Delhi District Court
Smt.Jhabara vs Sh.Krishan Yadav on 3 March, 2015
1
IN THE COURT OF SH.HARISH DUDANI
JUDGE:MOTOR ACCIDENT CLAIMS TRIBUNAL 1 NEW DELHI
SUIT NO.:378/13
DATE OF INSTITUTION:27.8.2013
1. SMT.JHABARA
W/O LATE SH.MOHAN
2. MISS SHIV KUMARI
D/O LATE SH. MOHAN
BOTH R/O HOUSE NO.142,
VILLAGE AND MOHALLA AMISHANKERPUR
TEH.LAL GANJ, DIST.PARTAP GARH, U.P.
............PETITIONERS
THROUGH COUNSEL SH.D.S.MEHTA
CHAMBER NO.219, PATIALA HOUSE COURTS,
NEW DELHI.
Versus
1. SH.KRISHAN YADAV
S/O SH.NAGESHWAR YADAV
VILLAGE PINDARI, PS BASESAR
DIST.GAJIPUR, UTTAR PRADESH
2. ADDL. DIG CRPF
GROUP CENTRE, NOIDA
GAUTAM BUDH NAGAR, UP
C/O COMMANDANT 123 BN. CRPF
ANDHERIA MOD, DELHI. .........RESPONDENTS
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Final Arguments heard on : 21.02.2015 Award reserved for : 03.03.2015 Date of Award : 03.03.2015 AWARD
1. Vide this judgment cum award I proceed to decide the claim filed U/s 166 and 140 of Motor Vehicle Act, 1988, as amended up to date (hereinafter referred to as the Act) for grant of compensation in a road accident.
2. Briefly stated the facts giving rise to the petition are that on 23.7.2013 Sh.Bhairo Lal was riding his bicycle and at about 10.10 AM he reached in front of Gate no.31 of R.P.Bhavan near Doaba Taxi Stand and in the meantime the bus bearing no.UP16G0134 being driven by respondent no.1 in rash and negligent manner hit the bicycle of Sh.Bhairo Lal as a result of which Sh.Bhairo Lal was crushed under the left rear wheel of bus. Sh.Bhairo Lal was taken to Dr.RML Hospital where he was declared brought dead.
3. It is stated that at the time of accident Sh.Bhairo Lal was about 36 years of age and was a labourer and was earning a sum of Rs.10,000/ per month. It is stated that accident was caused due to rash and negligent driving of offending vehicle by respondent no.1, the said vehicle was owned by respondent no.2 and as such both the respondents are jointly 3 and severally liable to pay the compensation. It is prayed that Rs.Twenty Lacs alongwith interest @ 12% per annum be awarded as compensation in favour of the petitioners and against the respondents.
4. Respondent no.1 has filed reply to the DAR and has contested the petition on various grounds. It is stated that the vehicle no.UP16G0134 has not caused any accident. It is denied that respondent no.1 is liable to pay compensation.
5. Respondent no.2 has filed reply to the DAR and has contested the same on various grounds. The averments made on merits are denied. It is denied that respondent no.2 is liable to pay compensation.
6. From the pleadings of the parties following issues were framed on 17.12.2013:
1.Whether Sh.Bharo Lal sustained injuries in the accident which occurred on 23.7.2013 at about 10.10 AM in front of gate no.31, R.P.Bhavan, near Doaba Taxi Stand, New Delhi caused by rash and negligent driving of vehicle no.UP16G0134 being driven by respondent no.1 and owned by respondent no.2? OPP.
2.Whether the petitioners are entitled for compensation?If so, to what amount and from whom?
3.Relief.
7. In support of their claim, petitioners examined Smt.Jhabara/petitioner no.1 as PW1. PW1 adduced evidence by way of affidavit Ex.PW1/A and 4 proved the copy of ration card Ex.PW1/1, copy of election identity card of deceased Ex.PW1/2, copy of her election identity card Ex.PW1/3, copy of election identity card of petitioner no.2 Ex.PW1/4, copy of handicap certificate of petitioner no.2 Ex.PW1/5.
8. The petitioners examined Sh.Budh Ram an eyewitness of the accident as PW2. PW2 tendered in evidence his affidavit Ex.PW2/A and proved the copy of his election identity card Ex.PW2/1. Petitioners thereafter closed their evidence.
9. On the other hand respondent no.2 examined Sh.V.S.Rajput, Assistant th Commandant, 5 Battalion CRPF as R2W1. R2W1 adduced evidence by way of affidavit Ex.R2W1/A. Respondents thereafter closed their evidence.
10.I have heard the Ld. counsel for the parties and perused the record. My findings on specific issues are as follows:ISSUE NO. 1
11.As the claim petition has been filed U/s 166 M.V Act it was incumbent upon the petitioners to prove that deceased sustained injuries in an accident caused due to rash and negligent driving of offending vehicle no.UP16G0134.5
12. To determine the negligence of driver of offending vehicle it has been held in National Insurance Company Ltd. V/s Pushpa Rana & Another, 2009 ACJ 287 as follows:
"The last contention of the appellant insurance company is that the respondentsclaimants should have proved negligence on the part of the driver and in this regard the counsel has placed reliance on the judgment of the Hon'ble Apex Court in Oriental Insurance Company Ltd. V. Meena Variyal(supra). On perusal of the award of the Tribunal, it becomes clear that the wife of the deceased had produced:(i) certified copy of the criminal record of criminal case in FIR no. 955 of 2004, pertaining (ii) criminal record showing completion of investigation of police and issue of charge sheet under sections 279/304A , Indian Penal Code against the driver was lodged; (iii) certified copy of FIR wherein criminal case against the driver was lodged; and (iv) recovery memo and mechanical inspection report of offending vehicle and vehicle of deceased. These documents are sufficient proofs to reach conclusion that the driver was negligent. Proceedings under the Motor Vehicle Act are not akin to proceedings in a civil suit and hence strict rules of evidence are not required to be followed in this regard. Hence this contention of the counsel for the appellant also falls face down. There is ample evidence on record to prove negligence on part of the driver."
13.The case of the petitioners is that on 23.7.2013 Sh.Bhairo Lal was riding his bicycle and at about 10.10 AM he reached in front of Gate no.31 of R.P.Bhavan near Doaba Taxi Stand and in the meantime the bus bearing no.UP16G0134 being driven by respondent no.1 in rash and negligent manner hit the bicycle of Sh.Bhairo Lal as a result of which Sh.Bhairo Lal 6 was crushed under the left rear wheel of bus and died at the spot. It is stated that the case vide FIR no.126/2013 under Section 279/304A IPC was registered at PS Chanakya Puri. The petitioner no.1 appeared in witness box as PW1 and adduced evidence by way of affidavit Ex.PW1/A. PW1 stated in crossexamination that she is not an eyewitness of accident. The petitioners examined an eyewitness of the accident Sh.Budh Ram as PW2 who adduced evidence by way of affidavit Ex.PW2/A. In his affidavit Ex.PW2/A Sh.Budh Ram/PW2 has stated that he is an eyewitness of the accident and has further stated that on 23.7.2013 he was coming back to his house on his bicycle and at about 10.00 AM he reached near Doaba Taxi Stand towards Dr.RML Hospital and he was waiting for his colleague and in the meantime the bus bearing no.UP16G0134 came from 11 Murti side in rash and negligent manner at high speed and had touched the cycle of deceased as a result of which balance of cycle of deceased was disturbed and he fell down and he came under the rear tyre of bus and died at the spot and the accident took place due to rash and negligent driving of bus no. UP16G0134 by its driver. PW2 was crossexamined by respondents and in the crossexamination by respondent no.1, PW2 stated that he can not tell the speed of offending bus at the time of accident. PW2 denied 7 the suggestion of respondent no.1 in the crossexamination to the effect that there was a big hole for water drainage near the spot of accident and the tyre of cycle fell in the hole as a result of which the cyclist lost balance and fell down on the road and his head hit against the road as a result of which cyclist sustained injuries. Although respondent no.1 has given suggestion to PW2 in the crossexamination to the effect that the cyclist fell in the hole and sustained injuries of his own but no such plea has been taken by respondent no.1 in his written statement. Respondent no.2 has not adduced any evidence to prove its contention that the deceased sustained injuries by falling from bicycle of his own. Respondent no.2 has also given suggestion to PW2 to the effect that he is not the witness of accident which as denied by PW2. Respondent no.2 examined th Sh.V.S.Rajput, Asst.Commandant, 5 Battalion, CRPF as R2W1 who adduced evidence by way of affidavit Ex.R2W1/A. In the affidavit Ex.R2W1/A the R2W1 has stated that the offending vehicle was being driven while obeying the traffic rules. However in the crossexamination R2W1 has stated that he is not an eyewitness of the accident. Respondents have not adduced any evidence in order to corroborate their contention that the accident did not take place due to rash and negligent driving of the vehicle no.UP16G0134 by its driver.
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14. Police has filed Accident Information Report(AIR) in this case and alongwith AIR police has filed copies of final report under Section 173 Cr.PC, copy of FIR no.126/2013, under Section 279/304A IPC, PS Chanakya Puri, copy of site plan, copy of seizure memo of bus no.UP16G0134, copy of seizure memo of cycle of deceased, copy of seizure memo of RC of offending vehicle, copy of seizure memo of DL of respondent no.1, copy of mechanical inspection report of bus no.UP16G0134, copy of arrest memo of respondent no.1, copy of MLC of Sh.Bhairo Lal prepared at Dr.RML Hospital, copy of postmortem report of Sh.Bhairo Lal prepared at Lady Hardinge Medical College and Smt.S.K.Hospital, copy of verification report of documents of offending vehicle. As per post mortem report, the cause of death is "cranio cerebral damage consequent upon blunt force/surface impact to head and all injuries are antemortem in nature. As per final report u/s 173 Cr.PC respondent no.1 as been charge sheeted for offences under Section 279/304A IPC and Sh.Budh Ram/PW2 has been cited as a witness in the said charge sheet. As per MLC prepared at RML Hospital the injured was declared brought dead. Thus in view of testimony of PW1 & PW2 and documents on record the negligence of driver of offending vehicle has been prima facie proved. Issue no.1 is accordingly decided in favour of 9 petitioners and against the respondents.
ISSUE NO.2
15.As issue no.1 is decided in favour of the petitioners, they are entitled to compensation.
COMPENSATION
16. The petition has been filed by petitioner no.1/mother of deceased and petitioner no.2 sister of deceased.
17. As far as multiplier is concerned, Hon'ble High Court in HDFC ERGO General Insurance Co. Ltd. v. Smt. Lalta Devi & Ors., (MAC. APP. 189/2014) decided on 12.01.2015 held:
24. This issue was gone into detail by this Court wherein the history of awarding reasonable compensation was gone into. This Court referred to a three Judge Bench decision in U.P. SRTC v. Trilok Chandara, (1996) 4 SCC 362; General Manager, Kerala State Road Transport Corporation, Trivandrum v. Susamma Thomas (Mrs.) and Ors. (1994) 2 SCC 176;
another three Judge Bench decision of the Supreme Court in New India Assurance Company Ltd. v. Shanti Pathak (Smt.) & Ors., (2007) 10 SCC 1, Sarla Verma (Smt.) & Ors. v. Delhi Transport Corporation & Anr., (2009) 6 SCC 121 and National Insurance Company Ltd. v. Shyam Singh & Ors., (2011) 7 SCC 65 , and in paras 4 to 8 observed as under:-
"4. As far as the selection of multiplier is concerned, the law is settled that the choice of multiplier is determined by the age of the deceased or that of the claimants whichever is higher. There is a three Judges Bench judgment of the Supreme Court in U.P. State Road Transport Corporation & Ors. v. Trilok Chandra & Ors., (1996) 4 SCC 362, where the Supreme Court relied on G.M., Kerala SRTC v. Susamma Thomas, (1994) 2 SCC 176 and reiterated that the choice of the multiplier is determined by the age of the deceased or that of the claimants whichever is more. Para 12 of the report is extracted hereunder:-
"12. For concluding the analysis it is necessary now to refer to the judgment of this Court in the case of General Manager, Kerala State Road Transport, v. Susamma Thomas: (1994) 2 SCC 176. In that case this Court culled out the basic principles governing the assessment of 10 compensation emerging from the legal authorities cited above and reiterated that the multiplier method is the sound method of assessing compensation. The Court observed:
"The multiplier method involves the ascertainment of the loss of dependency or the multiplicand having regard to the circumstances of the case and capitalizing the multiplicand by an appropriate multiplier. The choice of the multiplier is determined by the age of the deceased (or that of the claimants, whichever is higher) and by the calculation as to what capital sum, if invested at a rate of interest appropriate to a stable economy, would yield the multiplicand by way of annual interest. In ascertaining this, regard should also be had to the fact that ultimately the capital sum should also be consumed-up over the period for which the dependency is expected to last. The principle was explained and illustrated by a mathematical example:
"The multiplier represents the number of Years' purchase on which the loss of dependency is capitalised. Take for instance a case where annual loss of dependency is Rs. 10,000. If a sum of Rs.1,00,000 is invested at 10% annual interest, the interest will take care of the dependency, perpetually. The multiplier in this case works out to 10. If the rate of interest is 5% per annum and not 10% then the multiplier needed to capitalise the loss of the annual dependency at Rs.10,000 would be 20. Then the multiplier i.e., the number of Years' purchase of 20 will yield the annual dependency perpetually. Then allowance to scale down the multiplier would have to be made taking into account the uncertainties of the future, the allowances for immediate lump sum payment, the period over which the dependency is to last being shorter and the capital feed also to be spent away over the period of dependency is to last etc. Usually in English Courts the operative multiplier rarely exceeds 16 as maximum. This will come down accordingly as the age of the deceased person (or that of the dependents, whichever is higher) goes up." There is another three Judges‟ decision of the Supreme Court in New India Assurance Company Ltd. v. Shanti Pathak (Smt.) & Ors., (2007) 10 SCC 1, where in the case of the death of a bachelor, who was aged only 25 years, the multiplier of 5 was applied according to the age of the mother of the deceased, who was about 65 years at the time of the accident. Para 6 of the report is extracted hereunder:-
"6. Considering the income that was taken, the foundation for working out the compensation cannot be faulted. The monthly contribution was fixed at Rs.3,500/-. In the normal course we would have remitted the matter to the High Court for consideration on the materials placed before it. But 11 considering the fact that the matter is pending since long, it would be appropriate to take the multiplier of 5 considering the fact that the mother of the deceased is about 65 years at the time of the accident and age of the father is more than 65 years. Taking into account the monthly contribution at Rs.3,500/- as held by the Tribunal and the High Court, the entitlement of the claim would be Rs.2,10,000/-. The same shall bear interest @ 7.5% p.a. from the date of the application for compensation.
Payment already made shall be adjusted from the amount due."
6. Learned counsel for the Appellant referred to Sarla Verma (supra) in support of the proposition that age of the deceased is to be taken into consideration for selection of the multiplier. As an example the multiplier taken in various cases such as in Susamma Thomas (supra), U.P. SRTC v. Trilok Chandara, (1996) 4 SCC 362 as clarified in New India Assurance Co. Ltd. v. Charlie, (2005) 10 SCC 720 and the multiplier as mentioned in Second Schedule to the Motor Vehicles Act were compared and it was held that the multiplier as per Column No.4 in the said table was appropriate for application. Sarla Verma (supra) related to the death of one Rajinder Prakash who had left behind his widow, three minor children apart from his parents and the grandfather. Obviously, the age of the deceased was taken into consideration for the purpose of selection of the multiplier as the deceased left behind a widow younger to him, apart from three minor children. It was not laid down as a proposition of law that irrespective of the age of the claimants, the age of the deceased is to be taken into consideration for selection of the multiplier for calculation of the loss of dependency. It is true that in Mohd. Ameeruddin (supra 2) and P.S. Somanathan (supra 3) and National Insurance Company Ltd. v. Azad Singh (supra 5), the Hon‟ble Supreme Court applied the multiplier according to the age of the deceased, yet in view of Trilok Chandra (supra) and Shanti Pathak (supra) decided by the three Judges of the Supreme Court, the judgment in Mohd. Ameeruddin (supra 2), P.S.Somanathan (supra 3) and Azad Singh (supra 5) cannot be taken as a precedent for selection of the multiplier.
7. In the latest judgment of the Supreme Court in National Insurance Company Ltd. v. Shyam Singh & Ors., (2011) 7 SCC 65, decided on 04.07.2011, the Supreme Court referred to Ramesh Singh & Anr. v. Satbir Singh & Anr., (2008) 2 SCC 667 and held that the multiplier as per the age of the deceased or the claimant whichever is higher would be applicable. Para 9 and 10 of the report are apposite:-
"9. This Court in the case of Ramesh Singh & Anr. v. Satbir Singh & Anr., (2008) 2 SCC 667, after referring to the earlier judgments of this Court, in detail, dealt with the law with regard to determination of the multiplier in a similar situation as in the present case. The said findings of this Court are as under:-12
"6. We have given anxious consideration to these contentions and are of the opinion that the same are devoid of any merits. Considering the law laid down in New India Assurance Co. Ltd. v. Charlie, AIR 2005 SC 2157, it is clear that the choice of multiplier is determined by the age of the deceased or claimants whichever is higher. Admittedly, the age of the father was 55 years. The question of mother's age never cropped up because that was not the contention raised even before the Trial Court or before us. Taking the age to be 55 years, in our opinion, the courts below have not committed any illegality in applying the multiplier of 8 since the father was running 56th year of his life."
10. In our view, the dictum laid down in Ramesh Singh (supra) is applicable to the present case on all fours. Accordingly, we hold that the Tribunal had rightfully applied the multiplier of 8 by taking the average of the parents of the deceased who were 55 and 56 years."
8. Similarly in Manam Saraswathi Sampoorna Kalavathi & Ors., v. The Manager, APSRTC, Tadepalligudem A.P. & Anr., (2010) 5 SCC 785, decided on 26.03.2010, the multiplier of 13 was applied in case of death of a young bachelor where the mother was 47 years of age."
25. There is no manner of doubt that the appropriate multiplier while awarding compensation for death of an unmarried boy, the multiplier will be selected on the basis of age of the mother of the deceased.
18. Thus in view of above judgment of HDFC ERGO General Insurance Co. Ltd. v. Smt. Lalta Devi & Ors.(supra) the multiplier is to be applied on the basis of age of mother of deceased. In order to prove her age the petitioner no.1/mother of deceased has filed on record the copy of ration card Ex.PW1/1 in which the age of petitioner no.1 is mentioned as 65 years. The petitioners have not filed any document containing the date of birth of petitioner no.1. No date of issuance of ration card is mentioned on the copy of ration card Ex.PW1/1, however the age of deceased Sh.Bhairo Lal is mentioned as 30 years in the ration card Ex.PW1/1. As 13 per ration card there is difference of 35 years of age between Smt.Jhabara Devi/petitioner and deceased Sh.Bhairo Lal. Copy of election identity card of Sh.Bhairo Lal has been filed on record is Ex.PW1/2 as per which the deceased was 26 years of age as on 01.1.2003. Hence Sh.Bhairo Lal was 36 years of age at the time of accident. In para 3 of affidavit Ex.PW1/A also it is stated that the deceased was 36 years of age at the time of accident. As there is difference of 35 years of age between Smt.Jhabara Devi/petitioner and deceased Sh.Bhairo Lal, hence Smt.Jhabara Devi/petitioner no.1 was 71 years of age at the time of accident and the multiplier applicable as per Sarla Verma and Ors. vs Delhi Transport Corporation and Another (2009) 6 SCC 121 shall be of 05.
19. It is stated in the claim petition that the deceased was labourer and was self employed and was earning a sum of Rs.10,000/ per month. In para 3 of affidavit Ex.PW1/A the petitioner no.1 has stated that the deceased was 36 years of age and was working as labourer and was earning a sum of Rs.10,000/ per month. In the crossexamination the petitioner no.1/PW1 stated that she has not filed any document of income of Sh.Bhairo Lal. In the absence of any cogent evidence regarding the employment and income of deceased, the income of the deceased shall 14 be taken as per his avocation/educational qualifications. PW1 stated in crossexamination that Sh.Bhairo Lal was uneducated. In the circumstances the income of deceased shall be taken as Rs.7722/ which were the minimum wages of a unskilled worker as on 01.4.2013.
20.The deceased was a bachelor. It is contended on behalf of petitioners that the petitioner no.2 who is unmarried sister of deceased is disabled and she was also dependent on deceased. The petitioners have filed on record one handicap certificate issued by CMO, Pratap Garh Ex.PW1/5 as per which the petitioner no.2 is having 50% disability.
21.In Sarla Verma and Ors. vs Delhi Transport Corporation and Another (2009) 6 SCC 121 it was held by Hon'ble Supreme Court that :
"31.Where the deceased was a bachelor and the claimants are the parents, the deduction follows a different principle. In regard to bachelors, normally, 50% is deducted as personal and living expenses, because it is assumed that a bachelor would tend to spend more on himself. Even otherwise, there is also the possibility of his getting married in a short time, in which event the contribution to the parent/s and siblings is likely to be cut drastically. Further, subject to evidence to the contrary, the father is likely to have his own income and will not be considered as a dependant and the mother alone will be considered as a dependant. In the absence of evidence to the contrary, brothers and sisters will not be considered as dependants, because they will either be independent and earning, or married, or be dependant on the father."
22. It is contended that the father of deceased had already expired and 15 petitioner no.2/sister of deceased who is physically challenged was financially dependent on deceased. In the circumstances petitioner no.2/sister of deceased shall be considered as dependent on deceased. Hence the deceased was survived by two dependents and in view of judgment of Sarla Verma and Ors. vs Delhi Transport Corporation rd and Another (supra) 1/3 is to be deducted towards personal and living rd expenses of deceased and after deduction of 1/3 the income of the rd deceased would be Rs.5148/(Rs.77221/3 of Rs.7722/).
23. As far as addition towards future prospects is concerned, Hon'ble High Court in HDFC ERGO General Insurance Co. Ltd. v. Smt. Lalta Devi & Ors(supra) held:
"9. The learned counsel for the Claimants has referred to a three Judge Bench decision of the Supreme Court in Rajesh & Ors. v. Rajbir Singh & Ors., (2013) 9 SCC 54 to contend that the future prospects have to be added in all cases where a person is getting fixed wages or is a seasonal employee or is a student.
10. It is urged by the learned counsel for the Claimants that the law laid down in Sarla Verma (Smt.) & Ors. v. Delhi Transport Corporation &Anr., (2009) 6 SCC 121 was extended in 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 Manager, Kerala State Road 16 Transport Corporation, Trivandrum v. Susamma Thomas (Mrs.) and Ors. (1994) 2 SCC 176; Sarla Dixit v. Balwant Yadav, (1996) 3 SCC 179 and Abati Bezbaruah v. Dy.Director General, Geological Survey of India & Anr., 2003 (3) SCC 148, the Supreme Court held as under: "38. With regard to the addition to income for future prospects, in Sarla Verma [Sarla Verma v. DTC, (2009) 6 SCC 121 : (2009) 2 SCC (Civ) 770 : (2009) 2 SCC (Cri) 1002] , this Court has noted the earlier decisions in Susamma Thomas [Kerala SRTC v.
Susamma Thomas, (1994) 2 SCC 176 : 1994 SCC (Cri) 335], Sarla Dixit[(1996) 3 SCC 179] and Abati Bezbaruah [Abati Bezbaruah v. 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 addition of 50% of actual salary to the actual salary income of the deceased towards future prospects, where the deceased had a permanent job and was below 40 years. (Where the annual income is in the taxable range, the words „actual salary‟ should be read as „actual salary less tax‟). The addition should be only 30% if the age of the deceased was 40 to 50 years. There should be no addition, where the age of the deceased is more than 50 years. Though the evidence may indicate a different percentage of increase, it is necessary to standardise the addition to avoid different yardsticks being applied or different methods of calculation being adopted. Where the deceased was selfemployed or was on a fixed salary (without provision for annual increments, etc.), the courts will usually take only the actual income at the time of death. A departure therefrom should be made only in rare and exceptional cases involving special circumstances."
39. The standardization of addition to income for future prospects shall help in achieving certainty in arriving at appropriate compensation. We approve the method that an addition of 50% of actual salary be made to the actual salary 17 income of 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 selfemployed 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 coequal strength, earlier 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 Cyriac Joseph, J.J.). The two Hon‟ble Judges wanted an authoritative pronouncement from a Larger Bench on the question of applicability of the multiplier and whether the inflation was built in the multiplier. The three Judge Bench 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 4050 years. No addition towards future prospects shall be made where the deceased 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 18 (6) SCC 421 observed that there would be addition 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 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 twoJudge Bench of this Court while considering the following questions took the view that the issue(s) needed resolution by a larger Bench: (SCC p. 425, para 10) "(1) Whether the multiplier specified in the Second Schedule appended to the Act should be scrupulously applied in all the cases?
(2) Whether for determination of the multiplicand, the Act provides for any criterion, particularly as regards determination of future prospects?"
15. Answering the above reference a threeJudge 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 selfemployed the actual income at the time of death should be taken into account for determining the loss of income unless there are extraordinary and exceptional circumstances. Though the expression "exceptional and extraordinary circumstances" is not capable of any precise definition, in Shakti Devi v. New India 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 regular employment of the deceased in a government department following the retirement of his father was held to be a valid ground to compute the loss of income by taking into account the possible future earnings. The said loss of income, accordingly, was quantified at double the amount that the deceased was earning at the time 19 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 Company Ltd. v. Pushpa & Ors., CC No. 8058/2014, decided on 02.07.2014 and in concluding paragraph while making reference to the Larger Bench, the Supreme Court held as under: "Be it noted, though the decision in Reshma(supra) was rendered at earlier point of time, as is clear, the same has not been noticed in Rajesh (supra) and that is why divergent opinions have been expressed. We are of the considered opinion that as regards the manner of addition of income of future prospects there should be an authoritative pronouncement. Therefore, we think it appropriate to refer the matter to a larger Bench."
17. Now, the question is which of the judgments ought to be followed awaiting answer to the reference made by the Supreme Court in Pushpa & Ors. (supra).
18. In Central Board of Dawoodi Bohra Community & Anr. v. State of 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 examined the law laid down by the Constitution Benches in the abovesaid decisions, we would like to sum up the legal position in the following terms:
(1) The law laid down by this Court in a decision delivered by a Bench of larger strength is binding on any subsequent Bench of lesser or coequal strength. (2) [Ed.: Para 12(2) corrected vide Official Corrigendum No.F.3/Ed.B.J./21/2005 dated 332005.] 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 Justice and request for the matter being placed for hearing before a Bench of larger quorum than the 20 Bench whose decision 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 laying down the law the correctness of which is doubted.
(3) [Ed.: Para 12(3) corrected vide Official Corrigendum No.F.3/Ed.B.J./7/2005 dated 1712005.] The above rules are subject to two exceptions: (i) the abovesaid rules do not bind the discretion of the Chief Justice in whom vests the power of framing the roster and who can direct any particular matter to be placed for hearing before any particular Bench of any strength; and (ii) in spite of the rules laid down hereinabove, if the matter has already come up for hearing before a Bench of larger quorum and that Bench itself feels that the view of the law taken by a Bench of lesser quorum, which view is in doubt, needs correction or reconsideration then by way of exception (and not as a rule) and for reasons given by it, it may proceed to hear the case and examine the correctness of the previous decision in question dispensing with the need of a specific reference or the order of the Chief Justice constituting the Bench and such listing. Such was the situation in Raghubir Singh [(1989) 2 SCC 754] and Hansoli Devi [(2002) 7 SCC 273]."
19. Similarly, in Safiya Bee v. Mohd. Vajahath Hussain @ Fasi, (2011) 2 SCC 94 in para 27, the Supreme Court observed as under: "27. However, even assuming that the decision in WP No.35561 of 1998 did not operate as res judicata, we are constrained 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 21 earlier WP No.35561 of 1998 regarding the interpretation of Section 2(c) of the Act and its application to the petition schedule property, judicial discipline and practice required them to refer the issue to a larger Bench. The learned Judges were not right in overruling the statement of the law by a coordinate Bench of equal strength. It is an accepted rule or principle that the statement of the law by a Bench is 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 wellaccepted 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 Coordinate Bench is binding on the subsequent Bench of equal strength, held that the Bench of Coordinate 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. 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 22 view of the report in S.K. Kapoor (supra), the three Judge Bench decision in Reshma Kumari & Ors. (surpa) shall be taken as a binding precedent."
24. In the circumstances in view of judgment of HDFC ERGO General Insurance Co. Ltd. v. Smt. Lalta Devi & Ors.(supra) the petitioners shall not be entitled to any addition towards future prospects. After applying the multiplier of 05, the total loss of dependency is computed to be as Rs.5148x12x5=Rs.3,08,880/. The petitioners are also awarded a sum of Rs.10,000/ towards loss of estate and Rs.25,000/ each towards loss of love and affection and funeral expenses.
The total compensation is determined as under:
Loss of dependency : Rs.3,08,880/
Funeral Expenses : Rs.25,000/
Loss of love and affection : Rs.25,000/
Loss of Estate : Rs.10,000/
TOTAL : Rs.3,68,880/
RELIEF
25.The petitioners are thus awarded Rs.3,68,880/(Rs.Three Lacs Sixty Eight Thousand Eight Hundred Eighty only) with interest at the rate of 7.5% per annum from the date of filing of petition till its realisation including, interim award, if any already passed in favour of the petitioners and against the respondents. The liability of all the respondents being 23 joint and several. Out of the award amount petitioner no.1/mother of deceased will have a share of 80% and the petitioner no.2/sister of deceased will have a share of 20%.
26.For safeguarding the compensation amount from being frittered away by the claimants, directions have been given by Hon'ble Supreme Court for preserving the award amount in the case of Jai Prakash Vs. National Insurance Co. Ltd. and Others (2010) 2 Supreme Court Cases 607. In view of the directions contained in the above judgments the award amount is to be disbursed as follows:
27. Entire share of petitioner no.2/sister of deceased be kept in FDR in a nationalized bank for the period of 10 years. 20% of the award amount be released to petitioner no.1/mother of deceased by transferring it into her savings account and remaining amount be kept in FDR in UCO Bank, Patiala House Court, New Delhi in following manner:
1. Fixed deposit in respect of 20% for a period of one year.
2. Fixed deposit in respect of 20% for a period of two years.
3. Fixed deposit in respect of 20% for a period of three years.
4. Fixed deposit in respect of 20% for a period of four years.
28.The cheque be deposited in UCO Bank, Patiala House Court, New Delhi in the name of UCO Bank, Patiala House Court, New Delhi A/c 24 Smt.Jhabara Devi and Ms.Shiv Kumari.
29.The interest on the fixed deposits shall be paid monthly by automatic credit in the saving accounts of the claimants/beneficiary.
30.Original fixed deposit receipt shall be retained by the Bank in safe custody. However, the original pass book shall be given to the claimant along with the photocopy of the FDR. Upon the expiry of period of FDR the bank shall automatically credit the maturity amount in the saving account of beneficiary.
31.The original fixed deposit receipt shall be handed over to the claimant at the end of the fixed deposit period and shall automatically credit the maturity amount in the savings account of the beneficiary.
32.No cheque book shall be issued to the claimant without permission of the court. No loan, advance or withdrawal shall be allowed on the fixed deposit without permission of the court.
33.Withdrawal from the aforesaid accounts shall be permitted to the beneficiary after due verification and the Bank shall issue photo identity card to the beneficiary to facilitate identity.
34. Bank shall transfer Savings Account to any other Bank/Branch according to their convenience.
35.The beneficiary shall furnish all the relevant documents for opening of 25 the Saving Bank Account and Fixed Deposit to Senior Manager of UCO Bank, Patiala House Court, New Delhi.
36.Nazir to report in case the cheque is not deposited within 30 days of the passing of the award/judgment. Nazir is directed to note the particulars of the award amount in the register today itself.
37.The respondent no.2 shall deposit the award amount directly in bank account of the claimants at UCO Bank,Patiala House Court,New Delhi within 30 days of the passing of the award failing which it is liable to pay interest at the rate of 12% per annum for the period of delay.
38.The petitioners shall file two sets of photographs along with their specimen signatures, out of which one set to be sent to the Nodal Officer, UCO Bank, Patiala House Court, New Delhi along with copy of the award by Nazir and the second set be retained to the court for further reference. The photographs be stamped and sent to the bank. The petitioner shall also file the proof of residence and furnish the details of the bank account with the Nazir within a week. The petitioner shall file their complete address as well as address of their counsel for sending the notice of deposit of the award amount.
39.The respondent no.2 shall deposit the award amount alongwith interest upto the date of notice of deposit to the claimants with a copy to their 26 counsel and the compliance report shall be filed in the court alongwith proof of deposit of award amount, the notice of deposit and the calculation of interest on 27.5.2015.
APPORTIONMENT OF LIABILITY:
40. In view of findings on issues no.1 above, respondent no. 1 being the driver, respondent no.2 being the owner are held jointly and severally liable. Respondent No.2 being the owner is directed to deposit the award amount within 30 days with interest @ 7.5% per annum from the date of filing of petition till its realisation. In case of any delay, it is liable to pay interest @ 12% per annum for the period of delay. Nazir to report in case the cheque is not deposited within 30 days of the passing of the award/judgment. Nazir is directed to note the particulars of the award amount in the register today itself.
41. An attested copy of award be given to the parties(free of cost).
42.An attested copy of the award be also sent to the concerned Metropolitan Magistrate and to Delhi State Legal Services Authority. File be consigned to Record Room.
Announced in the open court (Harish Dudani)
on 03.3.2015 Judge: MACT1 : New Delhi