Delhi District Court
Sh Budhpal S/O Sh Shahajde vs Sh Amerjeet on 5 November, 2016
IN THE COURT OF SHRI VINAY SINGHAL
ADDITIONAL DISTRICT & SESSIONS JUDGE,
JUDGE, MACT-2, (CENTRAL), DELHI.
Suit No. 57036-16
Unique Case ID No.02401C0012332015
1. Sh Budhpal S/O Sh Shahajde
2. Smt Gyan Wati
W/O Sh Budh Pal
Both resident of
House No. 229
Village Sikarodi
Tehsil & District - Badaun (U.P)
........PETITIONERS
Versus
1. Sh Amerjeet
S/O Sh Babai Ram
R/O House No. 217, Jhuggi Rakhi Market
Jakhira, Delhi (Driver)
2. Sh Deepak Sharma (Owner)
S/O Sh Raj Singh
R/O Village- Biharipur
Baghpat District, Meerut (U.P)
3. Shri Ram General Insurance Company Ltd
E-8, EPIP, RIICO, Sitapura, Jaipur, Rajasthan (Insurer)
.......RESPONDENTS
Date of filing of DAR : 05.01.2015
Arguments heard on : 13.09.2016
Judgment pronounced on : 05.11.2016
Suit No.5703616 Budh Pal Vs Amarjeet Page 1 of 34
JUDGMENT-CUM-AWARD:
INFORMATION IN TERMS OF PROVISIONS OF THE
MODIFIED
CLAIM TRIBUNAL AGREED PROCEDURE (MCTAP)
1 Date of Accident 08.11.2014
2 Date of intimation of the accident by the 10.11.2014
Investigation Officer to the Claims Tribunal
(Clasuse2)
3 Date of intimation of the accident by the 05.01.2015
Investigation Officer to the Insurance
Company (Clause2)
4 Date of filing of the Report under section 173 10.12.2015
Cr.PC before the Metropolitan Magistrate
(Clause 10)
5 Date of filing of Detailed Accident Information 05.01.2015
Report(DAR) by the Investigation Officer
before Claims Tribunal (Clause)
6 Date of service of DAR on the Insurance 05.01.2015
Company (clause11)
7 Date of service of DAR on the claimant(s) 05.01.2015
(Clause11)
8 Whether DAR was complete in all respects? ( Yes
Clause11)
9 If not state deficiencies in the DAR NA
10 Whether the police has verified the Yes
documents filed with DAR? (clause4)
11 Whether there was any delay or deficiency on No
the part of the Investigation Officer? If so,
whether any action/ direction warranted?
12 Date of appointment of the Designated Officer 17.10.2015
Suit No.5703616 Budh Pal Vs Amarjeet Page 2 of 34
by the Insurance Company
13 Name , address and contact number of the Yogesh Kumar, Legal Officer
Designated Officer of the Insurance
Company(Clause 19)
14 Whether the Designated officer of the Yes
insurance Company submitted his report
within 30 days of the DAR?(Clause 21)
15 Whether the Insurance Company admitted the Insurer has taken a defence.
liability? If so, whether the Designated Officer
of the Insurance Company fairly computed the
compensation in accordance with law.
(Clause22)
16 Whether there was any delay or deficiency on NA
the part of the Designated officer of the
Insurance Company? If so whether any
action/ direction warranted?
17 Date of response of the claimant(s) to the NA
offer of the Insurance Company? (Clause 23)
18 Date of Award 05.11.2016
19 Whether the award was passed with the No
consent of the parties? (Clause 22)
20 Whether the claimants(s) examined at the Yes
time of passing of the award to ascertain his/
their financial condition? (Clause 26)
21 Whether the photographs, specimen Yes
signatures, proof of residence and particulars
of bank account of the injured/ legal heirs of
the deceased taken at the time of passing of
the award? (Clause26)
22 Mode of disbursement of the award amount to Mentioned in the award
the claimant(s) (Clause 28)
23 Next Date of compliance of the 18.01.2017
award(Clause30)
Suit No.5703616 Budh Pal Vs Amarjeet Page 3 of 34
PART-A
BRIEF FACTS OF ACCIDENT
1. Present claim Petition has been preferred under Section 166 and 140 of Motor Vehicles Act, 1988 (hereinafter referred to as 'the Act') claiming compensation for a sum of Rs.15,00,000/- (Rupees Fifteen Lakh Only) in respect of accidental death of Shiv Kumar (since deceased) in a motor vehicular accident.
2. Brief facts of the case giving rise to the claim Petition are that on 08.11.2014 while the deceased was going towards Delhi University Metro Station on his Motorcycle, he was hit by truck No HR-38L- 6131 owned by the Respondent No. 2 and being driven by the Respondent No. 1 in a rash and negligent matter. He was taken to Hindu Rao Hospital, where he unfortunately expired on 09.11.2014. FIR No.225/14 U/S 279/304A IPC was registered at PS Maurice Nagar.
It is further the case of the Petitioners who are his parents that deceased aged about 22 years was working as a watchman earning about Rs. 6500/- per month. The deceased was stated to be unmarried and survived by his elder brother Sh Vijay Kumar and by his parents. However, as his elder brother Sh Vijay Kumar was not dependent upon him, the present claim petition has been filed by his parents-claimants.
Suit No.5703616 Budh Pal Vs Amarjeet Page 4 of 34PART-B DEFENCE OF DRIVER AND OWNER RESPONDENT No. 1 & 2
3. In the joint Written Statement filed on behalf of Respondent No.1 &, they have taken the plea of being falsely implicated and as such denied their liability.
Suit No.5703616 Budh Pal Vs Amarjeet Page 5 of 34PART-C DEFENCE OF INSURANCE COMPANY RESPONDENT No. 3
4. In the Written Statement, Respondent No.3/Insurance Company submitted that though the vehicle was insured with it on the relevant date, but it is also submitted that the offending vehicle was not having valid fitness certificate on account of which the provision of section 56/192 MV Act was invoked in the FIR itself and accordingly, it is submitted that the Respondent No. 2 has violated the terms and conditions of the insurance policy and accordingly, the Respondent No. 3 has denied its liability on its part.
Suit No.5703616 Budh Pal Vs Amarjeet Page 6 of 34PART-D ISSUES
5. On the pleadings of the parties, following issues were framed for consideration vide order dated 12.03.2015 by ld. Predecessor:-
(i) Whether the deceased Shri Shiv Kumar @ Shiv suffered fatal injuries in an accident that took place on 08.11.2014 at about 10.40 P.M involving Truck Bearing No. HR-38L-6131 driven by the respondent No 1, owned by the respondent No.2 and insured with the respondent No.3? OPP.
(ii) Whether the petitioner/petitioners is entitled for compensation, if so, to what amount and from whom?
(iii) Relief.Suit No.5703616 Budh Pal Vs Amarjeet Page 7 of 34
PART-E PETITIONER'S EVIDENCE
6. In support of the claim, Petitioners examined two witnesses namely petitioner No-1- father of the deceased as PW-1 and one Sh Jatin Kalra stated to be the employer of the deceased as PW-2.
As far as PW 1 is concerned, nothing adverse came out of his cross examination.
PW2 has deposed to the effect that the deceased was employed by him upto the date of accident as watchman/domestic help at a monthly salary of Rs 6500/. Nothing adverse came out of his cross examination.
Suit No.5703616 Budh Pal Vs Amarjeet Page 8 of 34PART-F RESPONDENT'S EVIDENCE
7. Respondent No. 1 & 2 have not lead any evidence.
8. The Respondent No. 3 examined Sh Yogesh Kumar- its official as R3W1 who deposed to the effect that the offending vehicle was not having fitness certificate as on the date of the accident and also deposed that despite service of notice u/o 12 rule 8 CPC upon the respondent No 1 & 2, they have failed to produce the same.
Suit No.5703616 Budh Pal Vs Amarjeet Page 9 of 34PART-G FINDINGS/CONCLUSION
9. I have heard arguments addressed on behalf of the Petitioners, counsel for Respondent Insurance Company and perused the record.
My Issue-wise findings are as under :-
Issue No. (I)
(i) Whether the deceased Shri Shiv Kumar @ Shiv suffered fatal injuries in an accident that took place on 08.11.2014 at about 10.40 P.M involving Truck Bearing No. HR-38L-6131 driven by the respondent No 1, owned by the respondent No.2 and insured with the respondent No.3? OPP.
In Bimla Devi and Ors. V. Himachal Road Transport Corporation and Ors., (2009) 13 SC 530, it was held that in a Petition U/S 166 of the Motor Vehicles Act, 1988 the Claim Tribunal has to decide the negligence on the touchstone of preponderance of probability and holistic view is to be taken while dealing with the Claim Petition. In New India Assurance Co. Ltd. V. Sakshi Bhutani & ors, MAC APP. 550/2011 decided on 02.07.2012 by Hon'ble Mr. Justice G.P. Mittal (Delhi High Court), it was observed that it has to be borne in mind that the Motor Vehicles Act does not envisage holding a trial for a Petition preferred under Section 166 of the Act. Under Section 168 of the Act, a Claims Tribunal is enjoined to hold an inquiry to determine compensation which must appear to it to be just. Strict rules of evidence are not applicable in an inquiry conducted by the Claims Tribunal. Further in State of Mysore Vs. S.S. Makapur, 1993 (2) SCR 943, Hon'ble Supreme Court held that Suit No.5703616 Budh Pal Vs Amarjeet Page 10 of 34 the Tribunals exercising quasi-judicial functions are not courts and are not bound by strict rules of evidence. The relevant portion of the report is extracted hereunder:
".......that tribunals exercising quasi-judicial functions are not courts and that therefore they are not bound to follow the procedure prescribed for trial of actions in courts nor are they bound by strict rules of evidence. They can unlike courts, obtain all information for the points under the enquiry from all sources, and through all channels, without being fettered by rules and procedure, which govern proceedings in court. The only obligation which the law casts on them is that they should not act on 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 Suit No.5703616 Budh Pal Vs Amarjeet Page 11 of 34 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."
As far as the negligence on the part of the Respondent No. 1 is concerned, though it is claimed and deposed by the Respondent No. 1 & 2 that they have been falsely implicated but they have not come forward either to cross examine the PW-1 or to produce any evidence in support of their defence.
Considering the fact that negligence has to be assessed on touchstone of preponderance of probability and a holistic view is to be taken, it has been established that the accident was caused due to rash and negligent driving of offending vehicle by Respondent No.1. Issue No. 1 is decided in favour of the Petitioner and against the Respondents.
Suit No.5703616 Budh Pal Vs Amarjeet Page 12 of 3410. Issue No. (ii)
(ii) Whether the petitioner/petitioners is entitled for compensation, if so, to what amount and from whom?
The evidence of PW-2 to the effect that the deceased was employed by him at a monthly salary of Rs 6500/- is neither in dispute nor controverted in any manner.
Hence, for the purpose of assessment of compensation, the salary of the deceased as claimed as of Rs 6500/- per month is accepted as such.
(a) If addition in income towards future prospects is to be made Petitioners have claimed that addition towards future prospects to the extent of 50% be made considering the fact that deceased 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 judgments 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 Suit No.5703616 Budh Pal Vs Amarjeet Page 13 of 34 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 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.
Suit No.5703616 Budh Pal Vs Amarjeet Page 14 of 34The observations made by the Hon'ble High Court on the aspect of addition of future prospects as discussed in para 21 to 23 of MAC No. 79 of 2014 Bharti AXA General Insurance Company Ltd. vs. Smt. Poonam & Ors. decided on 27.05.2015 (supra) may be beneficially quoted:
21.As far as future prospects are concerned, there is no evidence on record that the deceased had bright future prospects. The question of grant of future prospects was dealt with by this Court at great length in HDFC Ergo General Insurance Co. Ltd. v. Smt. Lalta Devi and Ors., MAC APP No. 189/2014, decided on 12.01.2015. Paras 8 to 21 of the report in Lalta Devi (supra) are extracted hereunder:
8.It is no gainsaying that in appropriate cases some addition towards future prospects must be made in case of death or injury of a person pursuing a professional course. At the same time, it cannot be laid down as a uniform principle that every person pursuing professional course will have a bright future. There may be a student pursuing engineering from the reputed engineering colleges like Indian Institute of Technology (IIT), Regional Engineering College or any other reputed college. At the same time, a number of engineering Colleges have mushroomed where an engineering 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 Suit No.5703616 Budh Pal Vs Amarjeet Page 15 of 34 placed on record result-cum-detailed marks card of First and Second Semester. It may be noted that the deceased had secured just ordinary marks in seven subjects and he had to re-
appear in papers 1002 (Mathematical-I), 1006 (Foundation of Computer & Programming) and 1008 (Basics of Mechanical Engineering). Similarly, in the Second Semester the deceased was absent in one of the 12 papers and out of 11 subjects for which he had taken examination, he was to re-appear in four subjects. Thus, it will be difficult to say that the deceased was a brilliant student or that he was pursuing engineering from a well known or even mediocre college.
"7. As far as addition towards future prospects is concerned, the issue has been examined at great length by this Court in HDFC ERGO General Insurance Co. Ltd. v. Smt. Lalta Devi & Ors. (supra). Paras 9 to 21 of the report in Lalta Devi are extracted hereunder:-
9. The learned counsel for the Claimants has referred to a three Judge Bench de-
cision of the Supreme Court in Rajesh & Ors. v. Rajbir Singh & Ors., (2013) 9 SCC 54 to contend that the future 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 Trans- port 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.
Suit No.5703616 Budh Pal Vs Amarjeet Page 16 of 3411. 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 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. Balwant Yadav, (1996) 3 SCC 179 and Abati Bezbaruah v. Dy. Director General, Geological Sur- vey 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 [Ker-
ala 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 [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 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-Suit No.5703616 Budh Pal Vs Amarjeet Page 17 of 34
come of the deceased towards fu-
ture prospects, where the deceased had a permanent job and was be-
low 40 years. (Where the annual income is in the taxable range, the words „actual salary‟ should be read as „actual salary less tax‟). The addition should be only 30% if the age of the deceased was 40 to 50 years. There should be no addition, where the age of the de- ceased is more than 50 years.
Though the evidence may indicate a different percentage of in-
crease, it is necessary to standard- ise the addition to avoid different yardsticks being applied or differ- ent methods of calculation being adopted. Where the deceased was self-employed or was on a fixed salary (without provision for an- nual increments, etc.), the courts will usually take only the actual income at the time of death. A de-
parture therefrom should be made only in rare and exceptional cases involving special circumstances."
39. The standardization of addi-
tion to income for future prospects shall help in achieving certainty in arriving at appropriate compensa- tion. We approve the method that an addition of 50% of actual salary be made to the actual salary income of the deceased to-
wards 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 deceased was 40 to 50 years and no addition should be made where the age of the de-
ceased is more than 50 years.
Suit No.5703616 Budh Pal Vs Amarjeet Page 18 of 34Where 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 with-
out any addition to income for future prospects will be appro-
priate. 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 Commu- nity & 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 judg- ments of benches of co-equal strength, ear- lier 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 deal- ing with a reference made by a two Judge Bench (S.B. Sinha and Cyriac Joseph, J.J.). The two Hon'ble Judges wanted an authoritative pronouncement from a Larger Bench on the question of applica- bility of the multiplier and whether the in- flation 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 Trans- port Corporation & Anr., (2009) 6 SCC 121 with regard to the selection of multi- plier. It further laid down that addition to-
Suit No.5703616 Budh Pal Vs Amarjeet Page 19 of 34wards 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 future prospects shall be made where the de- ceased was self-employed or was getting a fixed salary without any provision of an- nual increment.
14. Of course, three Judge Bench of the Supreme Court in its later judgment in Ra- jesh relying on Santosh Devi v. National Insurance Company Ltd. & Ors., 2012 (6) SCC 421 observed that there would be ad- dition of 30% and 50%, depending upon the age of the deceased, towards future prospects even in the case of self-employed persons. It may, however, be noted that in Rajesh, the three Judge Bench decision in Reshma Kumari (supra) was not brought to the notice of their Lordships.
15. The divergence of opinion was noted by another three Judge Bench of the Supreme Court in Sanjay Verma v.
Haryana Roadways, (2014) 3 SCC 210. In paras 14 and 15, the Supreme Court ob- served as under:-
"14. Certain parallel developments will now have to be taken note of. In Reshma Kumari v. Madan Mohan [(2009) 13 SCC 422 : (2009) 5 SCC (Civ) 143 : (2010) 1 SCC (Cri) 1044], a two-Judge Bench of this Court while considering the following questions took the view that the issue(s) needed resolution by a larger Bench: (SCC p. 425, para 10) "(1) Whether the multiplier speci-
fied in the Second Schedule ap-
pended to the Act should be Suit No.5703616 Budh Pal Vs Amarjeet Page 20 of 34 scrupulously applied in all the cases?
(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 Reshma Kumari v. Madan Mohan [(2013) 9 SCC 65 : (2013) 4 SCC (Civ) 191 : (2013) 3 SCC (Cri) 826] (SCC p. 88, para 36) reiterated the view taken in Sarla Verma [Sarla Verma v. DTC, (2009) 6 SCC 121 :
(2009) 2 SCC (Civ) 770 : (2009) 2 SCC (Cri) 1002] to the effect that in respect of a person who was on a fixed salary without provision for an-
nual increments or who was self-em- ployed the actual income at the time of death should be taken into account for determining the loss of income un- less there are extraordinary and ex- ceptional circumstances. Though the expression "exceptional and extraor- dinary 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 principle. The near cer- tainty of the regular employment of the deceased in a government depart- ment following the retirement of his father was held to be a valid ground to compute the loss of income by tak- ing into account the possible future earnings. The said loss of income, ac- cordingly, was quantified at double the amount that the deceased was earning at the time of his death."
Suit No.5703616 Budh Pal Vs Amarjeet Page 21 of 3416. 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 National Insur- ance Company Ltd. v. Pushpa & Ors., CC No.8058/2014, decided on 02.07.2014 and in concluding paragraph while making reference to the Larger Bench, the Supreme Court held as under:-
"Be it noted, though the decision in Reshma (supra) was rendered at ear- lier point of time, as is clear, the same has not been noticed in Rajesh (supra) and that is why divergent opinions have been expressed. We are of the considered opinion that as regards the manner of addition of income of future prospects there should be an authori- tative 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 an- swer 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 Se- nior Counsel for the parties and hav- ing examined the law laid down by the Constitution Benches in the abovesaid decisions, we would like to sum up the legal position in the following terms:
(1) The law laid down by this Court in a decision delivered by a Bench of larger strength is binding on any Suit No.5703616 Budh Pal Vs Amarjeet Page 22 of 34 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 quo- rum 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 re- quest for the matter being placed for hear- ing 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, whereupon the matter may be placed for hearing before a Bench consist- ing 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 exceptions: (i) the above- said 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 al-
ready come up for hearing before a Bench of larger quorum and that Bench it- self feels that the view of the law taken by a Bench of lesser quorum, which view is in doubt, needs correction or reconsideration then by way of exception (and not as a rule) and for reasons given by it, it may proceed to hear the case and examine the correctness of the previous decision in question dispensing with the need of a spe-
Suit No.5703616 Budh Pal Vs Amarjeet Page 23 of 34cific 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. Vaja- hath 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 judi- cata, 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 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 consid-
ered 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 prac- tice is that the later Bench would re- fer 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 Suit No.5703616 Budh Pal Vs Amarjeet Page 24 of 34 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 coordi-
nate 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 co- ordinate Bench is binding on the subsequent Bench of equal strength. Since, the decision in S.N. Narula case [(2011) 4 SCC 591] was not noticed in T.V. Patel case [(2007) 4 SCC 785 : (2007) 2 SCC (L&S) 98] , the latter decision is a judgment per incuriam. The decision in S.N. Narula case [(2011) 4 SCC 591] was binding on the subsequent Bench of equal strength and hence, it could not take a contrary view, as is settled by a series of judgments of this Court."
21.This Court in New India Assurance Co. Ltd. v. Harpal Singh & Ors., MAC APP.138/2011, decided on 06.09.2013, went into this question and held that in view of the report in S.K. Kapoor (supra), the three Judge Bench decision in Reshma Kumari & Ors. (supra) shall be taken as a binding precedent."
Thus, in absence of any evidence of good future prospects, no addition towards future prospects ought to have been made by the Claims Tribunal."
In view of the legal position as discussed by the Suit No.5703616 Budh Pal Vs Amarjeet Page 25 of 34 Hon'ble High Court and in absence of any evidence with regard to good future prospects of deceased, addition of income towards future prospects cannot be made for the purpose of compensation.
(b) Deduction towards personal and living expenses of the deceased:
Counsel for Petitioners submitted that deceased is survived by his partents and as such deduction of 1/2 be made towards personal and living expenses.
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 who was a bachelor should be one-half (½).
(c) Selection of multiplier:
Following the judgement of Delhi High Court in the matter of Vijay Laxmi Vs Binod Kumar-I (2012) ACC455, coupled with the judgement of Dinesh Adhlak Vs Pritam Singh cited as (2010 ILR) 5, Delhi by virtue of Para No. 20 (iii) and the Para No. 15 of Sarla Verma's case, in case of bachelor, only the mother alone will be considered as a dependent and the multiplier would be taken as per the age of the mother.
In the present case, the age of the Petitioner No. 2 is stated to be 60 years and accordingly, the multiplier is to be taken of 9 for the purpose of assessment of compensation.
(d) Loss of financial dependency In the light of aforesaid facts, loss of financial Suit No.5703616 Budh Pal Vs Amarjeet Page 26 of 34 dependency of the Petitioners comes to Rs. 3,51,000/- [i.e. Rs.6,500/- (notional income) X 12 (months) X 9 (multiplier) X 1/2 (dependency)].
(e) Compensation under non-pecuniary heads:
It has been held by the Hon'ble Apex Court in Rajesh & Ors. v. Rajbir Singh & Ors., (2013) 9 SCC 54 that the compensation is to be awarded for a sum of Rs.1 lakh each towards loss of love and affection and loss of consortium, Rs.25,000/- towards funeral expenses and Rs.10,000/- towards loss of estate.
However, in 2015 ACJ 1286 Asha Verman and others v. Maharaj Singh and others Hon'ble Apex Court has awarded a sum of Rs.1 lakh to each child relying upon judgement passed in Jiju Kuruvila v. Kunjujamma Mohan, 2013 ACJ 2141 (SC) and Rs.50,000/ to each parent for loss of love and affection relying upon judgement passed in M. Mansoor v. United India Insurance Co. Ltd., 2013 ACJ 2849 (SC) Further, interest @ 9% per annum was awarded on the award amount by the Hon'ble Apex Court in Municipal Corporation of Delhi v. Association of Victims of Uphaar Tragedy, 2012 ACJ 48 (SC).
Though a wide discretion in determination of compensation is given but the amplitude of such powers has to be exercised in consonance with settled principles and it needs to be borne in mind that compensation is neither expected to be windfall or bonanza or source of profit but at the same time should not be pittance.
Considering the facts and circumstances Petitioner no.1 & 2 are entitled to Rs.1 lakh each towards loss of love and affection.Suit No.5703616 Budh Pal Vs Amarjeet Page 27 of 34
Also Petitioners are entitled to Rs.10,000/- towards loss of estate and Rs.25,000/- towards funeral expenses of deceased.Suit No.5703616 Budh Pal Vs Amarjeet Page 28 of 34
11. Petitioners/claimants are accordingly entitled to compensation computed as under:
Loss of financial dependency Rs. 3,51,000/- Towards Loss of love and affection to Rs. 1,00,000/-
petitioners No 1 & 2 each
Loss of Estate Rs. 10,000/-
Funeral Expenses Rs. 25,000/-
________________
Total Rs. 4,86,000/-
________________
(Rupees Four Lacs eighty six thousand only) The claimant/Petitioner No. 1 & 2 are also entitled to interest @ 9% p.a. from the date of filing of DAR w.e.f. 05.01.2015 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 Petitioners.
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. For the purpose of disbursement, in view of the authority mentioned in Para No. 10 (c) above, only the Petitioner No. 2-Mother of the deceased is entitled for the claim with proportionate interest thereon minus Rs. One Lac awarded to Suit No.5703616 Budh Pal Vs Amarjeet Page 29 of 34 Petitioner No. 1 towards loss of love and affection.
On realization, an amount of Rs.50,000/- (Rupees Fifty Thousand only) shall be released to Petitioner No. 1 & 2 each and remaining amount along with proportionate up-to-date interest shall be kept in ten fixed deposits of equal amount in their name 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 their account.
14. Relief Since the offending vehicle was duly insured, Respondent No.3- Insurance Company Ltd.is directed to deposit the award amount of Rs. 4,86,000/- with interest @ 9% per annum from the date of filing of DAR i.e. 05.01.2015 till realization with Nazir of this Court within 30 days under intimation to the Petitioners, failing which the Insurance Company shall be liable to pay interest @ 12% per annum for the period of delay beyond 30 days.
Suit No.5703616 Budh Pal Vs Amarjeet Page 30 of 34PART-H APPORTIONMENT OF LIABILITY 15 . I have taken note of the submissions of the Ld. Counsel for insurer for recovery rights for the breach of the terms and condition of the policy as the offending vehicle was not having a fitness certificate as on the date of accident.
As per the DAR as well as the evidence brought on record, at the time of accident, the offending vehicle was not having a valid fitness certificate and provision of section 56/192 MV Act was also invoked in the FIR.
Hence, as the respondent No 1 & 2 despite service of notice u/o 12 rule 8 CPC upon them by the respondent No.3 have failed to produce on record the fitness certificate of the offending vehicle coupled with the fact that the provision of Section 56 r/w 192 MV Act were also invoked against the Respondent No. 1 & 2 in the charge sheet, the insurance company is liable to recover the compensation from the Respondents No. 1 & 2 jointly & severally.
16. In order to decide the defence raised by the Ld. Counsel for insurer, I am being guided by the judgment of Hon'ble High Court in MAC. App. 476/2011 in case title as 'National Insurance Company Ltd vs. Sarita Hasija & Ors' decided by Hon'ble Justice G. P. Mittal wherein it Hon'ble High Court have relied upon its own judgment in case titled as 'New India Assurance Company Ltd. v. Sanjay Kumar & Ors', ILR(2007) 11, Delhi 733 wherein it was held as under:-
"23. Where the assured chooses to run away from the battle i.e fails to defend the allegation of having breach the terms of the insurance policy by opting not to defend the Suit No.5703616 Budh Pal Vs Amarjeet Page 31 of 34 proceedings, a presumption could be drawn that he has done so because of the fact that he has no case to defend. It is trite that a party in possession of best evidence, if he withholds the same, an adverse inference can be drawn against him that had the evidence been produced, the same would have been against said person. As knowledge is personal to the person possessed of the knowledge, his absence at he trial would entitle the insurance company to a presumption against the owner.
24. That apart, what more can the insurance company do other than to serve a notice under Order 12 Rule 8 of the Code of Civil Procedure calling upon the owner as well as the driver to produce a valid driving license. If during trial such a notice is served and proved to be served, non response by the owner and the driver would fortify the case of the insurance company."
17. In view of the aforesaid judgments of Hon'ble High Court of Delhi and in view of the fact that the insurer have duly proved the breach of terms & conditions of the insurance policy, this court has come to the conclusion that the insurance company is entitled to recovery rights against Respondents No. 1 & 2, but only after the disbursement of claim to the claimants in terms of the judgment of the Hon'ble Supreme Court in Swaran Singh's case, 2004 ACJ 1 (SC) (Supra).
18. The Respondent No: 3 being the insurer, its liability is joint and several with other respondents. Accordingly, Respondent No.3 is directed to deposit the award amount within a period of 30 days. In case of any delay, it shall be liable to pay interest at a rate of 12% per annum for the period of delay.
19. The Hon'ble High Court of Delhi in its judgment in MACA 682/05 dated 13.1.2010 Union of India Vs. Nanisiri have laid certain guidelines which are as under regarding depositing of award amount.
Suit No.5703616 Budh Pal Vs Amarjeet Page 32 of 34"The State Bank of India and UCO Bank have formulated special schemes for the victims of the road accident on the above terms and, therefore, the order for the deposit should be made presently to State Bank of India through its nodal officer Mr. H S Rawat, Relationship Manager, Tis Hazari Branch, Tis Hazari (Mb:
09717044322) or to UCO Bank through Mr. M M Tandon, Member-Retail Team, UCO Bank Zonal, Parliament Street, New Delhi (Mobile No.09310356400) as per the convenience of the victim /legal representatives of the victim. However, if any other bank agrees to provide the special scheme for victims of the road accident on the above terms, the deposit be permitted to be made in that Bank subject to the convenience of the victim/legal representative of the victim of the road accident".
20. It was further held in the judgment passed by Hon'ble High Court of Delhi in Nanisiri case (Supra) that "The State Bank of India and UCO Bank have formulated special schemes for the victims of the road accident on the above terms and, therefore, the order for the deposit should be made presently to State Bank of India through its Nodal officer Mr. Chandra Mohan Ojha, Relationship Manager, Tis Hazari Branch, Tis Hazari (Mb: 09412341376) or to UCO Bank through Mr. M M Tandon, Member-Retail Team, UCO Bank Zonal, Parliament Street, New Delhi (Mobile No.09310356400) as per the convenience of the victim /legal representatives of the victim. However, if any other bank agrees to provide the special scheme for victims of the road accident on the above terms, the deposit be permitted to be made in that Bank subject to the convenience of the victim/legal representative of the victim of the road accident".
21. The copy of this award be given to the insurance company as well as to the petitioner free of cost. The petitioner shall approach the State Bank of India, Tis Hazari Branch for opening the account.
Suit No.5703616 Budh Pal Vs Amarjeet Page 33 of 3422. The Manager of the Bank is directed to comply the award. The Bank Manager is directed to release the award amount to the petitioner.
File be consigned to Record Room.
A separate file be prepared for compliance report and put up the same on 07.01.2017.
Announced in open court (VINAY SINGHAL) on 05.11.2016 Judge MACT-2 (Central), Tis Hazari Courts, Delhi.
Suit No.5703616 Budh Pal Vs Amarjeet Page 34 of 34