Delhi District Court
Nafe Singh S/O Late Jai Lal vs Shri Rahul Ranjan on 30 July, 2016
IN THE COURT OF SHRI VINAY SINGHAL
ADDITIONAL DISTRICT & SESSIONS JUDGE,
JUDGE, MACT-2, (CENTRAL), DELHI.
SUIT NO. 56392-16
Unique Case ID No.02401C-0047742015
Nafe Singh S/O Late Jai Lal
R/O 4385, opposite Petrol Pump, Hemilton Road,
Rajendra Market
Tis Hazari, Delhi
.........PETITIONER
Versus
1. Shri Rahul Ranjan
S/O Sh Krishan Mohan
R/O 9/15, Krishan Vihar, main Kanjhawala Road
Village-Bawana, Delhi ...................(Driver)
2. Shri Pappu Sahani S/O Raj Kumar Sahani
R/O 4146, Naya Bazar, Pili Kothi,
Chandni Chowk, Delhi ...................(Owner)
3. ICICI Lombard Motor Insurance Co. Ltd.
ICICI Lombard House, 414, Veer Savarkar Marg,
near Sidhi Vinayak Temple, Prabhadevi, Mumbai.............(Insurer)
.......RESPONDENTS
Date of filing of DAR : 20.01.2015
Arguments heard on : 13.07.2016
Judgment pronounced on : 30.07.2016
Suit No.5639216 - Nafe Singh Vs Rahul & Ors. Page 1 of 34
JUDGMENT
PART-A BRIEF FACTS OF ACCIDENT
1. Present claim Petition has arisen on the basis of a DAR in respect of grievous injuries sustained by one Sh. Nafe Singh in a motor vehicular accident.
2. In brief, on 23.11.2014, petitioner was walking to his home when the motorcycle bearing No. DL-5S-AJ-9534 owned by respondent No. 2 and being driven by respondent No. 1 hit him and a result of which, petitioner sustained grievous injuries. Petitioner was immediately taken to Aruna Asaf Ali Hospital, Delhi. It is further the case of petitioner that the accident was caused due to rash and negligent driving by Respondent No.1. FIR No.613/14 PS, Subzi Mandi, Delhi U/S 279/338 IPC was registered regarding the accident.
It is further the case of the petitioner that at the time of accident he was around 70 years of age running a tea stall earning about 20,000/- per month.
Suit No.5639216 - Nafe Singh Vs Rahul & Ors. Page 2 of 34PART-B DEFENCE OF DRIVER AND OWNER RESPONDENT No. 1 & 2
3. Respondent No. 1 & 2 have not filed any Written Statement.
Suit No.5639216 - Nafe Singh Vs Rahul & Ors. Page 3 of 34PART-C DEFENCE OF INSURANCE COMPANY RESPONDENT No. 3
4. In the written statement filed on behalf of Respondent No.3 Insurance Company, it was submitted that the respondent No. 1 was not holding a valid driving license and no liability can be fastened upon the insurance company.
Suit No.5639216 - Nafe Singh Vs Rahul & Ors. Page 4 of 34PART-D ISSUES
5. From the pleadings of the parties, following issues were framed for consideration by ld. Predecessor vide order dated 20.05.2015:-
(i) Whether the Petitioner had suffered injuries in an accident that took place on 23.11.2014 at about 20.15 hrs involving motorcycle bearing registration No. DL 5S-AJ-9534 driven by respondent No. 1, owned by respondent No.2 and insured with the respondent No.3 ? OPP
(ii) Whether the Petitioner is entitled for compensation, if so, to what amount and from whom?
(iii) Relief.
Suit No.5639216 - Nafe Singh Vs Rahul & Ors. Page 5 of 34
PART-E
PETITIONER'S EVIDENCE
6. In support of the claim, Petitioner examined himself as PW1.
PW-1 testified on the lines of claim Petition and proved on record the following documents.
Ex PW1/1 - Medical treatment papers. Ex PW1/2 - Photocopy of Election I Card.
Ex PW-X(colly) - DAR.
During cross-examination, it is admitted by the PW-1 that he was running a tea stall along with his wife. He also admitted that he had not filed any document on record regarding income and future treatment. He denied the suggestion that the medical bills filed on record are false and fabricated and not related to the treatment taken due to accident or that he was not running the tea stall in question.
Suit No.5639216 - Nafe Singh Vs Rahul & Ors. Page 6 of 34PART-F RESPONDENT'S EVIDENCE
7. Respondent No.3/insurance company examined Sh Gautam Bhatnagar- its official as R3W1 who proved on record the notice u/o 12 rule 8 served upon the respondent for production of the driving license, if any, held by the respondent No. 1 at the time of accident which was not complied with by the respondents. He also proved on record that the respondent No. 1 was also charged with the provisions of section 3/185 of M.V. Act on account of non production of driving license.
Suit No.5639216 - Nafe Singh Vs Rahul & Ors. Page 7 of 34PART-G FINDINGS/CONCLUSION
8. I have heard arguments addressed on behalf of the Petitioner as well as counsel for Respondents and perused the record.
My Issue-wise findings are as under :-
Issue No. (i) Whether the Petitioner had suffered injuries in an accident that took place on 23.11.2014 at about 20.15 hrs involving motorcycle bearing registration No. DL 5S-AJ-9534 driven by respondent No. 1, owned by respondent No.2 and insured with the respondent No.3 ? OPP In Bimla Devi and Ors. V. Himachal Road Transport Corporation and Ors., (2009) 13 SC 530, it was held that in a Petition U/S 166 of the Motor Vehicles Act, 1988, the Claim Tribunal has to decide the negligence on the touchstone of preponderance of probability and holistic view is to be taken while dealing with the Claim Petition.
In New India Assurance Co. Ltd. V. Sakshi Bhutani & ors, MAC APP. 550/2011 decided on 02.07.2012 by Hon'ble Mr. Justice G.P. Mittal (Delhi High Court), it was observed that it has to be borne in mind that the Motor Vehicles Act does not envisage holding a trial for a Petition preferred under Section 166 of the Act. Under Section 168 of the Act, a Claims Tribunal is enjoined to hold an inquiry to determine compensation which must appear to it to be just. Strict rules of evidence are not applicable in an inquiry conducted by Suit No.5639216 - Nafe Singh Vs Rahul & Ors. Page 8 of 34 the Claims Tribunal.
Further in State of Mysore Vs. S.S. Makapur, 1993 (2) SCR 943, the 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.5639216 - Nafe Singh Vs Rahul & Ors. Page 9 of 34 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, accident took place on 23.11.2014 while Petitioner was walking towards his home and was hit by offending vehicle which was being driven by Respondent No.1 in a rash and negligent manner. Testimony of PW1 could not be dented during cross-examination and accident is corroborated by the copy of Site Plan as well as Mechanical Inspection Report in respect of both the vehicles which have been filed on record and were prepared during the investigation of criminal proceedings. It may also be observed that testimony of PW1 has not been refuted by Respondent No.1 by entering into the witness box or by leading any cogent evidence on record. Since the rash and negligent driving is to be assessed on the basis of touchstone of preponderance of probability and a holistic view is to be taken, it has been proved on record that the accident had been caused due to rash and negligent driving of the offending vehicle by Suit No.5639216 - Nafe Singh Vs Rahul & Ors. Page 10 of 34 Respondent No.1. Issue No.1 is accordingly decided in favour of the Petitioner and against the Respondents.
9. Issue No. (ii) Whether the Petitioner is entitled for compensation, if so, to what amount and from whom?
In Raj Kumar v. Ajay Kumar & Anr., 2011 Volume 1, ACJ 1, Hon'ble Supreme Court of India observed that the object of awarding damages is to make good the loss suffered as a result of the wrong done as far as money can do in a fair, reasonable and equitable manner. Paras 4 and 5 of the judgment are further extracted below as the same explains the various heads under which the compensation is to be assessed:-
"4. The provision of the Motor Vehicles Act, 1988 ('the Act' for short) makes it clear that the award must be just, which means that compensation should, to the extent possible, fully and adequately restore the claimant to the position prior to the accident. The object of awarding damages is to make good the loss suffered as a result of wrong done as far as money can do so, in a fair, reasonable and equitable manner. The court or tribunal shall have to assess the damages objectively and exclude from consideration any speculation or fancy, though some conjecture with reference to the nature of disability and its consequences, is inevitable. A person is not only to Suit No.5639216 - Nafe Singh Vs Rahul & Ors. Page 11 of 34 be compensated for the physical injury, but also for the loss which he suffered as a result of such injury. This means that he is to be compensated for his inability to lead a full life, his inability to enjoy those normal amenities which he would have enjoyed but for the injuries, and his inability to earn as much as he used to earn or could have earned. [See C.K. Subramonia Iyer v. T. Kunhikuttan Nair, AIR 1970 SC 376, R.D. Hattangadi v. Pest Control (India) (P) Ltd., 1995 (1) SCC 551 and Baker v.
Willoughby, 1970 AC 467.
5. The heads under which compensation is awarded in Personal Injury Cases are the following:
Pecuniary damages (Special damages)
(i) Expenses relating to treatment, hospitalization, medicines, transportation, nourishing food, and miscellaneous expenditure.
(ii) Loss of earnings (and other gains) which the injured would have made had he not been injured, comprising:
(a) Loss of earning during the period of treatment;
(b) Loss of future earnings on account of permanent disability.
(iii) Future medical expenses.Suit No.5639216 - Nafe Singh Vs Rahul & Ors. Page 12 of 34
Non-pecuniary damages (General damages)
(iv) Damages for pain, suffering and trauma as a consequence of the injuries.
(v) Loss of amenities (and/or loss of prospects of marriage).
(vi) Loss of expectation of life (shortening of normal longevity).
In routine personal injury cases, compensation will be awarded only under heads (i), (ii)(a) and (iv).
It is only in serious cases of injury, where there is specific medical evidence corroborating the evidence of the claimant, that compensation will be granted under any of the heads (ii)(b), (iii), (v) and (vi) relating to loss of future earnings on account of permanent disability, future medical expenses, loss of amenities (and/or loss of prospects of marriage) and loss of expectation of life."
Now the important factors relevant for calculation of compensation consequent to accidental injuries sustained by the Petitioner may be considered.
Suit No.5639216 - Nafe Singh Vs Rahul & Ors. Page 13 of 34A. LOSS OF EARNING CAPACITY For purpose of assessing the loss of earning capacity, the income of the Petitioner/injured needs to be assessed along with the functional disability suffered by him due to the injuries sustained in the accident.
B. Criteria for taking income of the Petitioner Counsel for Petitioner fairly conceded that no document has been filed to prove the employment or income of Petitioner and urged that income of the Petitioner be assessed on the basis of minimum wages of unskilled worker as notified by Government of NCT of Delhi for the relevant period.
In the facts and circumstances, notional income of the Petitioner is considered on the basis of minimum wages of unskilled worker as notified by Government of NCT of Delhi for the relevant period @ Rs.8632/- per month for purpose of assessment of compensation.
C. If addition in income towards future prospects is to be made Counsel for Petitioner claimed that addition towards future prospects to the extent of 50% be made considering the fact that Petitioner was aged about 70 years but the same has been vehemently opposed by counsel for Insurance Company.
It may be observed that in Shashikala & Ors. v. Gangalakshmamma & Anr. 2015 (2) T.A.C. 867 (SC), separate 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 Suit No.5639216 - Nafe Singh Vs Rahul & Ors. Page 14 of 34 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. 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 Suit No.5639216 - Nafe Singh Vs Rahul & Ors. Page 15 of 34 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 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 Suit No.5639216 - Nafe Singh Vs Rahul & Ors. Page 16 of 34 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 in Lalta Devi are extracted hereunder:-
9. The learned counsel for the Claimants has referred to a three Judge Bench deci-
sion 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 per- son is getting fixed wages or is a seasonal employee or is a student.
Suit No.5639216 - Nafe Singh Vs Rahul & Ors. Page 17 of 3410. 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 counsel for the Insurance Company refers to a three Judge Bench decision of the Supreme Court in Reshma Kumari & Ors. v. Madan Mohan & Anr., (2013) 9 SCC 65 wherein while approving the ratio with regard to future prospects in Sarla Verma (Smt.) & Ors. (supra) and relying on General Man- ager, Kerala State Road Transport Corpo- ration, 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 Gen- eral, Geological Survey of India & Anr., 2003 (3) SCC 148, the Supreme Court held as under:-
"38. With regard to the addition to income for future prospects, in Sarla Verma [Sarla Verma v.
DTC, (2009) 6 SCC 121 : (2009) 2 SCC (Civ) 770 :
(2009) 2 SCC (Cri) 1002], this Court has noted the earlier 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 un- der: (Sarla Verma case [Sarla Suit No.5639216 - Nafe Singh Vs Rahul & Ors. Page 18 of 34 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 actual salary to the actual salary income of the deceased towards future prospects, where the deceased had a permanent job and was below 40 years. (Where the annual income is in the taxable range, the words „ac- tual salary‟ should be read as „ac - tual salary less tax‟). The addition should be only 30% if the age of the deceased was 40 to 50 years. There should be no addition, where the age of the deceased is more than 50 years. Though the evidence may in- dicate a different percentage of increase, it is necessary to stan- dardise the addition to avoid differ- ent yardsticks being applied or dif- ferent methods of calculation being adopted. Where the deceased was self-employed or was on a fixed salary (without provision for annual increments, etc.), the courts will usually take only the actual income at the time of death. A departure therefrom should be made only in rare and exceptional cases involv- ing special circumstances."
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 ad-
dition of 50% of actual salary be made to the actual salary income of Suit No.5639216 - Nafe Singh Vs Rahul & Ors. Page 19 of 34 the deceased 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 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 without any addition to income for future prospects will be appropriate. A departure from the above principle can only be jus-
tified in extraordinary circum-
stances and very exceptional cases."
12. The learned counsel for the Insurance Company relies upon a Constitutional Bench judgment of the Supreme Court in Central Board of Dawoodi Bohra Commu- nity & Anr. v. State of Maharashtra & Anr., (2005) 2 SCC 673; Safiya Bee v. Mohd. Va- jahath 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 judg- ment 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 Cyriac Joseph, J.J.). The two Hon'ble Judges wanted an authori- tative pronouncement from a Larger Bench on the question of applicability of the multi-
Suit No.5639216 - Nafe Singh Vs Rahul & Ors. Page 20 of 34plier and whether the inflation was built in the multiplier. The three Judge Bench ap- proved the two Judge Bench decision of the Supreme Court in Sarla Verma (Smt.) & Ors. v. Delhi Transport Corporation & Anr., (2009) 6 SCC 121 with regard to the selec- tion of multiplier. It further laid down that addition towards future prospects to the ex- tent of 50% of the actual salary shall be made towards future prospects when the de- ceased had a permanent job and was below 40 years and addition of 30% should be made if the age of the deceased was be- tween 40-50 years. No addition towards 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 Ra- jesh relying on Santosh Devi v. National In- surance Company Ltd. & Ors., 2012 (6) SCC 421 observed that there would be addi- tion of 30% and 50%, depending upon the age of the deceased, towards future prospects even in the case of self-employed persons. It may, however, be noted that in Rajesh, the three Judge Bench decision in Reshma Kumari (supra) was not brought to the notice of their Lordships.
15. The 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 un- der:-
"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 Suit No.5639216 - Nafe Singh Vs Rahul & Ors. Page 21 of 34 Court while considering the following ques- tions 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 scrupu-
lously applied in all the cases?
(2) Whether for determination of the multiplicand, the Act provides for any criterion, particularly as re-
gards 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 effect that in respect of a person who was on a fixed salary without provision for annual increments or who was self- employed the actual income at the time of death should be taken into account for determining the loss of income un- less there are extraordinary and excep- tional circumstances. Though the ex- pression "exceptional and extraordi- nary 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 certainty of the reg-
ular employment of the deceased in a government department following the retirement of his father was held to be Suit No.5639216 - Nafe Singh Vs Rahul & Ors. Page 22 of 34 a valid ground to compute the loss of income by taking into account the pos- sible future earnings. The said loss of income, accordingly, was quantified at double the amount that the deceased was earning at the time of his death."
16. Further, the divergence of opinion in Reshma Kumari & Ors. v. Madan Mohan & Anr., (2013) 9 SCC 65 and Rajesh & Ors. v. Rajbir Singh & Ors., (2013) 9 SCC 54 was noticed by the Supreme Court in another latest judgment in National Insurance Com- pany Ltd. v. Pushpa & Ors., CC No.8058/2014, decided on 02.07.2014 and in concluding paragraph while making reference to the Larger Bench, the Supreme Court held as under:-
"Be it noted, though the decision in Reshma (supra) was rendered at earlier point of time, as is clear, the same has not been noticed in Rajesh (supra) and that is why divergent opinions have been expressed. We are of the consid- ered opinion that as regards the man- ner of addition of income of future prospects there should be an authorita- tive 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 Se-Suit No.5639216 - Nafe Singh Vs Rahul & Ors. Page 23 of 34
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 following terms:
(1) The law laid down by this Court in a decision delivered by a Bench of larger strength is binding on any sub-
sequent 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 can- not disagree or dissent from the view of the law taken by a Bench of larger quorum. In case of doubt all that the Bench of lesser quorum can do is to invite the attention of the Chief Justice and request for the matter being placed for hearing before a Bench of larger quorum than the Bench whose 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, whereupon the matter may be placed for hearing before a Bench consisting of a quorum larger than the one which pronounced the decision lay- ing down the law the correctness of which is doubted.
(3) [Ed.: Para 12(3) corrected vide Official Corrigendum No. F.3/Ed.B.J./7/2005 dated 17- 1-2005.] The above rules are subject to two exceptions: (i) the abovesaid rules do not bind the discretion of the Chief Justice in whom vests the power of framing the ros- ter and who can direct any particular mat- ter 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 Suit No.5639216 - Nafe Singh Vs Rahul & Ors. Page 24 of 34 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 recon- sideration then by way of exception (and not as a rule) and for reasons given by it, it may proceed to hear the case and examine the correctness of the previous decision in question dispensing with the need of a spe- cific reference or the order of the Chief Jus- tice constituting the Bench and such list- ing. Such was the situation in Raghubir Singh [(1989) 2 SCC 754] and Hansoli Devi [(2002) 7 SCC 273]."
19. Similarly, in Safiya Bee v. Mohd. Vaja- hath Hussain @ Fasi, (2011) 2 SCC 94 in para 27, the Supreme Court observed as 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 coordinate Bench of equal strength in the earlier WP No. 35561 of 1998 regarding the inter- pretation 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 considered binding on a Bench of the same or lesser number of Judges. In case of doubt or disagreement about the de- cision of the earlier Bench, the well-Suit No.5639216 - Nafe Singh Vs Rahul & Ors. Page 25 of 34
accepted and desirable practice is that the later Bench would refer the case to a larger Bench."
20. In Union of India & Ors. v. S.K. Kapoor, (2011) 4 SCC 589 while holding that the decision of the Co- ordinate Bench is binding on the subsequent Bench of equal strength, held that the Bench of Co- ordinate strength can only make a reference to a larger Bench. In para 9 of the 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 subsequent Bench of equal strength. Since, the decision in S.N. Narula case [(2011) 4 SCC 591] was not noticed in T.V. Pa-
tel case [(2007) 4 SCC 785 : (2007) 2 SCC (L&S) 98] , the latter decision is a judgment per incuriam. The deci-
sion in S.N. Narula case [(2011) 4 SCC 591] was binding on the 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 report in S.K. Kapoor (supra), the three Judge Bench decision in Reshma Kumari & Suit No.5639216 - Nafe Singh Vs Rahul & Ors. Page 26 of 34 Ors. (supra) shall be taken as a binding precedent."
21.Thus, in absence of any evidence of good future prospects, no addition towards future prospects ought to have been made by the Claims Tribunal."
In view of the legal position as discussed by the Hon'ble High Court and in absence of any evidence with regard to good future prospects of the Petitioner, addition of income towards future prospects cannot be made for the purpose of compensation.
(a) Loss of Income on account of accident Counsel for Petitioner contended that immediately after the accident, Petitioner was removed to Aruna Asaf Ali Hospital, from where he was discharged on the very same day but was again admitted on 01.12.2014 from where he was discharged on 04.12.2014 and thereafter he was admitted to Tirath Ram Hospital.
As far as the admission paper qua Tirath Ram Hospital is concerned, the same are not on record except a radiology report of 28.11.2014.
It is claimed that consequent to accidental, petitioner suffered injuries which includes plaster over his leg.
Petitioner has not specified that for how much period he could not attend to his work.
Considering the nature of injuries, period of admission as indoor patient and treatment undertaken by the Petitioner, it can be reasonably presumed that on account of injuries and disability, the Petitioner may not have been in a position to attend his work for a period of about six months but at the same time it has come on record that the petitioner was running a tea stall along with his wife and accordingly, he is entitled to only 50 % of the loss of income.
Suit No.5639216 - Nafe Singh Vs Rahul & Ors. Page 27 of 34In the facts and circumstances, Petitioner is accordingly awarded damages towards loss of income amounting to Rs. 25896 /- for a period of six month for which he was not able to perform his job i.e. [Rs.8632/- (notional income for one month) X 6 months x 50 %)
(b) Pain and Suffering & Mental Agony As the Petitioner suffered grievous injuries which involves fracture of his his leg,, he is awarded a sum of Rs. 20,,000/- (Rupees Twenty thousand Only) towards pain and suffering and mental agony.
(c) Medicines and Medical Treatment Counsel for Petitioner contended that an amount of Rs. 1390/- has been claimed towards the medical bills/treatment by the petitoiner which has not been disputed on behalf of insurance company.
Accordingly, Petitioner is awarded a sum of Rs.1390/- towards medical bills/treatment.
(d) Conveyance & Special Diet Though no conveyance bills have been filed on record by the Petitioner but it can be presumed that Petitioner must have spent some amount during the period of treatment. In view of above, an amount of Rs.5,000/- (Rupees five thousand Only) is awarded towards conveyance for the period of treatment.
Petitioner is further awarded an amount of Rs.,5,000/- (Rupees five thousand Thousand Only) towards special diet.
(e) Attendant Charges Hon'ble High Court of Delhi in DTC V/s Lalit AIR 1981 Suit No.5639216 - Nafe Singh Vs Rahul & Ors. Page 28 of 34 Delhi 558 held that the victim is entitled to compensation even if no attendant is hired as some family member renders gratuitous services.
Further, in the case of United India Insurance Co. Ltd. V/s Rama Swamy and Others 2012 (2) T.A.C. 34 (Del.), value of gratuitous services rendered by family member of the claimant was assessed at Rs.2,000/- per month.
I am of the considered view that even if the gratuitous services were rendered by some or the other family members, the claimant cannot be deprived of its benefit on the gain of the tortfeasor. Considering the nature of injuries, the compensation of Rs.12,000/- is awarded in lump-sum towards the attendant charges/gratuitous services rendered by the family members (i.e. Rs.2,000/- X 6 months).
10. As discussed above, the overall compensation is tabulated as under:
Loss of Earning Capacity Rs.25,896/-
Pain and Suffering Rs.20,000/-
Medicines & Medical Treatment Rs. 1,390/-
Conveyance Charges Rs. 5,000/-
Special Diet Rs. 5,000/-
Attendant Charges Rs.12,000/-
------------------
Total Rs.69286/-
(Rounded off to Rs.69286/-)
(Rupees sixty nine thousand two hundred eighty six only) The claimant/Petitioner is also entitled to interest @ 9% p.a. from the date of filing of DAR w.e.f. 20.01.2015.Suit No.5639216 - Nafe Singh Vs Rahul & Ors. Page 29 of 34
11. It is further held that Respondent No.1 (Driver), Respondent No.2 (Owner) and Respondent No.3 (Insurer) of the offending vehicle are jointly and severally liable to make the payment of compensation to the Petitioner/claimant.
12. On realization, an amount of Rs. 69286/- (Rupees Sixty nine thousand two hundred eighty six only) shall be released to the Petitioner.
13. Relief Since the offending vehicle was duly insured, Respondent No.3/ICICI Lombard Insurance Company Ltd. is directed to deposit the award amount of Rs.69286/- with interest @ 9% per annum from the date of filing of DAR i.e. 20.01.2015 till realization with Nazir of this Court within 30 days under intimation to the Petitioner failing which the Insurance Company shall be liable to pay interest @ 12% per annum for the period of delay beyond 30 days.
Suit No.5639216 - Nafe Singh Vs Rahul & Ors. Page 30 of 34PART-H APPORTIONMENT OF LIABILITY
14. I have taken the note of the submissions of the Ld. Counsel for insurer for recovery rights for the breach of the terms and condition of the policy as the offending vehicle was being driven by the Respondent No. 1 who was not holding a valid DL as on the date of accident.
15. In order to decide the defence raised by the Ld. Counsel for insurer, I am being guided by the judgment of Hon'ble High Court in MAC. App. 476/2011 in case title as 'National Insurance Company Ltd vs. Sarita Hasija & Ors' decided by Hon'ble Justice G. P. Mittal wherein it Hon'ble High Court have relied upon its own judgment in case titled as 'New India Assurance Company Ltd. v. Sanjay Kumar & Ors', ILR(2007) 11, Delhi 733 wherein it was held as under:-
"23. Where the assured chooses to run away from the battle i.e fails to defend the allegation of having breach the terms of the insurance policy by opting not to defend the proceedings, a presumption could be drawn that he has done so because of the fact that he has no case to defend. It is trite that a party in possession of best evidence, if he withholds the same, an adverse inference can be drawn against him that had the evidence been produced, the same would have been against said person. As knowledge is personal to the person possessed of the knowledge, his absence at he trial would entitle the insurance company to a presumption against the owner.
24. That apart, what more can the insurance company do other than to serve a notice under Order 12 Rule 8 of the Code of Civil Procedure calling upon the owner as well as the driver to produce a valid driving license. If during trial such a notice is served and Suit No.5639216 - Nafe Singh Vs Rahul & Ors. Page 31 of 34 proved to be served, non response by the owner and the driver would fortify the case of the insurance company."
16. In view of the aforesaid judgments of Hon'ble High Court of Delhi and in view of the fact that the insurer have duly proved the breach of terms & conditions of the insurance policy, this court has come to the conclusion that the insurance company is entitled to recovery rights against Respondents No. 1 & 2, but only after the disbursement of claim to the claimants in terms of the judgment of the Hon'ble Supreme Court in Swaran Singh's case, 2004 ACJ 1 (SC) (Supra).
17. The Respondent No: 3 being the insurer, its liability is joint and several with other respondents. Accordingly, Respondent No.3 is directed to deposit the award amount within a period of 30 days. In case of any delay, it shall be liable to pay interest at a rate of 12% per annum for the period of delay.
18. The Hon'ble High Court of Delhi in its judgment in MACA 682/05 dated 13.1.2010 Union of India Vs. Nanisiri have laid certain guidelines which are as under regarding depositing of award amount.
"The State Bank of India and UCO Bank have formulated special schemes for the victims of the road accident on the above terms and, therefore, the order for the deposit should be made presently to State Bank of India through its nodal officer Mr. H S Rawat, Relationship Manager, Tis Hazari Branch, Tis Hazari (Mb: 09717044322) or to UCO Bank through Mr. M M Tandon, Member-Retail Team, UCO Bank Zonal, Parliament Street, New Delhi (Mobile No.09310356400) as per the convenience of the victim /legal representatives of the victim. However, if any other bank agrees to provide the special scheme for victims of the road accident on the above terms, the deposit be permitted to be made in that Bank subject to the convenience of the victim/legal representative of the victim of the road accident".Suit No.5639216 - Nafe Singh Vs Rahul & Ors. Page 32 of 34
19. It was further held in the judgment passed by Hon'ble High Court of Delhi in Nanisiri case (Supra) that "The State Bank of India and UCO Bank have formulated special schemes for the victims of the road accident on the above terms and, therefore, the order for the deposit should be made presently to State Bank of India through its Nodal officer Mr. Chandra Mohan Ojha, Relationship Manager, Tis Hazari Branch, Tis Hazari (Mb: 09412341376) or to UCO Bank through Mr. M M Tandon, Member-Retail Team, UCO Bank Zonal, Parliament Street, New Delhi (Mobile No.09310356400) as per the convenience of the victim /legal representatives of the victim. However, if any other bank agrees to provide the special scheme for victims of the road accident on the above terms, the deposit be permitted to be made in that Bank subject to the convenience of the victim/legal representative of the victim of the road accident".
20. The copy of this award be given to the insurance company as well as to the petitioner free of cost. The petitioner shall approach the State Bank of India, Tis Hazari Branch for opening the account.
21. The Manager of the Bank is directed to comply the award. The Bank Manager is directed to release the award amount to the petitioner.
File be consigned to Record Room.
A separate file be prepared for compliance report and put up the same on 23.09.2016.
Announced in open court
on 30/07/2016 ( VINAY SINGHAL )
Judge, MACT-2 (Central),
Tis Hazari Courts, Delhi.
Suit No.5639216 - Nafe Singh Vs Rahul & Ors. Page 33 of 34
Suit No. 56392-16
30/07/2016
Present: None.
Judgment announced vide separate sheets of even date. This file be consigned to Record Room. A separate file be prepared for compliance report and put up the same on 30/09/2016.
(VINAY SINGHAL) JUDGE : MACT-02 (CENTRAL):DELHI Suit No.5639216 - Nafe Singh Vs Rahul & Ors. Page 34 of 34