Delhi District Court
Smt. Chanda Kamboj vs Shri Vijender Singh on 6 October, 2015
IN THE COURT OF ANOOP KUMAR MENDIRATTA,
JUDGE, MACT-1 (CENTRAL), DELHI.
Suit No.365/12
Unique Case ID No.02401C-0487822012
1. Smt. Chanda Kamboj
W/o Shri Gurdeep Kamboj (Mother)
2. Ms. Neha Kamboj
D/o Shri Gurdeep Kamboj (Sister)
Both permanent residents of
2567, Naiwara, Chawri Bazar,
Delhi - 110006
Presently both residents of
R/o 322A, Second Floor, Sant Nagar,
East of Kailash, New Delhi - 110065
........PETITIONERS
Versus
1. Shri Vijender Singh
S/o Shri Karan Singh
Permanent R/o Village Mewali,
P.S. Jagner, Agra, UP.
Presently R/o C/o Ghanshyam Sharma
H.No.B/601, Sector-7, Faridabad, Haryana ........(Driver)
2. Shri Rajbir Singh
S/o Shri Kalyan Singh
R/o 1400, IMT Manesar, Gurgaon. ........(Owner)
3. Reliance General Insurance Co. Ltd.
60, Okhla Industrial Estate,
2nd Floor, Opposite S.B.I. Bank,
New Delhi - 110020 ........(Insurer)
............. RESPONDENTS
Suit No.365/12 - Chanda Kamboj & Anr. vs. Vijender Singh & Ors. 1 of 32
Date of Institution of the suit : 12.10.2012
Date of reserving judgment/order : 24.09.2015
Date of pronouncement : 06.10.2015
JUDGMENT
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.1,00,00,000/- (Rupees One Crore Only) in respect of fatal injuries received by Piyush Kamboj S/o Gurdeep Kamboj (deceased) in a motor vehicular accident.
Brief facts of the case as averred in the claim petition are that on 27.05.2011, Piyush Kamboj hired an auto rickshaw no. HR 38P 2048 from Badarpur Border to Green Field Colony, Faridabad. At about 10:40PM, while crossing NHPC Chowk, the auto was hit from the side on rear portion by a truck bearing registration no. HR-55K-8651 coming from Faridabad which was driven by Respondent No.1 in a rash and negligent manner. Further, Respondent No.1 fled away from the spot of accident. Consequently, Piyush Kamboj sustained grievous injuries and was rushed to BKH Hospital wherein he was declared 'brought dead'. FIR No.143/2011, PS: Sarai Khawaja, Faridabad under Section 279/304A/427 IPC was registered regarding the accident.
It is further the case of petitioners that deceased Piyush Suit No.365/12 - Chanda Kamboj & Anr. vs. Vijender Singh & Ors. 2 of 32 (date of birth 20.04.1985) aged about 26 years was self employed and running a firm in the name of M/s Swadist Food Products. Further deceased was an income tax assessee and Income Tax Return for the F.Y. 2010-11 (Assessment Year 2011-12) was relied upon for assessment of income of the deceased.
It may be appropriate to mention at this stage itself that initially the claim petition was filed on behalf of Smt. Chanda Kamboj (mother of deceased), Ms. Neha Kamboj (unmarried sister of deceased) and Smt. Surender Kaur (grandmother of deceased) against the respondents. However, Smt. Surender Kaur (grandmother of deceased) expired during the course of proceedings on 30.01.2013. Accordingly, amended memo of parties was placed on record reflecting only two petitioners i.e. Smt. Chanda Kamboj as petitioner no. 1 and Ms. Neha Kamboj as petitioner no.2.
2. In the joint written statement filed on behalf of Respondent No.1 & 2, it was denied that the accident took place due to rash and negligent driving by Respondent No.1. It was further stated that Respondent No.1 was not solely responsible for the accident as both the vehicles were plying in opposite directions. It was further claimed that offending vehicle was duly insured with Respondent No.3/Insurance Company at the time of accident and driver of the offending vehicle was holding a valid driving licence.
In the written statement filed on behalf of Suit No.365/12 - Chanda Kamboj & Anr. vs. Vijender Singh & Ors. 3 of 32 Respondent No.3 Reliance General Insurance Company Ltd., it was averred that the Insurance Company is not liable to pay any compensation to the petitioners, in case the Insured had violated any terms and conditions of the Insurance Policy. Further, the amount claimed by the petitioners was stated to be excessive and exaggerated. However, it was admitted that the offending vehicle bearing registration No.HR-55-K-8651 was insured with Respondent No.3 vide policy no. 1311702334000059 for the period 07.07.2010 to 06.07.2011 which covers the date of accident.
3. On the pleadings of the parties, following issues were framed for consideration by ld. Predecessor:
1. Whether the deceased Shri Piyush Kamboj had died due to injuries sustained by him in an accident which took place on 27.05.2011 at 10.30P.M. within the jurisdiction of PS Sarai Khawaja, Faridabad, Haryana due to rash and negligent driving of vehicle bearing Regn. No. HR 55 K 8651 by respondent No.1?
2. Whether the petitioners are entitled to any compensation, if so, to what amount and from whom?
3. Relief.
Suit No.365/12 - Chanda Kamboj & Anr. vs. Vijender Singh & Ors. 4 of 32
4. In support of the claim petition, petitioners led evidence of PW1 Smt. Chanda Kamboj (mother of deceased) and PW2 Shri Rajan Lal, Office Superintendent, Ward No.29(2), Income Tax Office, ITO, New Delhi to prove the Income Tax Returns filed on behalf of deceased.
PW1 Smt. Chanda Kamboj testified on the lines of claim petition and further proved copy of her passport (Ex.PW1/1), copy of FIR (Ex.PW1/2), copy of death certificate of deceased Piyush Kamboj (Ex.PW1/3), copy of passport of deceased Piyush Kamboj (Ex.PW1/4), copy of acknowledgement issued by Income Tax Department, copy of Audit Report and copy of ITRs for the Assessment Year 2011-12 (Ex.PW1/5), copy of election I-Card of petitioner no. 3 (since deceased) Ex.PW1/6, copy of ITRs for the Assessment Year 2008-09 and copy of postmortem report is Ex.PW1/8.
During cross-examination, she deposed that Income Tax Return for the year 2011-12 was filed by her on behalf of her deceased son on 30.06.2011 i.e. subsequent to death of deceased. Further, there was no other income of the deceased other than what was reflected in the Income Tax Returns. She further admitted that she was not an eyewitness to the accident. She further admitted that the Income Tax Return for the Assessment Year 2008-09 showed income of Rs.1,08,000/-, Assessment Year 2009-10 showed income of Rs.1,80,000/-, Assessment Year 2010-11 showed income of Rs.1,58,800/- and Assessment Year 2011-12 showed income of Rs.4,84,600/-.
Suit No.365/12 - Chanda Kamboj & Anr. vs. Vijender Singh & Ors. 5 of 32 PW2 Shri Rajan Lal, Office Superintendent, ITO proved attested copies of Income Tax Returns filed by deceased Piyush Kamboj for the Assessment Year 2008-09, 2009-10, 2010-11 and 2011-12 showing annual income of Rs.1,08,000/-, Rs. 1,80,000/- Rs.1,58,800/- and Rs.4,84,600/- respectively (Ex.PW2/1 colly). He further stated that Income Tax Return for the Assessment Year 2011-12 was filed in the Income Tax Department after death of deceased by his mother.
During cross-examination, he clarified that certificate of Chartered Accountant is not required to be filed along with the Income Tax Return.
No evidence was led on behalf of Respondent No. 1 & 2 i.e. driver and owner of the offending vehicle.
Respondent No.3/Reliance General Insurance Company Ltd. examined Shri Raj Kumar, Junior Assistant, RTO Office, Agra (UP) who proved copies of the extract of driving licence register (Ex.R3W1/1 to Ex.R3W1/3) and deposed that as per record, Vijender Singh was holding driving licence for HGV for the period 02.02.2009 to 01.02.2012 and the same was thereafter renewed for the period 19.03.2012 to 18.03.2015.
5. I have heard arguments addressed by the counsel for the parties and perused the record.
Suit No.365/12 - Chanda Kamboj & Anr. vs. Vijender Singh & Ors. 6 of 32 My Issue-wise findings are as under :-
Issue No. (i) Whether the deceased Shri Piyush Kamboj had died due to injuries sustained by him in an accident which took place on 27.05.2011 at 10.30P.M. within the jurisdiction of PS Sarai Khawaja, Faridabad, Haryana due to rash and negligent driving of vehicle bearing Regn. No. HR 55 K 8651 by respondent No.1?
In Bimla Devi and Ors. V. Himachal Road Transport Corporation and Ors., (2009) 13 SC 530, it was held that 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 Justice Sh.G.P. Mittal (Delhi High Court), it was observed that it has to be borne in mind that the Motor Vehicles Act does not envisage holding a trial for a petition preferred under Section 166 of the Act. Under Section 168 of the Act, a Claims Tribunal is enjoined to hold an inquiry to determine compensation which must appear to it to be just. Strict rules of evidence are not applicable in an inquiry conducted by the Claims Tribunal. Further in State of Mysore Vs. S.S. Makapur, 1993 (2) Suit No.365/12 - Chanda Kamboj & Anr. vs. Vijender Singh & Ors. 7 of 32 SCR 943, the 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 Suit No.365/12 - Chanda Kamboj & Anr. vs. Vijender Singh & Ors. 8 of 32 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, no eyewitness to the accident has been examined. The rash and negligence needs to be assessed on the basis of copies of criminal record which has been filed on record. Admittedly, the FIR (Ex.PW1/2) was registered on the basis of statement of Bittoo Kumar, driver of TSR in which the deceased was travelling. The respondent driver of the Suit No.365/12 - Chanda Kamboj & Anr. vs. Vijender Singh & Ors. 9 of 32 offending vehicle (truck) stands chargesheeted on the basis of aforesaid FIR which has not been controverted on record. The manner of accident, as alleged in the FIR is corroborated by the site plan prepared during the course of criminal proceedings. The driver of the offending truck fled from the spot and there is no reason to presume that the offending vehicle would have been falsely implicated. Neither any complaint appears to have been filed on behalf of respondent driver and owner of the offending vehicle alleging any false implication by the complainant. Even Respondent No.1 failed to controvert the same by entering the witness box. 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, I am of the considered view that the accident has been proved to be caused due to rash and negligent driving by Respondent No.1.
Issue No. 1 is accordingly decided in favour of the petitioners and against the respondents.
6. Issue No. (ii) Whether the petitioners are entitled to any compensation, if so, to what amount and from whom?
(a) Counsel for petitioner contended that IT Return filed for the Assessment Year 2011-12 be considered for the purpose of Suit No.365/12 - Chanda Kamboj & Anr. vs. Vijender Singh & Ors. 10 of 32 assessment of income of deceased which shows the gross income of Rs.4,84,600/- on which a tax of Rs.35,670/- was paid. It was further submitted that future prospects be also added @ 50% for purpose of compensation, considering the fact that deceased was aged about 26 years and was running the business successfully which was growing by leaps and bounds.
On the other hand, the contentions were vehemently refuted by counsel for Insurance Company and it was submitted that the Income Tax Returns for the Assessment Year 2008-09 reflected the gross income at merely Rs.1,08,000/- (tax paid NIL), 2009-10 at Rs.1,80,000/- (tax paid Rs.3,270/-) and for Assessment Year 2010-11 at Rs.1,58,800/- (tax paid Rs. NIL). It was further urged that Return for the Assessment Year 2011-12 (i.e. Financial Year 01.04.2010 to 30.03.2011) was filed by petitioner no.1 on 30.06.2011 after the accident, on behalf of her deceased son showing the gross income at Rs.4,84,600/- (tax paid Rs.35,670/-) for purpose of claiming enhanced compensation and the income claimed appears to be doubtful. As such, it was contended that the assessment be considered on the basis of ITR filed by deceased for the Assessment Year 2010-11 @ Rs.1,58,800/- per annum. It was further submitted that the deceased is not entitled to any increase of income towards future prospects as he was self employed. Reliance was further placed upon Shashikala and Others v. Gangalakshmamma and Another 2015 (2) T.A.C. 867 (S.C.) and Const. Hanmant Dahiphale & Anr. v. Alka Jain & Ors.II (2013) ACC 478 (Del.).
I have given considered thought to the contentions Suit No.365/12 - Chanda Kamboj & Anr. vs. Vijender Singh & Ors. 11 of 32 raised. The attested copies of the Income Tax Returns proved on record by PW2 and also referred in the testimony of PW1 Chanda Kamboj reflect the gross income for the Assessment Year 2008-09 at Rs.1,08,000/- (tax paid NIL), 2009-10 at Rs.1,80,000/- (tax paid Rs.3,270/-), 2010-11 at Rs.1,58,800/- (tax paid Rs. NIL) and for the Assessment Year 2011-12 at Rs.4,84,600/- (tax paid Rs. 35,670/-). A bare perusal of the aforesaid Returns reflect that there is unprecedented increase of income of about 150% from Rs. 1,58,800/- for Assessment Year 2010-11 to Rs.4,84,600/- for Assessment Year 2011-12. The income received by the deceased has not been proved by summoning the concerned Chartered Accountant who would have proved the relevant records of accounts supported by receipts of income. The unprecedented increase in income of deceased for the Assessment Year 2011-12 in the absence of any corroborative documents supporting the gross receipts, does not inspire confidence and it cannot be ruled out that the Return showing higher gross income may have been filed to claim enhanced compensation. It may further be noticed that no advance tax on quarterly basis was paid by the deceased as required under law but the tax has been paid as lumpsum after the death of deceased. Also, there is nothing on record to show the sudden increase of income supported by any documents by way of receipts or payment of sales tax or VAT on the proceeds. In the facts and circumstances, I am not inclined to assess the income of the deceased on the basis of Return for the Assessment Year 2011-12 @ Rs.4,84,600/- minus taxes (Rs.35,670/-) per annum, as Suit No.365/12 - Chanda Kamboj & Anr. vs. Vijender Singh & Ors. 12 of 32 contended by counsel for petitioner. Reliance may further be placed upon Const Hanmant Dahiphale & anr. Vs. Alka Jain & ors. II (2003) ACC 478 Delhi High Court wherein the ITR filed after 4 months and 20 days of death of deceased was not taken into consideration noting that there was a quantum jump by more than 50% in the income of deceased and the advance tax was not paid as per practice but was deposited after the death of deceased. Even in V.Subbulakshmi & ors. Vs. Lakshmi & Anr., I (2008) ACC 851 the Supreme Court declined to believe the ITR filed after the death of the deceased.
In the facts and circumstances the income of the deceased is assessed on the basis of average of the last two Income Tax Returns for the Assessment Year 2009-10 and 2010-11 which reflect the gross income of Rs.1,80,000/- and Rs.1,58,800/- respectively. The same comes to Rs.1,67,765/- {i.e. Rs.1,80,000 - Rs.3,270/- (taxable income for A.Y.2009-10) + 1,58,800/- (taxable income for A.Y. 2010-11) X ½ per annum or Rs.13,980.42 per month (rounded off to Rs.13,980/-).
(b) If addition in income towards future prospects is to be made Petitioners have claimed that addition towards future prospects to the extent of 50% be made considering the fact that deceased was aged about 26 years and was running the business successfully.
The same has been vehemently opposed by counsel for Suit No.365/12 - Chanda Kamboj & Anr. vs. Vijender Singh & Ors. 13 of 32 Insurance Company and reliance is placed upon Shashikala & Ors. v. Gangalakshmamma & Anr. 2015 (2) T.A.C. 867 (SC).
In Shashikala and others (supra), 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 Suit No.365/12 - Chanda Kamboj & Anr. vs. Vijender Singh & Ors. 14 of 32 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 General Insurance Co. Ltd. v. Smt. Lalta Devi and Ors., MAC APP No. 189/2014, decided on Suit No.365/12 - Chanda Kamboj & Anr. vs. Vijender Singh & Ors. 15 of 32 12.01.2015. Paras 8 to 21 of the report in Lalta Devi (supra) are extracted hereunder:
8.It is no gainsaying that in appropriate cases some addition towards future prospects must be made in case of death or injury of a person pursuing a professional course. At the same time, it cannot be laid down as a uniform principle that every person pursuing professional course will have a bright future. There may be a student pursuing engineering from the reputed engineering colleges like Indian Institute of Technology (IIT), Regional Engineering College or any other reputed college. At the same time, a number of engineering Colleges have mushroomed where an engineering graduate may find it difficult to secure a job of an engineer. In the instant case, deceased Aditya, as stated earlier was a student of an unknown engineering college, i.e. Echelon Institute of Technology, Faridabad which is claimed to be affiliated to Maharshi Dayanand University, Rohtak. The Claimants have placed on record result-cum-detailed marks card of First and Second Semester. It may be noted that the deceased had secured just ordinary marks in seven subjects and he had to re-appear in papers 1002 (Mathematical-
I), 1006 (Foundation of Computer & Programming) and 1008 (Basics of Mechanical Engineering). Similarly, in the Second Semester the deceased was absent in one of the 12 papers and out of 11 subjects for which he had taken examination, he was to re-appear in four subjects. Thus, it will be difficult to say that the deceased was a brilliant student or that he was pursuing engineering from a well known or even mediocre college.
"7. As far as addition towards future prospects is concerned, the issue has been examined at great length by this Court in Suit No.365/12 - Chanda Kamboj & Anr. vs. Vijender Singh & Ors. 16 of 32 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 decision of the Supreme Court in Rajesh & Ors. v. Ra-
jbir Singh & Ors., (2013) 9 SCC 54 to con-
tend 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 Cor- poration & 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 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 ap-
proving the ratio with regard to future prospects in Sarla Verma (Smt.) & Ors.
(supra) and relying on General Manager, Kerala State Road Transport Corporation, Trivandrum v. Susamma Thomas (Mrs.) and Ors. (1994) 2 SCC 176; Sarla Dixit v. Bal- want Yadav, (1996) 3 SCC 179 and Abati Bezbaruah v. Dy. Director General, Geolog- ical 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 :
Suit No.365/12 - Chanda Kamboj & Anr. vs. Vijender Singh & Ors. 17 of 32 (2009) 2 SCC (Cri) 1002], this Court has noted the earlier deci-
sions 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 [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 imponderables and uncertainties, we are in favour of adopting as a rule of thumb, an addi- tion of 50% of actual salary to the ac- tual salary income of the deceased to- wards future 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 ad- dition 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 standard- ise the addition to avoid different yardsticks being applied or different methods of calculation being adopt- ed. Where the deceased was self-em- ployed or was on a fixed salary (with- out 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 Suit No.365/12 - Chanda Kamboj & Anr. vs. Vijender Singh & Ors. 18 of 32 cases involving special circum-
stances."
39. The standardization of addition to income for future prospects shall help in achieving certainty in arriv-
ing at appropriate compensation. We approve the method that an addition of 50% of actual salary be made to the actual salary income of the de-
ceased towards future prospects where the deceased had a permanent job and was below 40 years and the addition should be only 30% if the age of the deceased was 40 to 50 years and no addition should be made where the age of the deceased is more than 50 years. Where the an-
nual 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 without any addition to income for future prospects will be appropriate. 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 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 taken as a binding precedent.
Suit No.365/12 - Chanda Kamboj & Anr. vs. Vijender Singh & Ors. 19 of 32
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 pro- nouncement from a Larger Bench on the ques- tion of applicability of the multiplier and whether the inflation was built in the multipli- er. 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 actual salary shall be made towards future prospects when the deceased had a permanent job and was below 40 years and addition of 30% should be made if the age of the deceased was between 40-50 years. No addition towards fu- ture 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. National Insurance Company Ltd. & Ors., 2012 (6) SCC 421 ob-
served that there would be addition of 30% and 50%, depending upon the age of the de- ceased, towards future prospects even in the case of self-employed persons. It may, how- ever, be noted that in Rajesh, the three Judge Bench decision in Reshma Kumari (supra) was not brought to the notice of their Lord- ships.
15. The divergence of opinion was noted by another three Judge Bench of the Supreme Court in Sanjay Verma v. Haryana Roadways, (2014) 3 SCC 210. In paras 14 and 15, the Supreme Court observed as under:-
Suit No.365/12 - Chanda Kamboj & Anr. vs. Vijender Singh & Ors. 20 of 32 "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 consid- ering 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 ap-
plied in all the cases?
(2) Whether for determination of the multiplicand, the Act provides for any criterion, particularly as regards determination of future prospects?"
15. Answering the above reference a three- Judge Bench of this Court in Reshma Kumari v. Madan Mohan [(2013) 9 SCC 65 : (2013) 4 SCC (Civ) 191 : (2013) 3 SCC (Cri) 826] (SCC p. 88, para 36) reiterated the view taken in Sarla Verma [Sarla Verma v. DTC, (2009) 6 SCC 121 : (2009) 2 SCC (Civ) 770 : (2009) 2 SCC (Cri) 1002] to the ef-
fect that in respect of a person who was on a fixed salary without provision for annual 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 unless there are extraordinary and exceptional circumstances. Though the expression "exceptional and extraordinary circum- stances" 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 applica-
tion of the aforesaid principle. The near certainty of the regular employment of the deceased in a government depart-
Suit No.365/12 - Chanda Kamboj & Anr. vs. Vijender Singh & Ors. 21 of 32 ment following the retirement of his fa- ther 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 lat- est judgment in National Insurance Company Ltd. v. Pushpa & Ors., CC No.8058/2014, de- cided on 02.07.2014 and in concluding para- graph while making reference to the Larg- er Bench, the Supreme Court held as under:-
"Be it noted, though the decision in Resh- ma (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 in- come of future prospects there should be an authoritative pronouncement. Therefore, we think it appropriate to refer the matter to a larger Bench."
17. Now, the question is which of the judg- ments ought to be followed awaiting answer to the reference made by the Supreme Court in Pushpa & Ors. (supra).
18. In Central Board of Dawoodi Bohra Community & Anr. v. State of Maharashtra & Anr., (2005) 2 SCC 673 in para 12, the Supreme Court observed as under:-
"12. Having carefully considered the submissions made by the learned Senior Counsel for the parties and having ex-
Suit No.365/12 - Chanda Kamboj & Anr. vs. Vijender Singh & Ors. 22 of 32 amined the law laid down by the Consti- tution Benches in the abovesaid deci- sions, 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 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 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 decision has come up for consideration. It will be open only for a Bench of coequal strength to express an opin- ion 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 quo- rum 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 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 Suit No.365/12 - Chanda Kamboj & Anr. vs. Vijender Singh & Ors. 23 of 32 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 previ- ous 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 Raghu- bir Singh [(1989) 2 SCC 754] and Hansoli Devi [(2002) 7 SCC 273]."
19. Similarly, in Safiya Bee v. Mohd. Vaja- hath Hussain @ Fasi, (2011) 2 SCC 94 in para 27, the Supreme Court observed as un- der:-
"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 co- ordinate Bench of equal strength in the earlier WP No. 35561 of 1998 regard- ing the interpretation of Section 2(c) of the Act and its application to the peti- tion schedule property, judicial disci- pline and practice required them to re- fer the issue to a larger Bench. The learned Judges were not right in over- ruling the statement of the law by a co- ordinate Bench of equal strength. It is an accepted rule or principle that the statement of the law by a Bench is considered binding on a Bench of the same or lesser number of Judges. In case of doubt or disagreement about the decision of the earlier Bench, the well-accepted and desirable practice is that the later Bench would refer the case to a larger Bench."
20. In Union of India & Ors. v. S.K. Kapoor, (2011) 4 SCC 589 while holding that the de- cision of the Co- ordinate Bench is binding on the subsequent Bench of equal strength, Suit No.365/12 - Chanda Kamboj & Anr. vs. Vijender Singh & Ors. 24 of 32 held that the Bench of Co-ordinate strength can only make a reference to a larger Bench. In para 9 of the report, the Supreme Court held as under:-
"9. It may be noted that the decision in S.N. Narula case [(2011) 4 SCC 591] was prior to the decision in T.V. Patel case [(2007) 4 SCC 785 : (2007) 2 SCC (L&S) 98] . It is well settled that if a subsequent coordinate Bench of equal strength wants to take a different view, it can only refer the matter to a larger Bench, otherwise the prior decision of a coordinate Bench is binding on the sub- sequent 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 de-
cision is a judgment per incuriam. The decision in S.N. Narula case [(2011) 4 SCC 591] was binding on the subse-
quent Bench of equal strength and hence, it could not take a contrary view, as is settled by a series of judg-
ments of this Court."
21.This Court in New India Assurance Co. Ltd. v. Harpal Singh & Ors., MAC APP.
138/2011, decided on 06.09.2013, went into this question and held that in view of the re- port in S.K. Kapoor (supra), the three Judge Bench decision in Reshma Kumari & Ors.
(supra) shall be taken as a binding prece- dent."
22.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.
23.Thus, in absence of any evidence of good future prospects, no addition towards future prospects ought to have been made by the Claims Suit No.365/12 - Chanda Kamboj & Anr. vs. Vijender Singh & Ors. 25 of 32 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 who was self employed, addition of income towards future prospects cannot be made for the purpose of compensation.
(c) Deduction towards personal and living expenses of the deceased:
Since deceased was a bachelor, deduction towards personal and living expenses will be 1/2 of the income of the deceased and the applicable multiplier shall be as per the age of the mother of deceased. For the aforesaid purpose, reliance is also placed upon Vijay Laxmi & Anr. v. Binod Kumar Yadav & Ors. ILR (2012) 6 DEL 447 and HDFC Ergo General Insurance Co. Ltd. v. Smt. Lalta Devi & Ors. (Supra). Reference may also be made to MAC App. 280/2014 Oriental Insurance Company v. Kaila Devi & Others decided on 18.03.2015 by Hon'ble Mr. Justice G.P. Mittal for adopting the multiplier as per the age of the deceased or claimant whichever is higher.
It may be noticed that in Munna Lal Jain and Another v. Vipin Kumar Sharma & Ors. MAC Civil Appeal No. 4497 of 2015 decided on 15.05.2015 Hon'ble Supreme Court of India (Bench of three Judges) observed that the proper selection of multiplier be based upon the age of deceased and not on the basis Suit No.365/12 - Chanda Kamboj & Anr. vs. Vijender Singh & Ors. 26 of 32 of age of dependent, since there may be number of dependents whose age may be different and therefore the same has no nexus with computation of compensation.
However, it may be noticed that vide judgment passed in Bharti Axa General Insurance Co. Ltd. v. Smt. Poonam & Anr. MAC. APP. 79/2014 decided on 27.05.2015 by Hon'ble Mr. Justice G.P. Mittal (Delhi High Court), the aforesaid judgment passed in Munna Lal Jain (supra) has been distinguished and relying upon the judgments passed by other coordinate benches of equal strength of Hon'ble Apex Court, it was held that the age of the mother will have to be taken for selection of multiplier. The relevant observations in para 11, 12 and 13 may be reproduced:
"11. The learned counsel for the Appellant urges that the three Judge Bench decision of the Supreme Court in Munna Lal Jain (supra) being the latest decision shall be a binding precedent.
12. This Court in Maneesha Karantak (supra) had laid down that the three Judge Bench decision in Trilok Chandra (supra) shall be a binding precedent. The logic of taking the age of the deceased or the Claimant as laid down in Susamma Thomas (Mrs.) (supra) and Trilok Chandara, (supra) was not brought to the notice of the Supreme Court in Munna Lal Jain (supra). Otherwise also, in view of the judgment in Safiya Bee v. Mohd. Vajahath Hussain @ Fasi, (2011) 2 SCC 94 and Union of India v. S.K Kapoor, (2011) 4 SCC 589, the law laid down in U.P SRTC v. Trilok Chandara, (1996) 4 SCC 362 shall be taken as binding precedent.
13.Thus, in the instant case, the age of the mother will have to be taken for selection of multiplier. As per the Voter Identity Card issued by the Election Commission of India, the age of Smt. Poonam, mother of the deceased was 45 years. Thus, the appropriate multiplier will be 14 instead of 17 as adopted by the Claims Tribunal."
Suit No.365/12 - Chanda Kamboj & Anr. vs. Vijender Singh & Ors. 27 of 32 As such, the appropriate multiplier has to be adopted in accordance with law laid down in Bharti AXA General Insurance Co. Ltd. vs. Smt. Poonam & Ors. (supra).
In the instant case, the date of birth of mother of deceased as reflected in the copy of passport filed on record is 30.04.1961 and as such on the date of death of deceased, she was aged about 50 years and 27 days approximately. The appropriate multiplier to be adopted in the case would be 11 as per judgement passed in Sarla Verma (Smt.) & Ors. vs. Delhi Transport Corporation & Anr. (2009) 6 SCC 121.
The loss of dependency accordingly comes to Rs. 9,22,680/- {i.e. Rs.13,980/- (income per month) X 12 X 1/2 (after deduction towards personal expenses) X 11 (multiplier)}.
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.
Suit No.365/12 - Chanda Kamboj & Anr. vs. Vijender Singh & Ors. 28 of 32 However, Hon'ble Supreme Court awarded Rs.
1,00,000/ towards loss of estate in the case of Kalpanaraj v.
State of Tamil Nadu State Trans. Corpn., 2014 ACJ 1388 (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).
Accordingly, petitioners are entitled to Rs.1 lakh towards loss of estate, Rs.1 lakh towards loss of love and affection and a sum of Rs.25,000/ towards funeral expenses of deceased.
8. The petitioners/claimants are accordingly entitled to compensation computed as under:
Loss of financial dependency Rs.9,22,680/- Loss of love and affection to petitioners Rs.1,00,000/-
Medical Treatment Rs.NIL
Loss of Estate Rs.1,00,000/-
Funeral Expenses Rs.25,000/-
________________
Total Rs.11,47,680/-
_________________
(Rupees Eleven Lakh Forty Seven Thousand Six Hundred and Eighty Only) Suit No.365/12 - Chanda Kamboj & Anr. vs. Vijender Singh & Ors. 29 of 32 The claimants/petitioners are also entitled to interest @ 9% p.a. from the date of filing of petition w.e.f. 12.10.2012 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.
9. For the purpose of disbursement, petitioner no. 1 Smt. Chanda Kamboj (mother of the deceased) shall be entitled to 80% and petitioner no. 2 Ms. Neha Kamboj (unmarried sister of deceased) shall be entitled to 20% of the award amount with proportionate interest thereon.
On realization, an amount of Rs.2,00,000/- (Rupees Two Lakh Only) shall be released to petitioner no. 1 Chanda Kamboj and an amount of Rs.50,000/- shall be released to petitioner no. 2 Neha Kamboj from their respective shares. The remaining amount of the share of petitioner no. 1 along with proportionate up-to-date interest shall be kept in 10 fixed deposits of equal amount in the name of petitioner no. 1 Smt. Chanda Kamboj for a period of one year, two years, three years, four years, five years, six years, seven years, eight years, nine years and ten years respectively with release of quarterly periodical interest in the account of petitioner no.1 and further conditions to be specified at the time of release of amount.
The remaining amount of share of petitioner no. 2 Neha Kamboj along with proportionate up-to-date interest shall be kept in fixed deposit for a period of three years with release of quarterly Suit No.365/12 - Chanda Kamboj & Anr. vs. Vijender Singh & Ors. 30 of 32 periodical interest in the account of petitioner no.2 and further conditions to be specified at the time of release of amount.
10. 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.
11. Relief Since the offending vehicle was duly insured, Respondent No.3/Reliance General Insurance Company Ltd. is directed to deposit the award amount of Rs.11,47,680/- with interest @ 9% per annum from the date of filing of the petition i.e. 12.10.2012 till realization 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 respondent No.3/ Insurance Company for compliance within the time granted.
Suit No.365/12 - Chanda Kamboj & Anr. vs. Vijender Singh & Ors. 31 of 32 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 06th October, 2015 Judge MACT-1 (Central), Tis Hazari Courts, Delhi Suit No.365/12 - Chanda Kamboj & Anr. vs. Vijender Singh & Ors. 32 of 32