Delhi District Court
Suit No.54/12 - (Smt. Sumitra & Ors. vs . Shri Rashit Aggarwal & Ors.) 1 Of 25 on 11 February, 2015
IN THE COURT OF ANOOP KUMAR MENDIRATTA,
JUDGE, MACT1, (CENTRALDISTRICT), DELHI.
SUIT NO.54/12
Unique Case ID No.02401C0061332012
1. Smt. Sumitra,
W/o Late Shri Lallan (Wife)
2. Gudiya,
W/o Shri Vidya Prasad, (Married Daughter)
3. Renu,
W/o Shri Ram Kumar, (Married Daughter)
4. Kusum,
W/o Shri Rakesh (Married Daughter)
5. Pooja
D/o Late Sh.Lallan (Minor Daughter)
6. Bhola,
S/o Late Shri Lallan (Minor Son)
7. Anjali
D/o Late Shri Lallan (Minor Daughter)
All R/o
238, Village Madipur,
Delhi110 063
Suit No.54/12 - (Smt. Sumitra & Ors.Vs. Shri Rashit Aggarwal & Ors.) 1 of 25
(Petitioner Nos.5 to 7 are minors represented by their
mother/natural guardian/Petitioner No.1 Smt. Sumitra)
.......Petitioners
Versus
1. Shri Rashit Aggarwal,
S/o Sh. Ravi Kumar,
R/o A22, Tulsi Appts. Sector14,
Rohini, Delhi110 085 ........(Owner )
2. The New India Assurance Company Ltd.
902905, Hemkunt House, 9th Floor,
Rajendra Place, New Delhi110 008 ........(Insurer)
3. Shri Azad Singh,
S/o Shri Chandu Ram,
R/o Kherla, P.S. Nuh, Distt. Mewat,
U.P. .......(Driver)
....... RESPONDENTS
Date of Institution of the suit : 06.02.2012
Date of reserving judgment/order : 05.02.2015
Date of pronouncement : 11.02.2015
JUDGMENT
Suit No.54/12 - (Smt. Sumitra & Ors.Vs. Shri Rashit Aggarwal & Ors.) 2 of 25
1. The present claim petition has been preferred by the petitioners U/s 166 and 140 of Motor Vehicle Act 1988 (hereinafter referred to as 'the Act') claiming compensation of a sum of Rs.50,00,000/ in respect of the accidental death of Lallan (deceased) in the motor vehicle accident.
Brief facts of the case as averred in the claim petition are that on 05.10.2011 at about 11:00 P.M. deceased Lallan was travelling in a Oil Tanker bearing registration No. HR 38 E 1601 as a second driver from Delhi to Panipat, Haryana which was driven by Sanjay. When the Oil Tanker reached near Village Patikalyana, National Highway, Samalkha, Panipat, Haryana, the same hit against a stationary Truck bearing registration No. HR 55K 9240 which was standing in the middle of the road without any parking lights and indication. As a result thereof Lallan sustained fatal injuries. FIR No.726/2011, U/s 279/337/304A IPC PS Samalkha, Panipat, Haryana was registered regarding the accident.
2. Written Statement was filed on behalf of the Respondent No.1/owner of offending vehicle but was thereafter proceeded exparte vide order dated 15.04.2014. Respondent No.3/driver of the offending vehicle has not contested the case and was proceeded exparte vide order dated 08.08.2013. The claim petition has been contested by Respondent No.2/The New India Assurance Company Ltd. and Suit No.54/12 - (Smt. Sumitra & Ors.Vs. Shri Rashit Aggarwal & Ors.) 3 of 25 Written Statement was filed on record.
In the Written Statement, Respondent no.1/owner of the offending truck bearing registration No. HR 55 K 9240 averred that the petition is bad for non joinder of owner and insurer of other vehicle bearing number HR 38E 1601 in which the deceased was travelling and as such is liable to be dismissed. It was further submitted that alleged accident had not been caused by the vehicle of the answering respondent. Further, the liability, if any, was on the part of insurer of the vehicle of respondent no. 1 along with owner and insurer of vehicle bearing no. HR 38E 1601. The claim of the petitioner was further stated to be exorbitant, excessive and without any basis.
In the Written Statement filed on behalf of Respondent No. 2 (M/s The New India Assurance Company Ltd.), it was reiterated that the amount claimed by the petitioners is excessive, exorbitant and without any basis. However, it was admitted that the vehicle bearing registration No. HR 55 K 9240 was insured with the Insurance Company vide Cover Note No.31230031110200007558 valid from 05.09.2011 to 04.09.2012 which covers the date of accident.
3. On the pleadings of the parties the following issues were framed: Suit No.54/12 - (Smt. Sumitra & Ors.Vs. Shri Rashit Aggarwal & Ors.) 4 of 25
(i) Whether the deceased Shri Lallan had died due to injuries sustained by him in an accident which took place on 05.10.2011 at 11:00 P.M. within the jurisdiction of PS Samalkha, Panipat, Haryana due to rash and negligent driving of vehicle bearing Regn. No. HR 55 K 9240 driven by Respondent No.3 (wrongly typed as 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 claim, petitioners examined PW1 Sumitra (Petitioner No.1) and PW2 Suresh (alleged eyewitness of the accident).
Respondents failed to examine any witness despite opportunity.
5. I have heard arguments addressed by the counsel for the parties and perused the record.
Counsel for petitioner made submissions on the lines of the averments made in the claim petition. Reliance was further placed upon the judgements passed in CM(M) 1187/2013 Raj Pal Kaur & Suit No.54/12 - (Smt. Sumitra & Ors.Vs. Shri Rashit Aggarwal & Ors.) 5 of 25 Ors. vs. Pawan Gir & Ors. decided on 30th October, 2013 by the Hon'ble High Court of Delhi; Rajesh & Others vs. Rajbir Singh & Others 2013(6) SCALE 563 and MAC. APP. No.288/2011 Smt. Shakuntala & Ors. vs. Shri Naresh Kumar & Ors. decided on May 16, 2011 by the Hon'ble High Court of Delhi.
On the other hand, following contentions were raised on behalf of the respondent no. 2/New India Assurance Company Ltd.
(a) That there was no negligence on the part of the vehicle parked by respondent no. 3 and in any case there was contributory negligence on the part of Truck No. HR 38E 1601 in which the deceased was travelling as it was his duty to take due care and caution. Further, the liability could not be fixed on respondent no. 2 in absence of impleadment of owner and insurer of Truck No. HR 38E 1601 since the aforesaid vehicle was responsible for contributory negligence.
(b) That it was not proved that deceased Lallan was employed as a second driver and was earning the income as claimed in the petition. Further, no addition towards future prospects is permissible as claimed by the counsel for petitioner.
(c) That the married daughters of the deceased were not dependent on him and as such are not entitled to any compensation. Suit No.54/12 - (Smt. Sumitra & Ors.Vs. Shri Rashit Aggarwal & Ors.) 6 of 25 My Issuewise findings are as under :
6. Issue No. (i) Whether the deceased Lallan had died due to injuries sustained by him in an accident which took place on 05.10.2011 at 11:00 P.M. within the jurisdiction of PS Samalkha, Panipat, Haryana due to rash and negligent driving of vehicle bearing Regn. No. HR 55 K 9240 driven by Respondent No.3 (wrongly typed as respondent no. 1)?
PW1 Smt. Sumitra proved and placed on record certified copies of criminal case record as Ex.PW1/1. PW2 Suresh, who is an alleged eyewitness of the accident tendered his evidence by way of affidavit (Ex.PW2/A) and testified that he was travelling as helper in Truck No. HR 38E 1601 on 05.10.2011 which was driven by Sanjay and Ram Lallan (Second Driver). He further testified that accident took placed in the manner as alleged in the petition in which Lallan received fatal injuries. During crossexamination on behalf of respondent no. 2 The New India Assurance Company Ltd. he admitted Suit No.54/12 - (Smt. Sumitra & Ors.Vs. Shri Rashit Aggarwal & Ors.) 7 of 25 that he has not placed on record any document to show that he was working as a helper on the said Oil Tanker. He further clarified that he had also received injuries in the said accident but the nature of injuries was simple.
In a petition under Section 166 of the Motor Vehicle Act, 1988, the Claim Tribunal has to decide negligence on the touch stone of preponderance of probability.
The petitioners have placed and proved on record certified copies of charge sheet consisting of postmortem report, site plan, mechanical inspection report and copy of charge framed against respondent driver Azad by Judicial Magistrate, Panipat on 24.03.2012 which show that the deceased died due to the injuries sustained by him as a result of the accident. The factum of negligence also stands corroborated by the testimony of PW2 Suresh and the same could not be dented during crossexamination. Since Truck No. HR 55K 9240 was parked in the middle of the road causing hindrance in the free flow of traffic as depicted from the site plan which caused the accident during the night time, the negligence has to be attributed on the part of driver of the aforesaid vehicle. The contributory negligence on the part of the vehicle in which the deceased was travelling as a second driver has not been established by evidence on record. As such, the petitioners were not required to implead the owner/driver or insurance company of Truck No. HR 38E 1601 in which the deceased was travelling.
Suit No.54/12 - (Smt. Sumitra & Ors.Vs. Shri Rashit Aggarwal & Ors.) 8 of 25 In the facts and circumstances, on the basis of evidence led on record, I am of the considered view that the accident was caused due to wrongful parking of Truck No. HR 55K 9240 by Respondent No.3. Issue No. 1 is accordingly decided in favour of the petitioners and against the respondents.
7. Issue No. (ii) Whether the petitioners are entitled to any compensation, if so, to what amount and from whom?
(a) In her affidavit (Ex.PW1/A), Petitioner No. 1 Smt. Sumitra, wife of deceased testified that deceased aged about 48 years was working as a HTV driver and was earning Rs.10,000/ per month. She further proved and placed on record certified copies of criminal case record Ex.PW1/1, copy of PAN card Ex.PW1/2, copy of the driving licence of the deceased Ex.PW1/3, copy of her Election Icard Ex.PW1/4, copy of Parivar Register Ex.PW1/5, copy of Election Icard of petitioner No.4 Smt. Kusum Ex.PW1/6, copy of Election Icard of petitioner No.2 Gudiya Ex.PW1/7, copy of Domicile Certificate of petitioner No.3 Renu Ex.PW1/8.
During crossexamination on behalf of respondent no. 2 The New India Assurance Company Ltd., she stated that at the time of Suit No.54/12 - (Smt. Sumitra & Ors.Vs. Shri Rashit Aggarwal & Ors.) 9 of 25 the accident, she was residing with her husband at Madipur, Delhi and was not an eyewitness to the accident in question. She further clarified that her three daughters namely Gudiya, Renu and Kusum had been married prior to the accident and are living in their matrimonial homes. Her husband was a driver and used to drive Oil Tanker and was getting a sum of Rs.10,000/ per month.
(b) Income of deceased:
As per evidence of PW 1 Smt. Sumitra/wife of deceased, Lallan was a commercial driver by profession and was earning Rs. 10,000/ per month but she has not placed any document to prove the income on record. Neither any witness has been examined to show that the deceased Lallan was employed with any particular truck or Company as a second driver. However, considering the fact that the copy of the driving licence possessed by the deceased has been proved as Ex.PW1/3, it can be presumed that he was a commercial driver and, as such, is entitled for minimum wages of skilled labourer. As on the date of accident i.e. on 05.10.2011 minimum wages of skilled labourer were Rs.8,112/per month. Therefore, the monthly salary of the deceased has to be considered as Rs.8,112/ per month or Rs.97,344/ per annum.
Suit No.54/12 - (Smt. Sumitra & Ors.Vs. Shri Rashit Aggarwal & Ors.) 10 of 25
(c) If addition in income towards future prospects is to be made The petitioners have claimed that in addition towards future prospects to the extent of 50% be made since he was employed as a skilled driver. However, the same is opposed on behalf of respondent Insurance Company and it is submitted that no addition towards future prospects is permissible in absence of any evidence with regard thereto.
As far as the addition towards the future prospects is concerned, the issue has been examined at great length by the Hon'ble High Court of Delhi in various judgements wherein the law laid down in Sarla Verma (Smt.) & Ors. vs. Delhi Transport Corporation & Anr. (2009) 6 SCC 121 and Reshma Kumari & Ors. Vs. Madan Mohan & Anr. (2013) 9 SCC 65 has been analysed in detail. Reference may be made to MAC APP. 325/2013 decided on 28th January, 2015 U.P. State Road Transport Corporation vs. Shahida & Ors. by the Hon'ble Mr. Justice G.P. Mittal. In the aforesaid case, deceased Shaukat Ali aged about 37 years was alleged to be supplying milk and earning Rs.10,000/ per month and the Tribunal had awarded Suit No.54/12 - (Smt. Sumitra & Ors.Vs. Shri Rashit Aggarwal & Ors.) 11 of 25 addition of 30% towards future prospects of the income of the deceased. However, it was held by the Hon'ble High Court that no addition of 30% towards future prospects was permissible in the absence of any evidence with regard to future prospects. The observations made by the Hon'ble High Court on the aspect of calculation of future prospects as discussed in para 7 of aforesaid judgement in this regard are quoted for reference:
"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 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 Ra- jesh & 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 Manag- er, Kerala State Road Transport Corporation, Trivandrum v. Susamma Thomas (Mrs.) and Suit No.54/12 - (Smt. Sumitra & Ors.Vs. Shri Rashit Aggarwal & Ors.) 12 of 25 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. Geo-
logical Survey of India, (2003) 3 SCC 148 : 2003 SCC (Cri) 746] and in para 24 of the Report held as under:
(Sarla Verma case [Sarla Verma v. DTC, (2009) 6 SCC 121 : (2009) 2 SCC (Civ) 770 : (2009) 2 SCC (Cri) 1002] , SCC p. 134):
"24. ... In view of the imponderables and uncertainties, we are in favour of adopting as a rule of thumb, an addition of 50% of actual salary to the actual salary income of the deceased towards future prospects, where the deceased had a permanent job and was below 40 years. (Where the annual income is in the taxable range, the words „actual salary‟ should be read as „actual salary less tax‟). The addition should be only 30% if the age of the deceased was 40 to 50 years. There should be no addition, where the age of the deceased is more than 50 years. Though the evidence may indicate a different percentage of increase, it is necessary to standardise the addition to avoid different yardsticks being applied or different methods of calculation being adopted. Where the de-
ceased was self-employed or was on a fixed salary (without provision for an-
Suit No.54/12 - (Smt. Sumitra & Ors.Vs. Shri Rashit Aggarwal & Ors.) 13 of 25 nual 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 cir- cumstances."
39. The standardization of addition to income for future prospects shall help in achieving certainty in arriving at ap-
propriate compensation. We approve the method that an addition of 50% of actu-
al salary be made to the actual salary income of the deceased towards future prospects where the deceased had a per-
manent job and was below 40 years and the addition should be only 30% if the age of the deceased was 40 to 50 years and no addition should be made where the age of the deceased is more than 50 years. Where the annual income is in the taxable range, the actual salary shall mean actual salary less tax. In the cases where the deceased was self-employed or was on a fixed salary without provi-
sion 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 justi-
fied in extraordinary circumstances and very exceptional cases."
12. The learned counsel for the Insurance Company relies upon a Constitutional Bench judgment of the Supreme Court in Central Board of Dawoodi Bohra Community & Anr. v. State of Maharashtra & Anr., (2005) 2 SCC 673; Safiya Bee v. Mohd. Vajahath Hussain @ Fasi, (2011) 2 SCC 94; and Union of India & Ors. v. S.K. Kapoor, (2011) 4 SCC 589 to contend that in case of divergence of opinion in judgments of benches of co-equal strength, earlier judgment will be tak- en 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 Suit No.54/12 - (Smt. Sumitra & Ors.Vs. Shri Rashit Aggarwal & Ors.) 14 of 25 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 ap- proved the two Judge Bench decision of the Supreme Court in Sarla Verma (Smt.) & Ors. v. Delhi Transport Corporation & Anr., (2009) 6 SCC 121 with regard to the selection of mul- tiplier. It further laid down that addition to- wards 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 be- tween 40-50 years. No addition towards future prospects shall be made where the deceased was self-employed or was getting a fixed salary with- out 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 per- sons. It may, however, be noted that in Rajesh, the three Judge Bench decision in Reshma Ku-
mari (supra) was not brought to the notice of their Lordships.
15. The divergence of opinion was noted by an- other 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 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 Suit No.54/12 - (Smt. Sumitra & Ors.Vs. Shri Rashit Aggarwal & Ors.) 15 of 25 should be scrupulously applied in all the cases?
(2) Whether for determination of the multiplicand, the Act provides for any criterion, particularly as regards de-
termination of future prospects?"
15. Answering the above reference a three- Judge Bench of this Court in Reshma Kumari v. Madan Mohan [(2013) 9 SCC 65 : (2013) 4 SCC (Civ) 191 : (2013) 3 SCC (Cri) 826] (SCC p. 88, para 36) reiterated the view taken in Sarla Verma [Sarla Verma v. DTC, (2009) 6 SCC 121 : (2009) 2 SCC (Civ) 770 : (2009) 2 SCC (Cri) 1002] to the effect that in respect of a person who was on a fixed salary without provision for annual increments or who was self-employed the actual income at the time of death should be taken into account for determining the loss of income 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 Insur-
ance Co. Ltd. [(2010) 14 SCC 575 : (2012) 1 SCC (Civ) 766 : (2011) 3 SCC (Cri) 848] there is a practical application of the afore- said principle. The near certainty of the reg- ular employment of the deceased in a gov-
ernment 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 de- ceased was earning at the time of his death."
16. Further, the divergence of opinion in Resh- ma 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 Suit No.54/12 - (Smt. Sumitra & Ors.Vs. Shri Rashit Aggarwal & Ors.) 16 of 25 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 ap-
propriate 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 ref- erence 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 po- sition in the following terms:
(1) The law laid down by this Court in a de-
cision 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 dis- agree 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 de- cision has come up for consideration. It will be open only for a Bench of coequal strength to ex- Suit No.54/12 - (Smt. Sumitra & Ors.Vs. Shri Rashit Aggarwal & Ors.) 17 of 25 press 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 deci- sion 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 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 previous decision in question dispensing with the need of a specific reference or the order of the Chief Justice con- stituting 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 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 Suit No.54/12 - (Smt. Sumitra & Ors.Vs. Shri Rashit Aggarwal & Ors.) 18 of 25 coordinate Bench of equal strength. It is an accepted rule or principle that the statement of the law by a Bench is con-
sidered 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 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 re- port, the Supreme Court held as under:-
"9. It may be noted that the decision in S.N. Narula case [(2011) 4 SCC 591] was prior to the decision in T.V. Patel case [(2007) 4 SCC 785 : (2007) 2 SCC (L&S) 98] . It is well settled that if a subsequent coordinate Bench of equal strength wants to take a different view, it can only refer the matter to a larger Bench, otherwise the prior decision of a coordinate Bench is binding on the subsequent Bench of equal strength. Since, the decision in S.N. Narula case [(2011) 4 SCC 591] was not noticed in T.V. Patel case [(2007) 4 SCC 785 :
(2007) 2 SCC (L&S) 98] , the latter decision is a judgment per incuriam. The decision in S.N. Narula case [(2011) 4 SCC 591] was binding on the subsequent Bench of equal strength and hence, it could not take a contrary view, as is settled by a series of judgments of this Court."
21. This Court in New India Assurance Co. Ltd. v. Harpal Singh & Ors., MAC APP.138/2011, decided on 06.09.2013, went into this question and held that in 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."
Suit No.54/12 - (Smt. Sumitra & Ors.Vs. Shri Rashit Aggarwal & Ors.) 19 of 25 In the present case, in view of the law as settled by the Hon'ble High Court, in absence of any evidence with regard to future prospects, addition of income towards future prospects cannot be made for the purpose of compensation.
(d) Deduction towards personal and living expenses of the deceased:
Ld. counsel for Insurance Company contends that since the petitioner Nos.2 to 4 are married daughters of the deceased, they were not financially dependent on the deceased and as such the deduction towards the personal expenses of the deceased has to be 1/4 instead of 1/5 as claimed by the counsel for petitioner since the number of dependents have to be treated as 4 i.e. the wife and 3 minor children.
As per Sarla Verma's Judgement, where the deceased was married, the deduction towards personal and living expenses of the deceased should be onethird (1/3rd) where the number of dependent family members is 2 to 3, 1/4 where the number of dependent family th members is 4 to 6 and 1/5th where the number of dependent family member exceeds 6.
It is admitted in evidence of PW1 Sumitra that petitioner Nos.2 to 4 got married prior to the accident and are living in their matrimonial homes. In the facts and circumstances, I am of the Suit No.54/12 - (Smt. Sumitra & Ors.Vs. Shri Rashit Aggarwal & Ors.) 20 of 25 considered view that the number of dependent legal heirs for the purpose of deduction have to be treated as 4 (four) since the married daughters are normally taken care of in their own matrimonial home.
The deduction towards personal and living expenses of the deceased as such has to be calculated as 1/4 in view of law laid down in Sarla Verma (supra).
However, the married daughters shall be entitled to receive some amount of awarded compensation though they may not have been dependent on the deceased stricto senso but nevertheless formed the part of the family.
(e) Selection of multiplier:
PW1 Smt. Sumitra, wife of the deceased testified the age of deceased as 48 years as on the date of accident. However, as per copy of the PAN card Ex.PW1/2 and copy of driving licence of the deceased Ex.PW1/3 placed and proved on record, the date of birth of the deceased was 15.03.1962. In view of the aforesaid admitted documents placed on record, the age of the deceased on the date of accident was approximately 49 years 7 months. In view of above, as per Sarla Verma (Smt.) & Ors. vs. Delhi Transport Corporation & Anr. (2009) 6 SCC 121, the multiplier of 13 is to be adopted.
Suit No.54/12 - (Smt. Sumitra & Ors.Vs. Shri Rashit Aggarwal & Ors.) 21 of 25 (f) Loss of financial dependency
In the light of aforesaid facts and circumstances, the loss of financial dependency of the petitioners in this case comes to Rs.
9,49,104/ [i.e. Rs.8,112 x 12 (months) x 13 (multiplier) x 3/4].
8. Compensation under nonpecuniary heads:
In view of the judgement in Rajesh & Ors. v. Rajbir Singh & Ors., (2013) 9 SCC 54, the petitioners are further entitled to 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.
9. The petitioners/claimants are accordingly entitled to compensation computed as under:
Loss of financial dependency Rs.9,49,104/ Loss of Love and affection Rs.1,00,000/ Suit No.54/12 - (Smt. Sumitra & Ors.Vs. Shri Rashit Aggarwal & Ors.) 22 of 25 Loss of consortium to wife Rs.1,00,000/ Loss of Estate Rs.0,10,000/ Funeral Expenses Rs.0,25,000/ Total Rs.11,84,104/ (Rupees Eleven Lac Eighty Four Thousand One Hundred and Four only) The claimants/petitioners are also entitled to get interest @ 9% p.a. from the date of filing of petition i.e. w.e.f. 06.02.2012 till realization.
The amount of interim award, if any, shall, however, be deducted from the above amount, if the same has already been paid to the petitioner.
10. For the purpose of disbursement, petitioner no. 1 Smt. Sumitra (wife of the deceased) shall be entitled to 40%, petitioner nos. 2 to 4 (married daughters of the deceased) shall be entitled to 5% each and petitioner nos. 5 to 7 shall be entitled to 15% each of the award amount and proportionate interest thereon.
11. It is further held that Respondent No.1 (Owner), Suit No.54/12 - (Smt. Sumitra & Ors.Vs. Shri Rashit Aggarwal & Ors.) 23 of 25 Respondent No.2 (Insurer) and Respondent No.3 (Driver) of the offending vehicle are jointly and severally liable to make the payment of compensation to the petitioners/claimants.
12. Relief Since the offending vehicle was duly insured, Respondent No.2/The New India Insurance Company Ltd. is directed to deposit the award amount of Rs.11,84,104/ with interest @ 9% per annum from the date of filing of the petition i.e. 06.02.2012 till realization with the Nazir of this Court within 30 days under intimation to the petitioner failing which the Insurance Company shall be liable to pay interest @ 12% per annum for the period of delay beyond 30 days.
Insurance Company/driver/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 this amount with the Tribunal to the claimants and complete details in respect of calculations of interest etc. in the court within 30 days from today.
A copy of this judgement be sent to respondent No.2/ New India Assurance Company Ltd. for compliance within the time granted failing which General Manager of the Insurance Company will show reasons for noncompliance.
Nazir of this court is directed to place a report on record in Suit No.54/12 - (Smt. Sumitra & Ors.Vs. Shri Rashit Aggarwal & Ors.) 24 of 25 the event of nonreceipt/deposit of the compensation amount within the time granted.
File be consigned to Record Room.
Announced in open court (A.K. Mendiratta) on 11th February, 2015 Judge, MACT1 (Central), Delhi Suit No.54/12 - (Smt. Sumitra & Ors.Vs. Shri Rashit Aggarwal & Ors.) 25 of 25