Delhi District Court
Tasirul Islam @ Mohd. Tasirul vs Raju Prajapati on 7 June, 2016
IN THE COURT OF ANOOP KUMAR MENDIRATTA,
JUDGE, MACT-1, (CENTRAL), DELHI.
SUIT NO.652/11
Unique Case ID No.02401C-0527772011
Tasirul Islam @ Mohd. Tasirul
S/o Shri Jamirul Islam,
R/o 4203, Gali Shahtara, Ajmeri Gate,
Delhi-110 006
.........PETITIONER
Versus
1. Raju Prajapati
S/o Shri Ramayan Prajapati,
R/o Mohalla Madaipura, Subhash Nagar,
PS Hazira,
District Gwalior, M.P.
Presently at:
G-295, Sector-63, Noida, U.P.
..........(Driver)
2. Prakash S/o Shri Jatan Singh,
R/o Village Bahlolpur, Sector-65,
Noida, Gautam Budh Nagar, U.P.-201 301
Presently at:
H.No.25, Village Bahlolpur
PS Sector-58, Tehsil Dadari,
District Gautam Budh Nagar, U.P.
..........(Owner)
3. Cholamandalam MS General Insurance Company Ltd.
Plot No.6, 1st Floor, Opposite H.P. Petrol Pump,
Metro Pillar No.81, Pusa Road,
New Delhi-110 005 ...........(Insurer)
.......RESPONDENTS
Suit No.652/11 - Tasirul Islam vs. Raju Prajapati & Ors. Page 1 of 34
Date of filing of claim petition : 29.07.2011
Arguments heard on : 31.05.2016
Judgment pronounced on : 07.06.2016
JUDGMENT
1. Present claim petition has been preferred by the petitioner u/s 166 and 140 of Motor Vehicles Act, 1988 (hereinafter referred to as 'the Act') claiming compensation for a sum of Rs. 50,00,000/- (Rupees Fifty Lakh Only) in respect of grievous injuries sustained by him in a motor vehicular accident.
2. Brief facts giving rise to the present claim petition are that on 14.04.2011 about 11:00AM petitioner Tasirul Islam was travelling on bike as a pillion rider with his friend Ajay Kumar and proceeding to village Mamura, Noida from G-211, Sector-63, Noida. When they reached at Tiraha, near Company A-110, Sector-65, Noida, the bike was hit by Truck bearing registration No.HR 55L 9159, from behind which was driven by Respondent No.1 in a rash and negligent manner at a high speed. Consequently petitioner suffered grievous injuries and was admitted at Fortis Hospital, Noida and thereafter shifted to LNJP Hospital, Delhi. FIR No.411/11 (Crime No.467/11) U/s 279/338 IPC was registered at PS Sector-58, Noida, U.P. It is further the case of petitioner that he was working as Tailor in an export unit at a salary of Rs.8,000/-per month and was also earning about Rs.4,000/-per month by way of overtime.
Suit No.652/11 - Tasirul Islam vs. Raju Prajapati & Ors. Page 2 of 343. In the joint written statement filed on behalf of Respondent No.1 & 2 (i.e. driver and owner of the offending vehicle), it was submitted that the compensation is exorbitant and exaggerated. The factum of accident was denied. However, it was submitted that the vehicle bearing registration no.HR 55L 9159 was insured with Respondent No.3 for the period 26.10.2010 to 25.10.2011.
In the written statement filed on behalf of Respondent No.3 Cholamandalam MS General Insurance Company Ltd. it was submitted that the accident was caused due to negligence of motorcycle bearing registration No.DL 35B B 6194 as it was driven in a rash and negligent manner. Further, involvement of Dumper bearing No.HR 55L 9159 was denied. The claim was further stated to be exorbitant. It was further stated that the Insurance Company would not be liable in case it was found that vehicle was used by the owner without valid and effective Fitness Certificate and permit or in violation of conditions of insurance policy. However, it was admitted that vehicle no.HR 55L 9159 (Dumper) was insured for the period 26.10.2010 to 25.10.2011 which covers the date of accident.
4. On the pleadings of the parties, following issues were framed for consideration by ld. Predecessor vide order dated 26.09.2013:-
(i) Whether the petitioner had suffered grievous injuries in road traffic accident which took place on 14.04.2011 within the jurisdiction of PS: Sector-58, Suit No.652/11 - Tasirul Islam vs. Raju Prajapati & Ors. Page 3 of 34 Noida due to rash and negligent driving of the vehicle bearing registration No. HR 55L 9159 by Respondent No.1?
(ii) Whether the petitioner is entitled to any compensation, if so, to what amount and from whom?
(iii) Relief.
5. In support of the claim, two witnesses were examined namely PW1 Tasirul Islam (petitioner) and PW2 Dr. Ankur Aggarwal, Junior Specialist Orthopedics, Lok Nayak Hospital who proved the disability certificate.
Evidence was not led on behalf of the respondents. PW1 Tasirul Islam testified on the lines of claim petition and further proved copy of his Election I-card and Aadhaar Card (Ex.PW1/1-collectively), certified copy of criminal case record with MLC (Ex.PW1/2-collectively), discharge summary, prescriptions and diagnosis report and medical bills (Ex.PW1/4) and disability certificate (Ex.PW1/5).
During cross-examination, he admitted that he had not placed on record any proof of employment and income. He further stated that he had not filed the copy of valid and effective Driving Licence of his friend Ajay Kumar to drive the said motorcycle. He further clarified that the motorcycle was driven on the left side of Suit No.652/11 - Tasirul Islam vs. Raju Prajapati & Ors. Page 4 of 34 the road at a speed of 25 to 30 Kmph and the same was hit by Truck from behind. He further deposed that he remained admitted at LNJP Hospital for about 14 days in ICU and thereafter was shifted to ward. He admitted that he had not filed any document to show that he was working as a Tailor.
PW2 Dr. Ankur Aggarwal, Junior Specialist Orthopedics, Lok Nayak Hospital proved the disability certificate (Ex.PW1/5) prepared after examination of the petitioner by the Medical Board. He further deposed that on examination, the permanent medical disability with respect to whole body was assessed as 40% due to orthopedic injuries which can be quantified. Further the patient is also stated to have suffered bladder sphincter injury and impotence as a result of the accident but the same cannot be quantified in terms of percentage as per the guidelines available.
During cross-examination, he clarified that the disability quantified was with respect to the whole body on the basis of injuries suffered by the patient on left lower limb.
6. I have heard arguments addressed on behalf of the petitioner as well as counsel for respondent Insurance Company.
Respondent No.1/driver and Respondent No.2/owner of the offending vehicle were proceeded ex parte vide order dated 31.05.2016.
My Issue-wise findings are as under :-
Suit No.652/11 - Tasirul Islam vs. Raju Prajapati & Ors. Page 5 of 347. Issue No. (i) Whether the petitioner had suffered grievous injuries in road traffic accident which took place on 14.04.2011 within the jurisdiction of PS: Sector-58, Noida due to rash and negligent driving of the vehicle bearing registration No. HR 55L 9159 by Respondent No.1?
In Bimla Devi and Ors. V. Himachal Road Transport Corporation and Ors., (2009) 13 SC 530, it was held that 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 Suit No.652/11 - Tasirul Islam vs. Raju Prajapati & Ors. Page 6 of 34 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 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 Suit No.652/11 - Tasirul Islam vs. Raju Prajapati & Ors. Page 7 of 34 before the Tribunal, there must be some material on the basis of which the Tribunal can arrive or decide things necessary to be decided for awarding compensation. But the Tribunal is not expected to take or to adopt the nicety of a civil or of a criminal case. After all, it is a summary enquiry and this is a legislation for the welfare of the society. In N.K.V. Bros. (P) Ltd. v. M. Marumai Ammal, 1980 ACJ 435 (SC), the Supreme Court pointed out that the Accidents Claims Tribunal must take special care to see 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."
Counsel for insurance company contended that the accident was caused due to composite negligence and in the present case it has not been proved on record that the driver of motorcycle was in possession of valid Driving Licence.
Testimony of PW1 is categorical that the bike was hit by vehicle bearing registration No.HR 55L 9159 from behind which was driven in a rash and negligent manner. The same could not be dented during cross-examination and is also corroborated by the site plan prepared during the course of criminal proceedings arising out of the accident. It may also be noticed that the driver of the offending vehicle stands chargesheeted for the offence U/s 279/337 IPC and failed to enter the witness box. I am further of the considered view that nothing has come on record to reflect that the accident was caused due to contributory negligence of the driver of the motorcycle. As such, it is not a case of contributory or composite negligence. Further the insurance company has not led Suit No.652/11 - Tasirul Islam vs. Raju Prajapati & Ors. Page 8 of 34 any evidence to prove that the driver of the motorcycle was not in possession of valid driving licence. Suggestion in this regard was denied by PW1 during cross-examination. The insurance company also failed to prove the same by summoning IO of the criminal case or leading any other evidence in this regard. In the facts and circumstances, no adverse inference can be taken that the driver of motorcycle was not in possession of valid driving licence or had contributed to the accident.
Considering the fact that rash and negligent driving is to be assessed on the basis of touchstone of preponderance of probability and a holistic view is to be taken, it has been proved on record that the accident had been 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 petitioner and against the respondents.
8. Issue No. (ii)
(ii) Whether the petitioner is entitled to any compensation, if so, to what amount and from whom?
In Raj Kumar v. Ajay Kumar & Anr., 2011 Volume 1, ACJ 1, Hon'ble Supreme Court of India observed that the object of awarding damages is to make good the loss suffered as a result of the wrong done as far as money can do in a fair, reasonable and equitable manner. Paras 4 and 5 of the judgment are further Suit No.652/11 - Tasirul Islam vs. Raju Prajapati & Ors. Page 9 of 34 extracted below as the same explains the various heads under which the compensation is to be assessed:-
"4. The provision of the Motor Vehicles Act, 1988 ('the Act' for short) makes it clear that the award must be just, which means that compensation should, to the extent possible, fully and adequately restore the claimant to the position prior to the accident. The object of awarding damages is to make good the loss suffered as a result of wrong done as far as money can do so, in a fair, reasonable and equitable manner. The court or tribunal shall have to assess the damages objectively and exclude from consideration any speculation or fancy, though some conjecture with reference to the nature of disability and its consequences, is inevitable. A person is not only to be compensated for the physical injury, but also for the loss which he suffered as a result of such injury. This means that he is to be compensated for his inability to lead a full life, his inability to enjoy those normal amenities which he would have enjoyed but for the injuries, and his inability to earn as much as he used to earn or could have earned. [See C.K. Subramonia Iyer v. T. Kunhikuttan Nair, AIR 1970 SC 376, R.D. Hattangadi v. Pest Control (India) (P) Ltd., 1995 (1) SCC 551 and Baker v. Willoughby, 1970 AC 467.
5. The heads under which compensation is awarded in personal injury cases are the following:
Pecuniary damages (Special damages)
(i) Expenses relating to treatment, hospitalisation, medicines, transportation, nourishing food, and miscellaneous expenditure.
(ii) Loss of earnings (and other gains) which the injured Suit No.652/11 - Tasirul Islam vs. Raju Prajapati & Ors. Page 10 of 34 would have made had he not been injured, comprising:
(a) Loss of earning during the period of treatment;
(b) Loss of future earnings on account of permanent disability.
(iii) Future medical expenses.
Non-pecuniary damages (General damages)
(iv) Damages for pain, suffering and trauma as a consequence of the injuries.
(v) Loss of amenities (and/or loss of prospects of marriage).
(vi) Loss of expectation of life (shortening of normal longevity).
In routine personal injury cases, compensation will be awarded only under heads (i), (ii)(a) and (iv). It is only in serious cases of injury, where there is specific medical evidence corroborating the evidence of the claimant, that compensation will be granted under any of the heads (ii)(b), (iii), (v) and (vi) relating to loss of future earnings on account of permanent disability, future medical expenses, loss of amenities (and/or loss of prospects of marriage) and loss of expectation of life."
Now the important factors relevant for calculation of compensation consequent to accidental injuries sustained by the petitioner may be considered.
LOSS OF EARNING CAPACITY For purpose of assessing the loss of earning capacity, the income of the petitioner/injured needs to be assessed along with Suit No.652/11 - Tasirul Islam vs. Raju Prajapati & Ors. Page 11 of 34 the functional disability suffered by him due to the injuries sustained in the accident.
(a) Criteria for taking income of the petitioner Petitioner claimed that he was working as Tailor on salary of Rs.8,000/-per month but admittedly no evidence has been led on record by examining the employer to prove the fact that the petitioner was employed as Tailor or was receiving salary of Rs. 8,000/-per month. Petitioner also admitted during cross- examination that he had not passed any diploma in stitching and tailoring. The bald statement of petitioner cannot be accepted to assume the income of Rs.12,000/- per month as claimed in the petition.
In the facts and circumstances, notional income of the petitioner is considered on the basis of minimum wages of unskilled worker as notified by Government of NCT of Delhi for the relevant period @ Rs.6,422/- per month for purpose of assessment of compensation.
(b) If addition in income towards future prospects is to be made Counsel for petitioner claimed that addition towards future prospects to the extent of 50% be made considering the fact that petitioner was aged about 22 years but the same has been vehemently opposed by counsel for Insurance Company.
It may be observed that in Shashikala & Ors. v. Gangalakshmamma & Anr. 2015 (2) T.A.C. 867 (SC), separate Suit No.652/11 - Tasirul Islam vs. Raju Prajapati & Ors. Page 12 of 34 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 & 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 Suit No.652/11 - Tasirul Islam vs. Raju Prajapati & Ors. Page 13 of 34 upon MAC 79 of 2014 Bharti AXA General Insurance Company Ltd. vs. Smt. Poonam & Ors. decided on 27.05.2015 by Hon'ble Mr. Justice G.P. Mittal (Delhi High Court) wherein the judgements passed by the Hon'ble Apex Court in Munna Lal Jain & Anr. Vs. Vipin Kumar Sharma & Ors., Civil Appeal No.4497 of 2015 decided on 15.05.2015 {II (2015) ACC 806 (SC)} was also duly referred but the addition towards future prospects was denied in the absence of any evidence of bright future prospects. Reliance was therein placed upon Reshma Kumari & Others vs. Madan Mohan & Anr. (2013) 9 SCC 65 and HDFC Ergo General Insurance Company Ltd. vs. Smt. Lalta Devi & Others MAC APP No. 189/2014 decided on 12.01.2015.
The observations made by the Hon'ble High Court on the aspect of addition of future prospects as discussed in para 21 to 23 of MAC No. 79 of 2014 Bharti AXA General Insurance Company Ltd. vs. Smt. Poonam & Ors. decided on 27.05.2015 (supra) may be beneficially quoted:
21. As far as future prospects are concerned, there is no evidence on record that the deceased had bright future prospects. The question of grant of future prospects was dealt with by this Court at great length in HDFC Ergo General Insurance Co. Ltd. v. Smt. Lalta Devi and Ors., MAC APP No. 189/2014, decided on 12.01.2015. Paras 8 to 21 of the report in 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 Suit No.652/11 - Tasirul Islam vs. Raju Prajapati & Ors. Page 14 of 34 course. At the same time, it cannot be laid down as a uniform principle that every person pursuing professional course will have a bright future. There may be a student pursuing engineering from the reputed engineering colleges like Indian Institute of Technology (IIT), Regional Engineering College or any other reputed college. At the same time, a number of engineering Colleges have mushroomed where an engineering graduate may find it difficult to secure a job of an engineer. In the instant case, deceased Aditya, as stated earlier was a student of an unknown engineering college, i.e. Echelon Institute of Technology, Faridabad which is claimed to be affiliated to Maharshi Dayanand University, Rohtak. The Claimants have placed on record result-cum-detailed marks card of First and Second Semester. It may be noted that the deceased had secured just ordinary marks in seven subjects and he had to re-appear in papers 1002 (Mathematical-
I), 1006 (Foundation of Computer & Programming) and 1008 (Basics of Mechanical Engineering). Similarly, in the Second Semester the deceased was absent in one of the 12 papers and out of 11 subjects for which he had taken examination, he was to re-appear in four subjects. Thus, it will be difficult to say that the deceased was a brilliant student or that he was pursuing engineering from a well known or even mediocre college.
"7. As far as addition towards future prospects is concerned, the issue has been 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 Suit No.652/11 - Tasirul Islam vs. Raju Prajapati & Ors. Page 15 of 34 the Supreme Court in Rajesh & Ors. v. Ra-
jbir Singh & Ors., (2013) 9 SCC 54 to con-
tend that the future prospects have to be added in all cases where a person is getting fixed wages or is a seasonal employee or is a student.
10. It is urged by the learned counsel for the Claimants that the law laid down in Sarla Verma (Smt.) & Ors. v. Delhi Transport Cor- poration & Anr., (2009) 6 SCC 121 was extended in Rajesh & Ors. v. Rajbir Singh & Ors., (2013) 9 SCC 54 to hold that future prospects ought to be extended in all cases.
11. On the other hand, the learned counsel for the Insurance Company refers to a three Judge Bench decision of the Supreme Court in Reshma Kumari & Ors. v. Madan Mohan & Anr., (2013) 9 SCC 65 wherein while ap-
proving the ratio with regard to future prospects in Sarla Verma (Smt.) & Ors.
(supra) and relying on General Manager, Kerala State Road Transport Corporation, Trivandrum v. Susamma Thomas (Mrs.) and Ors. (1994) 2 SCC 176; Sarla Dixit v. Bal- want Yadav, (1996) 3 SCC 179 and Abati Bezbaruah v. Dy. Director General, Geolog- ical 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 deci-
sions in Susamma Thomas [Kerala SRTC v. Susamma Thomas, (1994) 2 SCC 176 : 1994 SCC (Cri) 335], Sarla Dixit [(1996) 3 SCC 179] and Abati Bezbaruah [Abati Bezbaruah v. Geological Survey of India, (2003) 3 SCC 148 : 2003 SCC (Cri) Suit No.652/11 - Tasirul Islam vs. Raju Prajapati & Ors. Page 16 of 34 746] and in para 24 of the Report held as under: (Sarla Verma case [Sarla Verma v. DTC, (2009) 6 SCC 121 : (2009) 2 SCC (Civ) 770 : (2009) 2 SCC (Cri) 1002] , SCC p. 134):
"24. ... In view of the imponderables and uncertainties, we are in favour of adopting as a rule of thumb, an addi-
tion of 50% of actual salary to the ac- tual salary income of the deceased to- wards future 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 ad- dition should be only 30% if the age of the deceased was 40 to 50 years.
There should be no addition, where the age of the deceased is more than 50 years. Though the evidence may indicate a different percentage of increase, it is necessary to standard- ise the addition to avoid different yardsticks being applied or different methods of calculation being adopted. Where the deceased was self-em-
ployed or was on a fixed salary (with- out provision for annual increments, etc.), the courts will usually take only the actual income at the time of death. A departure therefrom should be made only in rare and exceptional cases involving special circum-
stances."
39. The standardization of addition to income for future prospects shall help in achieving certainty in arriving at appropriate compensation. We ap-
prove 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 Suit No.652/11 - Tasirul Islam vs. Raju Prajapati & Ors. Page 17 of 34 deceased had a permanent job and was below 40 years and the addition should be only 30% if the age of the deceased was 40 to 50 years and no addition should be made where the age of the deceased is more than 50 years. Where the annual income is in the taxable range, the actual salary shall mean actual salary less tax. In the cases where the deceased was self-employed or was on a fixed salary without provision for annual increments, the actual income at the time of death without any addition to income for future prospects will be appropriate. A departure from the above principle can only be justified in extraordinary circumstances and very exceptional cases."
12. The learned counsel for the Insurance Company relies upon a Constitutional Bench judgment of the Supreme Court in Central Board of Dawoodi Bohra Community & Anr.
v. State of Maharashtra & Anr., (2005) 2 SCC 673; Safiya Bee v. Mohd. Vajahath Hussain @ Fasi, (2011) 2 SCC 94; and Union of India & 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 Kumari & Ors. v. Madan Mohan & Anr., (2013) 9 SCC 65; the three Judge Bench was dealing with a reference made by a two Judge Bench (S.B. Sinha and Cyriac Joseph, J.J.). The two Hon'ble Judges wanted an authoritative pro- nouncement from a Larger Bench on the ques- tion of applicability of the multiplier and whether the inflation was built in the multipli- er. 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 Suit No.652/11 - Tasirul Islam vs. Raju Prajapati & Ors. Page 18 of 34 regard to the selection of multiplier. It further laid down that addition towards future prospects to the extent of 50% of the actual salary shall be made towards future prospects when the deceased had a permanent job and was below 40 years and addition of 30% should be made if the age of the deceased was between 40-50 years. No addition towards fu- ture prospects shall be made where the de- ceased was self-employed or was getting a fixed salary without any provision of annual increment.
14. Of course, three Judge Bench of the Supreme Court in its later judgment in Rajesh relying on Santosh Devi v. National Insurance Company Ltd. & Ors., 2012 (6) SCC 421 ob-
served that there would be addition of 30% and 50%, depending upon the age of the de- ceased, towards future prospects even in the case of self-employed persons. It may, how- ever, be noted that in Rajesh, the three Judge Bench decision in Reshma Kumari (supra) was not brought to the notice of their Lord- ships.
15. The divergence of opinion was noted by another three Judge Bench of the Supreme Court in Sanjay Verma v. Haryana Roadways, (2014) 3 SCC 210. In paras 14 and 15, the Supreme Court observed as under:-
"14. Certain parallel developments will now have to be taken note of. In Reshma Kumari v. Madan Mohan [(2009) 13 SCC 422 : (2009) 5 SCC (Civ) 143 : (2010) 1 SCC (Cri) 1044], a two-Judge Bench of this Court while consider- ing the following questions took the view that the issue(s) needed resolution by a larger Bench: (SCC p. 425, para 10) "(1) Whether the multiplier specified in the Second Schedule appended to the Act should be scrupulously ap-
plied in all the cases?
Suit No.652/11 - Tasirul Islam vs. Raju Prajapati & Ors. Page 19 of 34(2) Whether for determination of the multiplicand, the Act provides for any criterion, particularly as regards determination of future prospects?"
15. Answering the above reference a three- Judge Bench of this Court in Resh-
ma 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 Sar- la 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 extraordi-
nary and exceptional circumstances.
Though the expression "exceptional and extraordinary circumstances" is not ca- pable of any precise definition, in Shakti Devi v. New India Insurance Co. Ltd.
[(2010) 14 SCC 575 : (2012) 1 SCC (Civ) 766 : (2011) 3 SCC (Cri) 848] there is a practical application of the aforesaid principle. The near certainty of the regular employment of the deceased in a government department following the retirement of his father was held to be a valid ground to compute the loss of income by taking into account the possi- ble future earnings. The said loss of in- come, 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 lat- est judgment in National Insurance Company Ltd. v. Pushpa & Ors., CC No.8058/2014, de-
Suit No.652/11 - Tasirul Islam vs. Raju Prajapati & Ors. Page 20 of 34cided on 02.07.2014 and in concluding para- graph while making reference to the Larg- er Bench, the Supreme Court held as under:-
"Be it noted, though the decision in Resh- ma (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 in- come of future prospects there should be an authoritative pronouncement. Therefore, we think it appropriate to refer the matter to a larger Bench."
17. Now, the question is which of the judg- ments ought to be followed awaiting answer to the reference made by the Supreme Court in Pushpa & Ors. (supra).
18. In Central Board of Dawoodi Bohra Community & Anr. v. State of Maharashtra & Anr., (2005) 2 SCC 673 in para 12, the Supreme Court observed as under:-
"12. Having carefully considered the submissions made by the learned Senior Counsel for the parties and having ex- amined the law laid down by the Consti- tution Benches in the abovesaid deci- sions, we would like to sum up the legal position in the following terms:
(1) The law laid down by this Court in a decision delivered by a Bench of larger strength is binding on any subsequent Bench of lesser or coequal strength.
(2) [Ed.: Para 12(2) corrected vide Official Corrigendum No. F.3/Ed.B.J./21/2005 dated 3- 3-2005.] A Bench of lesser quorum cannot disagree or dissent from the view of the law taken by a Bench of larger quorum. In case of doubt all that the Bench of lesser quorum can do is to invite the attention of the Chief Justice Suit No.652/11 - Tasirul Islam vs. Raju Prajapati & Ors. Page 21 of 34 and request for the matter being placed for hearing before a Bench of larger quorum than the Bench whose decision has come up for consideration. It will be open only for a Bench of coequal strength to express an opinion doubting the correctness of the view taken by the earlier Bench of coequal strength, where-
upon the matter may be placed for hearing before a Bench consisting of a quorum larger than the one which pronounced the decision laying down the law the correctness of which is doubted.
(3) [Ed.: Para 12(3) corrected vide Official Corrigendum No. F.3/Ed.B.J./7/2005 dated 17- 1-2005.] The above rules are subject to two exceptions: (i) the abovesaid rules do not bind the discretion of the Chief Justice in whom vests the power of framing the roster and who can direct any particular matter to be placed for hearing before any particular Bench of any strength; and (ii) in spite of the rules laid down hereinabove, if the matter has already come up for hearing before a Bench of larger quorum and that Bench itself feels that the view of the law taken by a Bench of lesser quorum, which view is in doubt, needs correction or reconsideration then by way of exception (and not as a rule) and for reasons given by it, it may proceed to hear the case and examine the correctness of the previ- ous decision in question dispensing with the need of a specific reference or the order of the Chief Justice constituting the Bench and such listing. Such was the situation in Raghu- bir Singh [(1989) 2 SCC 754] and Hansoli Devi [(2002) 7 SCC 273]."
19. Similarly, in Safiya Bee v. Mohd. Vajahath Hussain @ Fasi, (2011) 2 SCC 94 in para 27, the Supreme Court observed as under:-
"27. However, even assuming that the decision in WP No. 35561 of 1998 did not operate as res judicata, we are to observe that even if the learned Judges Suit No.652/11 - Tasirul Islam vs. Raju Prajapati & Ors. Page 22 of 34 who decided WP No. 304 of 2001 did not agree with the view taken by a co-
ordinate Bench of equal strength in the earlier WP No. 35561 of 1998 regard-
ing the interpretation of Section 2(c) of the Act and its application to the peti- tion schedule property, judicial disci- pline and practice required them to re- fer the issue to a larger Bench. The learned Judges were not right in over- ruling the statement of the law by a co- ordinate Bench of equal strength. It is an accepted rule or principle that the statement of the law by a Bench is considered binding on a Bench of the same or lesser number of Judges. In case of doubt or disagreement about the decision of the earlier Bench, the well-accepted and desirable practice is that the later Bench would refer the case to a larger Bench."
20. In Union of India & Ors. v. S.K. Kapoor, (2011) 4 SCC 589 while holding that the de- cision of the Co- ordinate Bench is binding on the subsequent Bench of equal strength, held that the Bench of Co-ordinate strength can only make a reference to a larger Bench. In para 9 of the report, the Supreme Court held as under:-
"9. It may be noted that the decision in S.N. Narula case [(2011) 4 SCC 591] was prior to the decision in T.V. Patel case [(2007) 4 SCC 785 : (2007) 2 SCC (L&S) 98] . It is well settled that if a subsequent coordinate Bench of equal strength wants to take a different view, it can only refer the matter to a larger Bench, otherwise the prior decision of a coordinate Bench is binding on the sub- sequent Bench of equal strength. Since, the decision in S.N. Narula case [(2011) 4 SCC 591] was not noticed in T.V. Patel case [(2007) 4 SCC 785 :
(2007) 2 SCC (L&S) 98] , the latter de-Suit No.652/11 - Tasirul Islam vs. Raju Prajapati & Ors. Page 23 of 34
cision is a judgment per incuriam. The decision in S.N. Narula case [(2011) 4 SCC 591] was binding on the subse-
quent Bench of equal strength and hence, it could not take a contrary 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 re- port in S.K. Kapoor (supra), the three Judge Bench decision in Reshma Kumari & Ors.
(supra) shall be taken as a binding prece- dent."
21.In the instant case, the deceased's actual or potential income is taken as Rs.20,000/- per month. Even if it is taken that the deceased was working with 'Dainik Janwani Samachar Patra', there was no evidence with regard to his good future prospects or that the deceased was in permanent employment.
22.Thus, in absence of any evidence of good future prospects, no addition towards future prospects ought to have been made by the Claims Tribunal."
In view of the legal position as discussed by the Hon'ble High Court, in the absence of any evidence with regard to permanent employment or good future prospects of the petitioner and since the notional income has been assessed on the basis of minimum wages, addition of income towards future prospects cannot be made for the purpose of compensation.
(c) Functional Disability Counsel for petitioner urged that for purpose of assessment of compensation, functional disability may be considered at more than 50% since the same was assessed by the Suit No.652/11 - Tasirul Islam vs. Raju Prajapati & Ors. Page 24 of 34 Medical Board only in relation to orthopaedic imparirment at 40% but not for the combined Vasculogenic and Neurogenic Impotence and trauma induced External and Internal Bladder Sphincters Damage which could not be quantified as per Disability Certificate Ex.PW1/5.
On the other hand, counsel for insurance company contended that functional disability of the petitioner be assessed as 20%.
It may be observed that in certain cases the permanent disability may not impact the earning capacity of the injured/victim and in such cases the victim may not be entitled to compensation towards loss of capacity on account of disability. However, in other cases even on account of less permanent disability, an injured may be completely incapacitated to carry out his vocation and as such the functional disability may be more than the actual disability suffered by the injured/victim. Hon'ble Supreme Court of India has elucidated with an example that if the left hand of claimant, who is driver by profession is amputated, the actual loss of earning capacity may be virtually 100%.
The observations of the Hon'ble Supreme Court in the case of Raj Kumar Vs. Ajay Kumar, (supra) whereby the methodology for determining the functional disability as discussed in paragraph 14 may be quoted:-
"14. Ascertainment of the effect of the permanent disability on the actual earning capacity involves three steps. The Tribunal has to first ascertain what activities Suit No.652/11 - Tasirul Islam vs. Raju Prajapati & Ors. Page 25 of 34 the claimant could carry on in spite of the permanent disability and what he could not do as a result of the permanent disability (this is also relevant for awarding compensation under the head of loss of amenities of life). The second step is to ascertain his avocation, profession and nature of work before the accident, as also his age. The third step is to find out whether (i) the claimant is totally disabled from earning any kind of livelihood, or (ii) whether in spite of the permanent disability, the claimant could still effectively carry on the activities and functions, which he was earlier carrying on, or (iii) whether he was prevented or restricted from discharging his previous activities and functions, but could carry on some other or lesser scale of activities and functions so that he continues to earn or can continue to earn his livelihood. For example, if the left hand of a claimant is amputated, the permanent physical or functional disablement may be assessed around 60%. If the claimant was a driver or a carpenter, the actual loss of earning capacity may virtually be hundred percent, if he is neither able to drive or do carpentry. On the other hand, if the claimant was a clerk in government service, the loss of his left hand may not result in loss of employment and he may still be continued as a clerk as he could perform his clerical function; and in that event the loss of earning capacity will not be 100% as in the case of a driver or carpenter, nor 60% which is the actual physical disability, but far less. In fact, there may not Suit No.652/11 - Tasirul Islam vs. Raju Prajapati & Ors. Page 26 of 34 be any need to award any compensation under the head of 'loss of future earnings', if the claimant continues in government service, though he may be awarded compensation under the head of loss of amenities as a consequence of losing his hand. Sometimes the injured claimant may be continued in service, but may not found suitable for discharging the duties attached to the post or job which he was earlier holding, on account of his disability, and may therefore, be shifted to some other suitable but lesser post with lesser emoluments, in which case there should be a limited award under the head of loss of future earning capacity, taking note of the reduced earning capacity. It may be noted that when compensation is awarded by treating the loss of future earning capacity as 100% (or even anything more than 50%), the need to award compensation separately under the head of loss of amenities or loss of expectation of life may disappear and as a result, only a token or nominal amount may have to be awarded under the head of loss of amenities or loss of expectation of life, as otherwise there may be a duplication in the award of compensation. Be that as it may."
In the present case, it may be noticed that the physical disability suffered by the petitioner as per the disability certificate Ex.PW1/5 is observed as under:
"Sh.Tasirul Islam is a case of alleged 02 years old RTA, leading to Bilateral Lower Extremity, Perineal & Genital Trauma with Avulsion Injury of Left Thigh & Peno-Suit No.652/11 - Tasirul Islam vs. Raju Prajapati & Ors. Page 27 of 34
Scrotal region. On examination, his Scrotum is still adherent to Left Thigh & movements of Limbs are restricted. The candidate was evaluated with Penile Doppler and Papaverine Injection (15 mg. each in Bilateral Carpora) and also Urodynamic Study for his Urinary complaints.
The report of Doppler Study suggest compromise of Corpora Cavernosa arterial filling with Venous Leak. His mode of injury and trauma supports possibility of Neurological Damage to the Penile Supply also. Therefore, patient definitely had Vasculogenic Impotence and also, Neurogenic Contribution adding to it. Further, Urodynamic Study reveals that candidate has disability due to Decreased Compliance of Urinary Bladder and its both Internal & External Sphincters Damage, likely due to trauma.
The Orthopaedic Physical Impairment in case of Sh.Tasirul Islam works out to be 40% (Forty Percent) with relation to whole body which is, Permanent in nature and not likely to improve with further treatment. Further, the total amount of Multiple Disabilities arising as a consequence of combined Vasculogenic and Neurogenic Impotence and trauma induced External and Internal Bladder Sphincters Damage cannot be quantified, as per Manual/Guidelines for evaluation of various disabilities issued by Ministry of Social Justice and Empowerment."
PW2 Dr. Ankur Aggarwal further deposed that the patient had suffered permanent medical disability with respect to whole body which was assessed 40% due to orthopaedic injuries but the bladder sphincter injury and impotence resulting due to accident cannot be quantified in percentage as per guidelines Suit No.652/11 - Tasirul Islam vs. Raju Prajapati & Ors. Page 28 of 34 available. He also clarified that the disability quantified by the Medical Board was with respect to the whole body for the injuries suffered by the patient on left lower limb.
Considering the facts and circumstances, nature of injuries to the inner organs which has not been quantified by the Medical Board as well as the permanent physical disability of 40% as assessed by the Medical Board qua the whole body and the principles laid down in Raj Kumar Vs. Ajay Kumar, (supra), the functional disability is assessed at 49% for purpose of assessment of compensation.
As per copy of Aadhaar Card (Ex.PW1/1-collectively), date of birth of petitioner is reflected as 01.01.1989. As such, the age of petitioner on the date of accident was about 22 years 04 months. In view of Sarla Verma & Ors. v/s Delhi Transport Corporation 2009, ACJ 1298, the relevant multiplier of 18 is applicable for the purpose of assessment in the present case.
The compensation is accordingly assessed towards loss of earning capacity at Rs.6,79,704.48 {i.e. Rs.6,422/- (notional income per month) X 12 (months) X 49% (functional disability) X 18 (applicable multiplier according to age)}.
(d) Loss of Income on account of accident Counsel for petitioner contended that immediately after the accident, petitioner was removed to Fortis Hospital, Noida and thereafter shifted to LNJP, Delhi, wherein he remained admitted from 14.04.2011 to 02.07.2011. Further, petitioner undertook treatment at Sri Sathya Sai Institute of Higher Medical Sciences, Suit No.652/11 - Tasirul Islam vs. Raju Prajapati & Ors. Page 29 of 34 Andhra Pradesh from 06.08.2012 to 14.08.2012 and Vydehi Institute of Medical Sciences & Research Centre from 13.12.2012 to 18.12.2012.
Considering the nature of injuries, period of treatment and surgery advised as per medical treatment record/bills filed on record till the month of December 2012, it can be reasonably presumed that on account of injuries and disability, the petitioner may not have been in a position to attend his work for a period of about 20 months from April 2011 to December 2012.
In the facts and circumstances, petitioner is accordingly awarded damages of Rs.1,28,440/- for a period of one year eight months for which he was not able to perform his job i.e. [Rs.6,422/- (notional income for one month) X 20 months].
(e) Loss of amenities, loss of expectation of life & prospects of marriage due to Permanent Disability The amount of compensation towards amenities should be to bring amenities and restoration of health to the petitioner. In the facts and circumstances, considering the injuries/permanent disability of 40% suffered by the petitioner in relation to left lower limb, bladder sphincter injury and impotence as a result of accident, he is awarded a sum of Rs.1.5 lakhs (Rupees One Lakh Fifty Thousand only) on account of loss of amenities, loss of expectation of life & marriage prospects due to permanent disability.
(f) Pain and Suffering & Mental Agony As the petitioner suffered permanent disability of 40% Suit No.652/11 - Tasirul Islam vs. Raju Prajapati & Ors. Page 30 of 34 in respect of left lower limb and remained incapacitated from performing normal activities for a considerable period of treatment, he is awarded a sum of Rs.80,000/- (Rupees Eighty Thousand Only) towards pain and suffering and mental agony.
(g) Medicines and Medical Treatment Counsel for petitioner contended that an amount of Rs.1,59,932/- has been claimed towards the medical bills/treatment by the petitoiner which has not been disputed on behalf of insurance company.
Accordingly, petitioner is awarded a sum of Rs. 1,59,932/- towards medical bills/treatment.
(h) Conveyance & Special Diet Though no conveyance bills have been filed on record by the petitioner but it can be presumed that petitioner must have spent some amount during the period of treatment. In view of above, an amount of Rs.20,000/- (Rupees Twenty Thousand Only) is awarded towards conveyance for the period of treatment.
Petitioner is further awarded an amount of Rs.20,000/- (Rupees Twenty Thousand Only) towards special diet.
(i) Attendant Charges Hon'ble High Court of Delhi in DTC V/s Lalit AIR 1981 Delhi 558 held that the victim is entitled to compensation even if no attendant is hired as some family member renders gratuitous services.
Suit No.652/11 - Tasirul Islam vs. Raju Prajapati & Ors. Page 31 of 34Further, in the case of United India Insurance Co. Ltd. V/s Rama Swamy and Others 2012 (2) T.A.C. 34 (Del.), value of gratuitous services rendered by family member of the claimant was assessed at Rs.2,000/- per month.
I am of the considered view that even if the gratuitous services were rendered by some or the other family members, the claimant cannot be deprived of its benefit on the gain of the tortfeasor. Considering the nature of injuries, the compensation of Rs.50,000/- is awarded in lump-sum towards the attendant charges/gratuitous services rendered by the family members (i.e. Rs.2,500/- X 20 months).
8. As discussed above, the overall compensation is tabulated as under:
Loss of Earning Capacity Rs.6,79,704.48 Loss of Income on Account of accident Rs.1,28,440/- Loss of amenities, loss of expectation of life & marriage prospects due to permanent disability Rs.1,50,000/-
Pain and Suffering Rs.80,000/-
Medicines & Medical Treatment Rs.1,59,932/-
Conveyance Charges Rs.20,000/-
Special Diet Rs.20,000/-
Attendant Charges Rs.50,000/-
------------------
Total Rs.12,88,076.48
(Rounded off to Rs.12,88,077/-)
(Rupees Twelve Lakh Eighty Eight Thousand and Seventy Seven Only) Suit No.652/11 - Tasirul Islam vs. Raju Prajapati & Ors. Page 32 of 34 The claimant/petitioner is also entitled to interest @ 9% p.a. from the date of filing of claim petition w.e.f. 29.07.2011.
9. 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 petitioner/claimant.
10. On realization, an amount of Rs.3,50,000/- (Rupees Three Lakh Fifty Thousand Only) shall be released to the petitioner and the remaining amount along with up-to-date interest shall be kept in ten fixed deposits of equal amount in his 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 his account.
11. Relief Since the offending vehicle was duly insured, Respondent No.3/Cholamandalam MS General Insurance Company Ltd. is directed to deposit the award amount of Rs.12,88,077/- with interest @ 9% per annum from the date of filing of claim petition i.e. 29.07.2011 till realization with 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 Suit No.652/11 - Tasirul Islam vs. Raju Prajapati & Ors. Page 33 of 34 period of delay beyond 30 days.
Insurance Company/driver and owner of the offending vehicle are also directed to place on record the proof of deposit of the award amount, proof of delivery of notice in respect of deposit of the amount to the petitioner/claimant and complete details in respect of calculations of interest etc. within 30 days from today.
A copy of this judgement be sent to Respondent No.3/ Cholamandalam MS General Insurance Company Ltd. for compliance within the time granted.
Nazir is directed to place a report on record in the event of non-receipt/deposit of the compensation amount within the time granted.
File be consigned to Record Room.
Announced in open court on 7th June, 2016 (Anoop Kumar Mendiratta) Judge, MACT-1 (Central), Tis Hazari Courts, Delhi.
Suit No.652/11 - Tasirul Islam vs. Raju Prajapati & Ors. Page 34 of 34