Delhi District Court
Yashwant Luthra vs Ravinder Singh on 11 February, 2016
IN THE COURT OF ANOOP KUMAR MENDIRATTA,
JUDGE, MACT-1, (CENTRAL), DELHI.
SUIT NO.88/2010
Unique Case ID No.02401C-0509772010
Yashwant Luthra
S/o Late Shri Shyam Lal Luthra,
R/o H.No. 35/27-28, West Patel Nagar,
New Delhi - 110 008
.........PETITIONER
Versus
1. Ravinder Singh
S/o Shri Deewan Singh,
R/o D-296, Ganesh Nagar, Pandav Nagar,
Delhi - 110 092
...................(Driver)
2. Uday Singh
R/o H.No.795, Sector-14,
Gurgaon, Haryana.
...................(Owner)
3. Reliance General Insurance Company Ltd.
Plot No.60, Okhla Industrial Estate Phase-III,
Near SBI Bank, New Delhi - 110 020
.................(Insurer)
.......RESPONDENTS
Date of filing of the suit : 25.02.2010
Arguments heard on : 08.02.2016
Judgment pronounced on : 11.02.2016
Suit No.88/10 - Yashwant Luthra vs. Ravinder Singh & Ors. Page 1 of 34
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 of a sum of Rs. 15,00,000/- (Rupees Fifteen Lakh Only) in respect of accidental injuries sustained by him in a motor vehicular accident.
It may be observed at this stage itself that the claim petition filed on 25.02.2010 same was dismissed in default vide order dated 26.05.2010 and thereafter on filing of application u/o 9 Rule 9 CPC on 26.10.2010, was restored vide order dated 27.10.2010.
2. Brief facts of the case as mentioned in the claim petition are that on 10.12.2009 at about 3.30PM, petitioner Yashwant Luthra was going on a motorcycle bearing No. DL-6SZ-1566 towards East Patel Nagar from his residence. When he reached opposite 8/5 West Patel Nagar, the motorcycle was hit by a Toyota Qualis bearing No. HR-62T-1129 driven by Respondent No.1 in a rash and negligent manner. Consequently, petitioner suffered grievous injuries and was admitted at City Hospital, Pusa Road, New Delhi and thereafter shifted to Sir Ganga Ram Hospital, New Delhi. FIR No.482/2009 PS: Patel Nagar was registered regarding the accident. Respondent No.2 is further stated to be vicariously liable being the owner of the offending vehicle and Respondent No.3 as the insurer of the offending vehicle. It is Suit No.88/10 - Yashwant Luthra vs. Ravinder Singh & Ors. Page 2 of 34 further the case of petitioner that he was working as a property dealer and earning about Rs.15,000/- per month.
3. In the Written Statement filed on behalf of Respondent No.1 Ravinder Singh/driver of the offending vehicle, it was submitted that offending Qualis bearing registration No. HR-62T-1129 was insured with Respondent No.3 and he was in possession of a valid driving licence. It was further submitted that accident was not caused by the vehicle driven by Respondent No.1 but by another vehicle and Respondent No.1 was at a distance of about 200 meters behind the vehicle of the petitioner.
In the Written Statement filed on behalf of Respondent No.2 Uday Singh/owner of the offending vehicle, it was claimed that vehicle had been wrongly involved in the accident. It was further submitted that accident had been caused by another vehicle and the case had been fabricated. Vehicle No. HR-62T-1129 was further stated to be insured with Respondent No. 3 M/s Reliance General Insurance Company Ltd. for the period 18.01.2009 to 17.01.2010 which covers the period of accident.
In the Written Statement filed on behalf of Respondent No.3/Reliance General Insurance Company Ltd., it was submitted that insurance company is not liable in case the driver of vehicle No. HR-62T-1129 was not holding a valid & effective driving licence or vehicle was not having a valid permit. However, it was admitted that vehicle No. HR-62T-1129 was Suit No.88/10 - Yashwant Luthra vs. Ravinder Singh & Ors. Page 3 of 34 insured with Respondent No.3 for the period 18.01.2009 to 17.01.2010. The claim was further stated to be exaggerated.
4. On the pleadings of the parties, following issues were framed for consideration by ld. Predecessor vide order dated 02.07.2013:-
(i) Whether the petitioner had suffered grievous injuries in road traffic accident which took place on 10.12.2009 at 3:30 P.M. within the jurisdiction of PS: Patel Nagar, New Delhi due to rash and negligent driving of the vehicle bearing registration No. HR 62T 1129 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 claim, petitioner examined PW1 Yashwant Luthra (petitioner), PW2 Rajnish Kumar, PW3 Pyara Singh and PW4 Dr. A.K. Naik.
Evidence was not led on behalf of the respondents. PW-1 Yashwant Luthra testified on the lines of the claim petition and stated that from the spot of accident on 10.12.2009, he was removed to City Hospital, Pusa Road and thereafter shifted to Sir Ganga Ram Hospital on 12.12.2009.
Suit No.88/10 - Yashwant Luthra vs. Ravinder Singh & Ors. Page 4 of 34Further, he was discharged on 22.12.2009. He further testified that he was operated for fracture tibial plauteau (right), with fracture dislocation right hip, with fracture inferior pubic rami (right). He also testified that he was doing business of property dealer and earning about Rs.15,000/- per month and proved the medical bills (Ex.PW1/1 colly 104 pages), copy of ITRs for the Assessment Years 2007-08, 2008-09 & 2009-10 (Ex.PW1/6 colly), copy of election I-card (Ex.PW1/4) and copy of driving licence (Ex.PW1/5).
During cross-examination, he clarified that front right side of Qualis hit against the motorcycle and denied that accident had taken place due to his negligence. He further stated that motorcycle was owned by his friend Shami Thareja who is the registered owner. Further, he did not have any document in his possession to reflect the expenses incurred on conveyance, special diet and attendant charges. He further deposed that he is 12th pass but had not brought any document in this regard. Further, he was filing ITR since 2001 but after 2009-10 did not file ITR. He further stated that his present income was Rs.8,000/- to Rs.10,000/- per month and denied the suggestion that his present income was not correctly disclosed.
PW2 Rajnish Kumar, Assistant, Medical Department, City Hospital, Pusa Road, New Delhi proved the discharge summary, treatment record and copy of final bill (Ex.PW2/1 colly 23 sheets). He further stated that Yashwant Luthra was admitted in City Hospital on 10.12.2009 and discharged on 12.12.2009 and bill of Rs.13,811/- was proved on record.
Suit No.88/10 - Yashwant Luthra vs. Ravinder Singh & Ors. Page 5 of 34PW2 Pyara Singh, Medical Record Officer, Sir Ganga Ram Hospital deposed that petitioner paid a total amount of Rs.1,48,770/- towards treatment and proved discharge summary (Ex.PW3/1).
PW4 Dr. A.K. Naik proved the disability certificate (Ex.PW4/B) whereby permanent physical disability of right hip of injured was assessed at 33% in relation to right lower limb.
6. I have heard arguments addressed on behalf of the petitioner as well as counsel for Insurance Company and perused the record.
My Issue-wise findings are as under :-
Issue No. (i) Whether the petitioner had suffered grievous injuries in road traffic accident which took place on 10.12.2009 at 3:30 P.M. within the jurisdiction of PS: Patel Nagar, New Delhi due to rash and negligent driving of the vehicle bearing registration No. HR 62T 1129 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 Suit No.88/10 - Yashwant Luthra vs. Ravinder Singh & Ors. Page 6 of 34 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, the 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 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 Suit No.88/10 - Yashwant Luthra vs. Ravinder Singh & Ors. Page 7 of 34 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 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."
In the instant case, as per the case of petitioner, accident took place on 10.12.2009 while petitioner was proceeding towards Suit No.88/10 - Yashwant Luthra vs. Ravinder Singh & Ors. Page 8 of 34 Patel Nagar from his residence and was hit by Qualis bearing registration No. HR-62T-1129 which was driven by Respondent No.1 in a rash and negligent manner. Testimony of PW1 could not be dented during cross-examination and is corroborated by the attested copy of Mechanical Inspection Report in respect of both the vehicles which have been filed on record and were prepared during the proceedings of criminal case. Further, evidence of PW1 has not been refuted by Respondent No.1 by entering into witness box or by leading any cogent evidence in this regard. Admittedly, Respondent No.1 also stands chargesheeted for offence u/s 279/338 IPC. Since the rash and negligent driving is to be assessed on 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.
7. 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 Suit No.88/10 - Yashwant Luthra vs. Ravinder Singh & Ors. Page 9 of 34 equitable manner. Paras 4 and 5 of the judgment are further 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.Suit No.88/10 - Yashwant Luthra vs. Ravinder Singh & Ors. Page 10 of 34
(ii) Loss of earnings (and other gains) which the injured 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, Suit No.88/10 - Yashwant Luthra vs. Ravinder Singh & Ors. Page 11 of 34 the income of the petitioner/injured needs to be assessed along with the functional disability suffered by him due to the injuries sustained in the accident.
(a) Criteria for taking income of the petitioner Counsel for petitioner contended that petitioner was working as a property dealer and earning about Rs.15,000/- per month and reliance has been placed upon Income Tax Returns filed by the petitioner for the Assessment Years 2007-08, 2008-09 and 2009-10. After deposit of tax, the net income for AY 2007-08 was Rs.1,96,299/-; for the AY 2008-09 Rs.1,76,976/- and for the AY 2009-10 Rs.1,53,897/-. As such, it was claimed on behalf of the petitioner that annual income of the petitioner be considered on the basis of average income of the aforesaid Assessment Years.
The same is not opposed by counsel for insurance company.
In the facts and circumstances, income of the petitioner for purpose of assessment of compensation is considered on the basis of average of income for the Assessment Years 2007-08, 2008-09 & 2009-10 which comes to Rs.1,75,724/- per annum or Rs. 14,643.66 per month.
(b) If addition in income towards future prospects is to be made Counsel for petitioner urged that addition towards future prospects be made by 30% while assessing the income of the petitioner since there were prospects of growth in business and also Suit No.88/10 - Yashwant Luthra vs. Ravinder Singh & Ors. Page 12 of 34 as per the Returns filed for the Assessment Year 2007-08, 2008-09 & 2009-10 there was increase in income. However, the same has been opposed by the counsel for insurance company.
It may be observed that in Shashikala & Ors. v. Gangalakshmamma & Anr. 2015 (2) T.A.C. 867 (SC), separate 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 Suit No.88/10 - Yashwant Luthra vs. Ravinder Singh & Ors. Page 13 of 34 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.
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 Suit No.88/10 - Yashwant Luthra vs. Ravinder Singh & Ors. Page 14 of 34 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 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 Suit No.88/10 - Yashwant Luthra vs. Ravinder Singh & Ors. Page 15 of 34 examined at great length by this Court in HDFC ERGO General Insurance Co. Ltd. v. Smt. Lalta Devi & Ors. (supra). Paras 9 to 21 of the report in Lalta Devi are extracted hereunder:-
9. The learned counsel for the Claimants has referred to a three Judge Bench decision of the Supreme Court in Rajesh & Ors. v. 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 :Suit No.88/10 - Yashwant Luthra vs. Ravinder Singh & Ors. Page 16 of 34
(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) 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."Suit No.88/10 - Yashwant Luthra vs. Ravinder Singh & Ors. Page 17 of 34
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 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 Suit No.88/10 - Yashwant Luthra vs. Ravinder Singh & Ors. Page 18 of 34 (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 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-Suit No.88/10 - Yashwant Luthra vs. Ravinder Singh & Ors. Page 19 of 34
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?
(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 Suit No.88/10 - Yashwant Luthra vs. Ravinder Singh & Ors. Page 20 of 34 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- cided 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 Suit No.88/10 - Yashwant Luthra vs. Ravinder Singh & Ors. Page 21 of 34 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 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-
Suit No.88/10 - Yashwant Luthra vs. Ravinder Singh & Ors. Page 22 of 34bir Singh [(1989) 2 SCC 754] and Hansoli Devi [(2002) 7 SCC 273]."
19. Similarly, in Safiya Bee v. Mohd. Vajahath Hussain @ Fasi, (2011) 2 SCC 94 in para 27, the Supreme Court observed as under:-
"27. However, even assuming that the decision in WP No. 35561 of 1998 did not operate as res judicata, we are to observe that even if the learned Judges who decided WP No. 304 of 2001 did not agree with the view taken by a 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 Suit No.88/10 - Yashwant Luthra vs. Ravinder Singh & Ors. Page 23 of 34 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-
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 and in absence of any evidence with regard to good future prospects of the petitioner, addition of income towards future prospects cannot be made for the Suit No.88/10 - Yashwant Luthra vs. Ravinder Singh & Ors. Page 24 of 34 purpose of compensation.
(c) Functional Disability Counsel for petitioner urged that for purpose of assessment of compensation, functional disability may be considered at 33% as assessed by the Medical Board as per Disability Certificate Ex.PW4/B. On the other hand, counsel for insurance company contended that functional disability of the petitioner be assessed at 17% considering the nature of disability qua the entire body.
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 Suit No.88/10 - Yashwant Luthra vs. Ravinder Singh & Ors. Page 25 of 34 disability on the actual earning capacity involves three steps. The Tribunal has to first ascertain what activities 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 Suit No.88/10 - Yashwant Luthra vs. Ravinder Singh & Ors. Page 26 of 34 driver or carpenter, nor 60% which is the actual physical disability, but far less. In fact, there may not 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 instant case, petitioner has relied upon Disability Certificate (Ex.PW4/B) issued by Medical Board, Dr. Ram Manohar Lohia Hospital, New Delhi whereby it has been observed as under:
Suit No.88/10 - Yashwant Luthra vs. Ravinder Singh & Ors. Page 27 of 34"He is operated case for fractures of right hip & right knee. His right knee has post traumatic degenerative arthritis with restricted movements. His right hip has non union of fracture neck of femur. His present disability is 33% (Thirty three percent) in relation to right lower limb".
Admittedly, the petitioner was carrying his business as property dealer. However, it may also be noticed that despite the disability suffered in the accident, the income of the petitioner for the Assessment Year 2009-10 (Financial Year 01.04.2009 to 31.03.2010) as per Income Tax Return filed on 31.03.2010 A (i.e. after the date of accident) showed an increased tendency which reflects that the disability had only a limited impact on carrying of vocation by the petitioner. Considering the totality of facts and circumstances and the principles laid down in Raj Kumar Vs. Ajay Kumar, (supra), the functional disability is assessed at 17% for purpose of assessment of compensation.
As per copy of Driving Licence (Ex.PW1/4) placed on record, date of birth of petitioner is reflected as 01.01.1966. As such, the age of petitioner on the date of accident was about 43 years 11 months 09 days approximately. In view of Sarla Verma & Ors. v/s Delhi Transport Corporation 2009, ACJ 1298, the relevant multiplier of 14 is applicable for the purpose of assessment in the present case.
The compensation is accordingly assessed towards loss of earning capacity at Rs. 4,18,223.12 {i.e. Rs.1,75,724 (income per annum) X 17% (functional disability) X 14 (applicable multiplier according to age)}.
Suit No.88/10 - Yashwant Luthra vs. Ravinder Singh & Ors. Page 28 of 34(d) Loss of Income on account of accident Counsel for petitioner contended that immediately after the accident, petitioner was taken to City Hospital, Pusa Road, New Delhi wherein he remained admitted from 10.12.2009 to 12.12.2009 and was thereafter treated at Sir Ganga Ram Hospital, New Delhi from 12.12.2009 to 22.12.2009. It is claimed that consequent to accidental injuries, petitioner could not attend to his work for a period of one year. The same is opposed by counsel for insurance company.
Considering the nature of injuries and disability suffered by the petitioner and period of admission as indoor patient, 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 06 months.
In the facts and circumstances, petitioner is accordingly awarded damages of Rs.87,861.96 for a period of 06 months for which he was not able to perform his job i.e. [Rs.14,643.66 (income for one month) X 06 months].
(e) Loss of amenities and loss of expectation of life 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 33% suffered by the petitioner in relation to right lower limb, he is awarded a sum of Rs.80,000/- (Rupees Eighty Suit No.88/10 - Yashwant Luthra vs. Ravinder Singh & Ors. Page 29 of 34 Thousand Only) on account of loss of amenities and loss of expectation of life due to permanent disability.
(f) Pain and Suffering & Mental Agony As the petitioner suffered permanent disability of 33% in respect of right lower limb and remained incapacitated from performing normal activities for a considerable period of treatment, he is awarded a sum of Rs.80,000/- towards pain and suffering and mental agony.
(g) Medicines and Medical Treatment Counsel for petitioner contended that an amount of Rs. 1,94,399.66 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. 1,94,399.66 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.15,000/- is awarded towards conveyance for the period of treatment.
Petitioner is further awarded an amount of Rs.20,000/- towards special diet.
Suit No.88/10 - Yashwant Luthra vs. Ravinder Singh & Ors. Page 30 of 34(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.
Further, 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.15,000/- is awarded in lump-sum towards the attendant charges/gratuitous services rendered by the family members (i.e. Rs.2,500/- X 06 months).
(j) Claim towards future medical expenses Counsel for petitioner has claimed expenses of Rs.2 lakh towards future medical expenses relying upon Ex.PW1/2 for purpose of total hip replacement. However, the same has been vehemently disputed by counsel for insurance company on the ground that no specialist has been examined to prove the cost of the future medical treatment.
I am of the considered opinion that since no witness has been examined to prove the future medical expenses and as no steps have been taken by the petitioner/injured in this regard till date Suit No.88/10 - Yashwant Luthra vs. Ravinder Singh & Ors. Page 31 of 34 from the date of accident in the year 2009, the same cannot be awarded.
8. As discussed above, the overall compensation is tabulated as under:
Loss of Earning Capacity Rs.4,18,223.12 Loss of Income on Account of accident Rs.87,861.96 Loss of amenities and loss of expectation of life Rs.80,000/-
Pain and Suffering Rs.80,000/-
Medicines & Medical Treatment Rs.1,94,399.66
Conveyance Charges Rs.15,000/-
Special Diet Rs.20,000/-
Attendant Charges Rs.15,000/-
Future Medical Expenses Nil
-----------------
Total Rs.9,10,484.74
(Rounded off to Rs.9,10,485/-)
(Rupees Nine Lakh Ten Thousand Four Hundred Eighty Five Only) The claimant/petitioner is also entitled to interest @ 9% p.a. from the date of filing of claim petition i.e. w.e.f. 25.02.2010 (except for the period 26.05.2010 to 27.10.2010 for which period petition was dismissed in default). Petitioner shall also not be entitled to interest for the period 12.05.2011 till 06.05.2013 as directed vide order dated 12.05.2011 by ld. Predecessor).
9. It is further held that Respondent No.1 (Driver), Suit No.88/10 - Yashwant Luthra vs. Ravinder Singh & Ors. Page 32 of 34 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. For purpose of disbursement, on realization, an amount of Rs.3,00,000/- (Rupees Three Lakh Only) shall be released to the petitioner and the remaining amount along with proportionate up- to-date interest shall be kept in seven 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 and seven 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/Reliance General Insurance Company Ltd. is directed to deposit the award amount of Rs.9,10,485/- with interest @ 9% per annum from the date of filing of claim petition i.e. 25.02.2010 (except for the period 26.05.2010 to 27.10.2010 for which period petition was dismissed in default and also for the period 12.05.2011 till 06.05.2013 as directed vide order dated 12.05.2011 by ld. Predecessor) with the Nazir of this Court within 30 days under intimation to the petitioner failing which the Insurance Company shall be liable to pay interest @ 12% per annum for the period of delay beyond 30 days.
Insurance Company/driver and owner of the offending Suit No.88/10 - Yashwant Luthra vs. Ravinder Singh & Ors. Page 33 of 34 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/ Reliance 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 11th February, 2016 (Anoop Kumar Mendiratta) Judge, MACT-1 (Central), Tis Hazari Courts, Delhi.
Suit No.88/10 - Yashwant Luthra vs. Ravinder Singh & Ors. Page 34 of 34