Delhi District Court
Smt. Rekha vs Shri Mohd. Shahid on 27 January, 2016
IN THE COURT OF ANOOP KUMAR MENDIRATTA,
JUDGE, MACT-1 (CENTRAL), DELHI.
Suit No.194/13
Unique Case ID No.02401C-0207562013
1. Smt. Rekha
W/o Late Shri Ravinder Kumar
2. Kumari Priyanka
3. Kumari Dipeeka
4. Kumari Nisha
(Petitioner No.2 to 4 D/o Late Shri Ravinder Kumar)
5. Shri Anil Gautam
S/o Shri Jayparkash
6. Smt. Maya Devi
W/o Shri Jayparkash
All R/o B-754, Jwala Puri, Sunder Vihar,
S.O., West Delhi - 110 087
Also at : Indra Colony near Tehsil Gate
Delhi Road Bharot, Distt. Baghpat.
(Petitioner No.2 to 4 being minors represented through their
mother/natural guardian Smt. Rekha-petitioner No.1)
............. PETITIONERS
VersuS
1. Shri Mohd. Shahid
S/o Shri Manjur Hasan
R/o Mohalla, Mardgan, Kandhla
Muzaffar Nagar, Distt. Muzaffar Nagar, U.P.
(Driver-cum-owner of the truck)
Suit No.194/13 - Rekha & Ors. vs. Mohd. Shahid & Anr. Page 1 of 33
2. The Manager (Legal)
M/s The Oriental Insurance Company Ltd.,
Regd. Office : Oriental House, P.B. No.7037,
A-25/27, Asaf Ali Road, New Delhi - 110 002
(Insurer of truck)
.......RESPONDENTS
Date of filing of Claim Petition : 27.04.2013
Arguments heard on : 25.01.2016
Award passed on : 27.01.2016
JUDGEMENT
1. Present claim petition has been preferred by the petitioners under Section 166 and 140 of Motor Vehicles Act 1988 (hereinafter referred to as 'the Act') claiming compensation of a sum of Rs.50,00,000/- (Rupees Fifty Lakh Only) in respect of accidental death of deceased Ravinder Kumar in a motor vehicular accident.
As per case of the petitioners, on 06.03.2013 about 7:20AM deceased Ravinder was going from Bhrout to Meerut along with his friends in car no. HR-37A-7282. At Village Rhorta, the car was hit by truck No. HR-58A-2135 coming from the opposite direction which was driven by Respondent No.1 in a rash and negligent manner. Consequently, Ravinder Kumar suffered fatal injuries in the accident and expired at the spot. FIR No.38/2013 under Section 279/338/304A IPC, PS: Sharurpur, Suit No.194/13 - Rekha & Ors. vs. Mohd. Shahid & Anr. Page 2 of 33 Distt-Meerut was registered regarding the accident and the body was sent for postmortem.
It is further the case of the petitioners that deceased Ravinder Kumar was earning about Rs.20,000/- per month as a Transporter. Further, petitioner no.1 (wife), petitioner nos. 2 to 4 (minor daughters), petitioner no.5 (brother of deceased) and petitioner no. 6 & 7 (parents of deceased) were fully dependent upon the income of the deceased.
It may be noticed that Shri Jayparkash (father of deceased/petitioner no. 7 in the main petition) expired during the course of proceedings on 09.10.2014 and accordingly amended memo of parties has been placed on record.
2. In the Written Statement filed on behalf of Respondent No.1, it was submitted that accident had been caused due to sole negligence on the part of driver of car No. HR-37A-7282 in the process of overtaking another vehicle. The claim was further stated to be excessive and exaggerated. It was further submitted that vehicle was duly insured with Respondent No.2 for the relevant period.
In the Written Statement filed on behalf of Respondent No.2 Oriental Insurance Company Ltd., it was submitted that Respondent No.2 cannot be held liable to pay compensation unless it is proved that Respondent No.1 was having a valid and effective licence and vehicle was driven with valid permit. However, it was admitted that the vehicle was insured in Suit No.194/13 - Rekha & Ors. vs. Mohd. Shahid & Anr. Page 3 of 33 the name of Respondent No.1 Mohd. Shahid for the period 07.12.2012 to 06.12.2013. Further, the compensation claimed by the petitioners was stated to be excessive and exaggerated and it was submitted that the accident had been caused due to negligence on the part of deceased.
3. On the pleadings of the parties, following issues were framed for consideration by ld. Predecessor vide order dated 18.01.2014:-
(i) Whether the deceased Shri Ravinder Kumar had died due to injuries sustained by him in an accident which took place on 06.03.2013 at 07.20 AM within the jurisdiction of PS Sharurpur, Distt.
Meerut, U.P. due to rash and negligent driving of vehicle bearing Regn. No. HR 58 A 2135 by respondent No.1?
(ii) Whether the petitioners are entitled to any compensation, if so, to what amount and from whom?
(iii) Relief.
4. In support of the claim, petitioners examined PW1 Smt. Rekha (wife of deceased-petitioner no.1), PW2 Shri Rajender Kumar (eyewitness to the accident) and PW3 Shri Anil Gautam Suit No.194/13 - Rekha & Ors. vs. Mohd. Shahid & Anr. Page 4 of 33 (brother of deceased).
PW1 Smt. Rekha testified on the lines of claim petition and proved certified copy of FIR (Ex.PW1/1), photocopy of RC of the offending vehicle bearing registration No. HR 58A 2135 (Mark A), photocopy of fitness certificate of offending vehicle (Mark B), photocopy of insurance policy of offending vehicle (Mark C), photocopy of postmortem report of deceased (Mark D), copy of her Aadhar Card (Ex.PW1/2), copy of Aadhar Card of petitioner no. 6 Maya Devi (Ex.PW1/3), copy of Aadhar Card of late Shri Jai Prakash (Ex.PW1/4), copy of Aadhar Card of petitioner no. 2 Priyanka (Ex.PW1/5), copy of Aadhar Card of petitioner No.3 Deepa (Ex.PW1/6), copy of Aadhar card of petitioner no. 4 Neeshu (Ex.PW1/7), copy of driving licence of deceased Ravinder Kumar (Ex.PW1/8), copy of death certificate of deceased Ravinder Kumar (Ex.PW1/9) and copy of death certificate of petitioner no.7 Jai Prakash (Ex.PW1/10).
During cross-examination, it was clarified that she was not an eyewitness to the accident. She further deposed that deceased Ravinder Kumar was having a valid driving licence at the time of accident. She admitted that no document had been filed to show that petitioner no. 5 (brother of deceased) was a student but denied the suggestion that petitioner no. 5 was not dependent upon the deceased. She further deposed that no document had been filed to show that deceased Ravinder Kumar was earning Rs. 20,000/- per month.
PW2 Shri Rajender Kumar testified that he had Suit No.194/13 - Rekha & Ors. vs. Mohd. Shahid & Anr. Page 5 of 33 witnessed the accident on 06.03.2013 as he was going to Meerut from Bhrout on his motorcycle and was about 50 mtrs. behind car No. HR-37A-7282. He further testified that car was driven on its left lane at a normal speed and was hit by truck no. HR-58A-2135 from front driven in rash and negligent manner after coming on wrong side. He also stated that aforesaid facts were disclosed to the police as well as brother of deceased Sunil who had reached the spot of accident.
During cross-examination, he clarified that he had come to court on asking of wife of the deceased and did not know the family of deceased before the accident. Further, he owned a Dhaba in the name of Shivam Dhaba at Barout, UP and on the date of accident he was going to his sister's house at Meerut. He further deposed that he was at a distance of about 10 ft. behind the car of deceased and occupants of the car who suffered injuries in the accident were taken to the hospital by the police. Further, his statement was recorded by police at Police Post Saroor Pur, UP on the date of accident itself. He further clarified that there was no central divider at the spot of accident and there was a kachha road of width of about 4-5 ft. besides the metalled road. He further deposed that the car was driven on the mettled road on its left side at the time of accident and the width of the mettled road was sufficient for passing of two vehicles in opposite direction. Further, the offending truck came from the opposite direction and hit the front driver side of the car. He denied the suggestion that the accident occurred due to sole negligence of the deceased himself who was driving the car.
Suit No.194/13 - Rekha & Ors. vs. Mohd. Shahid & Anr. Page 6 of 33PW3 Shri Anil Gautam (brother of deceased) also testified on the lines of the claim petition and proved certified copy of postmortem report of deceased Ravinder Kumar (Ex.PW3/1) and copy of his Aadhar Card (Ex.PW3/2).
During cross-examination, he clarified that he was not an eyewitness to the accident. He further stated that he had not filed any document on record to prove that deceased Ravinder Kumar was earning Rs.20,000/- per month from transport business. He further denied the suggestion that he was not dependent upon deceased Ravinder Kumar.
Evidence was not led on behalf of Respondent No.1.
5. I have heard arguments addressed on behalf of the petitioners, counsel for Respondent No. 1 and perused the record.
My Issue-wise findings are as under :-
Issue No. (i) Whether the deceased Shri Ravinder Kumar had died due to injuries sustained by him in an accident which took place on 06.03.2013 at 07.20 AM within the jurisdiction of PS Sharurpur, Distt. Meerut, U.P. due to rash and negligent driving of vehicle bearing Regn. No. HR 58 A 2135 by respondent No.1?Suit No.194/13 - Rekha & Ors. vs. Mohd. Shahid & Anr. Page 7 of 33
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 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 Suit No.194/13 - Rekha & Ors. vs. Mohd. Shahid & Anr. Page 8 of 33 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. Suit No.194/13 - Rekha & Ors. vs. Mohd. Shahid & Anr. Page 9 of 33 Bros. (P) Ltd. v. M. Marumai Ammal, 1980 ACJ 435 (SC), the Supreme Court pointed out that the Accidents Claims Tribunal must take special care to see that innocent victims do not suffer and persons liable do not escape liability merely because of some doubt here and some obscurity there. The court should not succumb to niceties, technicalities and mystic maybes. The court is bound to take broad view of the whole matter."
In the instant case, PW2 Shri Rajender Kumar testified that he had witnessed the accident on 06.03.2013 as he was going to Meerut from Bhrout on his motorcycle and was about 50 mtrs. behind car No. HR-37A-7282. Further, the car which was driven in the left lane at a normal speed was hit by truck no. HR-58A-2135 from front which was driven rashly and negligently by Respondent No.1 after coming on wrong side. He further testified that he had disclosed the aforesaid fact to the police as well as brother of deceased Sunil who had reached the spot of accident. Testimony of PW2 Rajender Kumar could not be dented during cross-examination and has not been refuted by Respondent No.1 as he failed to enter the witness box. Respondent No.1 has been chargesheeted for offence u/s 279/304A IPC as per the copy of criminal proceedings filed on record and no complaint appears to have been filed on behalf of Respondent No.1 alleging false implication. Testimony of PW2 cannot be doubted merely on the ground that he had appeared at the instance of LRs of deceased as contended by counsel for insurance company. The manner of accident is also corroborated by the Site Plan prepared during the Suit No.194/13 - Rekha & Ors. vs. Mohd. Shahid & Anr. Page 10 of 33 course of criminal proceedings which clearly reflects that the truck moved on the wrong lane.
Since the negligence is to be determined on the touchstone of preponderance of probability and holistic view is to be taken while dealing with the Claim Petition, it has been proved on record that the accident was caused due to rash and negligent driving by driver of offending truck bearing registration no.HR-58A-2135. Issue No. 1 is accordingly decided in favour of the petitioners.
6. Issue No. (ii) Whether the petitioners are entitled to any compensation, if so, to what amount and from whom?
(a) For the purpose of assessment of income, it is contended by counsel for petitioners that deceased Ravinder Kumar aged about 39 years was engaged in business as Transporter and earning Rs.20,000/- per month. The same has been disputed by counsel for insurance company.
Admittedly, no document has been filed on record to support the approximate monthly income which the deceased might have been earning as a Transporter. Neither any document has been filed to corroborate the fact that deceased was running the aforesaid business of transportation. In view of above, it has not been proved on record that deceased was earning an income of Rs.20,000/- per month. However, deceased Ravinder Kumar Suit No.194/13 - Rekha & Ors. vs. Mohd. Shahid & Anr. Page 11 of 33 appears to be in possession of driving licence valid for Light Motor Vehicle and as such was a skilled driver competent to driver LMV. In the facts and circumstances, income of deceased is assessed on the basis of minimum wages of a skilled worker as notified by the Govt. of NCT of Delhi for the relevant period @ Rs.8,814/-per month for purpose of assessment of compensation.
(b) If addition in income towards future prospects is to be made Counsel for petitioners urged that addition towards future prospects be made by 50% while assessing the income of deceased which has been opposed by counsel for Respondent No.
2. It may be observed that in Shashikala & Ors. v. Gangalakshmamma & Anr. 2015 (2) T.A.C. 867 (SC), separate judgements were passed by Hon'ble Mr. Justice R. Banumathi and Hon'ble Mr. Justice V. Gopala Gowda on the point of assessment of addition to the income of the deceased towards the future prospects in 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 & Suit No.194/13 - Rekha & Ors. vs. Mohd. Shahid & Anr. Page 12 of 33 Anr., VII (2013) S.L.T. 489 (rendered on 2nd April, 2013) and Rajesh vs. Rajbir Singh, (2013) 9 S.C.C. 54 (rendered on 12th April, 2013 in which the judgement passed in Reshma Kumari's case was not noticed). Reference was also made to the judgements passed in Sarla Verma & Ors. v. Delhi Transport Corporation & Anr., 162 (2009) D.L.T. 278, Santosh Devi v. National Insurance Co. Ltd. & Ors., 2012 6 S.C.C. 421, Sanjay Verma v. Haryana Roadways, (2014) 3 S.C.C. 210, National Insurance Co. Ltd. v. Pushpa, S.L.P. (C) No. 16735/2014 (whereby the matter in relation to future prospects was referred to larger Bench). It may further be noticed that Hon'ble Apex Court in Shashikala's case did not provide addition towards future prospects pendente lite the aforesaid issue, wherein the deceased was an income tax payee carrying business of newspapers and had relied upon Income Tax Returns for the Assessment Years 2005-06 and 2006-07.
In the aforesaid context, reliance may be further placed upon MAC 79 of 2014 Bharti AXA General Insurance Company Ltd. vs. Smt. Poonam & Ors. decided on 27.05.2015 by Hon'ble Mr. Justice G.P. Mittal (Delhi High Court) wherein the judgements passed by the Hon'ble Apex Court in Munna Lal Jain & Anr. Vs. Vipin Kumar Sharma & Ors., Civil Appeal No.4497 of 2015 decided on 15.05.2015 {II (2015) ACC 806 (SC)} was also duly referred but the addition 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 Suit No.194/13 - Rekha & Ors. vs. Mohd. Shahid & Anr. Page 13 of 33 Insurance Company Ltd. vs. Smt. Lalta Devi & Others MAC APP No.189/2014 decided on 12.01.2015.
The observations made by the Hon'ble High Court on the aspect of addition of future prospects as discussed in para 21 to 23 of MAC No. 79 of 2014 Bharti AXA General Insurance Company Ltd. vs. Smt. Poonam & Ors. decided on 27.05.2015 (supra) may be beneficially quoted:
21. As far as future prospects are concerned, there is no evidence on record that the deceased had bright future prospects. The question of grant of future prospects was dealt with by this Court at great length in HDFC Ergo General Insurance Co. Ltd. v.
Smt. Lalta Devi and Ors., MAC APP No. 189/2014, decided on 12.01.2015. Paras 8 to 21 of the report in Lalta Devi (supra) are extracted hereunder:
8.It is no gainsaying that in appropriate cases some addition towards future prospects must be made in case of death or injury of a person pursuing a professional course. At the same time, it cannot be laid down as a uniform principle that every person pursuing professional course will have a bright future. There may be a student pursuing engineering from the reputed engineering colleges like Indian Institute of Technology (IIT), Regional Engineering College or any other reputed college. At the same time, a number of engineering Colleges have mushroomed where an engineering Suit No.194/13 - Rekha & Ors. vs. Mohd. Shahid & Anr. Page 14 of 33 graduate may find it difficult to secure a job of an engineer. In the instant case, deceased Aditya, as stated earlier was a student of an unknown engineering college, i.e. Echelon Institute of Technology, Faridabad which is claimed to be affiliated to Maharshi Dayanand University, Rohtak. The Claimants have placed on record result-
cum-detailed marks card of First and Second Semester. It may be noted that the deceased had secured just ordinary marks in seven subjects and he had to re-appear in papers 1002 (Mathematical-I), 1006 (Foundation of Computer & Programming) and 1008 (Basics of Mechanical Engineering). Similarly, in the Second Semester the deceased was absent in one of the 12 papers and out of 11 subjects for which he had taken examination, he was to re- appear in four subjects. Thus, it will be difficult to say that the deceased was a brilliant student or that he was pursuing engineering from a well known or even mediocre college.
"7. As far as addition towards future prospects is concerned, the issue has been examined at great length by this Court in HDFC ERGO General Insurance Co. Ltd. v. Smt. Lalta Devi & Ors. (supra). Paras 9 to 21 of the report in Lalta Devi are extracted hereunder:-
9. The learned counsel for the Claimants has referred to a three Judge Bench de-
cision of the Supreme Court in Rajesh & Ors. v. Rajbir Singh & Ors., (2013) 9 SCC 54 to contend that the future Suit No.194/13 - Rekha & Ors. vs. Mohd. Shahid & Anr. Page 15 of 33 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 coun- sel for the Insurance Company refers to a three Judge Bench decision of the Supreme Court in Reshma Kumari & Ors. v. Madan Mohan & Anr., (2013) 9 SCC 65 wherein while approving the ra- tio 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 addi-
tion 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 de-Suit No.194/13 - Rekha & Ors. vs. Mohd. Shahid & Anr. Page 16 of 33
cisions 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 [Sar- la Verma v. DTC, (2009) 6 SCC 121 : (2009) 2 SCC (Civ) 770 :
(2009) 2 SCC (Cri) 1002] , SCC p. 134):
"24. ... In view of the imponder- ables and uncertainties, we are in favour of adopting as a rule of thumb, an addition of 50% of ac- tual salary to the actual salary in- come of the deceased towards fu- ture prospects, where the de- ceased 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 de- ceased 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 percent-
age of increase, it is neces- sary to standardise the addition to avoid different yardsticks being applied or different methods of calculation being adopted. Where Suit No.194/13 - Rekha & Ors. vs. Mohd. Shahid & Anr. Page 17 of 33 the deceased was self-employed or was on a fixed salary (without provision for annual increments, etc.), the courts will usually take only the actual income at the time of death. A departure therefrom should be made only in rare and exceptional cases involving spe- cial circumstances."
39. The standardization of addi-
tion to income for future prospects shall help in achieving certainty in arriving at appropri-
ate 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 de-
ceased 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 actu-
al salary less tax. In the cases where the deceased was self-em-
ployed or was on a fixed salary without provision for annual increments, the actual income at the time of death without any ad-
dition to income for future prospects will be appropriate.
A departure from the above prin-
ciple can only be justified in ex-
Suit No.194/13 - Rekha & Ors. vs. Mohd. Shahid & Anr. Page 18 of 33traordinary circumstances and very exceptional cases."
12. The learned counsel for the Insur- ance Company relies upon a Constitu-
tional Bench judgment of the Supreme Court in Central Board of Dawoodi Bohra Community & Anr. v. State of Ma-
harashtra & Anr., (2005) 2 SCC 673;
Safiya Bee v. Mohd. Vajahath Hussain @ Fasi, (2011) 2 SCC 94; and Union of In-
dia & Ors. v. S.K. Kapoor, (2011) 4 SCC 589 to contend that in case of divergence of opinion in judgments of benches of co- equal strength, earlier judgment will be taken as a binding precedent.
13. It may be noted that in Reshma Ku-
mari & 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 mul- tiplier. 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 ac- tual salary shall be made towards future prospects when the deceased had a per- manent job and was below 40 years and addition of 30% should be made if the age of the deceased was between 40-50 Suit No.194/13 - Rekha & Ors. vs. Mohd. Shahid & Anr. Page 19 of 33 years. No addition towards future prospects shall be made where the de-
ceased was self-employed or was getting a fixed salary without any provision of annual increment.
14. Of course, three Judge Bench of the Supreme Court in its later judgment in Rajesh relying on Santosh Devi v. Nation- al 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 fu- ture 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 two-Judge Bench of this Court while considering the follow- ing questions took the view that the issue(s) needed resolution by a larger Bench: (SCC p. 425, para 10) "(1) Whether the multiplier speci-
fied in the Second Schedule ap-
pended to the Act should be Suit No.194/13 - Rekha & Ors. vs. Mohd. Shahid & Anr. Page 20 of 33 scrupulously applied in all the cases?
(2) Whether for determination of the multiplicand, the Act provides for any criterion, particularly as regards determination of fu-
ture prospects?"
15. Answering the above reference a three- Judge Bench of this Court in Reshma Kumari v. Madan Mohan [(2013) 9 SCC 65 : (2013) 4 SCC (Civ) 191 : (2013) 3 SCC (Cri) 826] (SCC p. 88, para 36) reiterated the view taken in Sarla Verma [Sarla Verma v. DTC, (2009) 6 SCC 121 :
(2009) 2 SCC (Civ) 770 : (2009) 2 SCC (Cri) 1002] to the effect that in respect of a person who was on a fixed salary without provision for an-
nual increments or who was self-em-
ployed the actual income at the time of death should be taken into account for determining the loss of income unless there are extraordinary and exceptional circumstances. Though the expression "exceptional and ex-
traordinary 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 princi-
ple. 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 Suit No.194/13 - Rekha & Ors. vs. Mohd. Shahid & Anr. Page 21 of 33 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 Na- tional 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 ear- lier point of time, as is clear, the same has not been noticed in Rajesh (supra) and that is why divergent opinions have been expressed. We are of the considered opinion that as re-
gards the manner of addition of in-
come of future prospects there should be an authoritative pro-
nouncement. 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).
Suit No.194/13 - Rekha & Ors. vs. Mohd. Shahid & Anr. Page 22 of 3318. In Central Board of Dawoodi Bohra Community & Anr. v. State of Maharash- tra & 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 par- ties 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 co-
equal strength.
(2) [Ed.: Para 12(2) corrected vide Offi-
cial Corrigendum No. F. 3/Ed.B.J./21/2005 dated 3- 3-2005.] A Bench of lesser quorum cannot disagree or dissent from the view of the law taken by a 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 co-
equal strength to express an opinion doubting the correctness of the view tak- en by the earlier Bench of coequal strength, whereupon the matter may be placed for hearing before a Bench con- sisting of a quorum larger than the one which pronounced the decision laying Suit No.194/13 - Rekha & Ors. vs. Mohd. Shahid & Anr. Page 23 of 33 down the law the correctness of which is doubted.
(3) [Ed.: Para 12(3) corrected vide Offi-
cial Corrigendum No. F. 3/Ed.B.J./7/2005 dated 17- 1-2005.] The above rules are subject to two excep-
tions: (i) the abovesaid rules do not bind the discretion of the Chief Justice in whom vests the power of framing the ros- ter and who can direct any particular matter to be placed for hearing before any particular Bench of any strength; and
(ii) in spite of the rules laid down herein- above, 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 pro- ceed 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. Va- jahath 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 judica- ta, we are to observe that even if Suit No.194/13 - Rekha & Ors. vs. Mohd. Shahid & Anr. Page 24 of 33 the learned Judges who decided WP No. 304 of 2001 did not agree with the view taken by a coordinate Bench of equal strength in the ear- lier WP No. 35561 of 1998 regard- ing the interpretation of Section 2(c) of the Act and its application to the petition schedule property, judicial discipline and practice re- quired them to refer the issue to a larger Bench. The learned Judges were not right in overruling the statement of the law by a coordi-
nate 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 num-
ber of Judges. In case of doubt or disagreement about the decision of the earlier Bench, the well-accept- ed and desirable practice is that the later Bench would refer the case to a larger Bench."
20. In Union of India & Ors. v. S.K. Kapoor, (2011) 4 SCC 589 while holding that the decision of the Co- ordinate Bench is binding on the subsequent Bench of equal strength, held that the Bench of Co-ordinate strength can only make a reference to a larger Bench. In para 9 of the report, the Supreme Court held as under:-
"9. It may be noted that the deci- sion 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 Suit No.194/13 - Rekha & Ors. vs. Mohd. Shahid & Anr. Page 25 of 33 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 deci- sion in S.N. Narula case [(2011) 4 SCC 591] was binding on the sub-
sequent Bench of equal strength and hence, it could not take a con- trary 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 Resh- ma Kumari & Ors. (supra) shall be taken as a binding precedent."
21.In the instant case, the deceased's actual or potential income is taken as Rs.20,000/- per month. Even if it is taken that the deceased was working with 'Dainik Janwani Samachar Patra', there was no evidence with regard to his good future prospects or that the deceased was in permanent employment.
22.Thus, in absence of any evidence of good future prospects, no addition towards future prospects ought to have been made by the Claims Tribunal."
In view of the legal position as discussed by the Suit No.194/13 - Rekha & Ors. vs. Mohd. Shahid & Anr. Page 26 of 33 Hon'ble High Court, in absence of any evidence with regard to good future prospects of deceased, addition of income towards future prospects cannot be made for the purpose of compensation.
(c) Deduction towards personal and living expenses of the deceased:
Counsel for petitioners submitted that since petitioner no. 1 to 6 were fully dependent upon income of the deceased, deduction of 1/4th be made towards the personal expenses of deceased and loss of dependency be accordingly considered as per age of deceased at the time of accident.
However, the same was disputed by counsel for insurance company and it was submitted that Petitioner No. 5 Anil Gautam being a major (brother of deceased) cannot be presumed to be a dependent and as such the number of dependents be treated as five.
It may be observed that the liability of petitioner no. 5/brother of deceased was on the part of the father of deceased and even otherwise he is a major capable of earning independently. Even in his evidence (PW3) he is reflected to be engaged in a private job. In view of above, I am of the considered opinion that number of dependents is to be considered as five and petitioner no. 5 shall not be entitled to any share in the compensation as he was not financially dependent upon deceased.
As per Sarla Verma (Smt.) & Ors. vs. Delhi Transport Suit No.194/13 - Rekha & Ors. vs. Mohd. Shahid & Anr. Page 27 of 33 Corporation & Anr. (2009) 6 SCC 121, it has been held that the deduction towards personal and living expenses of the deceased should be one-third (1/3rd) where the number of dependent family members is 2 to 3, 1/4th where the number of dependent family members is 4 to 6 and 1/5th where the number of dependent family member exceeds 6.
Since deceased is survived by his wife, three minor daughters and and mother, deduction towards personal and living expenses of the deceased shall be 1/4th as held in Sarla Verma's case (supra).
(d) Selection of multiplier:
As per copy of Driving Licence (Ex.PW1/8) date of birth of deceased Ravinder Singh is reflected as 03.07.1973. As such, deceased was aged about 39 years 08 months approximately as on the date of accident (i.e. 06.03.2013). Accordingly, as held in Sarla Verma (Smt.) & Ors. vs. Delhi Transport Corporation & Anr. (2009) 6 SCC 121, the multiplier of 15 is to be adopted for the purpose of assessment.
(e) Loss of financial dependency In the light of aforesaid facts, loss of financial dependency of the petitioners comes to Rs.11,89,890/- [i.e. Rs. 8,814/- (notional income per month) X 12 (months) X 15 (multiplier) X 3/4 (dependency)].
7. Compensation under non-pecuniary heads:
Suit No.194/13 - Rekha & Ors. vs. Mohd. Shahid & Anr. Page 28 of 33It has been held by the Hon'ble Apex Court in Rajesh & Ors. v. Rajbir Singh & Ors., (2013) 9 SCC 54 that the compensation is to be awarded for a sum of Rs.1 lakh each towards loss of love and affection and loss of consortium, Rs. 25,000/- towards funeral expenses and Rs.10,000/- towards loss of estate.
However, Hon'ble Supreme Court awarded Rs. 1,00,000/- towards loss of estate in the case of Asha Verman & Others v. Maharaj Singh & Others, 2015 ACJ 1286 relying upon Kalpanaraj v. State of Tamil Nadu State Trans. Corpn., 2014 ACJ 1388 (SC). Further, Hon'ble Supreme Court awarded Rs. 50,000/- to each parent for loss of love and affection in M. Mansoor v. United India Insurance Co. Ltd., 2013 ACJ 2849 (SC). Also, the Hon'ble Apex Court awarded a sum of Rs.1 lakh to each child in Jiju Kuruvila v. Kunjujamma Mohan, 2013 ACJ 2141 (SC). Further, interest @ 9% per annum was awarded on the award amount by the Hon'ble Apex Court in Municipal Corporation of Delhi v. Association of Victims of Uphaar Tragedy, 2012 ACJ 48 (SC). Though a wide discretion in determination of compensation is given but the amplitude of such powers has to be exercised in consonance with settled principles. It needs to be borne in mind that compensation is neither expected to be windfall or bonanza or source of profit but at the same time should not be pittance.
Petitioners are accordingly entitled to Rs.1 lakh towards loss of estate, Rs.1 lakh towards loss of consortium to wife, Rs.1 Suit No.194/13 - Rekha & Ors. vs. Mohd. Shahid & Anr. Page 29 of 33 lakh towards loss of love and affection to each child, Rs.50,000/- towards loss of love and affection to mother of deceased and Rs. 25,000/- towards funeral expenses.
8. The petitioners/claimants are accordingly entitled to compensation computed as under:
Loss of financial dependency Rs.11,89,890/-
Loss of Estate Rs.1,00,000/-
Loss of Consortium to Wife Rs.1,00,000/-
Loss of love and affection to children Rs.3,00,000/-
Loss of Love and affection to mother Rs.50,000/-
Funeral Expenses Rs.25,000/-
Medical Treatment Rs. NIL
________________
Total Rs.17,64,890/-
________________
(Rupees Seventeen Lakh Sixty Four Thousand Eight Hundred & Ninety Only) The amount of interim award, if any, shall however be deducted from the above amount, if the same has already been paid to the petitioners.
The claimant/petitioners are also entitled to interest @ 9% p.a. from the date of filing of petition i.e. w.e.f. 27.04.2013 till realization.
9. It is further held that Respondent No.1 (Driver-cum-
Suit No.194/13 - Rekha & Ors. vs. Mohd. Shahid & Anr. Page 30 of 33owner) and Respondent No.2 (Insurer) of the offending vehicle are jointly and severally liable to make the payment of compensation to the petitioners/claimants.
10. For the purpose of disbursement, petitioner no.1 Smt. Rekha (wife of deceased) shall be entitled to 40% of the award amount and proportionate interest thereon AND petitioner no.2, 3, 4 & 6 shall be entitled to 15% each of the award amount and proportionate interest thereon.
On realization, an amount of Rs.1,00,000/- (Rupees One Lakh Only) shall be released to petitioner no.1 Smt. Rekha (wife of deceased) and remaining amount of her share along with proportionate up-to-date interest shall be kept in ten fixed deposits of equal amount in her name with a nationalised bank for a period of one year, two years, three years, four years, five years, six years, seven years, eight years, nine years and ten years respectively without the facility of advance, loan or premature withdrawal with release of quarterly periodical interest in her account.
Further, an amount of Rs.50,000/- (Rupees Fifty Thousand Only) shall be released to petitioner no. 6 Maya Devi and remaining amount of her share with proportionate up-to- date interest shall be kept in five fixed deposits of equal amount with a nationalised bank for a period of one year, two years, three years, four years and five years, without the facility of advance, loan or premature withdrawal with release of quarterly periodical interest in her account.
Suit No.194/13 - Rekha & Ors. vs. Mohd. Shahid & Anr. Page 31 of 33However, the amount of share of petitioner no. 2 to 4 (minor daughters of deceased) along with proportionate up-to-date interest shall be kept in fixed deposits with a nationalised bank till they attain the age of majority without the facility of advance, loan or premature withdrawal with release of quarterly periodical interest in the account of petitioner no.1 Smt. Rekha being mother/natural guardian for welfare of minor children.
11. Relief Since the offending vehicle was duly insured on the date of accident, Respondent No.2 (Oriental Insurance Company Ltd.) is directed to deposit the award amount of Rs.17,64,890/- with interest @ 9% p.a. from the date of filing of claim petition i.e. w.e.f. 27.04.2013 till realization with Nazir of this Court within 30 days under intimation to the petitioners, failing which the Insurance Company shall be liable to pay interest @ 12% per annum for the period of delay beyond 30 days.
Insurance Company/driver-cum-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 petitioners/claimants and complete details in respect of calculations of interest etc. within 30 days from today.
A copy of this judgement be sent to Respondent No.2/Insurance Company for compliance within the time granted, failing which General Manager of the Insurance Company will show reasons for non-compliance.
Nazir is directed to place a report on record in the event Suit No.194/13 - Rekha & Ors. vs. Mohd. Shahid & Anr. Page 32 of 33 of non-receipt/deposit of the compensation amount within the time granted.
File be consigned to Record Room.
Announced in open court (Anoop Kumar Mendiratta) on 27th January, 2016 Judge MACT-1 (Central), Tis Hazari Courts, Delhi.
Suit No.194/13 - Rekha & Ors. vs. Mohd. Shahid & Anr. Page 33 of 33