Delhi District Court
Smt. Vinda Devi vs Sh.Mubarak Ali on 26 February, 2015
1
IN THE COURT OF SH.HARISH DUDANI
JUDGE:MOTOR ACCIDENT CLAIMS TRIBUNAL 1 NEW DELHI
SUIT NO.511/13
DATE OF INSTITUTION:21.11.2013
1. Smt. Vinda Devi
W/o Sh.Renu Mishra @ Ranbir Mishra @ Ranveer Mishra
R/o House no.114/2, Village Haridularpur,
PO Haridularpur, Disst. Sitamarhi
Bihar .........Petitioners
Through counsel Sh.Manoj Goel,
Chamber no.W410, Lawyers Chambers,
Karkardooma Courts, Delhi
Mobile No.9711989123
Versus
1. Sh.Mubarak Ali
S/o Sh.Mehfooz Ali
R/o B414, Main Mandoli Road,
Ashok Nagar, Shahdara, Delhi93
2. Sh.Hans Raj Singh
S/o Sh.Dev Karan Singh
R/o Village and PO Gurgaon,
Haryana
Also at:
138/5, Shakti Vihar,
Nambardar Colony, Meethapur, Badarpur,
New Delhi110044
3. M/s National Insurance Company Ltd.
1566/3 Church Road, Kashmere Gate,
Delhi110006 .............Respondents
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Final Arguments heard on : 19.02.2015 Award reserved for : 26.02.2015 Date of Award : 26.02.2015 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 17.09.2013 Sh.Bhagya Narayan Mishra was driving the truck bearing no.HR38K8368 and at about 4.30 AM he reached at Mahipal Flyover towards Gurgaon near Hotel Delhi, Vasant Kunj, New Delhi and all of sudden the vehicle bearing no.HR55M9919 being driven in rash and negligent manner by respondent no.1 hit the truck of the deceased on the back side due to which Sh. Bhagya Narayan Mishra sustained injuries and he was taken to JPN Apex Trauma Centre where he expired during course of treatment on the same day.
3. It is stated that Sh.Bhagya Narayan Mishra was 29 years of age at the time of accident and he was working as truck driver and was earning a sum of Rs.15,000/ per month. It is stated that the accident took place due to rash and negligent driving of the offending vehicle being driven by respondent no.1, owned by respondent no.2 and insured with respondent 3 no.3 and as such all the respondents are jointly and severally liable to pay compensation to the petitioners. It is prayed that Rs.Twenty Lacs alongwith interest @ 18% be awarded as compensation in favour of petitioner and against the respondents.
4. Respondents no.1 and 2 have filed joint written statement and have contested the petition on various grounds. It is stated that the vehicle no.HR55M9919 was insured with respondent no.3 vide policy no.360401/31/13/6300000207 valid for the period w.e.f. 18.04.2013 to 17.04.2014. The averments made on merits are denied. It is stated that respondent no.1 has been falsely implicated in this case by claimant in collusion with police as no accident took place on part of respondent no.1 and false case has been registered against respondent no.1. It is denied that respondents no.1 and 2 are liable to pay compensation.
5. Respondent no.3 has filed reply to the DAR and has offered a sum of Rs.5,13,764/ to the petitioner.
6. From the pleadings of parties following issues were framed on 05.02.2014:
1. Whether Sh.Bhagya Narayan Mishra sustained fatal injuries in the accident which occurred on 17.09.2013 at about 4.30 AM at Mahipalpur Flyover towards Gurgaon, Near Hotel Delhi, Vasant Kunj, New Delhi caused by rash and negligent driving of vehicle no.HR55M9919 being driven by respondent no.1, owned by respondent no.2 and insured with respondent no.3?4
OPP.
2.Whether the petitioner is entitled for compensation? If so, to what amount and from whom?
3.Relief.
7. In support of her case the petitioner examined herself as PW1. PW1 tendered in evidence her affidavits Ex.PW1/A and Ex.PW1/B and proved the copy of ration card Ex.PW1/1, copy of her election identity card Ex.PW1/2, copy of election identity card of deceased Ex.PW1/3, copy of driving licence of deceased Ex.PW1/4, copy of her bank passbook Ex.PW1/5, copy of Secondary School Examination mark sheet of deceased Ex.PW1/6, residential certificate dated 29.04.2010 Ex.PW1/7, residential certificate dated 20.03.2012 Ex.PW1/8, certificate issued by the Gram Pradhan Ex.PW1/9, copy of voter identity card of her husband Ex.PW1/10.
8. The petitioner has examined IO/SI Mahesh Bhargava as PW2 who stated that investigation of case FIR no.382/13, under Section 279/337/304A IPC was assigned to him and he prepared site plan and issued notice under Section 133 Motor Vehicle Act to the owner of vehicle no.HR55M9919 and on completion of investigation filed charge sheet Ex.PW2/1(colly) and the DAR was filed by him in the court. The petitioner thereafter closed her evidence.
9. On the other hand respondents did not lead any evidence and RE was 5 closed on 03.07.2014.
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 has been made 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.HR55M9919 by its driver.
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 6 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 17.09.2013 Sh.Bhagya Narayan Mishra was driving the truck bearing no.HR38K8368 and at about 4.30 AM he reached at Mahipal Flyover towards Gurgaon near Hotel Delhi, Vasant Kunj, New Delhi and all of sudden the vehicle bearing no.HR55M9919 being driven in rash and negligent manner by respondent no.1 hit the truck of the deceased on the back side due to which Sh. Bhagya Narayan Mishra sustained injuries and he was taken to JPN Apex Trauma Centre where he expired during course of treatment on the same day. It is stated that the case vide FIR no.382/2013 under Section 279/337 IPC was registered at PS Vasant Kunj(North). In para 814 of reply on merits in the written statement respondents no.1 and 2 have stated that respondent no.1 has been falsely implicated in this case by the claimant in collusion with local police as no accident took place on the part of respondent and a false case has been registered against respondent no.1. Petitioner appeared in the witness box as PW1 and adduced evidence by way of affidavit Ex.PW1/A. In the affidavit Ex.PW1/A the petitioner/PW1 has reiterated the manner of accident as stated in claim petition. In the crossexamination petitioner/PW1 stated that she is not an eyewitness of the accident. The contention of counsel 7 for respondent no.3 is that the petitioner has not examined the eyewitness of the accident. The petitioner has examined IO/SI Mahesh Bhargava as PW2 who stated that investigation of case FIR no.382/2013, under Section 279/337/304A IPC was assigned to him and he prepared site plan and issued notice under Section 133 Motor Vehicle Act to the owner of vehicle no.HR55M9919 and on completion of investigation filed charge sheet Ex.PW2/1(colly) and the DAR was filed by him in the court. IO/PW2 denied suggestion of respondents no.1 and 2 in the cross examination that the accident was not caused due to negligence of respondent no.1. IO/PW2 denied suggestion of respondent no.3 in the crossexamination to the effect that the accident took place due to negligence of deceased. Although respondents have pleaded that the accident took place due to negligence of deceased Sh.Bhagya Narayan Mishra but no evidence to this effect has been adduced by respondents. Police has filed Accident Information Report(AIR) in this case and alongwith AIR police has filed copies of criminal record consisting of final report under Section 173 Cr. PC., copy of FIR no.382/2013, under Section 279/337 IPC, PS Vasant Kunj(North), copy of site plan, copy of MLC prepared at JPN Apex Trauma Centre, copy of seizure memo of vehicle no.HR38K8368, copy of seizure memo of truck no.HR55M9919, copy of seizure memo of driving licence of respondent 8 no.1, copy of postmortem report of deceased, copy of mechanical inspection report of vehicle no.HR55M9919, copy of mechanical inspection report of vehicle no.HR38K8368, copy of arrest memo of respondent no. 1, copy of driving licence verification report of respondent no.1 and copy of insurance policy of offending vehicle. As per charge sheet respondent no.1 has been charge sheeted for offences under Section 279/337/304A IPC. As per postmortem report the cause of death is "due to blunt force caused by accident". It is to be noted that respondent no.3 has pleaded that no eyewitness has been produced by petitioner but insurance company has filed offer of settlement by which they have offered a sum of Rs.5,13,764/ to the petitioner. Respondents have not proved any other version of accident. Thus in view of the testimony of PWs and documents on record, the negligence of respondent no.1 has been prima facie proved. Issue no.1 is accordingly decided in favour of the petitioner and against the respondents. ISSUE NO.2
14.As issue no.1 is decided in favour of the petitioner, she is entitled to compensation.
9COMPENSATION
15.The present petition has been filed by petitioner/mother of deceased.
16. The case of the petitioner is that Sh.Bhagya Narayan Mishra was 29 years of age at the time of accident and was unmarried.
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 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 10 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 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 11 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:-
"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 12 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/mother of deceased has filed on record the copy of her election identity card Ex.PW1/2 and in the same the date of birth of petitioner is not mentioned and it is mentioned that she was 33 years of age as on 01.1.1994. Hence at the time of accident the age of mother of deceased was around 52 years and nine months and the multiplier applicable as per Sarla Verma and Ors. vs Delhi Transport Corporation and Another (2009) 6 SCC 121 shall be of 11.
19. It is stated in the claim petition that the deceased was working as Truck Driver with M/s Bhawani Cargo Movers and was earning a sum of Rs.15,000/ per month. PW1 stated in the crossexamination that she has not filed any document of income of deceased. The petitioner has not proved the employment and income of deceased by cogent evidence. In the circumstances the income of the deceased shall be determined as per his qualifications/avocation. The petitioner has filed the copy of 13 driving licence of deceased Ex.PW1/4 as per which he was authorised to drive LTV, HTV & HPV. In the circumstances the income of petitioner shall be taken as Rs.9386/ per month which were the minimum wages of skilled worker w.e.f.01.4.2013.
20.The deceased was a bachelor. 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."
21. In view of the above judgment, 50% is to be deducted towards personal and living expenses and after deduction of 50% , the income of deceased would be Rs.4693/(Rs.938650% of Rs.9386/).
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22. 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 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 15 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 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. 16 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 (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?"
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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 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
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 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 19 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 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 20 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 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."
23. In the circumstances in view of judgment of HDFC ERGO General Insurance Co. Ltd. v. Smt. Lalta Devi & Ors.(supra) the petitioner shall not be entitled to any addition towards future prospects. After applying the multiplier of 11, the total loss of dependency is computed to be as Rs.4693x12x11=Rs.6,19,476/. The petitioner is 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.6,19,476/
Funeral Expenses : Rs.25,000/
Loss of love and affection : Rs.25,000/
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Loss of Estate : Rs.10,000/
TOTAL : Rs.6,79,476/
RELIEF
24.The petitioners are thus awarded Rs.6,79,476/(Rs.Six Lacs Seventy Nine Thousand Four Hundred Seventy Six 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 joint and several. Sh.Renu Mishra @ Ranbir Mishra @ Ranveer Mishra i.e. the father of deceased has filed one affidavit/no objection on 14.1.2015 stating therein that he is father of deceased Sh.Bhagya Narayan Mishra and husband of petitioner and he has no objection if the entire award amount is awarded in favour of petitioner. In the circumstances entire award amount is awarded in favour of petitioner.
25.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:
26. 10% of the award amount be released to petitioner by transferring it into 22 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 10% for a period of one year.
2. Fixed deposit in respect of 10% for a period of two years.
3. Fixed deposit in respect of 10% for a period of three years.
4. Fixed deposit in respect of 10% for a period of four years.
5. Fixed deposit in respect of 10% for a period of five years.
6. Fixed deposit in respect of 10% for a period of six years.
7. Fixed deposit in respect of 10% for a period of seven years.
8. Fixed deposit in respect of 10% for a period of eight years.
9. Fixed deposit in respect of 10% for a period of nine years.
27.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 Smt.Vinda Devi.
28.The interest on the fixed deposits shall be paid monthly by automatic credit in the saving accounts of the claimants/beneficiary.
29.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.
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30.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.
31.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.
32.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.
33. Bank shall transfer Savings Account to any other Bank/Branch according to her convenience.
34.The beneficiary shall furnish all the relevant documents for opening of the Saving Bank Account and Fixed Deposit to Senior Manager of UCO Bank, Patiala House Court, New Delhi.
35.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.
36.The Insurance company 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. 24
37.The petitioner shall file two sets of photographs along with her 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 her complete address as well as address of her counsel for sending the notice of deposit of the award amount.
38.The insurance company shall deposit the award amount alongwith interest upto the date of notice of deposit to the claimant with a copy to her 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 25.5.2015.
APPORTIONMENT OF LIABILITY:
39.Respondents have not led evidence despite opportunities, thus respondent no. 1 being the driver, respondent no.2 being the owner and respondent no.3 being the insurer are held jointly and severally liable. Respondent No.3 being the insurer 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 25 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.
40. An attested copy of award be given to the parties(free of cost). 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 26.02.2015 Judge: MACT1 : New Delhi