Delhi District Court
Suit No.202/10 (New Suit ... vs . Dharmender & Ors. Page 38 Of 46 on 9 December, 2016
IN THE COURT OF ANOOP KUMAR MENDIRATTA,
JUDGE, MACT-1, (CENTRAL), DELHI.
Suit No.202/10 (New Suit No.357973/16)
Unique Case ID No.02401C-0684502008
Shri Ratan Lal Mishra
S/o Late Shri Shyam Lal Mishra,
R/o Village Hariharpur, Azampur,
District Azamgarh, U.P.
Also at : Gali No. 3, Mukandpur, Delhi.
.........PETITION
ER
Versus
1. Shri Dharmender Singh
S/o Shri Mahender Singh Rana
R/o House No.1511, Madan Mahal Colony,
Jabalpur, P.S. & Distt. Jabalpur (M.P.)
...........Driver
2. Shri Gurpreet Singh
S/o Shri Gurmej Singh
R/o Jadev Nagar, Opposite Vinay Nagar,
Sector-1, Bhojpur, Distt-Gwalior (M.P.)
............Owner
3. The National Insurance Company Ltd.
(A Govt. of India Undertaking)
Regd. Office at : 3 Middleton Street,
Post Box No.9229, Kolkata - 700071
...........Insurer
.......RESPONDENTS
Date of Institution of the suit: 15.04.2010
Arguments heard on : 09.12.2016
Judgment pronounced on : 09.12.2016
Suit No.202/10 (New Suit No.357973/16)-Rattan Lal Mishra vs. Dharmender & Ors. Page 38 of 46
JUDGMENT
1. Present claim petition has been preferred by the petitioner u/s 166 and 140 of Motor Vehicles Act, 1988 (hereinafter referred to as 'the Act') claiming compensation for a sum of Rs.25,00,000/- (Rupees Twenty Five Lakh Only) in respect of grievous injuries sustained by him in a motor vehicular accident.
As per the case of petitioner, on 01.09.2008 he was coming after performing a Raas Leela function for prayer of Lord Krishna along with party members from Chandigarh to Vrindavan in a canter bearing registration No.HR-69-3773 driven by one Joginder Pal. About 04:00 AM when they reached ahead of Phulwadi Morh towards Bamni Khera, GT Karnal Road, truck number MP-01G-6610 driven rashly and negligently by Respondent No.1 Dharmender Singh abruptly applied brakes and consequently the canter struck behind the truck. Consequently, the members of the troupe seated in the canter received injuries and were admitted at Government Hospital, Palwal & Gurunanak Hospital, Palwal. It is further the case of the petitioner that driver of the truck fled from the spot leaving behind the truck at the spot. FIR No.367/08 was registered at PS: Palwal Sadar, District- Palwal regarding the accident.
It is further the case of petitioner that he suffered grievous injuries resulting in amputation of left leg and severe Suit No.202/10 (New Suit No.357973/16)-Rattan Lal Mishra vs. Dharmender & Ors. Page 38 of 46 crush injuries on the left arm. He was initially treated at Gurunanak Hospital, Delhi-Mathura Road, Palwal and, thereafter, referred to Central Institute of Orthopaedics, Safdarjung Hospital, New Delhi as per MLC dated 01.09.2008.
It is further claimed that petitioner was employed as a Tabla Vadak and earning about Rs.12,000/- per month prior to accident but due to severe injuries suffered in the accident including amputation, he has become completely dependent.
2. Respondent No.1 Dharmender Singh/driver of truck No. MP-07-G-6610 and Respondent No.2 Gurpreet Singh/owner of truck No. MP-07-G-6610 failed to appear despite service through publication in newspaper and were proceeded ex parte vide order dated 15.09.2011. Written statement was not filed on their behalf.
In the amended written statement filed on behalf of Respondent No.3 The National Insurance Company Ltd. (insurer of truck No. MP-07-G-6610), it was submitted that driver of the offending vehicle/Respondent No.1 was required to prove that he was holding a valid and effective driving licence and the vehicle was driven under a valid permit, failing which the liability cannot be imposed upon the insurance company. It was further claimed that the claim petition was bad for mis-joinder & non-joinder of driver, owner and insurer of canter No. HR-69- 3773 in which the petitioner was travelling. However, it was Suit No.202/10 (New Suit No.357973/16)-Rattan Lal Mishra vs. Dharmender & Ors. Page 38 of 46 admitted that truck bearing registration No. MP-07-G-6610 was insured for the period 17.09.2007 to 16.09.2008 which covers the date of accident i.e. 01.09.2008. The claim was further stated to be excessive and exorbitant.
3. On the pleadings of the parties, the following issues were framed for consideration vide order dated 15.09.2011 by the Ld. Predecessor:-
(i) Whether the petitioner had suffered grievous injuries in road traffic accident on 01.9.2008 at 4:00 am due to rash and negligent driving of the vehicle No.MP-07G-6610 by Respondent no.1?
(ii) Whether the petitioner is entitled to any compensation, if so, to what amount and from whom?
(iii) Relief.
It may further be observed that vide order dated 19.09.2014, application u/o 6 Rule 17 CPC filed on behalf of Respondent No.3 The National Insurance Company Ltd. was allowed and it was permitted to file amended written statement on record. Further, following additional issue was framed for consideration vide order dated 26.09.2014:
"(iv) Whether the present suit is bad for mis-
joinder/non-joinder of the necessary parties?"
4. In support of the claim petition, six witnesses were examined, namely, PW1 Ratan Lal Mishra (petitioner); PW2 Ishwar Singh, Record Keeper, Safdarjung Hospital, New Delhi Suit No.202/10 (New Suit No.357973/16)-Rattan Lal Mishra vs. Dharmender & Ors. Page 38 of 46 (to prove the medical treatment record); PW3 Dr. Jitender Singh, MS (Ortho), HOD Orthopaedics, Dr. Baba Saheb Ambedkar Hospital (to prove the disability certificate); PW4 Tejpal Sharma (eyewitness); PW5 Dinesh Kumar (to prove the attendant charges) and PW6 Lokendra Pal, Prothetist & Orthotist, Endolite India Ltd. (to prove the estimate for artificial limb).
PW1 Ratan Lal Mishra testified on the lines of claim petition and proved attested copy of MLC prepared at Gurunanak Hospital and other medical treatment record (Ex.PW1/1 to Ex.PW1/14), his photographs showing the injury sustained in the accident (Ex.PW1/15), bills regarding medical expenditure (Ex.PW1/16 colly), copy of mark sheet of 9th standard (Ex.PW1/17), senior diploma issued by Prayag Sangeet Samiti, Allahabad for Tabla (Ex.PW1/18), copy of rent agreement (Ex.PW1/19), copy of election identity card (Mark C), ration cad (Ex.PW1/20) and disability certificate issued by Baba Saheb Ambedkar Hospital (Ex.PW1/21).
On cross-examination, he stated that he had no proof regarding payment of attendant charges to the attendant employed by him or any bills towards expenditure on conveyance and special diet. He further clarified that he was not an income tax assessee and used to earn Rs.12,000/- per month by playing tabla in Raas Leela at Vrindavan. He denied the suggestion that he had filed a false and fabricated claim petition. He further stated that Suit No.202/10 (New Suit No.357973/16)-Rattan Lal Mishra vs. Dharmender & Ors. Page 38 of 46 he was not aware if the driver of the offending vehicle was having a driving licence or not as the said vehicle was hired by Tejpal Singh/owner of the drama party.
On further recalling the witness for cross-examination, PW1 clarified that the accident took place at about 04:00 AM and there was light on the highway at the spot of accident. Further, the weather was cloudy and the visibility was not proper and both the headlights of their vehicle were on. He further stated that there was a divider on the road which was 30-40 ft. wide on which two or three vehicles could have passed easily. PW1 further stated that there was no other vehicle in front of truck bearing registration No. MP 07G 6610. Further, total four persons including the driver were sitting in the cabin of the vehicle and also included Tej Pal Sharma. He further stated that speed of the canter as well as truck no. MP-07G-6610 was about 50-60 kmph and there was a gap of about 10-15 feet between the canter and truck No.MP-07G-6610. He denied the suggestion that truck No.MP-07G-6610 was driven on the extreme left side of the road or the driver had applied the brakes after giving proper indication. He further denied the suggestion that the accident took place due to negligence of driver of the canter which was driven at a high speed in a zig-zag manner in the process of overtaking the vehicle going ahead. He further denied the suggestion that he had deliberately not impleaded the driver, owner and insurer of canter No.HR-69-3773. He denied that proper distance was not maintained by the driver of the canter Suit No.202/10 (New Suit No.357973/16)-Rattan Lal Mishra vs. Dharmender & Ors. Page 38 of 46 which resulted in the accident.
PW2 Sh.Ishwar Singh, Record Keeper, Safdarjung Hospital, New Delhi proved the original medical treatment, admission and discharge record of petitioner (Ex.PW2/A). He deposed that as per record, petitioner was admitted in the hospital on 03.09.2008 vide MRD No.83589/2008 and discharged on 04.10.2008.
PW3 Dr. Jitender Singh, MS (Ortho), HOD (Orthopaedic), Dr. Baba Saheb Ambedkar Hospital, Delhi proved the disability certificate (Ex.PW1/21). He deposed that petitioner Ratan Lal had suffered 96% permanent disability as per certificate and is a case of below knee amputation left side with flexion contracture left knee with malunited fractured dislocation left elbow and forearm with flexion contracture of left elbow and hand. He further stated that due to the permanent disability, petitioner cannot stand, walk, run, lift the weight, climb the stairs and also cannot do cross-leg sitting, board the bus without support, driving, swimming & any physical activity with his left leg and left hand throughout his life. He further stated that due to the injuries, petitioner cannot do any activity which involved both hands simultaneously and cannot hold anything with his left hand.
On cross-examination, he clarified that while assessing the disability of patient, the Board had followed the Suit No.202/10 (New Suit No.357973/16)-Rattan Lal Mishra vs. Dharmender & Ors. Page 38 of 46 guidelines issued by the Ministry of Social Justice & Empowerment, Government of India dated 28.08.1998.
PW4 Tejpal Sharma (eyewitness to the accident) testified that on 24.08.2008, he alongwith other colleagues had gone to Chandigarh for performing Raas Leela. On their way back to Vrindavan on 01.09.2008, they were travelling in Canter No. HR-69-3773 and he along with petitioner were seated with the driver of the canter. Further, at about 04:00 AM when they reached ahead of Phulwadi Mode towards Bamni Khera on G.T. Karnal Road, Palwal, a truck bearing registration No. MP-07G- 6610 which was 10-15 ft. ahead of their vehicle, suddenly applied brakes. Consequently, the canter in which they were travelling struck the truck from behind and due to the collision, injuries were suffered by the persons travelling in the canter and were taken to Guru Nanak Hospital, Palwal. Further, the driver of the truck after disclosing his name fled from the spot leaving behind the truck after seeing the condition of the injured. He further stated that the accident occurred due to negligence of the truck driver.
On cross-examination, he clarified that he and petitioner Ratan Lal were coming together from Chandigarh to Vrindavan by canter bearing registration No. HR-69-3773 and he was the main organizer of the party. He further stated that the accident took place by collision of the vehicle in which they were travelling with truck no. MP-07G-6610 and denied the suggestion Suit No.202/10 (New Suit No.357973/16)-Rattan Lal Mishra vs. Dharmender & Ors. Page 38 of 46 that driver of the truck was not at fault or the accident had taken place due to the fault of driver of the vehicle in which they were travelling with the goods.
PW5 Dinesh Kumar testified that he had worked as an Attendant for petitioner Ratan Lal Mishra from 30.01.2009 till end of November, 2009. Further, the petitioner used to pay Rs.3,500/- per month in cash to him and he had received in total a sum of Rs.35,000/-. He further testified that petitioner was totally bedridden due to the injuries sustained in the accident. He further testified that the petitioner was unmarried and there was none in the family to look after him except his old mother.
On cross-examination, PW5 clarified that he was not a relative of petitioner though they belonged to the same village. Further, he had not placed any documentary proof having received attendant charges from the petitioner.
PW6 Lokendra Pal, Prothetist & Orthotist, Endolite India Ltd. proved the authority letter issued in his favour by the Branch Manager of the company (Ex.PW6/A) and deposed that the company had issued an estimate to injured Ratan Lal Mishra regarding cost of artificial limb below knee (left leg) (Ex.PW6/B) which reflected the expected cost of artificial limb about Rs.2,82,000/- for one time. Further, the life of artificial limb was approximately five years and thereafter the same was required to be replaced. He also proved the payment receipt for Suit No.202/10 (New Suit No.357973/16)-Rattan Lal Mishra vs. Dharmender & Ors. Page 38 of 46 issuing estimate to the patient/petitioner (Ex.PW6/C).
On cross-examination, he clarified that after discussion and examination of the petitioner, the expected cost of artificial limb was given as Rs.2,82,000/-. He further stated tht they were not authorized by any government organization to provide the artificial limbs. He further stated that the range of the artificial limb could vary from Rs. 1,50,000/- to Rs.3,50,000/- according to the condition of the patient and he had not brought any such quotation.
Evidence was not led on behalf of the insurance company.
7. I have heard arguments addressed on behalf of the petitioner as well as counsel for insurance company and my issue-wise findings are as under:-
Issue No. (i) Whether the petitioner had suffered grievous injuries in road traffic accident on 01.9.2008 at 4:00 am due to rash and negligent driving of the vehicle No.MP-07G-6610 by Respondent no.1?
Issue No.(iv) (additional issue) "Whether the present suit is bad for mis- joinder/non-joinder of the necessary parties?"
Counsel for insurance company contended that the Suit No.202/10 (New Suit No.357973/16)-Rattan Lal Mishra vs. Dharmender & Ors. Page 38 of 46 accident was caused due to contributory negligence of the driver of canter No. HR-69-3773 in which the petitioner was travelling since the canter had hit the truck No. MP-07G-6610 from behind. It was further submitted that the suit is bad for non-joinder of driver, owner and insurer of canter No. HR-69-3773 as it is case of composite negligence and both the vehicles were negligent. It was also urged that the insurance company be granted the recovery rights from the driver/owner/insurer of canter No. HR- 69-3773 in the alternative in case Respondent No.3 is held liable to pay entire compensation. Counsel for insurance company in support of the contentions further placed reliance upon the judgment passed in National Insurance Co. Ltd. vs. Bimla Devi & others, 2007 ACJ 28 (High Court of Punjab and Haryana); Renukadevi H. v. Bangalore Metropolitan Transport Corporation and another, 2008 ACJ 1188 (SC); Raj Rani and others v. Oriental Insurance Co. Ltd. and others, 2009 ACJ 2003 (SC); Sri Krishna Vishweshwar Hegde v. General Manager, Karnataka State Road Transport Corporation, (2008) 15 Supreme Court Cases 771; Sandeep v. National Insurance Co. Ltd. & Anr., II (2009) ACC 543 (Delhi High Court).
However, the same was vehemently disputed on behalf of the counsel for petitioner and it was submitted that since petitioner was a passenger in canter no. HR-69-3773, he had an option to seek the compensation from either of the tortfeasors i.e. the driver/owner/insurer of the canter Suit No.202/10 (New Suit No.357973/16)-Rattan Lal Mishra vs. Dharmender & Ors. Page 38 of 46 or truck No.MP-07G-6610. Reliance was further placed upon V. Mekala v. M. Malathi & Another, 2014 ACJ 1441.
8. It may be observed that 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 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 Suit No.202/10 (New Suit No.357973/16)-Rattan Lal Mishra vs. Dharmender & Ors. Page 38 of 46 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 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 Suit No.202/10 (New Suit No.357973/16)-Rattan Lal Mishra vs. Dharmender & Ors. Page 38 of 46 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."
9. Since counsel for insurance company vehemently disputed the exclusive negligence attributed to truck No. MP 07G6610 and submitted it to be a case of composite negligence, it may be apt to refer to principles settled by Hon'ble Apex Court on the point of contributory and composite negligence. On the point of contributory negligence, observations of the Hon'ble Apex Court in Municipal Corporation of Greater Bombay v. Laxman Iyer, 2004 ACJ 53 (SC) are apt to be quoted:
"(6) ........Where an accident is due to the negligence of both parties, substantially there would be contributory negligence and both would be blamed. In a case of contributory negligence, the crucial question on which the liability depends would be whether either party could, by exercise of reasonable care, have avoided the consequence of other's negligence. Whichever party could have avoided the consequence of other's negligence would be liable for the accident. If a person's negligent act or omission was the proximate and immediate cause of death, the fact that the person suffering injury was himself negligent and also contributed to the accident or other circumstances by which the injury was caused would not afford a defence to the other.
Contributory negligence is applicable solely to the conduct of a plaintiff. It means that there has been an act or omission on the part of the plaintiff which has materially contributed to the damage, the act or omission being of such a nature that it may properly be described as negligence, although negligence is Suit No.202/10 (New Suit No.357973/16)-Rattan Lal Mishra vs. Dharmender & Ors. Page 38 of 46 not given its usual meaning. [See Charlesworth on Negligence, 3rd Edn., para 328]. It is now well settled that in case of contributory negligence, courts have power to apportion the loss between the parties as seems just and equitable. Apportionment in that context means that damages are reduced to such an extent as the court thinks just and equitable having regard to the claim shared in the responsibility for the damage. But in a case where there has been no contributory negligence on the part of the part of victim, the question of apportionment does not arise."
Further on the point of composite negligence, it has been held by the Hon'ble Apex Court in T.O. Anthony v. Karvarnan, 2008 ACJ 1165 (SC) as under:
"(6) 'Composite negligence' refers to the negligence on the part of two or more persons. Where a person is injured as a result of negligence on the part of two or more wrongdoers, it is said that the person was injured on account of composite negligence of those wrongdoers. In such a case, each wrongdoer is jointly and severally liable to the injured for payment of the entire damages and the injured person has the choice of proceeding against all or any of them. In such a case, the injured need not establish the extent of responsibility of each wrongdoer separately. On the other hand, where a person suffers injury, partly due to negligence on the part of another person or persons, and partly as a result of his own negligence, then the negligence on the part of the injured which contributed to the accident is referred to as his contributory negligence. Where the injured is guilty of some negligence, his claim for damages is not defeated merely by reason of negligence on his part but the damages recoverable by him in respect of the injuries stand reduced in proportion to his contributory negligence."
As such, it may be observed that in case of 'composite Suit No.202/10 (New Suit No.357973/16)-Rattan Lal Mishra vs. Dharmender & Ors. Page 38 of 46 negligence', each wrongdoer is jointly and severally liable to the petitioner for payment of entire damages and the petitioner has the choice of proceeding against all or any of the tortfeasors. The petitioners need not establish the extent of responsibility of each wrongdoer separately, nor is necessary for the court to determine the extent of liability of each wrongdoer separately.
10. It may also be noticed that in Bhanwari Devi & Ors. v. Girraj Prasad & Ors., II (2015) ACC 105 (Hon'ble Rajasthan High Court), it was observed that merely because chargesheet has been filed against the driver of the truck only, it cannot be said that driver of mini bus was not equally responsible. It was also therein observed in para 11 that it always happens when two vehicles meet with an accident, the mistake is found of the vehicle which is heavier and bigger in size even though the mistake may be on the part of the light/small vehicle. Reference was also made to the judgment passed by the Hon'ble Orissa High Court in Bhuban Chandra Dutta Gupta v. G.M. Orissa Road State Road Trans. Corpn. and Others, 1985 ACJ 228 wherein the principle of res ipsa loquitur was applied and it was observed in para 4 & 5 of the judgment that the question of rashness and negligence is after all a matter of inference to be drawn from the circumstances leading to the accident, the manner in which the accident occurred and other relevant facts.
Suit No.202/10 (New Suit No.357973/16)-Rattan Lal Mishra vs. Dharmender & Ors. Page 38 of 46Further, for the purpose of considering the aspect of contributory negligence, it may be appropriate to refer to obser- vations of the Hon'ble High Court in Manvendra Pal Singh's case in para 11:
"It cannot be laid down as a proposition of law that regis- tration of a criminal case against the driver of the vehicle by itself would be sufficient to draw an inference of negli- gence. As stated earlier, there may be cases considering the manner of the accident, where such an inference could be drawn in the absence of any rebuttal from the driver and the owner."
11. In the aforesaid background, the factual position in the present case may be scrutinized. Admittedly, the driver of truck No. MP-07G-6610 stands chargesheeted for the offence u/s 279/336/337/427 but the fact cannot be ignored that the accident had taken place as the canter in which the petitioner was travel- ling had hit the truck No. MP-07G-6610 from behind. It may further be observed that PW1 admitted in his cross-examination that the accident took place about 04:00 AM and there was no other vehicle in front of truck No. MP-07G-6610 which was go- ing ahead of the canter and was driven at a speed of 50-60 kmph. The said speed on any account cannot be said to be excessive at the aforesaid time when the roads are relatively free without any traffic and the road was about 30-40 feet wide. The speed of the canter was also admitted by the petitioner (PW1) to be about 50- 60 kmph and it was submitted that there was a gap of about 10-15 feet between the two vehicles. Considering the facts and circum-
Suit No.202/10 (New Suit No.357973/16)-Rattan Lal Mishra vs. Dharmender & Ors. Page 38 of 46stances, I am of the opinion that though there was a duty on the part of Respondent No.1 to ensure that the brakes are not abruptly applied without bothering for the vehicles behind but at the same time, driver of the canter was expected to keep a safe distance considering the relative speed of the vehicles. In the facts and circumstances, I am of the considered opinion that the accident appears to have taken due to composite negligence of both the vehicles as the driver of canter in which the petitioner was travelling also could not be stopped on account of failure to keep a safe distance and contributed to the unfortunate accident. Since the negligence has to be assessed on touchstone of prepon- derance of probability and holistic view has to be taken, the case has been established to be of composite negligence on the part of drivers of both the vehicles and the contributory negligence of drivers of both the vehicles is apportioned as 50% each consider- ing the judgments relied upon by the counsel for insurance com- pany. Issue No.1 is accordingly decided.
It may be noticed that the application of the insurance company for impleading driver, owner and insurance company of the canter on which the petitioner was travelling already stands dismissed by ld. Predecessor vide order dated 09.01.2015 and the same has not been further challenged on behalf of the insurance company in appeal.
In view of the legal position as pointed out above in T.O. Anthony v. Karvarnan, 2008 ACJ 1165 (SC) (supra), the Suit No.202/10 (New Suit No.357973/16)-Rattan Lal Mishra vs. Dharmender & Ors. Page 38 of 46 petitioner in the present case is at liberty to claim the compensa- tion from either of the tortfeasors even if it is held to be a case of composite negligence. The case of the claimants cannot suffer merely for non-impleadment of the joint tortfeasor and payment of compensation by Respondent No.3 cannot be limited. In the facts and circumstances, I am of the considered opinion that the present petition is maintainable even on account of non-joinder of driver, owner and insurer of canter No. HR-69-3773. Issue No.4 is accordingly decided.
However, since the contributory negligence of the drivers of the respective vehicles has been apportioned at 50% each, it shall be open to Respondent No.3 The National Insurance Company Ltd. to initiate appropriate proceedings in accordance with law for the recovery of 50% amount from the owner/insurer of canter No. HR-69-3773 since they are not a party to the present proceedings. Reliance for aforesaid purpose is placed upon Sandeep v. National Insurance Co. Ltd., II (2009) ACC 543 decided by Hon'ble Mr. Justice J.R. Midha, Delhi High Court. However, for purpose of present proceedings, Respondent No.3 shall be liable to satisfy the entire award.
12. Issue No. (ii) Whether the petitioner is entitled to any compensation, if so, to what amount and from whom?
Suit No.202/10 (New Suit No.357973/16)-Rattan Lal Mishra vs. Dharmender & Ors. Page 38 of 46In 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 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, hospitalisation, 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.202/10 (New Suit No.357973/16)-Rattan Lal Mishra vs. Dharmender & Ors. Page 38 of 46
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.
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.
(a) Criteria for taking income of the petitioner Counsel for the petitioner has fairly conceded that no evidence has been led on record to prove that the petitioner was earning about Rs.12,000/- per month as a Tabla Vadak and as such, the income of the petitioner may be assessed on the basis of minimum wages of a skilled worker as notified by government of Suit No.202/10 (New Suit No.357973/16)-Rattan Lal Mishra vs. Dharmender & Ors. Page 38 of 46 NCT of Delhi for the relevant period @ Rs.4,107/- per month. It was also pointed out that the petitioner had been playing Tabla in prayers/poojas organized for Lord Krishna in Delhi and neighbouring States and had also obtained a diploma certificate for aforesaid purpose. The petitioner was further stated to be non-matriculate.
Admittedly, petitioner had obtained a Senior Diploma issued by Prayag Sangeet Samiti, Allahabad for playing Tabla and was a non-matriculate. Further, he was engaged in performance at Vrindavan and adjoining States as member of troupe. In the absence of any documentary evidence in proof of income, the notional income of the petitioner is assessed on the basis of minimum wages of a skilled worker @ Rs.4,107/- per month as notified by Government of NCT of Delhi for the relevant period for purpose of assessment of compensation.
(b) 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 37 years on the date of accident 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 Suit No.202/10 (New Suit No.357973/16)-Rattan Lal Mishra vs. Dharmender & Ors. Page 38 of 46 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.
Suit No.202/10 (New Suit No.357973/16)-Rattan Lal Mishra vs. Dharmender & Ors. Page 38 of 46In the aforesaid context, reliance may be further placed upon MAC 79 of 2014 Bharti AXA General Insurance Company Ltd. vs. Smt. Poonam & Ors. decided on 27.05.2015 by Hon'ble Mr. Justice G.P. Mittal (Delhi High Court) wherein the judgements passed by the Hon'ble Apex Court in Munna Lal Jain & Anr. Vs. Vipin Kumar Sharma & Ors., Civil Appeal No.4497 of 2015 decided on 15.05.2015 {II (2015) ACC 806 (SC)} was also duly referred but the addition towards future prospects was denied in the absence of any evidence of bright future prospects. Reliance was therein placed upon Reshma Kumari & Others vs. Madan Mohan & Anr. (2013) 9 SCC 65 and HDFC Ergo General Insurance Company Ltd. vs. Smt. Lalta Devi & Others MAC APP No.189/2014 decided on 12.01.2015.
The observations made by the Hon'ble High Court on the aspect of addition of future prospects as discussed in para 21 to 23 of MAC No. 79 of 2014 Bharti AXA General Insurance Company Ltd. vs. Smt. Poonam & Ors. decided on 27.05.2015 (supra) may be beneficially quoted:
21. As far as future prospects are concerned, there is no evidence on record that the deceased had bright future prospects. The question of grant of future prospects was dealt with by this Court at great length in HDFC Ergo General Insurance Co. Ltd. v. Smt. Lalta Devi and Ors., MAC APP No. 189/2014, decided on 12.01.2015. Paras 8 to 21 of the report in Suit No.202/10 (New Suit No.357973/16)-Rattan Lal Mishra vs. Dharmender & Ors. Page 38 of 46 Lalta Devi (supra) are extracted hereunder:
8.It is no gainsaying that in appropriate cases some addition towards future prospects must be made in case of death or injury of a person pursuing a professional course. At the same time, it cannot be laid down as a uniform principle that every person pursuing professional course will have a bright future. There may be a student pursuing engineering from the reputed engineering colleges like Indian Institute of Technology (IIT), Regional Engineering College or any other reputed college. At the same time, a number of engineering Colleges have mushroomed where an engineering graduate may find it difficult to secure a job of an engineer. In the instant case, deceased Aditya, as stated earlier was a student of an unknown engineering college, i.e. Echelon Institute of Technology, Faridabad which is claimed to be affiliated to Maharshi Dayanand University, Rohtak. The Claimants have placed on record result-cum-detailed marks card of First and Second Semester. It may be noted that the deceased had secured just ordinary marks in seven subjects and he had to re-appear in papers 1002 (Mathematical-I), 1006 (Foundation of Computer & Programming) and 1008 (Basics of Mechanical Engineering).
Similarly, in the Second Semester the deceased was absent in one of the 12 papers and out of 11 subjects for which he had taken examination, he was to re-appear in four subjects. Thus, it will be difficult to say that the deceased was a brilliant student or that he was pursuing engineering from a well known or even mediocre college.
"7. As far as addition towards future prospects is concerned, the issue has been Suit No.202/10 (New Suit No.357973/16)-Rattan Lal Mishra vs. Dharmender & Ors. Page 38 of 46 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 decision of the Supreme Court in Rajesh & Ors. v. Ra-
jbir Singh & Ors., (2013) 9 SCC 54 to con-
tend that the future prospects have to be added in all cases where a person is getting fixed wages or is a seasonal employee or is a student.
10. It is urged by the learned counsel for the Claimants that the law laid down in Sarla Verma (Smt.) & Ors. v. Delhi Transport Cor- poration & Anr., (2009) 6 SCC 121 was extended in Rajesh & Ors. v. Rajbir Singh & Ors., (2013) 9 SCC 54 to hold that future prospects ought to be extended in all cases.
11. On the other hand, the learned counsel for the Insurance Company refers to a three Judge Bench decision of the Supreme Court in Reshma Kumari & Ors. v. Madan Mohan & Anr., (2013) 9 SCC 65 wherein while ap-
proving the ratio with regard to future prospects in Sarla Verma (Smt.) & Ors.
(supra) and relying on General Manager, Kerala State Road Transport Corporation, Trivandrum v. Susamma Thomas (Mrs.) and Ors. (1994) 2 SCC 176; Sarla Dixit v. Bal-
want Yadav, (1996) 3 SCC 179 and Abati Bezbaruah v. Dy. Director General, Geologi- cal 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, Suit No.202/10 (New Suit No.357973/16)-Rattan Lal Mishra vs. Dharmender & Ors. Page 38 of 46 (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 [Kerala SRTC v. Susamma Thomas, (1994) 2 SCC 176 : 1994 SCC (Cri) 335], Sarla Dixit [(1996) 3 SCC 179] and Abati Bezbaruah [Abati Bezbaruah v. Geological Survey of India, (2003) 3 SCC 148 : 2003 SCC (Cri) 746] and in para 24 of the Report held as under: (Sarla Verma case [Sarla Verma v. DTC, (2009) 6 SCC 121 : (2009) 2 SCC (Civ) 770 :
(2009) 2 SCC (Cri) 1002] , SCC p.
134):
"24. ... In view of the imponderables and uncertainties, we are in favour of adopting as a rule of thumb, an addi- tion of 50% of actual salary to the actual salary income of the deceased towards future prospects, where the deceased had a permanent job and was below 40 years. (Where the an-
nual 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 standard- ise the addition to avoid different yardsticks being applied or different methods of calculation being adopted. Where the deceased was self-employed or was on a fixed salary (without provision for annual Suit No.202/10 (New Suit No.357973/16)-Rattan Lal Mishra vs. Dharmender & Ors. Page 38 of 46 increments, etc.), the courts will usu- ally take only the actual income at the time of death. A departure there- from 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 arriv-
ing at appropriate compensation. We approve the method that an addition of 50% of actual salary be made to the actual salary income of the de-
ceased towards future prospects where the deceased had a permanent job and was below 40 years and the addition should be only 30% if the age of the deceased was 40 to 50 years and no addition should be made where the age of the deceased is more than 50 years. Where the an-
nual income is in the taxable range, the actual salary shall mean actual salary less tax. In the cases where the deceased was self-employed or was on a fixed salary without provision for annual increments, the actual income at the time of death without any addition to income for future prospects will be appropriate. A departure from the above principle can only be justified in extraordinary circumstances and very exceptional cases."
12. The learned counsel for the Insurance Company relies upon a Constitutional Bench judgment of the Supreme Court in Central Board of Dawoodi Bohra Community & Anr.
v. State of Maharashtra & Anr., (2005) 2 SCC 673; Safiya Bee v. Mohd. Vajahath Hussain @ Fasi, (2011) 2 SCC 94; and Union of India & Suit No.202/10 (New Suit No.357973/16)-Rattan Lal Mishra vs. Dharmender & Ors. Page 38 of 46 Ors. v. S.K. Kapoor, (2011) 4 SCC 589 to con- tend that in case of divergence of opinion in judgments of benches of co-equal 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 pro- nouncement from a Larger Bench on the ques- tion of applicability of the multiplier and whether the inflation was built in the multi- plier. The three Judge Bench approved the two Judge Bench decision of the Supreme Court in Sarla Verma (Smt.) & Ors. v. Delhi Transport Corporation & Anr., (2009) 6 SCC 121 with regard to the selection of multiplier. It further laid down that addition towards future prospects to the extent of 50% of the actual salary shall be made towards future prospects when the deceased had a permanent job and was below 40 years and addition of 30% should be made if the age of the deceased was between 40-50 years. No addition towards fu- ture prospects shall be made where the de- ceased was self-employed or was getting a fixed salary without any provision of annual increment.
14. Of course, three Judge Bench of the Supreme Court in its later judgment in Rajesh relying on Santosh Devi v. National Insurance Company Ltd. & Ors., 2012 (6) SCC 421 ob-
served that there would be addition of 30% and 50%, depending upon the age of the de-
ceased, towards future prospects even in the case of self-employed persons. It may, how- ever, be noted that in Rajesh, the three Judge Bench decision in Reshma Kumari (supra) Suit No.202/10 (New Suit No.357973/16)-Rattan Lal Mishra vs. Dharmender & Ors. Page 38 of 46 was not brought to the notice of their Lord- ships.
15. The divergence of opinion was noted by another three Judge Bench of the Supreme Court in Sanjay Verma v. Haryana Roadways, (2014) 3 SCC 210. In paras 14 and 15, the Supreme Court observed as under:-
"14. Certain parallel developments will now have to be taken note of. In Reshma Kumari v. Madan Mohan [(2009) 13 SCC 422 : (2009) 5 SCC (Civ) 143 : (2010) 1 SCC (Cri) 1044], a two-Judge Bench of this Court while consid- ering the following questions took the view that the issue(s) needed resolution by a larger Bench: (SCC p. 425, para 10) "(1) Whether the multiplier specified in the Second Schedule appended to the Act should be scrupulously ap-
plied in all the cases?
(2) Whether for determination of the multiplicand, the Act provides for any criterion, particularly as regards determination of future prospects?"
15. Answering the above reference a three- Judge Bench of this Court in Reshma Kumari v. Madan Mohan [(2013) 9 SCC 65 : (2013) 4 SCC (Civ) 191 : (2013) 3 SCC (Cri) 826] (SCC p.
88, para 36) reiterated the view taken in Sarla Verma [Sarla Verma v. DTC, (2009) 6 SCC 121 : (2009) 2 SCC (Civ) 770 : (2009) 2 SCC (Cri) 1002] to the ef-
fect that in respect of a person who was on a fixed salary without provision for annual increments or who was self-em-
ployed the actual income at the time of death should be taken into account for determining the loss of income unless Suit No.202/10 (New Suit No.357973/16)-Rattan Lal Mishra vs. Dharmender & Ors. Page 38 of 46 there are extraordinary and exceptional circumstances. Though the expression "exceptional and extraordinary circum- stances" is not capable of any precise definition, in Shakti Devi v. New India Insurance Co. Ltd. [(2010) 14 SCC 575 :
(2012) 1 SCC (Civ) 766 : (2011) 3 SCC (Cri) 848] there is a practical applica-
tion of the aforesaid principle. The near certainty of the regular employment of the deceased in a government depart-
ment following the retirement of his fa-
ther was held to be a valid ground to compute the loss of income by taking into account the possible future earn-
ings. The said loss of income, accord-
ingly, was quantified at double the amount that the deceased was earning at the time of his death."
16. Further, the divergence of opinion in Reshma Kumari & Ors. v. Madan Mohan & Anr., (2013) 9 SCC 65 and Rajesh & Ors. v.
Rajbir Singh & Ors., (2013) 9 SCC 54 was noticed by the Supreme Court in another lat- est judgment in National Insurance Company Ltd. v. Pushpa & Ors., CC No.8058/2014, de- cided on 02.07.2014 and in concluding para-
graph while making reference to the Larger Bench, the Supreme Court held as un- der:-
"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 ex-
pressed. We are of the considered opinion that as regards the manner of addition of income of future prospects there should be an authoritative pronounce-
ment. Therefore, we think it appropri- ate to refer the matter to a larger Bench."Suit No.202/10 (New Suit No.357973/16)-Rattan Lal Mishra vs. Dharmender & Ors. Page 38 of 46
17. Now, the question is which of the judg- ments ought to be followed awaiting answer to the reference made by the Supreme Court in Pushpa & Ors. (supra).
18. In Central Board of Dawoodi Bohra Community & Anr. v. State of Maharashtra & Anr., (2005) 2 SCC 673 in para 12, the Supreme Court observed as under:-
"12. Having carefully considered the submissions made by the learned Senior Counsel for the parties and having ex- amined the law laid down by the Con-
stitution Benches in the abovesaid deci- sions, we would like to sum up the legal position in the following terms:
(1) The law laid down by this Court in a decision delivered by a Bench of larger strength is binding on any subsequent Bench of lesser or coequal strength.
(2) [Ed.: Para 12(2) corrected vide Official Corrigendum No. F.3/Ed.B.J./21/2005 dated 3- 3-2005.] A Bench of lesser quorum cannot disagree or dissent from the view of the law taken by a Bench of larger quorum. In case of doubt all that the Bench of lesser quorum can do is to invite the attention of the Chief Jus-
tice and request for the matter being placed for hearing before a Bench of larger quorum than the Bench whose decision has come up for consideration. It will be open only for a Bench of coequal strength to express an opin- ion doubting the correctness of the view taken by the earlier Bench of coequal strength, whereupon the matter may be placed for hearing before a Bench consisting of a quo- rum larger than the one which pronounced the decision laying down the law the correct- ness of which is doubted.
Suit No.202/10 (New Suit No.357973/16)-Rattan Lal Mishra vs. Dharmender & Ors. Page 38 of 46(3) [Ed.: Para 12(3) corrected vide Official Corrigendum No. F.3/Ed.B.J./7/2005 dated 17- 1-2005.] The above rules are subject to two exceptions: (i) the abovesaid rules do not bind the discretion of the Chief Justice in whom vests the power of framing the roster and who can direct any particular matter to be placed for hearing before any particular Bench of any strength; and (ii) in spite of the rules laid down hereinabove, if the matter has already come up for hearing before a Bench of larger quorum and that Bench itself feels that the view of the law taken by a Bench of lesser quorum, which view is in doubt, needs correction or reconsideration then by way of exception (and not as a rule) and for reasons given by it, it may proceed to hear the case and examine the correctness of the previ- ous decision in question dispensing with the need of a specific reference or the order of the Chief Justice constituting the Bench and such listing. Such was the situation in Raghu- bir Singh [(1989) 2 SCC 754] and Hansoli Devi [(2002) 7 SCC 273]."
19. Similarly, in Safiya Bee v. Mohd. Vajahath Hussain @ Fasi, (2011) 2 SCC 94 in para 27, the Supreme Court observed as under:-
"27. However, even assuming that the decision in WP No. 35561 of 1998 did not operate as res judicata, we are to observe that even if the learned Judges who decided WP No. 304 of 2001 did not agree with the view taken by a co-
ordinate Bench of equal strength in the earlier WP No. 35561 of 1998 regard-
ing the interpretation of Section 2(c) of the Act and its application to the peti- tion schedule property, judicial disci- pline and practice required them to re- fer the issue to a larger Bench. The Suit No.202/10 (New Suit No.357973/16)-Rattan Lal Mishra vs. Dharmender & Ors. Page 38 of 46 learned Judges were not right in over- ruling the statement of the law by a co- ordinate Bench of equal strength. It is an accepted rule or principle that the statement of the law by a Bench is considered binding on a Bench of the same or lesser number of Judges. In case of doubt or disagreement about the decision of the earlier Bench, the well-accepted and desirable practice is that the later Bench would refer the case to a larger Bench."
20. In Union of India & Ors. v. S.K. Kapoor, (2011) 4 SCC 589 while holding that the de- cision of the Co- ordinate Bench is binding on the subsequent Bench of equal strength, 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. Patel case [(2007) 4 SCC 785 :
(2007) 2 SCC (L&S) 98] , the latter de-
cision is a judgment per incuriam. The decision in S.N. Narula case [(2011) 4 SCC 591] was binding on the subse-
quent Bench of equal strength and hence, it could not take a contrary Suit No.202/10 (New Suit No.357973/16)-Rattan Lal Mishra vs. Dharmender & Ors. Page 38 of 46 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 & Ors.
(supra) shall be taken as a binding prece- dent."
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 Claims Tribunal."
Also, the observations in MAC Appeal No.544/07 decided on 06.05.2016 by Hon'ble Mr. Justice R.K. Gauba in ICICI Lombard General Insurance Company Ltd. vs. Smt. Nagina Begum & Anr. on the point of addition of future prospects may be referred.
"4. In the case reported as Sarla Verma & Ors. vs. Delhi Transport Corporation & Anr., (2009) 6 SCC 121, Supreme Court, inter-alia, ruled that the element of future prospects of increase in income will not be granted in cases where the deceased was "self employed" or was working on a "fixed salary". Though this view was af- firmed by a bench of three Hon'ble Judges in Reshma Ku- mari & Ors. vs. Madan Mohan & Anr., (2013) 9 SCC 65, on account of divergence of views, as arising from the rul- ing in Rajesh & Ors. vs. Rajbir & Ors., (2013) 9 SCC 54, the issue was later referred to a larger bench, inter-alia, by Suit No.202/10 (New Suit No.357973/16)-Rattan Lal Mishra vs. Dharmender & Ors. Page 38 of 46 order dated 02.07.2014 in National Insurance Company Ltd. vs. Pushpa & Ors., (2015) 9 SCC 166.
5. Against the above backdrop, by judgment dated 22.01.2016 passed in MAC Appeal No.956/2012 (Sunil Ku- mar vs. Pyar Mohd.), this Court has found it proper to fol- low the view taken earlier by a learned single judge in MAC Appeal No.189/2014 (HDFC Ergo General Insur- ance Co. Ltd. vs. Smt. Lalta Devi & Ors.) decided on 12.01.2015, presently taking the decision in Reshma Ku- mari (Supra) as the binding precedent, till such time the law on the subject of future prospects for those who are "self-employed" or engaged in gainful employment at a "fixed salary" is clarified by a larger bench of the Supreme Court".
In view of the legal position as discussed by the Hon'ble High Court, in absence of any evidence with regard to permanent employment or good future prospects of the pe- titioner and since the notional income has been assessed on the basis of minimum wages, addition of income towards fu- ture prospects cannot be made for the purpose of compensa- tion.
(c) Functional Disability Counsel for petitioner urged that for purpose of assessment of compensation, functional disability may be considered at 100% since the disability has been assessed as 96% in relation to left lower limb and left upper limb as referred in the disability certificate issued by Medical Board, Dr. Baba Saheb Ambedkar Hospital, Delhi (Ex.PW1/21).
Suit No.202/10 (New Suit No.357973/16)-Rattan Lal Mishra vs. Dharmender & Ors. Page 38 of 46On the other hand, counsel for the insurance company contended that functional disability of the petitioner be assessed at 50%.
It may be observed that in certain cases the permanent disability may not impact the earning capacity of the injured/victim and in such cases the victim may not be entitled to compensation towards loss of capacity on account of disability. However, in other cases even on account of less permanent disability, an injured may be completely incapacitated to carry out his vocation and as such the functional disability may be more than the actual disability suffered by the injured/victim. Hon'ble Supreme Court of India has elucidated with an example that if the left hand of claimant, who is driver by profession is amputated, the actual loss of earning capacity may be virtually 100%.
The observations of the Hon'ble Supreme Court in the case of Raj Kumar Vs. Ajay Kumar, (supra) whereby the methodology for determining the functional disability as discussed in paragraph 14 may be quoted:-
"14. Ascertainment of the effect of the permanent disability on the actual earning capacity involves three steps. The Tribunal has to first ascertain what activities the claimant could carry on in spite of the permanent disability and what he could not do as a result of the permanent disability (this is also relevant for awarding compensation under the head of loss of amenities of life). The second step is to ascertain his avocation, profession and nature of work before the accident, as also his age. The third step is to find out Suit No.202/10 (New Suit No.357973/16)-Rattan Lal Mishra vs. Dharmender & Ors. Page 38 of 46 whether (i) the claimant is totally disabled from earning any kind of livelihood, or (ii) whether in spite of the permanent disability, the claimant could still effectively carry on the activities and functions, which he was earlier carrying on, or (iii) whether he was prevented or restricted from discharging his previous activities and functions, but could carry on some other or lesser scale of activities and functions so that he continues to earn or can continue to earn his livelihood. For example, if the left hand of a claimant is amputated, the permanent physical or functional disablement may be assessed around 60%. If the claimant was a driver or a carpenter, the actual loss of earning capacity may virtually be hundred percent, if he is neither able to drive or do carpentry. On the other hand, if the claimant was a clerk in government service, the loss of his left hand may not result in loss of employment and he may still be continued as a clerk as he could perform his clerical function; and in that event the loss of earning capacity will not be 100% as in the case of a driver or carpenter, nor 60% which is the actual physical disability, but far less. In fact, there may not be any need to award any compensation under the head of 'loss of future earnings', if the claimant continues in government service, though he may be awarded compensation under the head of loss of amenities as a consequence of losing his hand. Sometimes the injured claimant may be continued in service, but may not found suitable for discharging the duties attached to the post or job which he was earlier holding, on account of his disability, and may therefore, be shifted to some other suitable but lesser post with lesser emoluments, in which case there should be a limited award under the head of loss of future earning capacity, taking note of the reduced earning capacity. It may be noted that when compensation is awarded by treating the loss of future earning capacity as 100% (or even anything more than 50%), the need to award compensation separately under the head of loss of amenities or loss of expectation of life may disappear and as a result, only Suit No.202/10 (New Suit No.357973/16)-Rattan Lal Mishra vs. Dharmender & Ors. Page 38 of 46 a token or nominal amount may have to be awarded under the head of loss of amenities or loss of expectation of life, as otherwise there may be a duplication in the award of compensation. Be that as it may."
In the present case, it may be noticed that as per the disability certificate (Ex.1/21) issued by the Medical Board, Dr. Baba Saheb Ambedkar Hospital, Delhi, it is reflected as under:
"........ is a case of below knee amputation left side with flexion contracture left knee with malunited fractured dislocation left elbow and forearm with flexion contracture of left elbow and hand. He is physically disabled and has 96% (Ninety Six Percent) permanent disability."
Prior to accident, petitioner was involved in earning his livelihood by playing Tabla in prayers/poojas organized to appease Lord Krishna. However, due to the amputation of left leg below knee and extensive injuries in the left upper limb as detailed by PW3 Dr. Jitender Singh, petitioner cannot do any activity which involves both hands simultaneously and cannot hold anything with his left hand. I am of the considered opinion that the petitioner shall not be able to carry any vocation or other job with only one working upper and lower limb and considering the facts and circumstances, the functional disability qua the whole body is assessed as 100% for purpose of assessment of compensation as per the principles laid down in Raj Kumar Vs. Ajay Kumar (supra).
As per copy of Election Identity Card, the age of the Suit No.202/10 (New Suit No.357973/16)-Rattan Lal Mishra vs. Dharmender & Ors. Page 38 of 46 petitioner on 01.01.2001 was 30 years and as such on the dte of accident (i.e. 01.09.2008) he was aged about 37 years. In view of Sarla Verma & Ors. v/s Delhi Transport Corporation 2009, ACJ 1298, the relevant multiplier of 15 is applicable for the purpose of assessment in the present case.
The compensation is accordingly assessed towards loss of earning capacity at Rs.7,39,260/- {i.e. Rs.4,107/- (notional income per month) X 12 (months) X 100% (functional disability) X 15 (applicable multiplier according to age)}.
(d) Loss of Income on account of accident Counsel for petitioner contended that immediately after the accident, petitioner was taken to Gurunanak Hospital, Delhi-Mathura Road, Palwal and thereafter the petitioner was treated at Safdarjung Hospital, Delhi. Further, the petitioner underwent treatment for a considerable period due to amputation and severe injuries suffered in the accident.
Considering the nature of injuries, period of treatment and amputation of left leg below knee and severe injuries in the accident as detailed in the disability certificate and treatment papers filed on record, it can be reasonably presumed that on account of injuries and disability, the petitioner remained under confinement for about one year.
In the facts and circumstances, petitioner is awarded damages of Rs.49,284/- for a period of one year i.e. [Rs.4,107/-
Suit No.202/10 (New Suit No.357973/16)-Rattan Lal Mishra vs. Dharmender & Ors. Page 38 of 46(notional income for one month) X 12 months].
(e) Loss of amenities, disfigurement and loss of expectation of life due to Permanent Disability The amount of compensation towards amenities should be to bring amenities and restoration of health to the petitioner. In the facts and circumstances, considering the injuries/permanent disability suffered by the petitioner in relation to left lower limb and left upper limb, he is awarded a sum of Rs.1,50,000/- (Rupees One Lakh Fifty Thousand only) on account of loss of amenities, loss of expectation of life and disfigurement due to permanent disability.
(f) Pain and Suffering & Mental Agony As the petitioner suffered permanent disability and remained incapacitated from performing normal activities for a considerable period of treatment, he is awarded a sum of Rs.1,50,000/- (Rupees One Lakh Only) towards pain and suffering and mental agony.
(g) Medicines and Medical Treatment Counsel for petitioner contended that an amount of Rs.39,946/- has been claimed towards the medical bills/treatment by the petitoiner which has not been disputed on behalf of the insurance company. Petitioner is accordingly awarded a sum of Rs.39,946/- towards medical bills/treatment.
Suit No.202/10 (New Suit No.357973/16)-Rattan Lal Mishra vs. Dharmender & Ors. Page 38 of 46(h) 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.20,000/- (Rupees Twenty Thousand Only) is awarded towards conveyance for the period of treatment.
Petitioner is further awarded an amount of Rs.20,000/- (Rupees Twenty Thousand Only) towards special diet.
(i) Attendant Charges Hon'ble High Court of Delhi in DTC V/s Lalit AIR 1981 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.
In the present case, PW5 Dinesh Kumar who was en- gaged as an attendant deposed that he had worked as an Attendant for petitioner Ratan Lal Mishra from 30.01.2009 till end of No- vember, 2009 and the petitioner used to pay Rs.3,500/- per month in cash to him and in total he had received a sum of Rs.35,000/-.
Suit No.202/10 (New Suit No.357973/16)-Rattan Lal Mishra vs. Dharmender & Ors. Page 38 of 46I am of the considered opinion that though no docu- mentary proof has been placed on record to show payment of at- tendant charges but the same does not seem to be excessive as the minimum wages for an unskilled worker for the relevant period were Rs.3.683/- per month. Accordingly, a sum of Rs.35,000/- is awarded to the petitioner towards attendant charges, as claimed.
(j) Expenses for left leg below knee prosthesis (purchase of artificial limb) Petitioner relied upon testimony of PW6 Lokendra Pal, Prothetist & Orthotist, Endolite India Ltd. whereby he proved the estimate for a sum of Rs.2,82,000/- for purchase of below knee prosthesis. Petitioner submits that the aforesaid pros- thesis needs to be purchased as the same is necessary to lead a normal life.
However, the expenses towards purchase of prosthesis have been vehemently opposed by counsel for respondents. It was submitted that artificial limbs at much lower cost are avail- able in the market and the cost has been exaggerated.
13. In the aforesaid context, reference may be made to judgment passed in MAC APP. 644/2011 Alok R. Maurya v. Naresh Chander Kapoor & Ors. decided by the Hon.ble Mr. Justice G.P. Mittal on 31.10.2012 wherein Prosthetist and Ortho-
Suit No.202/10 (New Suit No.357973/16)-Rattan Lal Mishra vs. Dharmender & Ors. Page 38 of 46thetist from Otto Bock Healthcare had been examined who proved the invoice with regard to purchase of prosthesis for Rs.1,29,500/-. The claimant in the aforesaid case suffered 80% disability in relation to his right lower limb (amputation of right leg above knee) in a motor vehicular accident which occurred on 24.11.2007. Considering the facts and circumstances and taking the cost of purchase of artificial limb as Rs.1,29,500/-, the com- pensation was awarded for replacement of at least four artificial limbs during the lifespan of the petitioner/injured therein who was aged 24 years on the date of accident and in addition a sum of Rs.1 lakh was awarded towards the annual maintenance of prosthetic limb. Thus, the compensation towards replacement of prosthetic limb and its annual maintenance was awarded at Rs.6,18,000/- {i.e. 1,29,500/- (cost of 1 prosthesis) x 4 (number of replacements required during lifetime) + 1,00,000 (annual maintenance)} as against a sum of Rs.75,000/- awarded by the Claims Tribunal.
It also needs to be noticed that the artificial limb has a limited life and requires replacements as has been noted in Alok R.Maurya vs. Naresh Chander Kapoor & Ors. (Supra). It may also be observed that wherein periodical expenses are to be in- curred, a fresh award cannot be passed or previous award cannot be reviewed and the eventuality of fixing the compensation for future expenses should be made, as held by the Hon'ble Apex court in Nagappa vs. Gurdayal Singh & Ors. 2003 ACJ 12. Fur-
Suit No.202/10 (New Suit No.357973/16)-Rattan Lal Mishra vs. Dharmender & Ors. Page 38 of 46ther such future medical expenses required to be determined only on the basis of fair guess work after taking into account increase in the cost of medical treatment.
In the present case, the petitioner has not purchased any prosthetic limb till date. It is undisputed that a variety of arti- ficial limbs with some distinctive features and variable costs are available in the market. However, it may not be appropriate for permitting the petitioner to purchase the costliest alternative un- less the benefits of the same are far over and above the other arti- ficial limbs available in the market. PW6 admitted that range of cost of artificial limb could vary from Rs.1.5 lakh to Rs.3.5 lakh. Considering the facts and circumstances, I am of the view that the cost of an artificial limb as quoted by Endolite India Ltd. at Rs.2,82,000/- appears to be exaggerated. Considering the age of petitioner as 45 years as on date and approximate cost of prosthe- sis in case of Alok R. Maurya (supra) wherein accident had taken place on 24.11.2007 and factoring inflation, it shall be ap- propriate to award a compensation for at least purchase of one prosthesis below knee along with two replacements @ Rs.1,50,000/- each. The total compensation towards replacement of prosthetic limbs and maintenance @ Rs.40,000/- (consoli- dated) comes to Rs.4,90,000/- {i.e. 1,50,000/- (approx cost of one prosthetic limb) x 03 + 40,000/- (maintenance)}. However, the petitioner shall not be entitled to interest on aforesaid amount since it is to be incurred in future. It may also be observed that Suit No.202/10 (New Suit No.357973/16)-Rattan Lal Mishra vs. Dharmender & Ors. Page 38 of 46 the aforesaid amount need not be disbursed at the time of future purchase as it would lead to unnecessary harassment to the peti- tioner to repeatedly visit the Tribunal for release of the amount. Further, the price of the artificial limb/prosthesis is likely to rise with inflation and interest, if any, earned on that amount can be duly factored for such a purchase at later point of time and main- tenance.
14. As discussed above, the overall compensation is tabulated as under:
Loss of Earning Capacity Rs.7,39,260/- Loss of Income on Account of accident Rs.49,284/- Loss of amenities, loss of expectation of life due to permanent disability Rs.1,50,000/- Pain and Suffering & mental agony Rs.1,50,000/- Medicines & Medical Treatment Rs.39,946/- Expenses for left below knee prosthesis (purchase of artificial limb) Rs.4,90,000/-Con-
veyance Charges Rs.20,000/-
Special Diet Rs.20,000/-
Attendant Charges Rs.35,000/-
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Total Rs.16,93,490/-
(Rupees Sixteen Lakh Ninety Three Thousand Four Hundred & Ninety Only) The claimant/petitioner is also entitled to interest @ 9% p.a. from the date of filing of claim petition i.e. w.e.f.
15.04.2010 (except for the period 16.09.2010 till 15.09.2011 as directed by the ld. Predecessor and excluding the amount of Suit No.202/10 (New Suit No.357973/16)-Rattan Lal Mishra vs. Dharmender & Ors. Page 38 of 46 Rs.4,90,000/- which has been granted for purchase & mainte- nance of artificial limb).
It is further held that Respondent No.1 (Driver), Re- spondent No.2 (Owner) and Respondent No.3 (Insurer) of truck No. MP-07G-6610 are jointly and severally liable to make the payment of compensation to the petitioners/claimants.
15. For purpose of disbursement, on realization 20% of the award amount along with up-to-date interest shall be released to the petitioner and the remaining amount of 80% shall be kept in ten fixed deposits of equal amount in his name with a na- tionalised bank for a period of one year, two years, three years, four years, five years, six years, seven years, eight years, nine years & ten years respectively without the facility of advance, loan or premature withdrawal with release of quarterly periodical interest in his account.
16. Relief In view of observations made in findings on issue no. 1, Respondent No.3 The National Insurance Company Ltd (in- surer of the offending vehicle) is directed to deposit the award amount of Rs.16,93,490/- with interest @ 9% per annum from the date of filing of claim petition i.e. interest @ 9% p.a. from the date of filing of claim petition i.e. w.e.f. 15.04.2010 (except for Suit No.202/10 (New Suit No.357973/16)-Rattan Lal Mishra vs. Dharmender & Ors. Page 38 of 46 the period 16.09.2010 till 15.09.2011 as directed by the ld. Pre- decessorand excluding the amount of Rs.4,90,000/- which has been granted for purchase & maintenance of artificial limb) with Nazir of this Court within 30 days under intimation to the petitioner failing which they shall be liable to pay interest @ 12% per annum for the period of delay beyond 30 days. However, it shall be open to Respondent No.3 The National Insurance Company Ltd. to initiate appropriate proceedings in accor- dance with law for the recovery of 50% amount from the owner/insurer of canter No. HR-69-3773 since they are not a party to the present proceedings as held in Issue No.1.
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 to the petitioner/claimant and complete details in respect of calculations of interest etc. within 30 days from today.
A copy of this judgment be sent to Respondent No.3 The National Insurance Company Ltd. (insurer of the offending vehicle) 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.
Announced in open court on 09th December , 2016 (Anoop Kumar Mendiratta) Suit No.202/10 (New Suit No.357973/16)-Rattan Lal Mishra vs. Dharmender & Ors. Page 38 of 46 Judge, MACT-1 (Central), Tis Hazari Courts, Delhi.
Suit No.202/10 (New Suit No.357973/16)-Rattan Lal Mishra vs. Dharmender & Ors. Page 38 of 46