Delhi District Court
Smt. Chanmuni vs Shri Anil on 30 May, 2015
IN THE COURT OF ANOOP KUMAR MENDIRATTA,
JUDGE, MACT-1 (CENTRAL), DELHI.
Suit No. 6/2014
Unique Case ID No.02401C-00128
1. Smt. Chanmuni
W/o Late Shri Ajay Kumar Ram (Wife)
2. Shri Subhash Kumar
S/o Late Shri Ajay Kumar Ram (Son)
3. Shri Ajeet Kumar
S/o Late Shri Ajay Kumar Ram (Son)
4. Ms. Pooja
D/o Late Shri Ajay Kumar Ram (Daughter)
5. Shri Nirmal Kumar Ram
S/o Late Shri Kedar Ram (Father)
All Residents of
H. No. 585, Subhash Nagar,
P.S. Sihani Gate, Distt. Ghaziabad, UP.
At present - H. No.746, Subhash Nagar, Ghukna Mode,
Ghaziabad, U.P.
.........PETITIONERS
Versus
1. Shri Anil
S/o Shri Raj Singh,
R/o Village-Silana, Tehsil-Kharkhoda,
Distt. Sonepat, Haryana.
........(Driver )
Suit No.06/14 - Chanmuni & Ors. vs. Anil & Ors. Page 1 of 30
2. Delhi Distribution Solutions
Plot No.707, Village-Khevra Mundka,
Near Bharat Oil, Sell, Delhi - 110041
........(Owner)
3. IFFCO Tokio General Insurance Company Ltd.
4th Floor, 416-421, Narain Manjil,
23, Barakhamba Road, New Delhi.
........(Insurer)
............. RESPONDENTS
Date of Institution of the suit : 06.01.2014
Date of reserving judgment/order : 30.05.2015
Date of pronouncement : 30.05.2015
JUDGMENT
1. The present claim petition has been preferred by the petitioners U/s 166 and 140 of Motor Vehicle Act 1988 (hereinafter referred to as 'the Act') claiming compensation of a sum of Rs.20,00,000/- in respect of the accidental death of Ajay Kumar Ram (deceased) in the motor vehicle accident.
Brief facts of the case as averred in the claim petition are that on 18.07.2013 at about 07:00AM, Ajay Kumar Ram while proceeding from his residence to Railway Station Ghaziabad on his bicycle was hit by truck bearing registration No. HR-55R-5524 driven by Respondent No.1 near Hapur Morh Chowki, Patel Nagar, P.S. Sihani Gate. The truck is alleged to have been driven at a high speed in a rash and negligent manner.
Suit No.06/14 - Chanmuni & Ors. vs. Anil & Ors. Page 2 of 30As a result thereof, Ajay Kumar Ram sustained fatal injuries and was taken to MMG Hospital, Ghaziabad wherein he was declared "brought dead". FIR No. 669/2013, Main Crime No. 873/2013, U/s 279/304A IPC, P.S. Sihani Gate was accordingly registered.
It is further the case of petitioners that deceased Ajay Kumar Ram aged about 48 years was working as a Computer Operator at Ballabhgarh, Faridabad, Haryana and drawing a salary of Rs.10,000/- per month. Further, the deceased was the only bread earner in the family and survived by petitioner no. 1 to 5 who were totally dependent upon the income of the deceased.
2. In the joint Written Statement filed on behalf of Respondent No.1/driver and Respondent No.2/owner of the offending vehicle, it was submitted that Respondent No. 1 was driving the vehicle carefully and the accident occurred due to negligence of the deceased. The claim was stated to be exaggerated and excessive and the vehicle was stated to be insured with Respondent No.3 (Insurance Company).
In the Written Statement filed on behalf of Respondent No.3 (IFFCO Tokio General 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. HR-55-R-5524 (Truck) was insured with the Insurance Company vide Cover Note No.73253308 for the period 08.12.2012 to 07.12.2013 which Suit No.06/14 - Chanmuni & Ors. vs. Anil & Ors. Page 3 of 30 covers the date of accident.
3. On the pleadings of the parties, following issues were framed:-
(i) Whether the deceased Shri Ajay Kumar Ram had died due to injuries sustained by him in an accident which took place on 18.07.2013 at 07.00A.M. within the jurisdiction of PS Sihani Gate, U.P. due to rash and negligent driving of vehicle bearing Regn. No. HR 55R 5524 by respondent No.1?
(ii) Whether the petitioners are entitled to any compensation, if so, to what amount and from whom?
(iii) Relief.
4. In support of claim, petitioners examined PW1 Smt. Chanmuni wife of deceased Ajay Kumar Ram (Petitioner No.1), PW2 Shri Sunil Kumar (eyewitness to the accident) and PW3 Shri Ajit Kumar (son of deceased).
Respondents did not lead any evidence despite opportunity.
Suit No.06/14 - Chanmuni & Ors. vs. Anil & Ors. Page 4 of 30PW-1 Smt. Chanmuni testified on the lines of claim petition and proved the copy of Secondary School Examination Certificate of deceased (Ex.PW1/1), copy of PAN card of deceased (Ex.PW1/2), copy of Election I-Card of deceased (Ex.PW1/3), copy of her PAN card (Ex.PW1/4), copy of her Election I-Card (Ex.PW1/5), copy of PAN card of petitioner no. 3 Ajeet Kumar (Ex.PW1/6), copy of ration card (Ex.PW1/7), copy of PAN card of petitioner no. 4 Pooja (Mark A) and copy of Election I-Card of petitioner no. 5 Nirmal Kumar Ram (Mark B).
During cross-examination, she stated that deceased was working as a Computer Operator in a company at Faridabad but failed to disclose the name of the company. She further stated that she did not posses any documentary proof regarding income of deceased and denied the suggestion that deceased was not working as a Computer Operator.
PW-2 Sunil Kumar testified that on 18.07.2013 at about 7:00AM, he was going to Ghaziabad Railway Station from his house and when he reached Hapur Morh Chowki, P.S. Sihani Gate, a truck bearing No. HR-55R-5524 driven at a high speed in a rash and negligent manner hit a bicycle going ahead with a great force. Consequently, bicycle rider fell down and sustained grievous injuries and was taken to MMG Hospital, Ghaziabad. Subsequently he came to know that the cyclist died during the course of treatment.
Suit No.06/14 - Chanmuni & Ors. vs. Anil & Ors. Page 5 of 30During cross-examination, he stated that he was behind the truck which hit the bicycle. Further, the truck was driven at a speed of 50-60 Kmph. and Ajay Kumar Ram was ahead of his cycle by 20-30 meters. He also clarified that his statement was recorded during investigation and denied the suggestion that he was not present at the spot. He further stated that he was not aware as to who actually got the FIR registered and he was not known to the deceased before the accident.
PW-3 Ajit Kumar, son of the deceased further proved certified copies of criminal case comprising of FIR, Chargesheet, Site Plan, Postmortem report and Mechanical Inspection Report of the offending vehicle (Ex.PW3/1 colly).
4. 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 presuming the income of deceased for assessment of compensation. Reliance was further placed upon judgement passed in Oriental Insurance CO. Ltd. Vs. Hari Nandan and Anr. MACP No.824/2014 decided on 08th September, 2014 by Hon'ble Mr. Justice Jayant Nath.
Suit No.06/14 - Chanmuni & Ors. vs. Anil & Ors. Page 6 of 30On the other hand, counsel for Insurance Company vehemently refuted the contentions and urged that the matriculation certificate relied upon by the petitioners cannot be considered as photocopy of the same had been filed and exhibited on record. It was further submitted that since there is nothing on record to show that deceased was employed either at Delhi or even at Ballabhgarh, Faridabad, Haryana as a Computer Operator, the minimum wages notified for State of UP may only be considered for the purpose of assessment of income of deceased and the minimum wages notified by Govt. of NCT of Delhi cannot be taken into consideration.
5. My Issue-wise findings are as under :-
Issue No. (i)
(i) Whether the deceased Shri Ajay Kumar Ram had died due to injuries sustained by him in an accident which took place on 18.07.2013 at 07.00A.M. within the jurisdiction of PS Sihani Gate, U.P. due to rash and negligent driving of vehicle bearing Regn. No. HR 55R 5524 by respondent No.1?
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.
Suit No.06/14 - Chanmuni & Ors. vs. Anil & Ors. Page 7 of 30Reference 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 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."Suit No.06/14 - Chanmuni & Ors. vs. Anil & Ors. Page 8 of 30
It may be observed that evidence of PW2 Sunil Kumar who had witnessed the accident could not be dented during cross- examination. The evidence of PW2 points out that the bicycle driven by the deceased was hit by the truck driven by Respondent No.1 from back. The Mechanical Inspection Report of the offending truck revealed that the horn was out of order and as such the vehicle was being plied without ensuring proper precaution of having a working horn in a heavy vehicle. A mere perusal of the Site Plan (Ex.PW3/1) reflects that the cycle was being driven on the correct lane of the road and was hit from the back side resulting in fatal injuries to the deceased. The fact that the truck was being driven at a speed of about 50-60 Kmph. without even having a working horn and hit the cycle from back driven in a correct lane clearly reflects the rash and negligent driving on part of Respondent No.1. It is also pertinent to note that Respondent No.1 Anil Kumar/driver of the offending vehicle failed to enter the witness box to contradict the testimony of PW2 on the point of rash and negligent driving.
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.
6. Issue No. (ii)
(ii) Whether the petitioners are entitled to any compensation, if so, to what amount and from Suit No.06/14 - Chanmuni & Ors. vs. Anil & Ors. Page 9 of 30 whom?
Counsel for petitioners contended that deceased Ajay Kumar Ram was working as a Computer Operator at Ballabhgarh, Faridabad, Haryana and earning a salary of Rs.10,000/- per month. However, confronted with the fact that neither documentary evidence was available regarding employment nor any evidence led in this regard, it was prayed that the income of deceased be considered at minimum wages of a matriculate @ Rs.9,386/- as notified by Government of NCT of Delhi.
However, the aforesaid contention was vehemently refuted on behalf of the Insurance company and it was submitted that matriculation certificate cannot be relied upon as merely a photocopy of the same has been filed. Further there was nothing on record to suggest that deceased was working at Delhi. It was also contended that minimum wages notified for State of UP may be considered since the deceased was a resident of Ghaziabad, UP and for the aforesaid purpose a photocopy of minimum wages notified for the area of Ghaziabad, UP was relied wherein minimum wages of a skilled labourer for the relevant period 01.04.2013 to 30.09.2013 are notified @ Rs.6,296.38 per month and the same does not specifically mention the wages separately for a matriculate. No separate notification for minimum wages of a matriculate issued by State of UP was brought to the notice of this Tribunal.
Suit No.06/14 - Chanmuni & Ors. vs. Anil & Ors. Page 10 of 30I am of the considered view that since no document has been filed on record to prove in case the deceased was working as a Computer Operator at Faridabad and drawing a salary of Rs.10,000/- per month, the notional income of the deceased has to be considered on the basis of minimum wages of a skilled labourer or a matriculate, as notified by the competent authority. The secondary school examination certificate (Ex.PW1/2) of the deceased was duly proved by PW1 Smt. Chanmuni and the same cannot be ignored since it was not disputed in cross-examination and neither any objection was raised at the time of exhibiting the document. The fact cannot be ignored that the victims of motor vehicle accident cases happen to be migrants from other States who ultimately settle in NCR or other parts in vicinity and rely upon the documents in their possession for the purpose of compensation. In case any objection would have been taken at the relevant time on behalf of the respondents challenging the aforesaid certificate during cross-examination of PW-1, perhaps some other document could have been produced/filed by the petitioners to prove the educational qualification of deceased who is claimed to be working as a Computer Operator. Considering the totality of facts and circumstances, I am of the considered opinion that the wages of a matriculate/skilled labourer as notified by the competent authority need to be considered for the purpose of assessment of income of deceased.
It needs to be further assessed if the minimum wages Suit No.06/14 - Chanmuni & Ors. vs. Anil & Ors. Page 11 of 30 notified by Govt. of NCT of Delhi or State of UP shall be relevant for the purpose of assessment of income of deceased. Admittedly, the deceased was a resident of Ghaziabad, UP and is claimed to have been working at Bahadurgarh, Faridabad, Haryana as a Computer Operator. However, neither the name of employer nor any other documentary evidence in this regard has been proved on record to assume that the deceased was working at different places in the area of NCT of Delhi and drawing a salary of Rs.10,000/- per month. Petition has been filed in NCT of Delhi only since Respondent No. 2 (owner of the offending vehicle) was residing within the jurisdiction of this Tribunal. I am of the considered opinion that in the absence of any evidence to show that the deceased was employed at Delhi or even at Haryana, the minimum wages notified by State of UP have to be considered for purpose of assuming notional income of deceased and compensation cannot be assessed at the minimum wages notified by Govt. of NCT of Delhi. Since the deceased was matriculate as per secondary school examination certificate and is claimed to be working as a Computer Operator, the wages for a skilled labourer @ Rs. 6,296.38 for the relevant period as notified for the area of Ghaziabad, UP are relevant for the purpose of assessment of income of deceased. The authority cited by counsel for petitioners in Insurance Co. Ltd. Vs. Hari Nandan and Anr. MACP No. 824/2014 decided on 08th September, 2014 by Hon'ble Mr. Justice Jayant Nath is distinguishable on facts, since in the present case the deceased was a resident of Ghaziabad and there is nothing on record to suggest if he was employed in NCT of Delhi and the Suit No.06/14 - Chanmuni & Ors. vs. Anil & Ors. Page 12 of 30 claim petition has been filed in Delhi only on account of the fact that Respondent No.2 was resident of Delhi though the accident had taken place within the jurisdiction of Ghaziabad.
(b) If addition in income towards future prospects is to be made The petitioner has 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 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 Suit No.06/14 - Chanmuni & Ors. vs. Anil & Ors. Page 13 of 30 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 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 Suit No.06/14 - Chanmuni & Ors. vs. Anil & Ors. Page 14 of 30 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):
"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-Suit No.06/14 - Chanmuni & Ors. vs. Anil & Ors. Page 15 of 30
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- 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 Suit No.06/14 - Chanmuni & Ors. vs. Anil & Ors. Page 16 of 30 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 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., Suit No.06/14 - Chanmuni & Ors. vs. Anil & Ors. Page 17 of 30 (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- employed persons. It may, however, be noted that in Rajesh, the three Judge Bench decision in Reshma Kumari (supra) was not brought to the notice of their Lordships.
Suit No.06/14 - Chanmuni & Ors. vs. Anil & Ors. Page 18 of 3015. 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) 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 Suit No.06/14 - Chanmuni & Ors. vs. Anil & Ors. Page 19 of 30 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 & 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:-
Suit No.06/14 - Chanmuni & Ors. vs. Anil & Ors. Page 20 of 30"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:
(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.Suit No.06/14 - Chanmuni & Ors. vs. Anil & Ors. Page 21 of 30
(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- above, if the matter has already come up for hearing before a Bench of larger quorum and that Bench itself feels that the view of the law taken by a Bench of lesser quorum, which view is in doubt, Suit No.06/14 - Chanmuni & Ors. vs. Anil & Ors. Page 22 of 30 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 de- cided 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 regarding the interpretation of Section 2(c) of the Act and its application to the petition schedule property, judicial discipline and practice required them to refer the issue to a larger Bench. The learned Judges were not right in overruling the statement of the law by a coordinate Bench of equal strength. It is an accepted rule or principle that the statement of the law by a Bench is considered binding on a Bench of the same or lesser number of Judges. In case of Suit No.06/14 - Chanmuni & Ors. vs. Anil & Ors. Page 23 of 30 doubt or disagreement about the decision of the earlier Bench, the well- accepted and desirable practice is that the later Bench would refer the case to a larger Bench."
20. In Union of India & Ors. v. S.K. Kapoor, (2011) 4 SCC 589 while holding that the decision of the Co- ordinate Bench is binding on the subsequent Bench of equal strength, held that the Bench of Co-ordinate strength can only make a reference to a larger Bench. In para 9 of the 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 SCC 591] was binding on the sub-
sequent Bench of equal strength and hence, it could not take a con-Suit No.06/14 - Chanmuni & Ors. vs. Anil & Ors. Page 24 of 30
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.
(c) Deduction towards personal and living expenses of the deceased:
Counsel for petitioners submitted that since petitioner no. 1 to 5 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.
As per Sarla Verma (Smt.) & Ors. vs. Delhi Transport Corporation & Anr. (2009) 6 SCC 121, 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, Suit No.06/14 - Chanmuni & Ors. vs. Anil & Ors. Page 25 of 30 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 sons and a daughter and father of deceased. In the facts and circumstances, the number of dependent legal heirs for the purpose of deduction have to be treated as 5 (five) since as per the case of petitioners, the father was dependent upon the deceased. The deduction towards personal and living expenses of the deceased shall be accordingly deducted as 1/4th as held in Sarla Verma (supra).
(d) Selection of multiplier:
As per copy of PAN Card (Ex.PW1/2), date of birth of deceased was 03.05.1965 which has not been controverted on record. In view of above, age of the deceased on the date of accident comes to about 48 years. Further, as per Sarla Verma (Smt.) & Ors. vs. Delhi Transport Corporation & Anr. (2009) 6 SCC 121, the relevant multiplier of 13 is to be adopted for purpose of assessment.
(e) Loss of financial dependency In the light of aforesaid facts, loss of financial dependency of the petitioners comes to Rs.2,45,558.82 [i.e. Rs. 6,296.38 X 12 (months) x 13 (multiplier) x 1/4].Suit No.06/14 - Chanmuni & Ors. vs. Anil & Ors. Page 26 of 30
7. Compensation under non-pecuniary heads:
In view of the law laid down 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.
8. The petitioners/claimants are accordingly entitled to compensation computed as under:
Loss of financial dependency Rs.2,45,558.82 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/ ______________ Total Rs.4,80,558.82 ________________ Suit No.06/14 - Chanmuni & Ors. vs. Anil & Ors. Page 27 of 30 (Rounded off to Rs.4,80,559/) (Rupees Four Lakh Eighty Thousand Five Hundred Fifty Nine only) The claimants/petitioners are also entitled to get interest @ 9% p.a. from the date of filing of petition i.e. w.e.f.
06.01.2014 till realization.
The amount of interim award, if any, shall, however, be deducted from the above amount, if the same has already been paid to the petitioner.
10. For the purpose of disbursement, petitioner no. 1 Smt. Chanmuni (wife of deceased) shall be entitled to 60% and petitioner no. 2 to 5 shall be entitled to 10% each of the award amount and proportionate interest thereon.
11. 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.
Suit No.06/14 - Chanmuni & Ors. vs. Anil & Ors. Page 28 of 3012. Relief Since the offending vehicle was duly insured, Respondent No.3/IFFCO Tokio General Insurance Company Ltd. is directed to deposit the award amount of Rs.4,80,559/ with interest @ 9% per annum from the date of filing of the petition i.e. 06.01.2014 till realization 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 IFFCO Tokio General Insurance Company Ltd. for compliance within the time granted.
Suit No.06/14 - Chanmuni & Ors. vs. Anil & Ors. Page 29 of 30Nazir 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.
Announced in open court (A.K. Mendiratta) on 30th May, 2015 Judge, MACT-1 (Central), Delhi Suit No.06/14 - Chanmuni & Ors. vs. Anil & Ors. Page 30 of 30