Delhi District Court
Smt. Rani Devi vs Shri Santosh Kumar Yadav on 29 June, 2015
IN THE COURT OF ANOOP KUMAR MENDIRATTA,
JUDGE, MACT-1 (CENTRAL), DELHI.
Suit No. 594/11
Unique Case ID No.02401C-0304412011
1. Smt. Rani Devi
W/o Late Shri Congress Tanti (Wife)
2. Baby Sanjana Kumari
D/o Late Shri Congress Tanti (Daughter)
3. Master Satyam Kumar
S/o Late Shri Congress Tanti (Son)
All permanent residents of :
Village Lathana, Post Suggi,
District Jamoi, P.S. Jamoi, Bihar.
Presently residing at :
C/o Harish Kumar, S/o Shri Nand Ram,
C-139, JJ Colony, Raghubir Nagar,
New Delhi
........PETITIONERS
(Petitioner No. 2 & 3 being minor are represented through
their mother/natural guardian petitioner no. 1 Smt. Rani
Devi)
Versus
1. Shri Santosh Kumar Yadav
S/o Shri Chotte Lal Yadav,
R/o Akama, Nasseruddinpur,
Tahabarpur Azamgarh, U.P.
........(Driver )
Suit No. 594/11- Rani Devi & Ors. vs. Santosh Kr. Yadav & Ors. Page 1 of 32
2. Shri Ashok Kumar Yadav,
S/o Shri Ramesh Kumar Yadav,
R/o H.No. 49F, Sector-12,
Vijay Nagar, Ghaziabad, U.P. ....... (Owner)
3. Oriental Insurance Company Ltd.
Through its Registered Office:
Office at A-25/27, Asaf Ali Road,
Darya Ganj, Delhi. ........(Insurer)
4. Shri Arjun
S/o Shri Bulaki (Father)
5. Smt. Ruda
W/o Shri Arjun (Mother)
Both Residents of Village Bela,
Post Gaura, District Jamoi,
P.S. Laxmipur, Bihar.
............. RESPONDENTS
Date of Institution of the suit : 07.07.2011
Date of reserving judgment/order : 04.06.2015
Date of pronouncement : 29.06.2015
JUDGMENT
1. The present claim petition has been preferred by the petitioners under Section 166 and 140 of Motor Vehicle Act, 1988 (hereinafter referred to as 'the Act') claiming compensation of a sum of Rs.10,00,000/- in respect of the accidental death of Congress Tanti in a motor vehicle accident on 05.05.2010.
Suit No. 594/11- Rani Devi & Ors. vs. Santosh Kr. Yadav & Ors. Page 2 of 32Brief facts of the case as averred in the claim petition are that on 05.05.2010 at about 10:00AM, Congress Tanti was travelling as a pillion rider along with Satish on scooter bearing registration No. DL-4SY-0972 which was driven by Manoj Sharma. The scooter was hit by TATA Truck bearing registration No. UP-50F-0584 which was driven by Respondent No.1 Santosh Kumar Yadav in a rash and negligent manner. Consequently, head of Congress Tanti was crushed under the front tyre of the truck and sustained fatal injuries. FIR No. 87/2010, under Section 279/304A IPC, P.S. DLF Phase-I, Gurgaon was accordingly registered.
It is further the case of petitioners that deceased Congress Tanti aged about 25 years was working as a mason and earning Rs.10,000/- per month. Further, the deceased was the only bread earner in the family and is survived by petitioner no. 1 to 3 (wife along with minor children) and parents of the deceased (Respondent No.4 & 5) who were totally dependent upon the income of the deceased.
It is also the case of petitioners that vehicle driven by Respondent No.1 was owned by Respondent No.2 (Ashok Kumar Yadav) and was insured with Respondent No.1 (M/s Oriental Insurance Company Ltd.), who are jointly and severally liable for compensation.
Suit No. 594/11- Rani Devi & Ors. vs. Santosh Kr. Yadav & Ors. Page 3 of 322. In the Written Statement filed on behalf of Respondent No.1 (driver of the offending vehicle), it was submitted that accident had not taken place as alleged and Respondent No.1 had been falsely implicated. Further, Respondent No.1 was holding a valid driving licence and the vehicle was duly insured with Respondent No.3/Insurance Company at the relevant time. The compensation claimed by the petitioners was further stated to be excessive.
Similar stand was taken by Respondent No.2 (owner of the offending vehicle) in a separate Written Statement filed on record.
In the Written Statement filed on behalf of Respondent No.3/Oriental Insurance 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. UP-50F-0584 was duly insured in the name of Shri Ashok Kumar Yadav (Respondent No.2 vide Policy No.252802/31/2010/1751/001 for the period 23.09.2009 to 22.09.2010 which covers the date of accident. It was also submitted that the deceased himself contributed to the alleged accident as three persons were travelling on the same motorcycle in violation of traffic rules and regulations. It was further averred that if the offending vehicle was plying without valid permit or if the driver was not holding valid driving licence, then the answering respondent shall not be liable to pay compensation.
Suit No. 594/11- Rani Devi & Ors. vs. Santosh Kr. Yadav & Ors. Page 4 of 323. On the pleadings of the parties, following issues were framed by the ld. Predecessor:-
(i) Whether the deceased Shri Congress Taanti had died due to injuries sustained by him in an accident which took place on 05.05.2010 at 10.00 AM within the jurisdiction of PS DLF Phase I, Gurgaon due to rash and negligent driving of vehicle bearing Regn. No. UP-50F-0584 by respondent No.2 (there appears to be a typographical error and Respondent No.2 may be correctly read 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 the claim, petitioners examined PW1 Smt. Rani Devi (wife of deceased) and PW2 Shri Rajesh Kumar (eyewitness to the accident).
PW-1 Smt. Rani Devi testified on the lines of claim petition and proved the copy of her election I-card (Ex.PW1/1), copy of birth certificate of minor petitioner No.2 Sanjana Suit No. 594/11- Rani Devi & Ors. vs. Santosh Kr. Yadav & Ors. Page 5 of 32 (Ex.PW1/2), copy of birth certificate of minor petitioner no. 3 Satyam Kumar (Ex.PW1/3), School leaving certificate of deceased Congress Tanti (Ex.PW1/4) and copy of election I-card of deceased Congress Tanti (Ex.PW1/5).
During cross-examination, she admitted that she was not an eyewitness to the accident. She further stated that deceased was working as a mason in Gurgaon (Haryana) but did not possess any documentary proof of income of deceased. She also deposed that she was living in Delhi but did not remember the address but had placed on record copy of Rent Agreement. She denied the suggestion that copy of Rent Agreement placed on record is false. She further denied the suggestion that her husband was not earning Rs.10,000/- per month and not contributing Rs.7,000/- per month towards household expenses.
PW-2 Rajesh Kumar testified that he had witnessed the accident and on 05.05.2010 at about 10:00AM, he was going to duty from his house. When he reached ahead of Bristal Chowk, a truck bearing registration No. UP-50F-0584 in a rash and negligent manner struck the scooter from back. The occupants of the scooter fell down and the truck ran over two persons, resulting into their death and multiple injuries to one of them. He came to know the name of deceased as Satish and Congress Tanti, who were also residing in the same locality. During cross-examination he stated that he did not know Congress Tanti in person but they are resident of same Tehsil. Further, even in Haryana, presently he was Suit No. 594/11- Rani Devi & Ors. vs. Santosh Kr. Yadav & Ors. Page 6 of 32 residing merely two kilometers away from house of deceased. He denied the suggestion that he was deposing falsely being the relative of deceased. He further testified that his statement was recorded by the police as an eyewitness.
No evidence was led on behalf of Respondent No.1 & 2 and they were proceeded exparte vide order dated 15.12.2011.
Respondent No.3 M/s Oriental Insurance Company Ltd. led evidence of R3W1 Sh.K.K.Sharma, Administrative Officer.
R3W1 Shri K.K. Sharma testified that as per instructions from the company Sh.Amarjeet Singh, Advocate had issued notice dated 29.07.2014 under Order 12 Rule 8 CPC on 01.08.2014 to the Insured and the driver of offending vehicle to produce the original Insurance Policy, permit and original DL for the period 05.05.2010. The copy of the notice was proved as Ex.R3W1/1 along with original postal receipt Ex.R3W1/2. Further the Insurance Policy accompanying the e-mail in the name of Ram Singh Yadav, S/o Balihari Yadav, 524, Shiv Puri bypass Road, Vijay Nagar, Ghaziabad, U.P. for the period 12.04.2010 to 22.09.2010 was proved as Ex.R3W1/3. He further testified that the insured willfully violated the terms and condition of the policy of Insurance Mark A as the offending vehicle was not having permit at the time of alleged accident.
Suit No. 594/11- Rani Devi & Ors. vs. Santosh Kr. Yadav & Ors. Page 7 of 325. I have heard arguments addressed by counsels for the parties and perused the record.
Counsel for petitioner made submissions on the lines of claim petition. He candidly admitted that no document was filed on record in support of the employment of deceased but prayed that the minimum wages as notified by Govt. of NCT of Delhi may be considered for purpose of assessing the income of deceased for compensation.
On the other hand, counsel for Insurance Company contended that the Insurance Company cannot be saddled with the liability to pay the compensation, since the driver of the offending vehicle was not holding a valid driving licence and the vehicle was being driven without permit at the relevant time.
6. My Issue-wise findings are as under :-
Issue No. (i) Whether the deceased Shri Congress Taanti had died due to injuries sustained by him in an accident which took place on 05.05.2010 at 10.00 AM within the jurisdiction of PS DLF Phase I, Gurgaon due to rash and negligent driving of vehicle bearing Regn. No. UP-50F-0584 by respondent No.2 (the same appears to be a typographical error and may be correctly read as Respondent No.1)?Suit No. 594/11- Rani Devi & Ors. vs. Santosh Kr. Yadav & Ors. Page 8 of 32
In a petition u/s 166 of the Motor Vehicle Act, 1988 the Claim Tribunal has to decide the negligence on the touchstone of preponderance of probabilities.
Reference may be made to the observations in Ranu Bala Paul & Others vs. Bani Chakraborty 1999 ACJ 634 Gauhati wherein the claim was allowed after consideration of FIR before the Tribunal.
"In deciding a matter Tribunal should bear in mind the caution struck by the Apex Court that a claim before the Motor Accident Claims Tribunal is neither a criminal case nor a civil case. In a criminal case in order to have conviction, the matter is to be proved beyond reasonable doubt and in a civil case the matter is to be decided on the basis of preponderance of evidence, but in a claim before the Motor Accident Claim Tribunal the standard of proof is much below than what is required in a criminal case as well as in a civil case. No doubt before the Tribunal, there must be some material on the basis of which the Tribunal can arrive or decide things necessary to be decided for awarding compensation. But the Tribunal is not expected to take or to adopt the nicety of a civil or of a criminal case. After all, it is a summary enquiry and this is a legislation for the welfare of the society. In N.K.V. Bros. (P) Ltd. v. M. Marumai Ammal, 1980 ACJ 435 (SC), the Supreme Court pointed out that the Accidents Claims Suit No. 594/11- Rani Devi & Ors. vs. Santosh Kr. Yadav & Ors. Page 9 of 32 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."
It may be observed that evidence of PW2 Rajesh Kumar who had witnessed the accident could not be dented during cross-examination. The evidence on record points out that the Scooter driven by Manoj Sharma on which the deceased was seated as a pillion rider was hit by the offending truck from the back side, resulting in death of Congress Tanti along with other pillion rider Satish. The accident was caused due to rash and negligent driving of Respondent No.1, as proved by the testimony of PW2. The same is also corroborated by the certified copy of site plan which was prepared during the course of investigation. It is pertinent to note that Respondent No.1 (i.e. the driver of the offending vehicle) did not enter the witness box to controvert the testimony of PW2 and no other evidence has been led on record to doubt the manner of accident. The truck was seized by Police during the course of investigation from the spot and the Mechanical Inspection Report was also prepared as revealed from the certified copies of the documents which point involvement of Truck in the accident. Merely because the scooter had two pillion riders apart from driver, it cannot be presumed that the driver of the scooter was negligent as there is no evidence that the same was Suit No. 594/11- Rani Devi & Ors. vs. Santosh Kr. Yadav & Ors. Page 10 of 32 negligently driven. In fact, it has come on record that the scooter was hit by the offending truck from the back side and was driven in a rash and negligent manner.
For the foregoing reasons, I am of the considered view that accident was caused due to rash and negligent driving of the offending vehicle by Respondent No.1. Issue No. 1 is accordingly decided in favour of the petitioners.
7. Issue No. (ii) Whether the petitioners are entitled to any compensation, if so, to what amount and from whom?
Counsel for the petitioners contended that deceased Congress Tanti was working as a Mason Contractor at Gurgaon and earning Rs.10,000/- per month. It was prayed that compensation be accordingly assessed.
However, the same was refuted by the counsel for Insurance Company since no documentary evidence was filed on record to prove the income of deceased @ Rs.10,000/- per month.
I am of the considered view that since no reliable evidence has been led or document filed on record to prove the income of deceased as a Mason Contractor @ Rs.10,000/-per Suit No. 594/11- Rani Devi & Ors. vs. Santosh Kr. Yadav & Ors. Page 11 of 32 month, the notional income of the deceased has to be considered @ Rs.5,278/-per month on the basis of minimum wages of a unskilled labourer notified by the Government of NCT of Delhi for the relevant period, since the deceased was resident of Delhi and was working in the NCR region.
(a) If addition in income towards future prospects is to be made The petitioners have claimed that addition towards future prospects to the extent of 50% be made. 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 addition of Suit No. 594/11- Rani Devi & Ors. vs. Santosh Kr. Yadav & Ors. Page 12 of 32 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 de-
cision 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 coun- sel for the Insurance Company refers to Suit No. 594/11- Rani Devi & Ors. vs. Santosh Kr. Yadav & Ors. Page 13 of 32 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-
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):Suit No. 594/11- Rani Devi & Ors. vs. Santosh Kr. Yadav & Ors. Page 14 of 32
"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 the deceased was self-employed or was on a fixed salary (without provision for annual incre-
ments, etc.), the courts will usual-
ly take only the actual income at the time of death. A departure therefrom should be made only in rare and exceptional cases involving special circum-
stances."
39. The standardization of addi- tion to income for future prospects shall help in achieving certainty in arriving at appro-Suit No. 594/11- Rani Devi & Ors. vs. Santosh Kr. Yadav & Ors. Page 15 of 32
priate 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 actual salary less tax. In the cas- es where the deceased was self- employed or was on a fixed salary without provision for an- nual increments, the actual in- come at the time of death without any addition to income for fu- ture prospects will be appro- priate. A departure from the above principle can only be jus- tified in extraordinary cir- cumstances 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 diver- gence of opinion in judgments of benches Suit No. 594/11- Rani Devi & Ors. vs. Santosh Kr. Yadav & Ors. Page 16 of 32 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 pro-
nouncement 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 Corpo- ration & Anr., (2009) 6 SCC 121 with re-
gard to the selection of multiplier. 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 de-
ceased had a permanent job and was be-
low 40 years and addition of 30% should be made if the age of the deceased was between 40-50 years. No addition to-
wards 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. 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-
Suit No. 594/11- Rani Devi & Ors. vs. Santosh Kr. Yadav & Ors. Page 17 of 32employed 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 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 Mo-
han [(2013) 9 SCC 65 : (2013) 4 SCC (Civ) 191 : (2013) 3 SCC (Cri) Suit No. 594/11- Rani Devi & Ors. vs. Santosh Kr. Yadav & Ors. Page 18 of 32 826] (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 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 Suit No. 594/11- Rani Devi & Ors. vs. Santosh Kr. Yadav & Ors. Page 19 of 32 & 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).
18. 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 Constitu-
tion Benches in the abovesaid de- cisions, we would like to sum up the legal position in the following terms:Suit No. 594/11- Rani Devi & Ors. vs. Santosh Kr. Yadav & Ors. Page 20 of 32
(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 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 ex-
ceptions: (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-
Suit No. 594/11- Rani Devi & Ors. vs. Santosh Kr. Yadav & Ors. Page 21 of 32above, 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 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 Suit No. 594/11- Rani Devi & Ors. vs. Santosh Kr. Yadav & Ors. Page 22 of 32 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 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 de- cision in S.N. Narula case [(2011) 4 Suit No. 594/11- Rani Devi & Ors. vs. Santosh Kr. Yadav & Ors. Page 23 of 32 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."
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.
(b) Deduction towards personal and living expenses of the deceased:
Counsel for petitioners contended that since petitioner no. 1 to 3 and respondent no.4 and 5 (i.e. parents of deceased who were later on living separately) were fully dependent upon the deceased, deduction of 1/4th is to be made towards the personal expenses of deceased and loss of dependency is to be accordingly considered as per age of deceased at the time of accident. The same has not been disputed by counsel for Insurance Company.Suit No. 594/11- Rani Devi & Ors. vs. Santosh Kr. Yadav & Ors. Page 24 of 32
As per Sarla Verma (Smt.) & Ors. vs. Delhi Transport Corporation & Anr. (2009) 6 SCC 121, where the deceased was married, 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.
It has come up on record that deceased is survived by five members i.e. widow along with two children and parents of the deceased. In the facts and circumstances, the number of dependent legal heirs for the purpose of deduction have to be treated as 5 (five). The deduction towards personal and living expenses of the deceased shall be accordingly 1/4th as held in Sarla Verma (supra).
(c) Selection of multiplier:
As per copy of School Transfer Certificate (Ex.PW1/4), the date of birth of deceased was reflected as 26.04.1986 (Ex.PW1/4) which has not been controverted on record. In view of above, age of the deceased on the date of accident was about 24 years approximately. Accordingly, as held in Sarla Verma (Smt.) & Ors. vs. Delhi Transport Corporation & Anr. (2009) 6 SCC 121, the multiplier of 18 is to be adopted for the purpose of assessment.Suit No. 594/11- Rani Devi & Ors. vs. Santosh Kr. Yadav & Ors. Page 25 of 32
(d) Loss of financial dependency In the light of aforesaid facts, loss of financial dependency of the petitioners comes to Rs.8,55,036/- [i.e. Rs. 5,278/- X 12 (months) x 18 (multiplier) x 3/4].
8. Compensation under non-pecuniary 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.8,55,036/-
Loss of Love and affection Rs.1,00,000/
Loss of consortium to wife Rs.1,00,000/
Loss of Estate Rs. 10,000/
Funeral Expenses Rs. 25,000/
______________
Suit No. 594/11- Rani Devi & Ors. vs. Santosh Kr. Yadav & Ors. Page 26 of 32
Total Rs.10,90,036/
________________
(Rupees Ten Lakh Ninety Thousand and Thirty Six 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.
07.07.2011 till realization (except for the period 15.12.2011 to 27.08.2012 in view of order dated 15.12.2011 passed by the ld.
Predecessor).
The amount of interim award, if any, shall be deducted from the above amount, if the same has already been paid to the petitioners.
10. For the purpose of disbursement, petitioner no. 1 Smt. Rani Devi (wife of deceased) shall be entitled to 50% and petitioner no. 2 & 3 (i.e. minor children of deceased) and Respondent No.4 & 5 (i.e. mother and father of deceased) shall be entitled to 12.5% each of the award amount and proportionate interest thereon.
Suit No. 594/11- Rani Devi & Ors. vs. Santosh Kr. Yadav & Ors. Page 27 of 32Liability to Satisfy the Claim
11. Counsel for Insurance Company contended that the Insurance Company cannot be saddled with the liability to pay the compensation, since the driver of the offending vehicle was not holding a valid driving licence and the vehicle was being driven without permit. In the alternative it was urged that the Insurance Company, if directed to pay the compensation be granted the rights to recover the compensation amount from Respondent No.1 & 2 (i.e. driver and owner of the offending vehicle). For aforesaid purpose reliance was also placed upon statement of R3W1 who proved the notice Under Order 12 Rule 8 CPC issued to the owner and driver of the offending vehicle for production of DL/permit.
It is well settled that the Insurer is not only to prove breach of the terms and conditions of Insurance Policy on the part of Insured but also to prove that breach on the part of the Insured was willful and conscious.
Perusal of record reveals that photocopy of the Insurance Policy Ex.R3W1/3 has been filed on record to highlight Suit No. 594/11- Rani Devi & Ors. vs. Santosh Kr. Yadav & Ors. Page 28 of 32 that a permit was required in respect of the offending vehicle and in absence of the same there is a violation of permit conditions. However, it may be noticed that in the Written Statement it was admitted by the Insurance Company that the vehicle was insured for the period 23.09.2009 up to 22.09.2010 and the same has not been disputed. It may further be observed that the photocopies of the driving licence of Santosh Kumar Yadav (driver of the offending vehicle) along with copy of temporary authorisation of registration certificate dated 27.03.2010 valid up to 26.05.2010 in the name of owner of offending vehicle had been filed on record by the petitioners on 07.07.2011 and later on the certified copies of the same were filed on 30.07.2014 by the petitioners, while the notice issued by the Insurance Company only on 01.08.2014 as per testimony of R3W1, whose statement was recorded on 10.09.2014. Only a general averment was made by the Insurance Company in the Written Statement that if on inquiry it is revealed that the driver was not in possession of valid driving licence or the vehicle was plying without valid permit, the Insurer shall not be liable to pay compensation. Respondent No.1 & 2 had already been proceeded exparte after filing Written statement vide order dated 15.12.2011 but the aforesaid documents were never sought in specific by Insurance Company while they were contesting the proceedings before being proceeded ex parte. The same stood already filed on record on 30.07.2014 by the petitioners and the burden lay on the Insurance Company to prove if the same were fake. The Insurance Company cannot be permitted to merely rely upon the belated notice under Order 12 Rule 8 CPC to contend that Suit No. 594/11- Rani Devi & Ors. vs. Santosh Kr. Yadav & Ors. Page 29 of 32 the driving licence was not possessed by Respondent No.1 when the same has been duly filed on record.
I am of the considered opinion that since the vehicle was duly insured and no willful breach of terms and conditions of Insurance Policy on the part of Insured has been proved on record, the Insurance Company is liable to pay the compensation to the petitioners and is not entitled to recovery rights from the owner/driver of the offending vehicle.
12. It is further held that Respondent No.1 (Driver), Respondent No.2 (Owner) and Respondent No.3 (Insurer) of the offending vehicle are jointly and severally liable to make the payment of compensation to the petitioners/claimants.
13. Relief Since the offending vehicle was duly insured, Respondent No.3/M/s Oriental Insurance Company Ltd. is directed to deposit the award amount of Rs.10,90,036/ with interest @ 9% per annum from the date of filing of the petition i.e. 07.07.2011 till realization (except for the period 15.12.2011 to 27.08.2012 in view of order dated 15.12.2011 Suit No. 594/11- Rani Devi & Ors. vs. Santosh Kr. Yadav & Ors. Page 30 of 32 passed by the ld. Predecessor) with the Nazir 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/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 M/s Oriental Insurance Company Ltd. for compliance within the time granted.
Nazir is directed to place a report on record in the event of nonreceipt/deposit of the compensation amount within the time granted.
File be consigned to Record Room.
Suit No. 594/11- Rani Devi & Ors. vs. Santosh Kr. Yadav & Ors. Page 31 of 32Announced in open court (A.K. Mendiratta) on 29th June, 2015 Judge, MACT-1 (Central), Delhi Suit No. 594/11- Rani Devi & Ors. vs. Santosh Kr. Yadav & Ors. Page 32 of 32