He admitted that the name of Anita was not mentioned in the Ration Card brought by him and was not in possession of any other document to show that Anita was wife of deceased Dhananjay. However, he denied the suggestion that Anita was not married to his deceased son. He also stated that deceased Dhananjay used to contribute amount to maintain his family as he was employed as a private Teacher drawing mere salary of Rs.3,500/ per month.
PW2 Kamlesh Tiwari, friend of deceased led his examinationinchief by way of affidavit and testified that deceased was married to Anita in the month of May 2008 and he had attended the function of marriage at their residence Village Panserwan, Town Village. During crossexamination, he stated that he has been residing in Delhi since 2007 and the marriage cards were given to the relatives and himself. However, he stated that he was not photographed with the deceased and his wife at the time of marriage and denied the Suit No.38/14 - (Smt. Prema Devi & Ors.Vs. Shri Prakash Bahadur & Ors.) 5 of 26 suggestion that deceased was not married.
PW3 Anil Kumar, Manager, M/s Honey & Company deposed that deceased Dhananjay was working with the company on the post of Field Boy since February, 2009 till his death. He further proved the certificate issued by the company Real Estate Division, 12, Bhagat Singh Market Ex.PW3/1 to the effect that deceased was working for the period 01.02.2009 to 13.04.2010 and was being paid a salary of Rs.8,250/ and Rs.800/ as local conveyance. During cross examination, he stated that he had not brought the service record of the deceased, any proof of payment of salary to deceased or appointment letter of the deceased. He denied the suggestion that deceased was not employed in the company.
Respondents did not examine any witness despite opportunity.
5. I have heard arguments addressed by the counsel for the parties and perused the record.
Counsel for petitioner made submissions on the lines of the claim petition and submitted that deceased is survived by his parents (Prema Devimother, Kaushal Pati Tiwarifather) and wife Anita. It was further contended that deceased was working at M/s Honey & Suit No.38/14 - (Smt. Prema Devi & Ors.Vs. Shri Prakash Bahadur & Ors.) 6 of 26 Company and drawing a salary of Rs.8,250/ per month apart from transport allowance of Rs.800/ per month.
On the other hand, counsel for Respondent No. 3/New India Assurance Company Ltd. contended that the petitioners had misrepresented that deceased was married with Anita (petitioner No.3) in order to claim higher compensation. It was submitted that in case the deceased was survived only by his parents i.e. mother/father, the applicable multiplier would be based on the age of the mother of the deceased but by reflecting that deceased was married, the multiplier would be much higher affecting the total amount of compensation. However, the negligence on the part of the offending vehicle was not disputed. It was also submitted that the compensation claimed is exorbitant and factum of employment of deceased with M/s Honey & Company was disputed as the documents relating to employment were not produced by PW3.
My Issuewise findings are as under :
6. Issue No. (i) Whether the deceased Shri Dhananjay had died due to the injuries sustained by him in an accident which took Suit No.38/14 - (Smt. Prema Devi & Ors.Vs. Shri Prakash Bahadur & Ors.) 7 of 26 place on 13.04.2010 because of rash and negligent driving of vehicle bearing Regn. No. DL 1 PA 6622 (Bus) by Respondent No.1?
Admittedly, no eyewitness to the accident was examined on behalf of the petitioners. However, DAR filed on record has been exhibited collectively as Ex.PW1/2 during the evidence of PW1 Kaushal Pati Tiwari along with the MLC of deceased Ex.PW1/3.
In a petition u/s 166 of the Motor Vehicle Act, 1988 the Claim Tribunal has to decide the negligence on the touchstone of preponderance of probability. Along with the DAR, certified copies of the chargesheet consisting of FIR, MLC, Mechanical Inspection Report of offending vehicle, Mechanical Inspection Report of motorcycle, Site Plan and Postmortem Report have been filed. It may be noticed that the Respondent No.1 Driver of the offending vehicle has not entered the witness box to rebut the accident or the factum of negligence for which he was chargesheeted by the police. The negligence on part of offending vehicle stands corroborated by a mere perusal of the site plan wherein the site of accident has been shown towards the middle of the road. The bus was supposed to ply in its earmarked lane on the left side but appears to be moving in the middle of the road towards the right side which resulted in the unfortunate accident. The fact that the Suit No.38/14 - (Smt. Prema Devi & Ors.Vs. Shri Prakash Bahadur & Ors.) 8 of 26 body of the bus had fresh damages on the left front body reflects that the motorcycle must have been hit from behind by the bus. As such, the negligence can be clearly inferred from the facts and circumstances of the case even in the absence of examination of any material witness. Reference may also be made to observations in Ranu Bala Paul & Others vs. Bani Chakraborty 1999 ACJ 634 Gauhati wherein the claim was allowed after consideration of FIR before the Tribunal.
"In deciding a matter Tribunal should bear in mind the caution struck by the Apex Court that a claim before the Motor Accident Claims Tribunal is neither a criminal case nor a civil case. In a criminal case in order to have conviction, the matter is to be proved beyond reasonable doubt and in a civil case the matter is to be decided on the basis of preponderance of evidence, but in a claim before the Motor Accident Claim Tribunal the standard of proof is much below than what is required in a criminal case as well as in a civil case. No doubt before the 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 facts and circumstances, Issue No. 1 is decided in favour of the petitioners and against the respondents. Suit No.38/14 - (Smt. Prema Devi & Ors.Vs. Shri Prakash Bahadur & Ors.) 9 of 26
7. Issue No. (ii) Whether the petitioner is entitled to any compensation, if so, to what amount and from whom?
(a) Income of deceased:
As per evidence of PW1 Kaushal Pati Tiwari, deceased Dhananjay was working at M/s Honey & Company and drawing a salary of Rs.8,250/ and Rs.800/ as local conveyance. He further proved the salary certificate Ex.PW1/4 issued by the company. Petitioners further examined PW1 Shri Anil Kumar, Manager from the concerned company who proved the salary certificate Ex.PW3/1 and stated that Dhananjay was working on the post of Field Boy since February, 2009 till his death.
The same is disputed on behalf of the Insurance Company on the ground that no salary record or appointment letter was produced by PW3 and it is contended that the certificate has been procured.
I do not find much merits in the contention raised on behalf of Respondent No.3 (Insurance Company) since during the course of filing of DAR, the salary certificate was verified by the police. It is not out of place to mention that for routine duties, the Suit No.38/14 - (Smt. Prema Devi & Ors.Vs. Shri Prakash Bahadur & Ors.) 10 of 26 companies hire the employees without maintaining regular service records. It has also come to my notice that in the identification proceedings of the body of the deceased, statement of Kaushal Pati Tiwari had been recorded by the police on 15.04.2010 wherein he stated at the earliest that his son Dhananjay Kumar was engaged in a private job. The fact that the deceased was working as a Field Boy and drawing a salary of Rs.8,250/ apart from conveyance allowance of Rs. 800/ is duly plausible considering the salary generally prevailing during the relevant period in NCT of Delhi.
In the facts and circumstances, the income of deceased is considered to be Rs.8,250/ per month as the amount of Rs.800/ was being separately paid for purpose of conveyance since the deceased was employed as a Field Boy.
(b) If addition in income towards future prospects is to be made The counsel for petitioners has claimed that addition towards future prospects to the extent of 50% be made since deceased was employed as a Field Boy. However, the same is opposed on behalf of respondent Insurance Company and it is submitted that no addition towards future prospects is permissible in absence of any evidence with regard thereto.
Suit No.38/14 - (Smt. Prema Devi & Ors.Vs. Shri Prakash Bahadur & Ors.) 11 of 26 As far as the addition towards the future prospects is concerned, the issue has been examined at great length by the Hon'ble High Court of Delhi in various judgements wherein the law laid down in Sarla Verma (Smt.) & Ors. vs. Delhi Transport Corporation & Anr. (2009) 6 SCC 121 and Reshma Kumari & Ors. Vs. Madan Mohan & Anr. (2013) 9 SCC 65 has been analysed in detail. Reference may be made to MAC APP. 325/2013 decided on 28th January, 2015 U.P. State Road Transport Corporation vs. Shahida & Ors. by the Hon'ble Mr. Justice G.P. Mittal. In the aforesaid case, deceased Shaukat Ali aged about 37 years was alleged to be supplying milk and earning Rs.10,000/ per month and the Tribunal had awarded addition of 30% towards future prospects of the income of the deceased. However, it was held by the Hon'ble High Court that no addition of 30% towards future prospects was permissible in the absence of any evidence with regard to future prospects. The observations made by the Hon'ble High Court on the aspect of calculation of future prospects as discussed in para 7 of aforesaid judgement in this regard are quoted for reference:
"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: Suit No.38/14 - (Smt. Prema Devi & Ors.Vs. Shri Prakash Bahadur & Ors.) 12 of 26
9. The learned counsel for the Claimants has referred to a three Judge Bench decision 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 Ra- jesh & 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 counsel 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 Manag- er, 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 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 decisions 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. Geo-
logical 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 Suit No.38/14 - (Smt. Prema Devi & Ors.Vs. Shri Prakash Bahadur & Ors.) 13 of 26 SCC (Civ) 770 : (2009) 2 SCC (Cri) 1002] , SCC p. 134):
"24. ... In view of the imponderables and uncertainties, we are in favour of adopting as a rule of thumb, an addition of 50% of actual salary to the actual salary income of the deceased towards future prospects, where the deceased had a permanent job and was below 40 years. (Where the annual income is in the taxable range, the words „actual salary‟ should be read as „actual salary less tax‟). The addition should be only 30% if the age of the deceased was 40 to 50 years. There should be no addition, where the age of the deceased is more than 50 years. Though the evidence may indicate a different percentage of increase, it is necessary to standardise the addition to avoid different yardsticks being applied or different methods of calculation being adopted. Where the de-
ceased 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 departure therefrom should be made only in rare and exceptional cases involving special cir- cumstances."
39. The standardization of addition to income for future prospects shall help in achieving certainty in arriving at ap-
propriate compensation. We approve the method that an addition of 50% of actu-
al salary be made to the actual salary income of the deceased towards future prospects where the deceased had a per-
manent job and was below 40 years and the addition should be only 30% if the age of the deceased was 40 to 50 years and no addition should be made where the age of the deceased is more than 50 years. Where the annual income is in the taxable range, the actual salary shall mean actual salary less tax. In the cases where the deceased was self-employed or was on a fixed salary without provi-
Suit No.38/14 - (Smt. Prema Devi & Ors.Vs. Shri Prakash Bahadur & Ors.) 14 of 26 sion 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 justi-
fied 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 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 judgment will be tak- en 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 ap- proved the two Judge Bench decision of the Supreme Court in Sarla Verma (Smt.) & Ors. v. Delhi Transport Corporation & Anr., (2009) 6 SCC 121 with regard to the selection of mul- tiplier. It further laid down that addition to- wards future prospects to the extent of 50% of the actual salary shall be made towards future prospects when the deceased had a permanent job and was below 40 years and addition of 30% should be made if the age of the deceased was be- tween 40-50 years. No addition towards future prospects shall be made where the deceased was self-employed or was getting a fixed salary with- out 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. National 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 future Suit No.38/14 - (Smt. Prema Devi & Ors.Vs. Shri Prakash Bahadur & Ors.) 15 of 26 prospects even in the case of self-employed per- sons. It may, however, be noted that in Rajesh, the three Judge Bench decision in Reshma Ku-
mari (supra) was not brought to the notice of their Lordships.
15. The divergence of opinion was noted by an- other 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 specified in the Second Schedule appended 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 de-
termination 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 unless there are extraordinary and exceptional circumstances. Though the expression "exceptional and extraordinary circumstances" is not capable of any precise definition, in Shakti Devi v. New India Insur-
ance Co. Ltd. [(2010) 14 SCC 575 : (2012) Suit No.38/14 - (Smt. Prema Devi & Ors.Vs. Shri Prakash Bahadur & Ors.) 16 of 26 1 SCC (Civ) 766 : (2011) 3 SCC (Cri) 848] there is a practical application of the afore- said principle. The near certainty of the reg- ular employment of the deceased in a gov-
ernment 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 de- ceased was earning at the time of his death."
16. Further, the divergence of opinion in Resh- ma 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 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 pronouncement. Therefore, we think it ap-
propriate 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 ref- erence 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 Senior Counsel for the parties and having ex-
amined the law laid down by the Con-
Suit No.38/14 - (Smt. Prema Devi & Ors.Vs. Shri Prakash Bahadur & Ors.) 17 of 26
stitution Benches in the abovesaid deci-
sions, we would like to sum up the legal po- sition in the following terms:
(1) The law laid down by this Court in a de-
cision delivered by a Bench of larger strength is binding on any subsequent 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 cannot dis- agree 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 de- cision has come up for consideration. It will be open only for a Bench of coequal strength to ex- press an opinion doubting the correctness of the view taken by the earlier Bench of coequal strength, whereupon the matter may be placed for hearing before a Bench consisting of a quorum larger than the one which pronounced the deci- sion 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 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 proceed to hear the case and examine the correctness of the previous decision in question dispensing with the need of a specific reference or the order of the Chief Justice con- stituting the Bench and such listing. Such was the situation in Raghubir Singh [(1989) 2 SCC 754] and Hansoli Devi [(2002) 7 SCC 273]."
Suit No.38/14 - (Smt. Prema Devi & Ors.Vs. Shri Prakash Bahadur & Ors.) 18 of 26
19. Similarly, in Safiya Bee v. Mohd. Vajahath 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 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 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 con-
sidered binding on a Bench of the same or lesser number of Judges. In case of doubt or disagreement about the decision of the earlier Bench, the well- accepted and desirable practice is that the later Bench would refer the case to a larger Bench."
20. In Union of India & Ors. v. S.K. Kapoor, (2011) 4 SCC 589 while holding that the decision of the Co- ordinate Bench is binding on the subsequent Bench of equal strength, held that the Bench of Co-ordinate strength can only make a reference to a larger Bench. In para 9 of the re- port, 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 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 Suit No.38/14 - (Smt. Prema Devi & Ors.Vs. Shri Prakash Bahadur & Ors.) 19 of 26 in T.V. Patel case [(2007) 4 SCC 785 :
(2007) 2 SCC (L&S) 98] , the latter decision is a judgment per incuriam. The decision in S.N. Narula case [(2011) 4 SCC 591] was binding on the subsequent Bench of equal strength and hence, it could not take a contrary view, as is settled by a series of judgments of this Court."
21. This Court in New India Assurance Co. Ltd. v. Harpal Singh & Ors., MAC APP.138/2011, decided on 06.09.2013, went into this question and held that in view of the report in S.K. Kapoor (supra), the three Judge Bench decision in Resh- ma Kumari & Ors. (supra) shall be taken as a binding precedent."
In the present case, in view of the law as settled by the Hon'ble High Court, in absence of any evidence with regard to future prospects of deceased who was merely employed as a Field Boy, addition of income towards future prospects cannot be made for the purpose of compensation.
(c) Deduction towards personal and living expenses of the deceased:
Ld. counsel for Insurance Company contends that since the petitioner Nos. 1 & 2 i.e. the father and mother of the deceased were not financially dependent on the deceased and the factum of marriage of deceased with petitioner no. 3 Anita has not been proved, the deduction towards the personal expenses of the deceased has to be 1/2 Suit No.38/14 - (Smt. Prema Devi & Ors.Vs. Shri Prakash Bahadur & Ors.) 20 of 26 instead of 1/3 as claimed by the counsel for petitioners. It is urged by the counsel for Insuracne Company that petitioner no. 3 has neither been examined on behalf of the petitioners nor any document has been filed to show that deceased was married with petitioner no. 3 Anita.
Admittedly, no document has been filed on record by way of ration card or identity card which would have been the best proof that the deceased was married with Anita. However, the contention needs to be examined in the background that the deceased was working alone in a private company in Delhi while the remaining family members were residing in Bihar. The petitioners belong to a humble background and for the purpose of DAR proceedings a certificate obtained from Mukhiya, Gram Panchayat, Bokhri, Mohaniya (Kamur), Bihar had been filed whereby it was certified that the deceased was married with petitioner no. 3 Anita Kunwar aged about 19 years. The said certificate was referred in statement of PW2 Kamlesh Tiwari. It has further come up in the evidence of PW1 Kaushal Pati Tiwari that the name of Anita was not mentioned in the Voters List as no application had been filed to include her name.
PW2 Kamlesh Tiwari also deposed with reference to the marriage of deceased to Anita and having attended the function in the village.
Suit No.38/14 - (Smt. Prema Devi & Ors.Vs. Shri Prakash Bahadur & Ors.) 21 of 26 I am of the considered view that merely because steps were not taken for getting the name of Anita mentioned in Voters List or any other document may not be sufficient to presume that the deceased was not married with Anita and her name has been wrongly included as Petitioner No. 3 for purpose of getting enhanced compensation. The testimony of PW1 and PW2 could not be dented during cross examination on the factum of marriage of deceased and as such I do not find sufficient grounds to disbelieve the same.
As per Sarla Verma's Judgement, where the deceased was married, the deduction towards personal and living expenses of the deceased should be onethird (1/3rd) where the number of dependent family members is 2 to 3, 1/4 where the number of dependent family th members is 4 to 6 and 1/5th where the number of dependent family member exceeds 6.
It is in evidence of PW1 Kaushal Pati Tiwari that Dhananjay used to contribute some amount to Petitioner No. 1 & 2 for purpose of maintaining the family though Petitioner No.2 Kaushal Pati Tiwari was engaged as a teacher in a private school and was drawing a salary of Rs.3,500/ per month.
In view of above, I am of the considered view that the number of dependent legal heirs for the purpose of deduction have to Suit No.38/14 - (Smt. Prema Devi & Ors.Vs. Shri Prakash Bahadur & Ors.) 22 of 26 be treated as 3 (three) and the deduction towards personal and living expenses of the deceased as such has to be calculated as 1/3 in view of law laid down in Sarla Verma (supra).
(d) Selection of multiplier:
The date of birth of deceased as mentioned in his School Transfer Certificate is 20.01.1984 and as such the age of the deceased as on the date of accident was approximately 26 years 3 months.
In view of above, as per Sarla Verma (Smt.) & Ors. vs. Delhi Transport Corporation & Anr. (2009) 6 SCC 121, the multiplier of 17 is to be adopted.
(e) Loss of financial dependency In the light of aforesaid facts and circumstances, the loss of financial dependency of the petitioners in this case comes to Rs.
11,22,000/ [i.e. Rs.8,250 x 12 (months) x 17 (multiplier) x 2/3].
8. Compensation under nonpecuniary heads:
Suit No.38/14 - (Smt. Prema Devi & Ors.Vs. Shri Prakash Bahadur & Ors.) 23 of 26 In view of the judgement in Rajesh & Ors. v. Rajbir Singh & Ors., (2013) 9 SCC 54, the petitioners are further entitled to 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.
9. The petitioners/claimants are accordingly entitled to compensation computed as under:
Loss of financial dependency Rs.11,22,000/ Loss of Love and affection Rs.1,00,000/ Loss of consortium to wife Rs.1,00,000/ Loss of Estate Rs. 10,000/ Funeral Expenses Rs. 25,000/ Total Rs.13,57,000/ (Rupees Thirteen Lac Fifty Seven Thousand only) The claimants/petitioners are also entitled to get interest @ 9% p.a. from the date of filing of petition i.e. w.e.f. 13.05.2010 till realization (except for the period 06.10.2010 to 26.11.2010 in terms of order dated 06.10.2010).
Suit No.38/14 - (Smt. Prema Devi & Ors.Vs. Shri Prakash Bahadur & Ors.) 24 of 26 The amount of interim award, if any, shall, however, be deducted from the above amount, if the same has already been paid to the petitioner.
10. For the purpose of disbursement, petitioner no. 1 Smt. Prema Devi (mother of the deceased) and petitioner no. 2 Shri Kaushal Pati Tiwari (father of the deceased) shall be entitled to 25% each while petitioner no. 3 Anita (wife of the deceased) shall be entitled to 50% of the award amount and proportionate interest thereon.
11. 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.
12. Relief Since the offending vehicle was duly insured, Respondent No.3/The New India Insurance Company Ltd. is directed to deposit the award amount of Rs.13,57,000/ with interest @ 9% per annum from the date of filing of the petition i.e. 13.05.2010 till realization (except for the period 06.10.2010 to Suit No.38/14 - (Smt. Prema Devi & Ors.Vs. Shri Prakash Bahadur & Ors.) 25 of 26 26.11.2010 in terms of order dated 06.10.2010) with the 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/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 claimants and complete details in respect of calculations of interest etc. in the court within 30 days from today.
A copy of this judgement be sent to New India Assurance Company Ltd. for compliance within the time granted failing which General Manager of the Insurance Company will show reasons for noncompliance.
Nazir of this court is directed to place a report on record in the event of nonreceipt/deposit of the compensation amount within the time granted.
File be consigned to Record Room.
Announced in open court (A.K. Mendiratta) on 28th February, 2015 Judge, MACT1 (Central), Delhi Suit No.38/14 - (Smt. Prema Devi & Ors.Vs. Shri Prakash Bahadur & Ors.) 26 of 26