Delhi District Court
Tarawati W/O Late Sh. Mahesh Kumar vs Rishi Pal S/O Sh. Puttu Lal on 22 May, 2017
IN THE COURT OF SHRI VINAY SINGHAL
ADDITIONAL DISTRICT & SESSIONS JUDGE,
JUDGE, MACT-2, (CENTRAL), DELHI.
Suit No. 57440-16
1. Tarawati W/o Late Sh. Mahesh Kumar
2. Akash S/o Late Sh. Mahesh Kumar
3. Nancy D/o Late Sh. Mahesh Kumar
4. Pawan S/o Late Sh. Mahesh Kumar
5. Sagar S/o Late Sh. Mahesh Kumar
6. Ram Shri W/o Late Sh. Nepal Singh
(Petitioner No. 5 is minor through his mother and natural
guardian Smt. Tarawati of Petitioner No. 1)
All are R/o H. No. 21, Gali No. 24, B-Block,
Kaushik Enclave, Burari, Delhi-110084.
........PETITIONERS
Versus
1. Rishi Pal S/o Sh. Puttu Lal
R/o Village and Post Sarawal,
Distt. Etah, UP.
2nd Add:-
C/o Babloo
H. No. 209, B-Block,
Gagan Vihar, Bhopra Thana,
Sahibabad, Ghaziabad, UP (Driver)
2. Babloo S/o Sh. Ram Murti
C/o Raj Kumari W/o Ram Niwas
R/o H. No. 209, B-Block,
Gagan Vihar, Bhopra Thana,
Sahibabad, Ghaziabad, UP. (Regd. Owner)
3. HDFC EGRO General Insurance Company Ltd.
Plot No. C-9, 3rd Floor, Office No.306,
Pearl Best Hights, 2nd Netaji Subhash Place,
Near Pitampura, Delhi-110034. (Insurer)
.......RESPONDENTS
Suit No. 5744016 Tarawati Vs Rishi Pal & Ors. Page 1 of 33
Date of filing of Claim Petition : 29.07.2015
Arguments heard on : 22.05.2017
Judgment pronounced on : 22.05.2017
JUDGMENT-CUM-AWARD:
INFORMATION IN TERMS OF PROVISIONS OF THE
MODIFIED
CLAIM TRIBUNAL AGREED PROCEDURE (MCTAP)
1 Date of Accident 06.06.2015
2 Date of intimation of the accident by the NA
Investigation Officer to the Claims Tribunal
(Clasuse2)
3 Date of intimation of the accident by the NA
Investigation Officer to the Insurance
Company (Clause2)
4 Date of filing of the Report under section 173
Cr.PC before the Metropolitan Magistrate NA
(Clause 10)
5 Date of filing of Detailed Accident Information NA
Report(DAR) by the Investigation Officer
before Claims Tribunal (Clause)
6 Date of service of DAR on the Insurance NA
Company (clause11)
7 Date of service of DAR on the claimant(s) NA
(Clause11)
8 Whether DAR was complete in all respects? NA
( Clause11)
9 If not state deficiencies in the DAR NA
10 Whether the police has verified the NA
documents filed with DAR? (clause4)
11 Whether there was any delay or deficiency on NA
Suit No. 5744016 Tarawati Vs Rishi Pal & Ors. Page 2 of 33
the part of the Investigation Officer? If so,
whether any action/ direction warranted?
12 Date of appointment of the Designated Not mentioned
Officer by the Insurance Company
13 Name , address and contact number of the Not mentioned
Designated Officer of the Insurance
Company(Clause 19)
14 Whether the Designated officer of the No
insurance Company submitted his report
within 30 days of the DAR?(Clause 21)
15 Whether the Insurance Company admitted No
the liability? If so, whether the Designated
Officer of the Insurance Company fairly
computed the compensation in accordance
with law. (Clause22)
16 Whether there was any delay or deficiency on Yes
the part of the Designated officer of the
Insurance Company? If so whether any
action/ direction warranted?
17 Date of response of the claimant(s) to the NA
offer of the Insurance Company? (Clause 23)
18 Date of Award 22/05/2017
19 Whether the award was passed with the No
consent of the parties? (Clause 22)
20 Whether the claimants(s) examined at the Yes
time of passing of the award to ascertain his/
their financial condition? (Clause 26)
21 Whether the photographs, specimen Yes
signatures, proof of residence and particulars
of bank account of the injured/ legal heirs of
the deceased taken at the time of passing of
the award? (Clause26)
22 Mode of disbursement of the award amount Mentioned in the award
to the claimant(s) (Clause 28)
23 Next Date of compliance of the 20.07.2017
award(Clause30)
Suit No. 5744016 Tarawati Vs Rishi Pal & Ors. Page 3 of 33
1. Date of accident : 06.06.2015
2. Name of the deceased : Sh. Mahesh Kumar
3. Age of the deceased : 45 years
4. Occupation of the deceased: Private Service
5. Income of the deceased : 15,000/- per month
6. Name, age and relationship of legal representatives of
deceased
S.No Name Age Relation
1. Smt. Tarawati 42 yrs Wife
2. Akash 35 yrs Son
3. Nancy 22 yrs Daughter
4. Pawan 35 yrs Son
5. Sagar 15 yrs Son
6. Ram Shri 84 yrs Mother
7. Computation of compensation
S.N Heads Claim of Response of Amount awarded
o. petitioner(s) Respondent
(s)
1. Income of the Rs. 15000/ Contested Rs. 9048/ per
deceased (A) month
2. Future prospects (B) Contested
3. Less Personal Contested
Expenses of the
deceased (C)
4. Monthly loss of the Rs.15000/ Contested Rs. 9,048/ per
dependency(A+B) month
C=D
5. Annual loss of Rs1,80,000/ Contested Rs 9,048x 12=
dependency (D x12) 1,08,576/
Suit No. 5744016 Tarawati Vs Rishi Pal & Ors. Page 4 of 33
6. Multiplier (E) 14 Contested 14
7. Total loss of 1,80,000/ Contested 1,31,976x14=
dependency(Dx12xE x14 15,20,064x2/3=
= F) 25,20,000/ 10,13,376/
8. Medical expenses Contested Nil
(G)
9. Compensation for Contested 5,50,000/
loss of love and
affection (H)
10. Compensation for Contested 50,000
loss of consortium
(I)
11. Compensation for Contested 10,000/
loss of Estate (J)
12. Compensation Contested 25,000/
towards funeral
expenses (K)
Total compensation Rs. 25,20,000/ Rs.15,98,376/
(F+G+H+I+J+K =L
Interest
Suit No. 5744016 Tarawati Vs Rishi Pal & Ors. Page 5 of 33
PART-A
BRIEF FACTS OF ACCIDENT
1. Present claim Petition has been preferred under Section 166 and 140 of Motor Vehicles Act, 1988 (hereinafter referred to as 'the Act') claiming compensation for a sum of Rs.80,00,000/- (Rupees Eighty Lakh Only) in respect of accidental death of Mahesh Kumar (since deceased) in a motor vehicular accident.
2. Brief facts of the case giving rise to the claim Petition are that on 06/06/2015 while the deceased was on his way to Burari from Aligarh in a CNG Car, on account of the said Car having been stopped due to non filling of CNG at the appropriate time, the deceased alongwith the other passengers of the said Car while pushing the same, were hit by the offending vehicle bearing No. UP- 14-AL-9725 owned by the Respondent No. 2 and driven by the Respondent No. 1. As a result of the accident, the deceased suffered injuries and ultimately expired in the Kailash Hospital where he was taken for treatment. FIR No. 48/15 U/S 279/304A IPC was registered at PS ECO TECH-I District G.B.Nagar, Noida. The petitioners who are the Lrs of the deceased being resident of territorial jurisdiction of this Court, preferred the claim petition at Delhi.
It is further the case of the Petitioners that deceased aged about 45 years was engaged in a private service at a monthly salary of Rs. 15,000/- and is survived by mother, wife, one minor son and two major sons and one major daughter. The two major sons namely Suit No. 5744016 Tarawati Vs Rishi Pal & Ors. Page 6 of 33 Akash and Pawan as per the identity documents filed on record were 35 years of age respectively whereas the major daughter namely Nancy was 22 years of age as on the date of accident. Similarly, the minor son Sagar was 15 years of age as of the date of accident but as of today is about to attain majority after one year from today as per his year of birth of 2000.
Accordingly, in these circumstances at the time of demise of Sh. Mahesh Kumar there were only three dependents of deceased namely his mother Smt. Ramshree, his wife Smt. Tarawati and his minor son Master Sagar who are the petitioners no. 6,1 & 3 respectively.
PART-B DEFENCE OF DRIVER AND OWNER RESPONDENT No. 1 & 2
3. In the Written Statement filed on behalf of Respondent No.1 & 2/driver and owner of the offending vehicle it was submitted that they have been falsely implicated by the police.
PART-C DEFENCE OF INSURANCE COMPANY RESPONDENT No. 3
4. In the Written Statement, Respondent No.3 submitted that indeed the offending vehicle was insured with it as on the date of accident.
Suit No. 5744016 Tarawati Vs Rishi Pal & Ors. Page 7 of 33PART-D ISSUES
5. From the pleadings of the parties, following issues were framed for consideration vide order dated 25.01.2016:-
(i) Whether the deceased Mahesh Kumar sufferred fatal injuries in an accident that took place on
06.06.2015 at about 4.30 am involving Canter bearing registration No. UP-14AL-9725 driven by the Respondent No. 1 rashly and negligently, owned by the Respondent No. 2 and insured with the Respondent No3?OPP
(ii) Whether the Petitioners are entitled to any compensation, if so, to what amount and from whom?
(iii) Relief.
Suit No. 5744016 Tarawati Vs Rishi Pal & Ors. Page 8 of 33PART-E PETITIONER'S EVIDENCE
6. In support of the claim, Petitioners examined PW1 Smt. Tarawati-wife of the deceased and Sh. Jahan Singh-eye witness/co- passenger with the deceased as PW-2.
As far as PW-1 is concerned, she proved the identity documents of the deceased and the petitioners and also admitted that she has got no documentary proof w.r.t alleged monthly income of Rs. 15,000/- of her husband.
PW-2 who was the eye witness-co passenger with the deceased deposed along the lines of the petition w.r.t the narration of the accident.
PART-F RESPONDENT'S EVIDENCE
7. Evidence was not led on behalf of the Respondents.
Suit No. 5744016 Tarawati Vs Rishi Pal & Ors. Page 9 of 33PART-G FINDINGS/CONCLUSION
8. I have heard arguments addressed on behalf of the Petitioners, counsel for Respondent Insurance Company and perused the record.
My Issue-wise findings are as under :-
Issue No. (I) Whether the deceased Mahesh Kumar suffered fatal injuries in an accident that took place on 06.06.2015 at about 4.30 am involving Canter bearing registration No. UP-14AL-9725 driven by the Respondent No. 1 rashly and negligently, owned by the Respondent No. 2 and insured with the Respondent No3?OPP In Bimla Devi and Ors. V. Himachal Road Transport Corporation and Ors., (2009) 13 SC 530, it was held that in a Petition U/S 166 of the Motor Vehicles Act, 1988 the Claim Tribunal has to decide the negligence on the touchstone of preponderance of probability and holistic view is to be taken while dealing with the Claim Petition. In New India Assurance Co. Ltd. V. Sakshi Bhutani & ors, MAC APP. 550/2011 decided on 02.07.2012 by Hon'ble Mr. Justice G.P. Mittal (Delhi High Court), it was observed that it has to be borne in mind that the Motor Vehicles Act does not envisage holding a trial for a Petition preferred under Section 166 of the Act.
Under Section 168 of the Act, a Claims Tribunal is enjoined to hold an inquiry to determine compensation which must appear to it to be just. Strict rules of evidence are not applicable in an inquiry Suit No. 5744016 Tarawati Vs Rishi Pal & Ors. Page 10 of 33 conducted by the Claims Tribunal. Further in State of Mysore Vs. S.S. Makapur, 1993 (2) SCR 943, Hon'ble Supreme Court held that the Tribunals exercising quasi-judicial functions are not courts and are not bound by strict rules of evidence. The relevant portion of the report is extracted hereunder:
".......that tribunals exercising quasi-judicial functions are not courts and that therefore they are not bound to follow the procedure prescribed for trial of actions in courts nor are they bound by strict rules of evidence. They can unlike courts, obtain all information for the points under the enquiry from all sources, and through all channels, without being fettered by rules and procedure, which govern proceedings in court. The only obligation which the law casts on them is that they should not act on any information which they may receive unless they put it to the party against whom it is to be used and give him a fair opportunity to explain it. What is a fair opportunity depend on the facts and circumstances of each case but where such an opportunity has been given, the proceedings are not open to attack on the ground that the enquiry was not conducted in accordance with the procedure followed in courts."
Reference may also be made to observations in Ranu Bala Paul & Others vs. Bani Chakraborty 1999 ACJ 634 Gauhati wherein the claim was allowed after consideration of FIR before the Tribunal.
"In deciding a matter Tribunal should bear in mind the caution struck by the Apex Court that a claim before the Motor Accident Claims Tribunal is neither a criminal case nor a civil case. In a criminal case in order to have conviction, the matter is to be proved beyond reasonable doubt and in a civil case the matter is to be decided on the Suit No. 5744016 Tarawati Vs Rishi Pal & Ors. Page 11 of 33 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, though the Respondent No. 1 & 2 in their WS have submitted that they have been falsely implicated by the police, but neither cross examining the PW-2 who was the eye witness to the accident nor led any evidence on their own to prove the said defence. Considering the fact that negligence has to be assessed on touchstone of preponderance of probability and a holistic view is to be taken, it has been established that the accident was caused due to rash and negligent driving by Respondent No.1. Issue No. 1 is decided in favour of the Petitioner and against the Respondents.
Suit No. 5744016 Tarawati Vs Rishi Pal & Ors. Page 12 of 339. Issue No. (ii) Whether the Petitioners are entitled to any compensation, if so, to what amount and from whom?
Admittedly, no documentary evidence has been led on record to prove the employment of deceased Mahesh or that deceased was earning Rs.15,000/- per month. The claim Petition has been filed in Delhi since Petitioners are residents of Delhi and for aforesaid purpose the Voter's identity card as well as Aadhar Cards of the Petitioners have been duly proved on record.
It is fairly conceded by counsel for Petitioners that in absence of any cogent evidence that deceased was earning Rs.15,000/- per month, the same be calculated on the basis of minimum wages.
For the purpose of assessment of compensation, the notional income of the deceased is accordingly assessed on the basis of minimum wages of unskilled workers as notified by Govt. of NCT of Delhi for the relevant period @ Rs.9048/- per month.
(a) If addition in income towards future prospects is to be made Petitioners have claimed that addition towards future prospects to the extent of 50% be made considering the fact that deceased was aged about 45 years but the same has been vehemently opposed by counsel for Insurance Company.
It may be observed that in Shashikala & Ors. v.
Suit No. 5744016 Tarawati Vs Rishi Pal & Ors. Page 13 of 33Gangalakshmamma & Anr. 2015 (2) T.A.C. 867 (SC), separate judgments were passed by Hon'ble Mr. Justice R. Banumathi and Hon'ble Mr. Justice V. Gopala Gowda on the point of assessment of addition to the income of the deceased towards the future prospects in case of salaried persons vis-a-vis where the deceased was self employed or on fixed wages. The case was directed to be placed before the Hon'ble Chief Justice of India for appropriate orders towards constitution of a suitable larger Bench since the issue already stood referred to a larger Bench in the case of National Insurance Company Ltd. v. Pushpa S.L.P. (C) No. 16735/2014. Hon'ble Apex Court in aforesaid case adverted to the judgements passed in Reshma Kumar & Ors. v. Madan Mohan & Anr., VII (2013) S.L.T. 489 (rendered on 2nd April, 2013) and Rajesh vs. Rajbir Singh, (2013) 9 S.C.C. 54 (rendered on 12th April, 2013 in which the judgement passed in Reshma Kumari's case was not noticed). Reference was also made to the judgements passed in Sarla Verma & Ors. v. Delhi Transport Corporation & Anr., 162 (2009) D.L.T. 278, Santosh Devi v. National Insurance Co. Ltd. & Ors., 2012 6 S.C.C. 421, Sanjay Verma v. Haryana Roadways, (2014) 3 S.C.C. 210, National Insurance Co. Ltd. v. Pushpa, S.L.P. (C) No. 16735/2014 (whereby the matter in relation to future prospects was referred to larger Bench). It may further be noticed that Hon'ble Apex Court in Shashikala's case did not provide addition towards future prospects pendente lite the aforesaid issue, wherein the deceased was an income tax payee carrying business of newspapers and had relied upon Income Tax Returns for the Assessment Years 2005-06 and 2006-07.
In the aforesaid context, reliance may be further placed upon MAC 79 of 2014 Bharti AXA General Insurance Company Ltd. vs. Suit No. 5744016 Tarawati Vs Rishi Pal & Ors. Page 14 of 33 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. 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 Suit No. 5744016 Tarawati Vs Rishi Pal & Ors. Page 15 of 33 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 HDFC ERGO General Insurance Co. Ltd. v. Smt. Lalta Devi & Ors. (supra). Paras 9 to 21 of the report Suit No. 5744016 Tarawati Vs Rishi Pal & Ors. Page 16 of 33 in Lalta Devi are extracted hereunder:-
9. The learned counsel for the Claimants has referred to a three Judge Bench de-
cision of the Supreme Court in Rajesh & Ors. v. Rajbir Singh & Ors., (2013) 9 SCC 54 to contend that the future prospects have to be added in all cases where a person is getting fixed wages or is a seasonal employee or is a student.
10. It is urged by the learned counsel for the Claimants that the law laid down in Sarla Verma (Smt.) & Ors. v. Delhi Trans- port Corporation & Anr., (2009) 6 SCC 121 was extended in Rajesh & Ors. v. Rajbir Singh & Ors., (2013) 9 SCC 54 to hold that future prospects ought to be extended in all cases.
11. On the other hand, the learned coun- sel for the Insurance Company refers to a three Judge Bench decision of the Supreme Court in Reshma Kumari & Ors. v. Madan Mohan & Anr., (2013) 9 SCC 65 wherein while approving the ratio with regard to future prospects in Sarla Verma (Smt.) & Ors. (supra) and relying on General Manager, Kerala State Road Transport Corporation, Trivandrum v. Susamma Thomas (Mrs.) and Ors. (1994) 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 :Suit No. 5744016 Tarawati Vs Rishi Pal & Ors. Page 17 of 33
(2009) 2 SCC (Cri) 1002], this Court has noted the earlier deci-
sions in Susamma Thomas [Ker-
ala SRTC v. Susamma Thomas, (1994) 2 SCC 176 : 1994 SCC (Cri) 335], Sarla Dixit [(1996) 3 SCC 179] and Abati Bezbaruah [Abati Bezbaruah v. Geological Survey of India, (2003) 3 SCC 148 : 2003 SCC (Cri) 746] and in para 24 of the Report held as under: (Sarla Verma case [Sarla Verma v. DTC, (2009) 6 SCC 121 : (2009) 2 SCC (Civ) 770 :
(2009) 2 SCC (Cri) 1002] , SCC p. 134):
"24. ... In view of the imponder-
ables and uncertainties, we are in favour of adopting as a rule of thumb, an addition of 50% of ac-
tual salary to the actual salary in- come of the deceased towards fu-
ture prospects, where the deceased had a permanent job and was be-
low 40 years. (Where the annual income is in the taxable range, the words „actual salary‟ should be read as „actual salary less tax‟). The addition should be only 30% if the age of the deceased was 40 to 50 years. There should be no addi- tion, 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 addi- tion to avoid different yardsticks being applied or different methods of calculation being adopted.
Where the deceased was self-em-
ployed or was on a fixed salary (without provision for annual in-Suit No. 5744016 Tarawati Vs Rishi Pal & Ors. Page 18 of 33
crements, etc.), the courts will usu- ally take only the actual income at the time of death. A departure therefrom should be made only in rare and exceptional cases involv- ing special circumstances."
39. The standardization of addi-
tion to income for future prospects shall help in achieving certainty in arriving at appropriate compensa- tion. We approve the method that an addition of 50% of actual salary be made to the actual salary income of the deceased to-
wards future prospects where the deceased had a permanent job and was below 40 years and the addition should be only 30% if the age of the deceased was 40 to 50 years and no addition should be made where the age of the de-
ceased is more than 50 years.
Where the annual income is in the taxable range, the actual salary shall mean actual salary less tax. In the cases where the deceased was self-employed or was on a fixed salary without provision for annual increments, the actual income at the time of death with-
out any addition to income for future prospects will be appro-
priate. A departure from the above principle can only be justified in extraordinary circumstances and very exceptional cases."
12. The learned counsel for the Insurance Company relies upon a Constitutional Bench judgment of the Supreme Court in Central Board of Dawoodi Bohra Commu- nity & Anr. v. State of Maharashtra & Anr., Suit No. 5744016 Tarawati Vs Rishi Pal & Ors. Page 19 of 33 (2005) 2 SCC 673; Safiya Bee v. Mohd. Vajahath Hussain @ Fasi, (2011) 2 SCC 94; and Union of India & Ors. v. S.K. Kapoor, (2011) 4 SCC 589 to contend that in case of divergence of opinion in judg- ments of benches of co-equal strength, ear- lier judgment will be taken as a binding precedent.
13. It may be noted that in Reshma Kumari & Ors. v. Madan Mohan & Anr., (2013) 9 SCC 65; the three Judge Bench was dealing with a reference made by a two Judge Bench (S.B. Sinha and Cyr- iac Joseph, J.J.). The two Hon'ble Judges wanted an authoritative pronouncement from a Larger Bench on the question of ap- plicability of the multiplier and whether the inflation was built in the multiplier. The three Judge Bench approved the two Judge Bench decision of the Supreme Court in Sarla Verma (Smt.) & Ors. v. Delhi Trans- port Corporation & Anr., (2009) 6 SCC 121 with regard to the selection of multi- plier. It further laid down that addition to- wards future prospects to the extent of 50% of the actual salary shall be made towards future prospects when the deceased had a permanent job and was below 40 years and addition of 30% should be made if the age of the deceased was between 40-50 years. No addition towards future prospects shall be made where the de- ceased was self-employed or was getting a fixed salary without any provision of an- nual increment.
14. Of course, three Judge Bench of the Supreme Court in its later judgment in Ra- jesh relying on Santosh Devi v. National Insurance Company Ltd. & Ors., 2012 (6) SCC 421 observed that there would be ad- dition of 30% and 50%, depending upon Suit No. 5744016 Tarawati Vs Rishi Pal & Ors. Page 20 of 33 the age of the deceased, towards future prospects even in the case of self-employed persons. It may, however, be noted that in Rajesh, the three Judge Bench decision in Reshma Kumari (supra) was not brought to the notice of their Lordships.
15. The divergence of opinion was noted by another three Judge Bench of the Supreme Court in Sanjay Verma v.
Haryana Roadways, (2014) 3 SCC 210. In paras 14 and 15, the Supreme Court ob- served as under:-
"14. Certain parallel developments will now have to be taken note of. In Reshma Kumari v. Madan Mohan [(2009) 13 SCC 422 : (2009) 5 SCC (Civ) 143 : (2010) 1 SCC (Cri) 1044], a two-Judge Bench of this Court while considering the following questions took the view that the issue(s) needed resolution by a larger Bench: (SCC p. 425, para 10) "(1) Whether the multiplier speci-
fied in the Second Schedule ap-
pended to the Act should be scrupulously applied in all the cases?
(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 Suit No. 5744016 Tarawati Vs Rishi Pal & Ors. Page 21 of 33 Verma v. DTC, (2009) 6 SCC 121 :
(2009) 2 SCC (Civ) 770 : (2009) 2 SCC (Cri) 1002] to the effect that in respect of a person who was on a fixed salary without provision for an-
nual increments or who was self-em- ployed the actual income at the time of death should be taken into account for determining the loss of income un- less there are extraordinary and ex- ceptional circumstances. Though the expression "exceptional and extraor- dinary circumstances" is not capable of any precise definition, in Shakti Devi v. New India Insurance Co. Ltd. [(2010) 14 SCC 575 : (2012) 1 SCC (Civ) 766 : (2011) 3 SCC (Cri) 848] there is a practical application of the aforesaid principle. The near cer- tainty of the regular employment of the deceased in a government depart- ment following the retirement of his father was held to be a valid ground to compute the loss of income by tak- ing into account the possible future earnings. The said loss of income, ac- cordingly, was quantified at double the amount that the deceased was earning at the time of his death."
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 National Insur- ance 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:-
Suit No. 5744016 Tarawati Vs Rishi Pal & Ors. Page 22 of 33"Be it noted, though the decision in Reshma (supra) was rendered at ear- lier point of time, as is clear, the same has not been noticed in Rajesh (supra) and that is why divergent opinions have been expressed. We are of the considered opinion that as regards the manner of addition of income of future prospects there should be an authori- tative pronouncement. Therefore, we think it appropriate to refer the matter to a larger Bench."
17. Now, the question is which of the judg- ments ought to be followed awaiting an- swer to the reference made by the Supreme Court in Pushpa & Ors. (supra).
18. In Central Board of Dawoodi Bohra Community & Anr. v. State of Maharashtra & Anr., (2005) 2 SCC 673 in para 12, the Supreme Court observed as under:-
"12. Having carefully considered the submissions made by the learned Se- nior Counsel for the parties and hav- ing examined the law laid down by the Constitution Benches in the abovesaid decisions, we would like to sum up the legal position in the fol- lowing terms:
(1) The law laid down by this Court in a decision delivered by a Bench of larger strength is binding on any subsequent Bench of lesser or co-
equal strength.
(2) [Ed.: Para 12(2) corrected vide Offi-
cial Corrigendum No. F.3/Ed.B.J./21/2005 dated 3- 3-2005.] A Bench of lesser quorum cannot disagree or dissent from the view of the law taken by a Suit No. 5744016 Tarawati Vs Rishi Pal & Ors. Page 23 of 33 Bench of larger quorum. In case of doubt all that the Bench of lesser quorum can do is to invite the attention of the Chief Jus- tice and request for the matter being placed for hearing before a Bench of larger quorum than the Bench whose deci- sion has come up for consideration. It will be open only for a Bench of coequal strength to express an opinion doubting the correctness of the view taken by the earlier Bench of coequal strength, where- upon the matter may be placed for hearing before a Bench consisting of a quorum larger than the one which pronounced the decision laying down the law the correct- ness of which is doubted.
(3) [Ed.: Para 12(3) corrected vide Offi-
cial Corrigendum No. F.3/Ed.B.J./7/2005 dated 17- 1-2005.] The above rules are subject to two exceptions:
(i) the abovesaid rules do not bind the dis-
cretion 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 re- consideration 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 constituting 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. 5744016 Tarawati Vs Rishi Pal & Ors. Page 24 of 3319. Similarly, in Safiya Bee v. Mohd. Vaja- hath Hussain @ Fasi, (2011) 2 SCC 94 in para 27, the Supreme Court observed as under:-
"27. However, even assuming that the decision in WP No. 35561 of 1998 did not operate as res judi-
cata, we are to observe that even if the learned Judges who decided WP No. 304 of 2001 did not agree with the view taken by a coordinate Bench of equal strength in the ear-
lier WP No. 35561 of 1998 regard-
ing the interpretation of Section 2(c) of the Act and its application to the Petition schedule property, judicial discipline and practice required them to refer the issue to a larger Bench. The learned Judges were not right in overruling the statement of the law by a coordinate Bench of equal strength. It is an accepted rule or principle that the statement of the law by a Bench is consid-
ered binding on a Bench of the same or lesser number of Judges. In case of doubt or disagreement about the decision of the earlier Bench, the well-accepted and desirable prac- tice is that the later Bench would re- fer the case to a larger Bench."
20. In Union of India & Ors. v. S.K. Kapoor, (2011) 4 SCC 589 while holding that the decision of the Co- ordinate Bench is binding on the subsequent Bench of equal strength, held that the Bench of Co-ordinate strength can only make a reference to a larger Bench. In para 9 of the report, the Supreme Court held as under:-
Suit No. 5744016 Tarawati Vs Rishi Pal & Ors. Page 25 of 33"9. It may be noted that the decision in S.N. Narula case [(2011) 4 SCC 591] was prior to the decision in T.V. Patel case [(2007) 4 SCC 785 :
(2007) 2 SCC (L&S) 98] . It is well settled that if a subsequent coordi-
nate Bench of equal strength wants to take a different view, it can only refer the matter to a larger Bench, otherwise the prior decision of a co- ordinate Bench is binding on the subsequent Bench of equal strength. Since, the decision in S.N. Narula case [(2011) 4 SCC 591] was not noticed in T.V. Patel case [(2007) 4 SCC 785 : (2007) 2 SCC (L&S) 98] , the latter decision is a judgment per incuriam. The decision in S.N. Narula case [(2011) 4 SCC 591] was binding on the subsequent Bench of equal strength and hence, it could not take a contrary view, as is settled by a series of judgments of this Court."
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 Reshma Kumari & Ors. (supra) shall be taken as a binding precedent."
21.In the instant case, the deceased's actual or potential income is taken as Rs.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 Suit No. 5744016 Tarawati Vs Rishi Pal & Ors. Page 26 of 33 Claims Tribunal."
In view of the legal position as discussed by the Hon'ble High Court and in absence of any evidence with regard to good future prospects of deceased, addition of income towards future prospects cannot be made for the purpose of compensation.
(b) Deduction towards personal and living expenses of the deceased:
Counsel for Petitioners submitted that deceased is survived by six dependents but as per the identity cards placed on record, the Petitioner No. 2 & 3 being 35 and 22 years of the age as on the date of accident and similarly, the Petitioner No. 4 being the major son as on the date of accident, they cannot be stated to be dependent upon the deceased as on the date of accident.
In these circumstances, only Petitioner No. 1, 5 & 6 ie wife, minor son and mother of the deceased are counted as dependents upon the deceased as on the date of accident.
As per Sarla Verma (Smt.) & Ors. vs. Delhi Transport Corporation & Anr. (2009) 6 SCC 121, 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.
Since the deceased is survived by three dependents, i.e. wife, minor son and mother, the deduction towards personal and living expenses of the deceased shall be 1/3 rd as held in Sarla Verma's case (supra).Suit No. 5744016 Tarawati Vs Rishi Pal & Ors. Page 27 of 33
(c) Selection of multiplier:
As per the Adhar Card of the deceased he was 35 years of age as on 01.01.2005. Since the accident occurred on 06.06.2015 the age of deceased was approximately 45 years. Accordingly, as held in Sarla Verma (Smt.) & Ors. vs. Delhi Transport Corporation & Anr. (2009) 6 SCC 121, the multiplier of 14 is to be adopted for the purpose of assessment of compensation.
(d) Loss of financial dependency In the light of aforesaid facts, loss of financial dependency of the Petitioners comes to Rs.10,13,376/-[i.e. Rs.9,048/- (notional income) X 12 (months) X 14 (multiplier) X 2/3 (dependency)].
10. Compensation under non-pecuniary heads:
It has been held by the Hon'ble Apex Court in Rajesh & Ors. v. Rajbir Singh & Ors., (2013) 9 SCC 54 that the compensation is to be awarded for a sum of Rs.1 lakh each towards loss of love and affection and loss of consortium,Rs.25,000/- towards funeral expenses and Rs.10,000/- towards loss of estate.
However, in 2015 ACJ 1286 Asha Verman and others v. Maharaj Singh and others Hon'ble Apex Court has awarded a sum of Rs.1 lakh to each child relying upon judgement passed in Jiju Kuruvila v. Kunjujamma Mohan, 2013 ACJ 2141 (SC) and Suit No. 5744016 Tarawati Vs Rishi Pal & Ors. Page 28 of 33 Rs.50,000/ to each parent for loss of love and affection relying upon judgement passed in M. Mansoor v. United India Insurance Co. Ltd., 2013 ACJ 2849 (SC) Further, interest @ 9% per annum was awarded on the award amount by the Hon'ble Apex Court in Municipal Corporation of Delhi v. Association of Victims of Uphaar Tragedy, 2012 ACJ 48 (SC).
Though a wide discretion in determination of compensation is given but the amplitude of such powers has to be exercised in consonance with settled principles and it needs to be borne in mind that compensation is neither expected to be windfall or bonanza or source of profit but at the same time should not be pittance.
Considering the facts and circumstances Petitioner no.2 to 5 are entitled to Rs.1 lakh towards loss of love and affection to each child and Petitioner no. 6 is entitled to Rs.50,000/- for loss of love and affection of her deceased son and similarly the Petitioner No. 1 is entitled to Rs. One Lac towards Love and Affection and loss of consortium. Also Petitioners are entitled to Rs.10,000/- towards loss of estate and Rs.25,000/- towards funeral expenses of deceased.Suit No. 5744016 Tarawati Vs Rishi Pal & Ors. Page 29 of 33
11. Petitioners/claimants are accordingly entitled to compensation computed as under:
Loss of financial dependency Rs.10,13,376/- Loss of love and affection to each child Rs.4,00,000/- (four children ie Petitioner No. 2 to 5) Loss of love and affection to mother Rs.,100,000/- (Petitioner No.6) Loss of love and affection to Petitioner No.1 Rs. 50,000/- Loss of consortium to Petitioner No.1 Rs. 50,000/-
Loss of Estate Rs.10,000/-
Funeral Expenses Rs.25,000/-
________________
Total Rs. 16,48,376/-
________________
(Rupees Sixteen Lacs Forty Eight Thousand Three Hundred Seventy Six Only) The claimants/Petitioners are also entitled to interest @ 9% p.a. from the date of filing of claim Petition w.e.f. 29.07.2015 till realization.
In terms of the directions of the Hon'ble High Court of Delhi the income of the deceased is assessed on the basis of minimum wages as Rs. 9,048/- and his monthly expenditure is taken as Rs. 6,000/-
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.Suit No. 5744016 Tarawati Vs Rishi Pal & Ors. Page 30 of 33
12. It is further held that Respondent No.1 (Driver), Respondent No.2 (Owner) and Respondent No.3 (Insurer) of the offending vehicle are jointly and severally liable to make the payment of compensation to the Petitioners/claimants.
13. For the purpose of disbursement, Petitioner no. 2, 3,& 4 are be entitled to their share of Rs. One Lac each only which be put in FDRs for three years.
Similarly, the Petitioner No. 1, 5 & 6 are entitled besides their share of Rs. One Lac each towards loss of love and affection/consortium to 33% share each of the remaining award amount.
The share of Petitioner No. 5 ie Rs. 4,49,459/- being minor be put in FDRs till he attains the age of 21 years without any facility of loan, advance etc with liberty to withdraw the interest quarterly through his mother-Petitioner No. 1.
The Petitioner No. 6 shall be entitled for a sum of Rs. 4,49,459 toward award amount in total and out of which a sum of Rs. 50,000/- be released to her immediately upon identification and the balance amount of Rs. 3,99,459/- with proportionate up- to-date interest shall be kept in an FDR for a period of 60 months in terms of the judgment of Hon'ble High Court of Delhi cited as Rajesh Tyagi Vs Jaiveer Singh in FAO No. 842/2003 with SBI/PNB in 60 FDRs of Rs 6,657.65/- each for the period for 1 to 60 months period with commutative interest with the following conditions :-
1. Original fixed deposit receipts be retained by the bank in safe custody, However, a statement containing FDR number,FDR amount, Suit No. 5744016 Tarawati Vs Rishi Pal & Ors. Page 31 of 33 date of maturity of FDR and maturity amount of the FDRs be given to the claimant (s).
2.The maturity amount of the FDR be credited in the saving account of the claimant(s) near the place of their residence.
3.No cheque book be issued to the claimant(s) in the savings bank account without permission of the court.
4.No loan, advance or withdrawal be allowed on the fixed deposits without permission of the court.
5.The Bank shall not permit any joint names(s) to be added in the savings bank account or fixed deposits accounts of the victim.
Similarly, the Petitioner No. 1 shall be entitled for a sum of Rs. 4,49,459 toward award amount in total and out of which a sum of Rs. 50,000/- be released to her immediately upon identification and the balance amount of Rs. 3,99,459/-with proportionate up-to-date interest shall be kept in an FDR for a period of 60 months in terms of the judgment of Hon'ble High Court of Delhi cited as Rajesh Tyagi Vs Jaiveer Singh in FAO No. 842/2003 with SBI/PNB in 60 FDRs of Rs 6,657.65/- each for the period for 1 to 60 months period with commutative interest with the following conditions :-
1. Original fixed deposit receipts be retained by the bank in safe custody, However, a statement containing FDR number, FDR amount, date of maturity of FDR and maturity amount of the FDRs be given to the claimant (s).
2.The maturity amount of the FDR be credited in the saving account of the claimant(s) near the place of their residence.
3.No cheque book be issued to the claimant(s) in the savings bank account without permission of the court.
4.No loan, advance or withdrawal be allowed on the fixed deposits Suit No. 5744016 Tarawati Vs Rishi Pal & Ors. Page 32 of 33 without permission of the court.
5.The Bank shall not permit any joint names(s) to be added in the savings bank account or fixed deposits accounts of the victim.
14. Relief Since the offending vehicle was duly insured, Respondent No. 3 is directed to deposit the award amount of Rs.16,48,376/-with interest @ 9% per annum from the date of filing of claim Petition i.e. 29.07.2015 till realization with Nazir of this Court within 30 days under intimation to the Petitioners, failing which the Insurance Company shall be liable to pay interest @ 12% per annum for the period of delay beyond 30 days.
Insurance Company/driver and owner of the offending vehicle are also directed to place on record the proof of deposit of the award amount, proof of delivery of notice in respect of deposit of the amount with the Tribunal to the claimants and complete details in respect of calculations of interest etc. in the court within 30 days from today.
A copy of this judgment be sent to Respondent No.3 for compliance within the time granted.
Nazir is directed to place a report on record in the event of non-receipt/deposit of the compensation amount within the time granted.
File be consigned to Record Room.
A separate file be prepared and put the same for compliance now on 20.07.2017.
Announced in open court (VINAY SINGHAL) on 22.05.2017 Judge MACT-2 (Central), Tis Hazari Courts, Delhi Suit No. 5744016 Tarawati Vs Rishi Pal & Ors. Page 33 of 33