Delhi District Court
Smt. Nirmala vs Vikas Rathor on 31 January, 2015
IN THE COURT OF MS. GEETANJLI GOEL, PO: MOTOR ACCIDENT
CLAIMS TRIBUNAL2, PATIALA HOUSE COURTS, NEW DELHI
Suit No.183/14
Date of Institution:02.01.2014
IN THE MATTER OF:
1. Smt. Nirmala
W/o Shri Bhagwan Dass
2. Seema
3. Reema
4. Chandarkali
5. Ruchi
All daughters of Bhagwan Dass
Represented through their Mother Nirmala
All residents of
H.No.112, Mohalla Tikhuri Village
Sonvarsa
District Allahabad, U. P. ...Petitioners
Versus
1. Vikas Rathor
S/o Shri V.S. Rathor
H.No.130 A/3, Gautam Nagar
New Delhi.
Suit No. 183/14 Page No. 1 of 41
Nirmala v Vikas Rathor & Ors.
2. Gitali Rathor
W/o Vikas Rathor
H.No.130 A/3, Gautam Nagar
New Delhi.
3. National Insurance Co. Ltd.
Regd. Office
DIV No.10, Flat No. 101106
N1, BMC House
Connaught Place
New Delhi. ...Respondents
Final Arguments heard : 13.01.2015. Award reserved for : 31.01.2015 Date of Award : 31.01.2015 AWARD
1. Vide this judgmentcumaward, I proceed to decide the claim petition u/s 166 and 140 of Motor Vehicle Act, 1988, as amended uptodate (hereinafter referred to as the Act) for grant of compensation arising out of a road accident.
2. It is the case of the petitioners that the deceased Shri Bhagwan Dass was working as a labourer at the Metro site under L & T Ltd. and the work on the site involved several huge machines like cranes etc. It is averred that on 11.10.2013 at about 12.50 a.m., the deceased was on night duty on the Metro site near Moti Bagh. When a crane was being moved from pillar No.139 to 153 the deceased and the other labourer Satish Kumar carried the water barrier Suit No. 183/14 Page No. 2 of 41 Nirmala v Vikas Rathor & Ors.
and were guarding the crane from behind along with the injured Shri Tarkeshwar Gupta. When the crane reached pillar No.151, suddenly a car bearing No.DL3CBV7369 of Maruti Swift model and make hit the deceased and the other labourer along with the injured Shri Tarkeshwar Gupta. It is averred that the hit was forceful and the deceased was afflicted with injuries. Thereafter, a call on 100 number was made and the PCR vehicle arrived. The deceased and the other injured were taken to Jai Prakash Narayan Apex Trauma Centre, AIIMS wherein the doctor Shri Prakash Ranjan found the deceased as dead. It is averred that the deceased and other labourer along with the injured Shri Tarkeshwar Gupta died due to the rashness and negligence of the offending vehicle being driven by Shri Vikas Rathor. It is stated that the police of PS South Campus, Delhi registered FIR No.176/13 dated 11.10.2013 under Sections 279/337/304A of IPC. It is averred that the injured spent almost Rs.2 lac on the last rites of the deceased. It is averred that the accident could have been avoided had Shri Vikas Rathor been cautious by observing the traffic norms and even the slightest caution and observance could have avoided the accident. The injured Tarkeshwar Gupta got simple injuries in the accident because of the rash and negligent driving of the offending vehicle being driven by Shri Vikas Rathor.
3. It is averred that the deceased was aged 25 years and was working as a labourer with L & T Ltd. and drawing a salary of Rs.17,000/ per month besides other benefits etc. It is averred that the entire burden of the family was Suit No. 183/14 Page No. 3 of 41 Nirmala v Vikas Rathor & Ors.
on the deceased and his entire family members had suffered a great loss on account of mental agony, physical pain, fortune, loss of love etc. It is averred that the accident had been caused by the respondent No.1 as a result of rash and negligent driving of offending vehicle owned by the respondent No.2 and insured with the respondent No.3 and as such all the respondents were jointly vicariously and severally liable to pay compensation to the petitioners. It is prayed that an amount of Rs.20,00,000/ be awarded as compensation in favour of the petitioners and against the respondents.
4. Initially reply to DAR was filed on behalf of the respondents No.1 and 2 averring that the driver of the offending vehicle had a valid and effective driving license and the FIR had been lodged against the respondent No.1 on false and fabricated grounds. It was averred that no accident had taken place with the alleged offending vehicle driven by its driver and the local police in connivance with the claimants had falsely implicated the alleged offending vehicle in the case. The contents of the FIR as to the negligence of the driver of the insured vehicle were denied. The allegations with regard to the factum of the alleged accident and cause thereof, the involvement of the insured vehicle sustained by the deceased's negligence on the part of the insured vehicle were denied. Thereafter written statement was filed on behalf of the respondents No.1 and 2 taking the preliminary objections that no cause of action has arisen in favour of the petitioners and against the respondents No.1 and 2 and they have been falsely implicated in the case. It is averred that it was the deceased who was Suit No. 183/14 Page No. 4 of 41 Nirmala v Vikas Rathor & Ors.
responsible for the alleged accident. It is averred that when the alleged accident took place, the respondent No.1 was holding a valid and effective driving license. It is averred that at the time of the alleged accident the vehicle bearing No.DL3CBV7369 (Swift Car) was insured with the respondent No.3/ insurer i.e. National Insurance Co. Ltd. vide policy bearing No. 35101031136132985115 valid from 24.04.2013 to 23.04.2014. It is averred that the accident occurred due to negligence of the deceased himself, therefore, no liability could be fastened on the respondents No.1 and 2. The averments made in the claim petition were denied. It is averred that the income as shown is wrong, false, excessive and imaginary one. It is averred that the respondent No.1 has been falsely implicated in the case by the claimants in collusion with the local police as no accident took place due to the negligence of the respondent No.1 and a false case had been registered against the respondent No.1. It is averred that the respondent No.2 is the registered owner of vehicle bearing No.DL3CBV7369 (Swift Car) but it is denied that the said vehicle is the offending vehicle. It is averred that the amount claimed in the claim petition is very high, excessive, exorbitant and without any basis.
5. Written statement was filed on behalf of the respondent No.3 averring that the policy bearing No.35101031136132985115 valid from 24.04.2013 to 23.04.2014 in the name of Mrs. Gitali Rathor was issued by the company for vehicle No.DL3CBV7369. It is averred that the DL No.P03022000185220 valid from 22.02.2000 to 21.02.2020 in the name of Shri Vikas Rathor s/o Shri Suit No. 183/14 Page No. 5 of 41 Nirmala v Vikas Rathor & Ors.
V. S. Rathor for Motorcycle/LMV (NT) only was found valid on the date of the accident. It is averred that the deceased was 30 years of age as per the post mortem report and no other proof of age had been supplied by the petitioners. It is averred that he left behind 5 legal heirs i.e. Smt. Nirmala Devi i.e. wife and 4 minor daughters. It is averred that the deceased was shown to be a labourer, therefore, minimum wages were to be considered for calculating the loss of dependency, which were Rs.8,086/. After deducting 1/4th for personal expenses of the deceased and applying a multiplier of 16 the total dependency came to Rs.11,64,384/. An offer of Rs.12,19,384/ was made as full and final compensation to the petitioners.
6. Initially Detailed Accident Report was filed by the IO on 21.11.2013 and thereafter the claim petition was filed on 2.1.2014.From the pleadings of the parties, the following issues were framed vide order dated 04.02.2014:
1. Whether the deceased sustained fatal injuries in the accident which occurred on 11.10.2013 at about 1.05 A.M. at Ring Road from Dhaula Kuan to Moti Bagh at Metro Pillar no. 151 caused by rash and negligent driving of vehicle No.DL3CBV7369 driven by respondent no.1 and owned by respondent no.2 and insured with respondent no.3? OPP.
2. Whether the petitioner is entitled for compensation? If so, to what amount and from whom?
3.Relief.Suit No. 183/14 Page No. 6 of 41
Nirmala v Vikas Rathor & Ors.
7. The petitioners produced Shri Tarkeshwar Gupta (petitioner in suit No. 185/14) as PW1 in the witness box who led his evidence by way of affidavit which is Ex.PW1/A. He deposed that he along with the deceased late Shri Bhagwan Dass and deceased late Shri Satish Kumar was working as a labourer with L & T Ltd. on the fateful day of 11.10.2013 at about 12.50 a.m. and they were on night duty on the Metro site near Moti Bagh. He stated that he was working as Traffic Marshal. The work on the site involved several huge machines like cranes etc. He stated that on the unfortunate day at around 12.50 A.M. when a crane was being moved from pillar No.139 to 153 deceased late Shri Bhagwan Dass and deceased late Shri Satish Kumar were carrying water barrier. When the crane reached pillar No.151, suddenly a car bearing No.DL3BCV7369 of Maruti Swift model coming in a rash and negligent manner in violation of all traffic rules hit the deceased late Shri Bhagwan Dass and deceased late Shri Satish Kumar along with him. He stated that the hit was very forceful and the deceased late Shri Bhagwan Dass and deceased late Shri Satish Kumar were afflicted with multiple injuries and PW1 suffered simple injuries. Thereafter, a call on 100 number was made and PCR vehicle arrived. Thereinafter, PW1 along with deceased late Shri Bhagwan Dass and deceased late Shri Satish Kumar were taken to Jai Prakash Narayan Apex Trauma Centre, AIIMS wherein the doctor found the deceased late Shri Bhagwan Dass and deceased late Shri Satish Kumar as dead. He stated that he suffered injury and deceased late Shri Bhagwan Dass and deceased late Shri Satish Kumar died due to rash and negligent driving of the offending Suit No. 183/14 Page No. 7 of 41 Nirmala v Vikas Rathor & Ors.
vehicle being driven by Shri Vikas Rathor. The police of Police Station South Campus, Delhi registered a case against FIR No.176/13 dated 11.10.2013 under Sections 279/337/304A of IPC. He stated that he had spent around Rs. 50,000/ on his treatment. He stated that the accident could have been very well avoided had Shri Vikas Rathor s/o Shri V. S. Rathor been cautious by observing the traffic norms. He stated that he suffered injury and the deceased late Shri Bhagwan Dass and deceased late Shri Satish Kumar died in the accident because of rash and negligent driving of the offending vehicle being driven by Shri Vikas Rathor. He stated that the police had filed charge sheet against the driver of the offending vehicle. He stated that the negligence of the offending vehicle was very much clear from the mechanical inspection report. He stated that he along with the deceased late Shri Bhagwan Dass and deceased late Shri Satish Kumar was working with L&T Company and he was earning Rs.8,000/ per month. He stated that the accident had been caused by the offending vehicle DL3CBV7369 (Swift Car) being driven by Shri Vikas Rathor and owned by Ms. Gitali Rathor and the said vehicle was insured with National Insurance Co. Ltd. He relied upon the documents filed with the DAR Ex.PW1/1 (colly).
8. On behalf of the petitioners the petitioner No.1 Ms. Nirmala appeared in the witness box as PW1A and led her evidence by way of affidavit which is Ex.PW1/A reiterating the averments made in the claim petition. She stated that she had spent around Rs.2,00,000/ on the last rites of the deceased late Shri Suit No. 183/14 Page No. 8 of 41 Nirmala v Vikas Rathor & Ors.
Bhagwan Dass. She stated that the deceased was aged about 25 years and was having a family consisting of his wife and four daughters. The whole family was dependent upon the income of the deceased late Shri Bhagwan Dass for livelihood and as such due to the death of the deceased his entire family members had suffered a great loss due to the loss of its sole bread earner. She stated that the deceased late Shri Bhagwan Dass was working with L&T Company as labourer and was earning Rs.14,000/ per month. She stated that the family had also suffered mental agony and great amount of pain and suffering, fortune, loss of love etc. Copy of FIR is Ex.PW1/1, copy of MLC is Ex.PW1/2, copy of post mortem report is Ex.PW1/3, copy of charge sheet is Ex.PW1/4, copy of mechanical inspection report is Ex.PW1/5, copy of proof of salary of the deceased is Ex.PW1/7, copy of certificate issued by the State Transport Department regarding vehicle No.DL3CBV7369 is Ex.PW1/8 and copy of insurance policy cover note issued by National Insurance Co. is Ex.PW1/9. Copy of certificate issued by the Gram Pradhan is Mark A.
9. The petitioners produced Shri Abhishek Pandey, Supervisor with Harsh Enterprises in the witness box as PW2 (examined in suit No.184/14) who led his evidence by way of affidavit which is Ex.PW2/A. He deposed that he was working as Supervisor with Harsh Enterprises, having its registered office at 9432, 2nd Floor, Street No.10, Multani Dhanda, Paharganj, New Delhi 110055. He stated that Harsh Enterprises was working as subcontractor of Larsen and Tubro Ltd. near Moti Bagh which was contractor of Delhi Metro Suit No. 183/14 Page No. 9 of 41 Nirmala v Vikas Rathor & Ors.
Project. He stated that late Shri Satish was working with Harsh Enterprises as helper from 31.07.2013 to 10.11.2013 under his supervision. He stated that late Satish was getting wages as per his days of working. Copy of authority letter in favour of PW2 is Ex.PW2/1, copy of ID card of PW2 is Ex.PW2/2, copy of bill raised by M/s Harsh Enterprises is Ex.PW2/2A, copy of certificate issued by the company is Ex.PW2/3, copy of attendance card of late Satish for the months of August, 2013, September, 2013 and October, 2013 is Ex.PW2/4 and copy of register of muster roll for the months of August, 2013, September, 2013, October, 2013 and November, 2013 is Ex.PW2/5. He was not cross examined on behalf of the respondents No.1 and 2. PE was closed on 15.7.2014. It was stated by the learned counsels for the respondents that no RE was to be led.
10. I have heard the Learned Counsel for the petitioners as well as the Learned Counsels for the respondents and perused the record. The petitioners were also examined on 9.9.2014 and 14.10.2014 in terms of the judgment of the Hon'ble High Court on 11.1.2013 in MACA No.792/2006 titled Oriental Insurance Co. Ltd. v. Ranjit Pandey and Ors.
11. My findings on the specific issues are as under:
Suit No. 183/14 Page No. 10 of 41
Nirmala v Vikas Rathor & Ors.Issue No. 1
12. As the petition has been filed U/s 166 M.V Act it was incumbent upon the petitioners to prove that the deceased sustained injuries in an accident caused due to the rash and negligent driving by the driver of the offending vehicle. To determine the negligence of the driver of the offending vehicle it has been held in National Insurance Company Ltd. vs Pushpa Rana & Another 2009 Accident Claims Journal 287 as follows:
"The last contention of the appellant insurance company is that the respondents/claimants should have proved negligence on the part of the driver and in this regard the counsel has placed reliance on the judgment of the Hon'ble Apex Court in Oriental Insurance Company Ltd. V. Meena Variyal (supra). On perusal of the award of the Tribunal, it becomes clear that the wife of the deceased had produced: (i) certified copy of the criminal record of criminal case in FIR No.955 of 2004, pertaining to involvement of offending vehicle (ii) criminal record showing completion of investigation of police and issue of charge sheet under sections 279/304A, Indian Penal Code against the driver;
(iii) certified copy of FIR, wherein criminal case against the driver was lodged; and (iv) recovery memo and mechanical inspection report of offending vehicle and vehicle of deceased.
These documents are sufficient proofs to reach the conclusion that the driver was negligent. Proceedings under the Motor Vehicle Act are not akin to proceedings in a civil suit and hence strict rules of evidence are not required to be followed in this regard. Hence, this contention of the counsel for the appellant also falls face down. There is ample evidence on record to prove negligence on part of the driver."
Suit No. 183/14 Page No. 11 of 41 Nirmala v Vikas Rathor & Ors.
It is established law that in a claim petition under Motor Vehicle Act, the standard of proof to establish rash and negligent driving by the driver of the offending vehicle is not at par with the criminal case where such rashness and negligence is required to be proved beyond all shadow of reasonable doubt. In Kaushnamma Begum and others v. New India Assurance Company Limited, it was inter alia held by the Hon'ble Supreme Court that the issue of wrongful act or omission on the part of the driver of the motor vehicle involved in the accident has been left to a secondary importance and mere use or involvement of motor vehicle in causing bodily injury or death to a human being or damage to property would make the petition maintainable under Sections 166 and 140 of the Motor Vehicle Act.
13. The case of the petitioners is that the deceased Shri Bhagwan Dass was working as a labourer at the Metro site under L & T Ltd. and the work on the site involved several huge machines like cranes etc. It was averred that on 11.10.2013 at about 12.50 a.m., the deceased was on night duty on the Metro site near Moti Bagh. When a crane was being moved from pillar No.139 to 153 the deceased and the other labourer Satish Kumar carried the water barrier and were guarding the crane from behind along with the injured Shri Tarkeshwar Gupta. When the crane reached pillar No.151, suddenly a car bearing No.DL3CBV7369 of Maruti Swift model and make hit the deceased and the other labourer along with the injured Shri Tarkeshwar Gupta. It was averred that the hit was forceful and the deceased was afflicted with injuries. Suit No. 183/14 Page No. 12 of 41 Nirmala v Vikas Rathor & Ors.
Thereafter, a call on 100 number was made and the PCR vehicle arrived. The deceased and the other injured were taken to Jai Prakash Narayan Apex Trauma Centre, AIIMS wherein the doctor Shri Prakash Ranjan found the deceased as dead. It was averred that the deceased and other labourer along with the injured Shri Tarkeshwar Gupta died due to the rashness and negligence of the offending vehicle being driven by Shri Vikas Rathor. It was stated that the police of PS South Campus, Delhi registered FIR No.176/13 dated 11.10.2013 under Sections 279/337/304A of IPC. In paras 2 to 6 and 8 of her affidavit Ex.PW1/A the petitioner No.1 had reiterated the mode and manner of the accident as stated in the claim petition. Likewise in paras 2 to 6 and 8 of his affidavit PW1 Shri Tarkeshwar Gupta had reiterated the mode and manner of the accident.
14. The IO had filed the Detailed Accident Report on which reliance has been placed by the petitioners containing the criminal record consisting of copy of charge sheet; copy of FIR; copy of arrest memo, copy of tehrir, copy of DD, copy of site plan; copy of MLC and post mortem report, copy of seizure memos; copy of mechanical inspection report of the offending vehicle car bearing No.DL3CBV7369 and of the crane, copy of DL of the respondent No. 1 with its verification report, copy of verification report of the RC of the offending vehicle with the copy of RC, copy of the insurance policy of the offending vehicle and its verification report, copy of notice under Section 133 MV Act, copy of blood test of the respondent No.1 for alcohol, copy of order on Suit No. 183/14 Page No. 13 of 41 Nirmala v Vikas Rathor & Ors.
the application for release of the offending vehicle on superdari and the request for release of the crane along with the copy of superdarinama and copies of statements under Section 161 Cr.P.C. As per the FIR No.176/13 under sections 279/337 IPC, PS South Campus the case was registered on the basis of the complaint of Vijay Prakash Thirpathi who was on the crane wherein he had stated about the manner of the accident. As per the charge sheet the respondent No.1 has been charge sheeted for the offence under sections 279/337/304A IPC.
15. The respondents No.1 and 2 had filed the reply/ written statement averring that the FIR had been lodged against the respondent No.1 on false and fabricated grounds. It was averred that no accident had taken place with the alleged offending vehicle driven by its driver and the local police in connivance with the claimants had falsely implicated the alleged offending vehicle in the case. The contents of the FIR as to the negligence of the driver of the insured vehicle were denied. The allegations with regard to the factum of the alleged accident and cause thereof, the involvement of the insured vehicle sustained by the deceased's negligence on the part of the insured vehicle were denied. It was averred that the respondents No.1 and 2 had been falsely implicated in the case and it was the deceased who was responsible for the alleged accident. It was averred that the accident occurred due to the negligence of the deceased and the respondent No.1 had been falsely implicated in the case by the claimants in collusion with the local police as no Suit No. 183/14 Page No. 14 of 41 Nirmala v Vikas Rathor & Ors.
accident took place due to the negligence of the respondent No.1 and a false case had been registered against the respondent No.1. It was averred that the vehicle bearing No.DL3CBV7369 (Swift Car) was not the offending vehicle.
16. During crossexamination by the learned counsel for the respondent No.3/ insurance company PW1A stated that she was not an eye witness to the accident. She denied the suggestion that the accident had taken place due to rashness and negligence on the part of driver of car bearing No.DL3CBV7369. Thus PW1A stated that she was not an eye witness to the accident. The petitioners in support of their case had examined Shri Tarkeshwar Gupta (petitioner in suit No.185/14) who was also stated to be injured in the accident and during crossexamination by the learned counsel for the respondents No.1 and 2 PW1 Tarkeshwar Gupta stated that the accident had taken place in his presence. He stated that he was working with L & T and was present as Traffic Marshal at the time of the accident. He stated that the vehicle in question had come from the correct direction. He stated that he was on the left side of the road at the time of the accident. He stated that he was regulating the traffic at the time of the accident. He did not make the call on 100. He stated that he could not identify the driver of the offending vehicle as he (PW1) was the first person to be hit. He denied the suggestion that the accident had taken place due to his negligence or that the accident had not taken place due to the negligence of the driver of the offending vehicle. During crossexamination by the learned counsel for the respondent Suit No. 183/14 Page No. 15 of 41 Nirmala v Vikas Rathor & Ors.
No.3 PW1 Shri Tarkeshwar Gupta admitted that the vehicles were coming and going from the road where the accident took place. He denied the suggestion that there was no street light at the spot of accident volunteered there was a light in his hand as well. He stated that he had the traffic light in his hand. He admitted that his duty was to regulate the traffic. He stated that he had seen the offending vehicle for the first time from close by volunteered the same came at a very high speed. He denied the suggestion that he did not see the offending vehicle as he was not paying attention to the traffic but his attention was on the crane or that the driver of the offending vehicle did not get to know about the presence of the crane as there was no signal. Thus PW1 Tarkeshwar Gupta stated that the accident had taken place in his presence and in fact it is his case that he was also injured in the accident and his MLC is on record. He stated that he was present as Traffic Marshal at the time of the accident. PW1 stated that he was on the left side of the road at the time of the accident and he was regulating the traffic at the time of the accident. He did not make the call on 100 though he had stated about PCR coming to the spot. A suggestion was put to him that the accident had taken place due to his negligence which he denied but there is even nothing to show the negligence of Shri Tarkeshwar Gupta or of the deceased.
17. PW1 Shri Tarkeshwar Gupta admitted that the vehicles were coming and going from the road where the accident took place. A suggestion was put to him that there was no street light at the spot of accident which he denied Suit No. 183/14 Page No. 16 of 41 Nirmala v Vikas Rathor & Ors.
and he also volunteered that there was a light in his hand as well. It is pertinent that PW1 stated that the vehicle in question had come from the correct direction but he also stated that he had seen the offending vehicle for the first time from close by and volunteered that the same came at a very high speed. He could not identify the driver of the offending vehicle but he also stated that the same was as he (PW1) was the first person to be hit. Suggestions were put to him that he did not see the offending vehicle as he was not paying attention to the traffic but his attention was on the crane or that the driver of the offending vehicle did not get to know about the presence of the crane as there was no signal which he denied. Even otherwise PW1 had stated about having a light in his hand and that the offending vehicle had come at a very high speed. Moreover it cannot be disputed that construction work was going on at the spot and as such a duty was cast on the respondent No.1 to be extra cautious while driving the offending vehicle. A perusal of the mechanical inspection report of the offending vehicle shows extensive damage to the same which also shows that it must be coming at high speed and that it was being driven rashly and negligently. The mechanical inspection report of the crane shows that there was fresh scratch on the back of the crane. The respondents No.1 and 2 who are the driver and owner of the offending vehicle have not adduced any evidence to dispute the version put forth by the petitioners or in the criminal record. The criminal record has been placed on record which shows that the respondent No.1 has been charge sheeted for the offence under Sections 279/337/304A IPC. In Basant Kaur and others v. Suit No. 183/14 Page No. 17 of 41 Nirmala v Vikas Rathor & Ors.
Chattar Pal Singh and others 2003 ACJ 369 MP (DB) it was observed that registration of criminal case against the driver of the offending vehicle was enough to record a finding that the driver of the offending vehicle was responsible for causing the accident. The respondents have also not led any evidence to prove any other version of the accident. There is no evidence from the respondents to disprove the particulars of the accident or the involvement of vehicle No.DL3CBV7369. In view of the testimony of PW1 and PW1A and the documents on record which have remained unrebutted, the negligence of the respondent No.1 has been prima facie proved.
18. It was stated that the hit by the offending vehicle was forceful and the deceased was afflicted with injuries. Thereafter, a call on 100 number was made and the PCR vehicle arrived. The deceased and the other injured were taken to Jai Prakash Narayan Apex Trauma Centre, AIIMS wherein the doctor Shri Prakash Ranjan found the deceased as dead. The post mortem report of the deceased is on record as per which the cause of death was hemorrhage shock consequent upon ante mortem injuries (combined effect) caused by blunt external forces which could be possible in Road Traffic Accident. Thus it stands established that the deceased had sustained injuries in the alleged accident due to which he died. This issue is accordingly decided in favour of the petitioners and against the respondents.
Suit No. 183/14 Page No. 18 of 41 Nirmala v Vikas Rathor & Ors.
Issue No.2
19. Since issue No.1 has been decided in favour of the petitioners they would be entitled to compensation as per the provisions of the Act. PW1A was crossexamined on the point of dependency and during cross examination by the learned counsel for the respondent No.3/ insurance company PW1A stated that she did not possess any voter ID Card. She had brought her ration card copy of which is Ex.PW1/10. She stated that she was residing in the village with her inlaws. She stated that her fatherinlaw pre deceased her husband. She stated that her motherinlaw was residing with her brotherinlaw (Jeth). She stated that she had two brothersinlaw i.e. one Jeth and one Devar. She denied the suggestion that the document, Mark A is forged and fabricated. Thus PW1A stated that she did not possess any voter ID Card. She had brought her ration card copy of which is Ex.PW1/10. She stated that she was residing in the village with her inlaws and her fatherinlaw predeceased her husband and her motherinlaw was residing with her brotherinlaw (Jeth). During examination by the Tribunal the petitioner No.1 Smt. Nirmala stated that she is 30 years old at present. She stated that she has four daughters. Being the wife the petitioner No.1 would be regarded as dependent on the deceased. The petitioner No.2 Seema stated that she did not know her age. She stated that she had studied till 8th standard and she was not doing anything at present. The petitioner No.3 Reema stated that she did not know her age and she was studying in 7th standard. The petitioners No. Suit No. 183/14 Page No. 19 of 41 Nirmala v Vikas Rathor & Ors.
4 and 5 Chanderkali and Ruchi were stated to be aged 5 years and 2 years. Though there is some discrepancy in the age of the daughters when the documents on record are seen, however there is nothing to show that any of the daughters was married and being unmarried daughters the petitioners No. 2 to 5 would be regarded as dependent on the deceased. It is also significant that the mother of the deceased was alive as stated by PW1A and though she might have been residing with another son she would be regarded as dependent on the deceased. Thus besides the petitioners, the mother of the deceased would also be regarded as dependent on the deceased.
20. It is the case of the petitioners that the deceased Shri Bhagwan Dass was working as a labourer at the Metro site under L & T Ltd. It was averred that the deceased was aged 25 years and was working as a labourer with L & T Ltd. and drawing a salary of Rs.17,000/ per month besides other benefits etc. It was averred that the entire burden of the family was on the deceased and his entire family members had suffered a great loss on account of mental agony, physical pain, fortune, loss of love etc. PW1A in paras 2, 3 and 7 of her affidavit Ex.PW1/A had deposed to that effect. She stated that the deceased was aged about 25 years and was having a family consisting of his wife and four daughters. The whole family was dependent upon the income of the deceased late Shri Bhagwan Dass for livelihood and as such due to the death of the deceased his entire family members had suffered a great loss due to the loss of its sole bread earner. She stated that the deceased late Shri Suit No. 183/14 Page No. 20 of 41 Nirmala v Vikas Rathor & Ors.
Bhagwan Dass was working with L&T Company as labourer and was earning Rs.14,000/ per month. She stated that the family had also suffered mental agony and great amount of pain and suffering, fortune, loss of love etc. Copy of proof of salary of the deceased is Ex.PW1/7. During crossexamination by the learned counsel for the respondent No.3/ insurance company PW1A stated that her deceased husband was residing in Delhi in a rented accommodation. She did not know how much rent he was paying. She did not know how the salary was paid to the deceased by his employer. She did not know whether any appointment letter was issued to her husband or not. She did not know whether any attendance register was maintained by the employer or not. She did not know whether her husband used to sign any discharge voucher at the time of payment of salary. She denied the suggestion that her husband was not employed with L&T Ltd. and was earning Rs.16,000/ per month. She denied the suggestion that Ex.PW1/7 is a forged and fabricated document. Thus PW1A stated that her deceased husband was residing in Delhi in a rented accommodation though she did not know how much rent he was paying. She did not know how the salary was paid to the deceased by his employer or whether any appointment letter was issued to her husband or not or whether any attendance register was maintained by the employer or not or whether her husband used to sign any discharge voucher at the time of payment of salary. As such she did not know most of the things which were asked of her. She denied the suggestion that Ex.PW1/7 which was stated to be proof of salary of the deceased was a forged and fabricated document. Suit No. 183/14 Page No. 21 of 41 Nirmala v Vikas Rathor & Ors.
Suggestion was put to her that her husband was not working with L&T which she denied.
21. Apart from Ex.PW1/7 no other document was produced to show how much amount the deceased was earning but Shri Abhishek Pandey, Supervisor with Harsh Enterprises was examined as PW2 and he stated that Harsh Enterprises was working as subcontractor of Larsen and Toubro Ltd. near Moti Bagh which was contractor of Delhi Metro Project. He stated that late Shri Satish (deceased in suit No.184/14) was working with Harsh Enterprises as helper from 31.07.2013 to 10.11.2013 under his supervision. He stated that late Satish was getting wages as per his days of working. Copy of authority letter in favour of PW2 is Ex.PW2/1, copy of ID card of PW2 is Ex.PW2/2, copy of bill raised by M/s Harsh Enterprises is Ex.PW2/2A, copy of certificate issued by the company is Ex.PW2/3, copy of attendance card of late Satish for the months of August, 2013, September, 2013 and October, 2013 is Ex.PW2/4 and copy of register of muster roll for the months of August, 2013, September, 2013, October, 2013 and November, 2013 is Ex.PW2/5. He had also produced the documents in respect of deceased Shri Bhagwan Dass. Thus PW2 Shri Abhishek Pandey had stated that Harsh Enterprises was working as subcontractor of Larsen and Toubro Ltd. near Moti Bagh which was contractor of Delhi Metro Project and it is seen that even the accident in which the deceased died had taken place at the Delhi Metro site where work was being carried out by L & T. He stated that late Shri Satish (which would Suit No. 183/14 Page No. 22 of 41 Nirmala v Vikas Rathor & Ors.
apply in the case of late Shri Bhagwan Dass as well) was working with Harsh Enterprises under his supervision which implies that the deceased was not in fact working for L&T but with Harsh Enterprises.
22. During crossexamination by the learned counsel for the insurance company/respondent No.3 PW2 Shri Abhishek Pandey stated that he had brought the authority letter which is Ex.PW2/1 and Shri D. D. Mishra owner of the firm had signed the authority letter. He admitted that the authority letter was undated. He also placed on record the original authority letter which is Ex.PW2/D1. He denied the suggestion that Ex.PW2/1 and Ex.PW1/D1 were forged and fabricated documents and he was not authorized to appear before the Court on behalf of Harsh Enterprises. He stated that no summon was issued to their company and he was appearing at the request of the petitioner. He admitted that the ID card Ex.PW2/2 was issued by Larsen & Toubro Ltd. volunteered the said ID card was issued on the documents supplied through M/s Harsh Enterprises. He denied the suggestion that the document Ex.PW2/2 was forged and fabricated document. He denied the suggestion that he was not employed with Harsh Enterprises. He had not brought the copy of contract entered between Harsh Enterprises and Larsen & Toubro Ltd. He denied the suggestion that there was no contract between Harsh Enterprises and Larsen & Toubro Ltd. that is why he had not brought the same. He denied the suggestion that the document Ex.PW2/4 was forged and fabricated document prepared by him in collusion and connivance with the petitioners. Suit No. 183/14 Page No. 23 of 41 Nirmala v Vikas Rathor & Ors.
He denied the suggestion that the document Ex.PW2/5 was forged and fabricated document prepared by him in collusion and connivance with the petitioners. He admitted that he had brought loose pages of documents Ex.PW2/5 and he had not brought the complete register of muster role/ overtime/ wages. He denied the suggestion that Shri Bhagwan Dass and Shri Satish were not employed with Harsh Enterprises or were working with Larsen & Toubro Ltd. Thus PW2 Shri Abhishek Pandey was crossexamined on the authority letter in his favour but nothing much turns on the same though he stated that he was appearing at the request of the petitioner. It is pertinent that he stated that the ID card Ex.PW2/2 was issued by Larsen & Toubro Ltd. and volunteered that the said ID card was issued on the documents supplied through M/s Harsh Enterprises. He had not brought the copy of contract entered between Harsh Enterprises and Larsen & Toubro Ltd., however it cannot be disputed that the accident had taken place where the project was being carried out by L&T and the bill raised by Harsh Enterprises is on record as Ex.PW2/2A. A suggestion was put to him that the document Ex.PW2/4 which is the copy of the attendance card in respect of the deceased for August, September and October, 2013 was forged and fabricated document prepared by him in collusion and connivance with the petitioners which he denied. A suggestion was also put to him that the document Ex.PW2/5 which is the copy of register of muster roll for the months of August, 2013, September, 2013, October, 2013 and November, 2013 was forged and fabricated document prepared by him in collusion and connivance with the Suit No. 183/14 Page No. 24 of 41 Nirmala v Vikas Rathor & Ors.
petitioners which he denied. He admitted that he had brought loose pages of documents Ex.PW2/5 and he had not brought the complete register of muster role/ overtime/ wages. However even the accident had taken place when the deceased was working at the Delhi Metro site and as such it cannot be disputed that the deceased was indeed working with M/s Harsh Enterprises.
23. PW2 Abhishek Pandey had stated that the deceased was getting wages as per his days of working and even a perusal of Ex.PW2/4 which is the attendance card would show the same as the calculation of wages is given on the backside which is based on the number of working days. The accident had taken place in October 2013 and at that time the deceased was being paid wages at the rate of Rs.377/ and considering total working days as 26 in a month the monthly wages would work out to Rs.9,802/. Thus the income of the deceased for the computation of loss of dependency would be taken as Rs.9,802/ p.m.
24. It is the case of the petitioners that the deceased was aged about 25 years and it was so stated in the claim petition and PW1A had also deposed to that effect though the same appears to be unbelievable once the petitioner No.1 had stated her age to be 30 years and the petitioner No.2 who is the daughter of the deceased had stated that she had completed 8th standard. No specific document has been placed on record showing the age of the deceased though the post mortem report also mentions his age to be 30 Suit No. 183/14 Page No. 25 of 41 Nirmala v Vikas Rathor & Ors.
years. During crossexamination by the learned counsel for the respondent No.3/ insurance company PW1A denied the suggestion that her deceased husband was more than 41 years of age. The petitioners had placed on record copy of the ration card which is Ex.PW1/10 and the same is dated 20.5.2007 and as per the same the age of the deceased was 35 years. Thus the deceased would have been more than 41 years old on the date of the accident i.e. 11.10.2013. As per the judgment of the Hon'ble Supreme Court in Sarla Verma and others v. Delhi Transport Corporation and others 2009 ACJ 1298 (SC) case the multiplier of 14 applies for calculating the loss of income where the age of the deceased is 41 to 45 years. As such the multiplier applicable in the instant case would be of 14.
25. As observed above the dependents on the deceased were his wife, four daughters and mother. As per the judgment of the Hon'ble Supreme Court in Sarla Verma's case as the number of dependents was 6 there would be 1/4th deduction towards personal and living expenses of the deceased. As regards the future prospects in HDFC ERGO General Insurance Co. Ltd. v. Smt. Lalta Devi & Ors. MAC. APP.189/2014 decided on 12.1.2015 which has been further relied on in Shriram General Insurance Co. Ltd. v. Preeti & Ors. MAC. APP. 1145/2013 decided on 28.1.2015 and U.P. State Road Transport Corporation v. Shahida & Ors. MAC. APP. 325/2013 decided on 28.1.2015 it was heldthat the judgment in Reshma Kumari & Ors. v. Madan Mohan & Suit No. 183/14 Page No. 26 of 41 Nirmala v Vikas Rathor & Ors.
Anr. (2013) 9 SCC 65 shall be taken as a binding precedent. It was observed in paras 9 to 21 of the judgment in Lalta Devi as under: "9. The learned counsel for the Claimants has referred to a three Judge Bench decision of the Supreme Court in Rajesh & Ors. v. Rajbir Singh & Ors., (2013) 9 SCC 54 to contend that the future prospects have to be added in all cases where a person is getting fixed wages or is a seasonal employee or is a student.
10.It is urged by the learned counsel for the Claimants that the law laid down in Sarla Verma (Smt.) & Ors. v. Delhi Transport Corporation & Anr., (2009) 6 SCC 121 was extended in Rajesh & Ors. v. Rajbir Singh & Ors., (2013) 9 SCC 54 to hold that future prospects ought to be extended in all cases.
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 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 Survey of India & Anr., 2003 (3) SCC 148, the Supreme Court held as under: "38. With regard to the addition to income for future prospects, in Sarla Verma [Sarla Verma v. DTC, (2009) 6 SCC 121 : (2009) 2 SCC (Civ) 770 : (2009) 2 SCC (Cri) 1002], this Court has noted the earlier decisions in Susamma Thomas [Kerala SRTC v. Susamma Thomas, (1994) 2 SCC 176 : 1994 SCC (Cri) 335] , Sarla Suit No. 183/14 Page No. 27 of 41 Nirmala v Vikas Rathor & Ors.
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 addition of 50% of actual salary to the actual salary income of the deceased towards future prospects, where the deceased had a permanent job and was below 40 years. (Where the annual income is in the taxable range, the words "actual salary‟ should be read as actual salary less tax‟). The addition should be only 30% if the age of the 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 standardise the addition to avoid different yardsticks being applied or different methods of calculation being adopted. Where the deceased was self employed or was on a fixed salary (without provision for annual 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 circumstances."
39.The standardization of addition to income for future prospects shall help in achieving certainty in arriving at appropriate compensation. We approve the method that an addition of 50% of actual salary be made to the actual salary income of the deceased towards future prospects where the deceased had a permanent job and was below 40 years and the addition should be only 30% if the age of the deceased was 40 to 50 years and no addition should Suit No. 183/14 Page No. 28 of 41 Nirmala v Vikas Rathor & Ors.
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 selfemployed 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 coequal strength, earlier judgment will be taken as a binding precedent.
13. It may be noted that in Reshma Kumari & Ors. v. Madan Mohan & Anr., (2013) 9 SCC 65; the three Judge Bench was dealing with a reference made by a two Judge Bench (S.B. Sinha and Cyriac Joseph, J.J.). The two Hon'ble Judges wanted an authoritative pronouncement from a Larger Bench on the question of applicability of the multiplier and whether the inflation was built in the multiplier. The three Judge Bench approved the two Judge Bench decision of the Supreme Court in Sarla Verma (Smt.) & Ors. v. Delhi Transport 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 4050 years. No addition towards future prospects shall be made where the deceased was selfemployed or was getting Suit No. 183/14 Page No. 29 of 41 Nirmala v Vikas Rathor & Ors.
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 observed that there would be addition 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 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 twoJudge 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 specified in the Second Schedule appended to the Act should be scrupulously applied in all the cases?
(2)Whether for determination of the multiplicand, the Act provides for any criterion, particularly as regards determination of future prospects?"
15.Answering the above reference a threeJudge Bench of this Court in Reshma Kumari v. Madan Mohan [(2013) 9 SCC 65 : (2013) 4 SCC (Civ) 191 : (2013) 3 SCC (Cri) Suit No. 183/14 Page No. 30 of 41 Nirmala v Vikas Rathor & Ors.
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 annual increments or who was selfemployed the actual income at the time of death should be taken into account for determining the loss of income unless there are extraordinary and exceptional circumstances. Though the expression "exceptional and extraordinary 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 certainty of the regular employment of the deceased in a government department following the retirement of his father was held to be a valid ground to compute the loss of income by taking into account the possible future earnings. The said loss of income, accordingly, was quantified at double the amount that the deceased was earning at the time of his death."
16.Further, the divergence of opinion in Reshma Kumari & Ors. v. Madan Mohan & Anr., (2013) 9 SCC 65 and Rajesh & Ors. v. Rajbir Singh & Ors., (2013) 9 SCC 54 was noticed by the Supreme Court in another latest judgment in National Insurance Company Ltd. v. Pushpa & Ors., CC No.8058/2014, decided on 02.07.2014 and in concluding paragraph while making reference to the Larger Bench, the Supreme Court held as under: "Be it noted, though the decision in Reshma (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 income of future prospects there Suit No. 183/14 Page No. 31 of 41 Nirmala v Vikas Rathor & Ors.
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 judgments ought to be followed awaiting answer to the reference made by the Supreme Court in Pushpa & Ors. (supra).
18.In Central Board of Dawoodi Bohra Community & Anr. v. State of 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 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 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 332005.] 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, whereupon the matter may be placed for hearing before a Bench consisting of a quorum larger than the one which Suit No. 183/14 Page No. 32 of 41 Nirmala v Vikas Rathor & Ors.
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 1712005.] 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 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 previous decision in question dispensing with the need of a specific reference or the order of the Chief Justice constituting the Bench and such listing. Such was the situation in Raghubir Singh [(1989) 2 SCC 754] and Hansoli Devi [(2002) 7 SCC 273]."
19.Similarly, in Safiya Bee v. Mohd. 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 constrained 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 earlier WP No. 35561 of 1998 regarding the interpretation of Section 2(c) of the Act and its application to the petition schedule property, judicial discipline and practice required Suit No. 183/14 Page No. 33 of 41 Nirmala v Vikas Rathor & Ors.
them to refer the issue to a larger Bench. The learned Judges were not right in overruling the statement of the law by a coordinate Bench of equal strength. It is an accepted rule or principle that the statement of the law by a Bench is considered binding on a Bench of the same or lesser number of Judges. In case of doubt or disagreement about the decision of the earlier Bench, the wellaccepted and desirable practice is that the later Bench would refer the case to a larger Bench."
20.In Union of India & Ors. v. S.K. Kapoor, (2011) 4 SCC 589 while holding that the decision of the Coordinate Bench is binding on the subsequent Bench of equal strength, held that the Bench of Coordinate strength can only make a reference to a larger Bench. In para 9 of the report, the Supreme Court held as under: "9. It may be noted that the decision in S.N. Narula case [(2011) 4 SCC 591] was prior to the decision in T.V. Patel case [(2007) 4 SCC 785 : (2007) 2 SCC (L&S) 98] . It is well settled that if a subsequent coordinate Bench of equal strength wants to take a different view, it can only refer the matter to a larger Bench, otherwise the prior decision of a coordinate Bench is binding on the 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 Suit No. 183/14 Page No. 34 of 41 Nirmala v Vikas Rathor & Ors.
question and held that in view of the report in S.K. Kapoor (supra), the three Judge Bench decision in Reshma Kumari & Ors. (surpa) shall be taken as a binding precedent." In the instant case no evidence has been led to show future prospects of the deceased and there is even nothing to show that the deceased had a permanent job. As such the actual income at the time of death without any addition to income for future prospects has to be taken and the petitioners would not be entitled to any addition of the income towards future prospects. Accordingly the loss of dependency as per the monthly income i.e. Rs.9,802/ is calculated as under :
Rs.9,802/ - Rs.2,450.5 (i.e. 1/4th towards personal expenses) = Rs.7,351.5 X 12 (annually) X 14 (multiplier) = Rs.12,35,052/ rounded off to Rs.
12,35,000/.
26. The petitioners are also entitled to compensation for loss of love and affection, loss of estate and funeral expenses. It was averred that the petitioners spent almost Rs.2 lac on the last rites of the deceased. PW1A also stated that she had spent around Rs.2,00,000/ on the last rites of the deceased late Shri Bhagwan Dass. However there is nothing to show the same.Suit No. 183/14 Page No. 35 of 41
The total compensation is determined as under:
Loss of dependency : Rs.12,35,000/
Love and affection : Rs.1,00,000/
Loss of Consortium : Rs.1,00,000/
Loss of Estate : Rs.10,000/
Funeral expenses : Rs.25,000/
Total : Rs.14,70,000/
Thus, the total compensation would amount to Rs.14,70,000/. RELIEF
27. The petitioners are awarded a sum of Rs.14,70,000/ (Rs.Fourteen Lacs Seventy Thousand only) with interest at the rate of 9% per annum from the date of filing the DAR till its realization, including, interim award, if any already passed in favour of the petitioners and against the respondents. The petitioners No.2, 3, 4 and 5 Seema, Reema, Chandarkali and Ruchi and the mother of the deceased would be entitled to 10% share each in the awarded amount and the petitioner No.1 Smt. Nirmala would be entitled to 50% share in the awarded amount.
28. For safeguarding the compensation amount from being frittered away by the claimants, directions have been given by Hon'ble Supreme Court for preserving the award amount in the case of Jai Prakash Vs. National Suit No. 183/14 Page No. 36 of 41 Nirmala v Vikas Rathor & Ors.
Insurance Co. Ltd. and Others (2010) 2 Supreme Court Cases 607. In view of the directions contained in the above judgment the award amount is to be disbursed as follows:
a) The entire share of the mother of the deceased be released to her by transferring it into her savings account in UCO Bank, Patiala House Court, New Delhi. The entire share of the petitioners No.2 to 5 be kept in FDR in UCO Bank, Patiala House Court till they attain majority and for 3 years thereafter. 20% of the share of the petitioner No.1 be released to her by transferring it into her savings account and remaining amount out of her share be kept in FDRs in UCO Bank, Patiala House Court, New Delhi in the following manner:
1.Fixed deposit in respect of 10% for a period of one year.
2.Fixed deposit in respect of 10% for a period of two years.
3.Fixed deposit in respect of 10% for a period of three years.
4.Fixed deposit in respect of 10% for a period of four years.
5.Fixed deposit in respect of 10% for a period of five years.
6.Fixed deposit in respect of 10% for a period of six years.
7.Fixed deposit in respect of 10% for a period of seven years.
8.Fixed deposit in respect of 10% for a period of eight years.Suit No. 183/14 Page No. 37 of 41
b) The respondent No.3 is directed to deposit the amount directly by way of crossed cheque in terms of the above order in UCO Bank, Patiala House Court, New Delhi in the name of UCO Bank, Patiala House Court, New Delhi A/c Nirmala, Seema, Reema, Chandarkali and Ruchi and mother of the deceased within 30 days of the passing of the award.
c) Cheque be deposited within thirty days herefrom under intimation to the petitioners. In case of default, the respondent No.3 shall be liable to pay further interest @ 12% per annum for the period of delay.
d) On the deposit of the award amount, the Branch Manager of UCO Bank, Patiala House Court, New Delhi is directed to prepare Fixed Deposit Receipts as ordered above and the balance amount be released.
e) The interest on the fixed deposits shall be paid monthly by automatic credit of interest in the saving account of the petitioner No.1.
f) The withdrawal from the aforesaid account shall be permitted to the petitioner No.1 after due verification and the bank shall issue photo identity card to the petitioner No.1 to facilitate her identity.
g) No cheque book shall be issued to the petitioner No.1 without the permission of the court.
Suit No. 183/14 Page No. 38 of 41 Nirmala v Vikas Rathor & Ors.
h) The original fixed deposit receipts shall be retained by the bank in safe custody. However, the original pass book shall be given to the petitioner No.1 along with the photocopy of the fixed deposit receipts. Upon the expiry of period of FDR the bank shall automatically credit the maturity amount in the saving account of the beneficiary.
i) The original fixed deposit receipts shall be handed over to the petitioner No.1 on the expiry of the period of the fixed deposit receipts.
j) No loan, advance, or withdrawal shall be allowed on the said FDRs without the permission of the court.
k) On the request of the petitioners, the bank shall transfer the saving account to any other branch/bank, according to the convenience of the petitioners.
l) The petitioners shall furnish all the relevant documents for opening of the saving bank account and Fixed Deposit to Senior Manager of UCO Bank, Patiala House Court, New Delhi.
29. The petitioners shall file two sets of photographs along with their specimen signatures, out of which one set to be sent to the Nodal Officer, UCO Bank, Patiala House Court, New Delhi along with copy of the award by Nazir and the second set be retained to the court for further reference. The Suit No. 183/14 Page No. 39 of 41 Nirmala v Vikas Rathor & Ors.
photographs be stamped and sent to the bank. The petitioners shall also file the proof of residence and furnish the details of the bank account with the Nazir within a week. The petitioners shall file their complete address as well as address of their counsel for sending the notice of deposit of the award amount. The petitioners are directed to furnish particulars of the mother of the deceased so that the amount awarded in her favour may be released to her. APPORTIONMENT OF LIABILITY:
30. The respondent No.1 is the driver, the respondent No.2 is the owner and the respondent No.3 is the insurer of the offending vehicle. Thus the respondents No.1, 2 and 3 are held jointly and severally liable. No evidence has been led on behalf of the respondent No.3. Respondent No.3 i.e. National Insurance Co. Ltd. being the insurance company in its reply had stated that the policy bearing No.35101031136132985115 valid from 24.04.2013 to 23.04.2014 in the name of Mrs. Gitali Rathor was issued by the company for vehicle No.DL3CBV7369. There is no evidence on behalf of the respondent No.3 to show that there was any violation of the rules and terms of policy by the respondents No.1 and 2 and in fact the duly verified documents in respect of the offending vehicle were placed on record by the IO with the DAR. Hence, the respondent No.3 being the insurance company in respect of the offending vehicle is liable to pay the compensation on behalf of the respondents No.1 and 2. The respondent No.3 being the insurer is directed to deposit the award Suit No. 183/14 Page No. 40 of 41 Nirmala v Vikas Rathor & Ors.
amount within 30 days with interest at the rate of 9% from the date of filing of the claim petition till its realization in UCO Bank, Patiala House Courts, New Delhi failing which it is liable to pay interest at the rate of 12% per annum for the period of delay.
31. Nazir to report in case the cheque is not deposited within 30 days of the passing of the award/judgment. Nazir is directed to note the particulars of the award amount in the register today itself. The respondent No.3 shall deposit the award amount along with interest upto the date of notice of deposit to the claimants with a copy to their counsel and the compliance report shall be filed in the court along with proof of deposit of award amount, the notice of deposit and the calculation of interest on 01.5.2015.
An attested copy of the award be given to the parties (free of cost) and a copy be also sent to the Nodal Officer, UCO Bank, Patiala House. File be consigned to Record Room.
Announced in open court
on this 31st day of January, 2015 (GEETANJLI GOEL)
PO: MACT2
New Delhi
Suit No. 183/14 Page No. 41 of 41
Nirmala v Vikas Rathor & Ors.