Delhi District Court
Prem Vati W/O Late Shri Sat Pal Singh ... vs Satya Vir Singh S/O Shri Uttam Singh on 26 July, 2016
IN THE COURT OF ANOOP KUMAR MENDIRATTA,
JUDGE, MACT-1 (CENTRAL), DELHI.
Suit No.48/15
Unique Case ID No.02401C-0082562015
1. Prem Vati W/o Late Shri Sat Pal Singh (Wife)
2. Ajay Kumar S/o Late Shri Sat Pal Singh (Son)
3. Harsh Kumar S/o Late Shri Sat Pal Singh (Son)
4. Deepanshu S/o Late Shri Sat Pal Singh (Son)
5. Karan Singh S/o Late Shri Kalva (Father)
All residents of : H.No.28, Pana Harijan Basti, Near G Block,
Mangol Pur Kalan, Delhi
(Petitioner No.2 to 4 being minors are represented through
their mother/natural guardian Smt. Prem Vati-petitioner no.1).
........PETITIONERS
Versus
1. Satya Vir Singh S/o Shri Uttam Singh
R/o Village Mehgaon, Tehsil Dabra,
Distt. Gwalior, M.P. (Driver)
2. M/s Swastik Road Lines Pvt. Ltd.
Through its Director/Officer Incharge,
At A-19/415, Parking No.6,
Transport Nagar, Bohadpur, Gwalior, M.P. (Owner)
3. United India Insurance Company Ltd.
Through Manager/Officer Incharge,
At: 8th Floor, Kanchanjunga Building,
Barakhamba Road, New Delhi (Insurer)
.......RESPONDENTS
Date of filing of DAR/Claim Petition : 12.02.2015
Arguments heard on : 22.07.2016
Suit No.48/15Premvati & Ors. vs. Satya Vir Singh & Ors. Page 1 of 33
Judgment pronounced on : 26.07.2016
FORMIV
COMPLIANCE OF THE PROVISIONS OF THE MODIFIED
CLAIMS TRIBUNAL AGREED PROCEDURE TO BE
MENTIONED IN THE AWARD AS PER FORMAT
REFERRED IN CLAUSE 29 OF THE ORDERS PASSED BY
THE HON'BLE HIGH COURT IN FAO 842/2003 RAJESH
TYAGI VS. JAIBIR SINGH & ORS. VIDE ORDER DATED
12.12.2014
1. Date of accident 30.09.2014
2. Date of intimation of the accident by the 07.10.2014
Investigating Officer to the Claims Tribunal.
(Clause 2)
3. Date of intimation of the accident by the 15.10.2014
Investigating Officer to the Insurance
Company. (Clause 2)
4. Date of filing of Report under Section 173 03.02.2015
Cr.P.C. before the Metropolitan Magistrate.
(Clause 10)
5. Date of filing of Detailed Accident Information 12.02.2015
Report (DAR) by the Investigating Officer
before Claims Tribunal. (Clause 10)
6. Date of service of DAR on the Insurance 12.02.2015
Company.
7. Date of service of DAR on the claimant(s). 12.02.2015
(Clause 11)
8. Whether DAR was complete in all respects? Yes
(Clause 16)
9. If not, state deficiencies in the DAR. --
10. Whether the police has verified the documents No deficiency pointed by
filed with DAR? (Clause 4) respondents.
11. Whether there was any delay or deficiency on --
the part of the Investigating Officer? If so,
whether any action/direction warranted?
12. Date of appointment of the Designated Officer Not communicated by the
by the Insurance Company. (Clause 19) insurance company.
13. Name, address and contact number of the Sh.Ravi Satija, Advocate
Suit No.48/15Premvati & Ors. vs. Satya Vir Singh & Ors. Page 2 of 33
Designated Officer of the Insurance Company. appointed. Mob.
(Clause 19) No.9811069567,
9136102195, Chamber
No.433, Civil Wing, Tis
Hazari, Delhi
14. Whether the Designated Officer of the Yes
Insurance Company submitted his report within 17.03.2015
30 days of the DAR? (Clause 21)
15. Whether the Insurance Company admitted the Yes
liability? If so, whether the Designated Officer
of the Insurance Company fairly computed the
compensation in accordance with law. (Clause
22)
16. Whether there was any delay or deficiency on ------
the part of Designated Officer of the Insurance
Company? If so, whether any action/direction
warranted?
17. Date of response of the claimant(s) to the offer Not settled by the
of the Insurance Company. (Clause 23) petitioner.
18. Date of the award. 26.07.2016
19. Whether the award was passed with the consent Award on merits
of the parties? (Clause 22)
20. Whether the claimant(s) examined at the time Reflected in the statement
of passing of the award to ascertain his/their of petitioner no.1
financial condition? (Clause 26)
21. Whether the photographs specimen signatures, Photographs of petitioners
proof of residence and particulars of bank appended on the petition.
account of the injured/legal heirs of the Proof of residence led in
deceased taken at the time of passing of the evidence. Bank account
award? (Clause 26) details to be furnished at
the time of disbursement.
22. Mode of disbursement of the award Detailed in award
amount to the claimant(s). (Clause 28)
23. Next Date for compliance of the award. Nazir to place report in
(Clause 30) case award amount is not
deposited within 30 days
Suit No.48/15Premvati & Ors. vs. Satya Vir Singh & Ors. Page 3 of 33
JUDGMENT
1. Present claim petition has been preferred under Section 166 and 140 of Motor Vehicles Act, 1988 (hereinafter referred to as 'the Act') claiming compensation for a sum of Rs.50,00,000/- (Rupees Fifty Lakh Only) in respect of accidental death of Sat Pal Singh (since deceased) in a motor vehicular accident.
In brief, as per the case of petitioners on 30.09.2014 at about 3:45 AM on Ring Road, Opposite WHO Building, in front of IP Power Station, near ITO, Delhi the pick-up van bearing registration no.DL 1 LN 1006 driven by deceased Sat Pal Singh was hit by Truck bearing registration no.MP 07 HB 1939 from behind. Consequently pick-up van swerved to its left side and hit into the side patri, resulting in fatal injuries to Sat Pal Singh. It is further alleged that the offending Truck bearing registration No.MP 07 HB 1939 was driven by Respondent No.1 in a rash and negligent manner. FIR No.417/14 U/s 279/337/304A IPC was registered regarding the accident.
It is further the case of petitioners that deceased was employed as driver and earning about Rs.15,000/- per month. Further respondent no.1, 2 and 3 are stated to be liable being the driver, owner and insurer of the offending vehicle.
2. In the Written Statement filed on behalf of Respondent No.1 Satya Vir Singh/driver of the offending vehicle, it was denied that the accident had taken place as alleged. It was further submitted that the deceased while Suit No.48/15Premvati & Ors. vs. Satya Vir Singh & Ors. Page 4 of 33 negligently driving the pick-up van rammed in some vehicle and lost control, resulting in fatal injuries. The claim for compensation was further stated to be exaggerated. It was also submitted that the Truck bearing registration no.MP 07 HB 1939 was insured for the period 21.07.2014 to 20.07.2015 with Respondent no.3 and Respondent no.1 was in possession of valid Driving Licence along with permit & fitness certificate.
In the Written Statement filed on behalf of Respondent No.2 M/s Swastik Road Lines Pvt. Ltd./owner of the offending vehicle, the factum of accident was denied. It was further submitted that Respondent No.2 had taken due care and diligence regarding the possession of valid driving licence by the driver. The vehicle was further stated to be insured for the period 21.07.2014 to 20.07.2015 which covers the date of accident. The stand taken on behalf of Respondent no.1 was reiterated.
In the Written Statement filed on behalf of Respondent No.3 United India Insurance Company Ltd., Truck no. MP 07 HB 1939 was admitted to be insured for the period 21.07.2014 to 20.07.2015 in the name of M/s Swastik Road Lines Pvt. Ltd. It was further submitted that the income of the deceased be taken as per the Minimum Wages Act for a skilled worker and a legal offer was accordingly filed.
3. On the pleadings of the parties, following issues were framed for consideration:-
Suit No.48/15Premvati & Ors. vs. Satya Vir Singh & Ors. Page 5 of 33(i) Whether the deceased Satpal Singh had died due to injuries sustained by him in an accident which took place on 30.09.2014 within the jurisdiction of PS: I.P. Estate, Delhi due to rash and negligent driving of truck bearing registration no.MP 07 HB 1939 driven by Respondent no.1?
(ii) Whether the petitioners are entitled to any compensation, if so, to what amount and from whom?
(iii) Relief.
4. In support of the claim, two witnesses were examined namely PW1 Prem Vati (wife of deceased) and PW2 Raj Kumar (employer of deceased).
PW-1 Prem Vati testified on the lines of claim petition and proved copy of Election I-card of deceased, copy of her Election I-card, copies of Aadhaar Card of her children (Ex.PW1/1 to Ex.PW1/5); copy of Driving Licence of deceased (Ex.PW1/6), salary certificate of deceased filed with DAR (Ex.PW1/7). Reliance was further placed upon copy of settlement in connected case (Ex.PW1/A).
On cross-examination, she admitted that she is not an eyewitness to the accident. She further denied the suggestion that deceased was not earning Rs.15,000/- per month.
Suit No.48/15Premvati & Ors. vs. Satya Vir Singh & Ors. Page 6 of 33PW2 Raj Kumar testified that he was registered owner of pick-up van bearing registration no.DL 1 LN 1006 and was dealing with the work of manufacturing gates, shutters etc. He further stated that deceased Satpal Singh was employed by him as a driver for last three years on salary of Rs.12,000/- per month which was increased to Rs.15,000/- per month. He further proved the salary certificate (Ex.PW1/7) issued by him.
On cross-examination, he clarified that about 4-5 persons were working with him but he did maintain the attendance register. Further, he did not issue any appointment letter to his workers and did not maintain any books of account showing the income and expenses of the firm. He further deposed that salary was paid to the workers in cash and no record was maintained in this regard. Further, he did not get any receipt or voucher signed by the worker at the time of payment of salary and was not in possession of any document to show payment of Rs.15,000/- as salary to the deceased.
No evidence was led on behalf of respondent no.3 United India Insurance Company.
Respondent no.1/driver of the offending vehicle led his evidence as R1W1 along with one Constable Pawan (R1W2).
On behalf of Respondent No.2/owner of the offending vehicle, one witness was examined, namely R2W1 Ram Kishore, Executive (Legal Department), M/s Swastik Road Lines Pvt. Ltd.
Suit No.48/15Premvati & Ors. vs. Satya Vir Singh & Ors. Page 7 of 33R1W1 Satya Vir Singh (Driver of the offending vehicle) testified on the lines of Written Statement.
On cross-examination, he admitted that he was driving the offending vehicle at the time of accident and case had been registered against him regarding the accident. He further admitted that no complaint had been made to higher police officials regarding his false implication.
R1W2 Ct.Pawan Kumar denied having witnessed the accident.
R2W1 Ram Kishore S/o Tara Chand stated that he was the authorised representative of M/s Swastik Road Lines Pvt. Ltd. and testified on the lines of Written Statement.
5. I have heard arguments addressed on behalf of the petitioners, counsel for respondents and perused the record.
My Issue-wise findings are as under :-
Issue No. (i) Whether the deceased Satpal Singh had died due to injuries sustained by him in an accident which took place on 30.09.2014 within the jurisdiction of PS: I.P. Estate, Delhi due to rash and negligent driving of truck bearing registration no.MP 07 HB 1939 driven by Respondent no.1?Suit No.48/15Premvati & Ors. vs. Satya Vir Singh & Ors. Page 8 of 33
In Bimla Devi and Ors. V. Himachal Road Transport Corporation and Ors., (2009) 13 SC 530, it was held that in a petition u/s 166 of the Motor Vehicles Act, 1988 the Claim Tribunal has to decide the negligence on the touchstone of preponderance of probability and holistic view is to be taken while dealing with the Claim Petition. In New India Assurance Co. Ltd. V. Sakshi Bhutani & ors, MAC APP. 550/2011 decided on 02.07.2012 by Hon'ble Mr. Justice G.P. Mittal (Delhi High Court), it was observed that it has to be borne in mind that the Motor Vehicles Act does not envisage holding a trial for a petition preferred under Section 166 of the Act. Under Section 168 of the Act, a Claims Tribunal is enjoined to hold an inquiry to determine compensation which must appear to it to be just.
Strict rules of evidence are not applicable in an inquiry conducted by the Claims Tribunal. Further in State of Mysore Vs. S.S. Makapur, 1993 (2) SCR 943, Hon'ble Supreme Court held that 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 Suit No.48/15Premvati & Ors. vs. Satya Vir Singh & Ors. Page 9 of 33 act on any information which they may receive unless they put it to the party against whom it is to be used and give him a fair opportunity to explain it. What is a fair opportunity depend on the facts and circumstances of each case but where such an opportunity has been given, the proceedings are not open to attack on the ground that the enquiry was not conducted in accordance with the procedure followed in courts."
Reference may also be made to observations in Ranu Bala Paul & Others vs. Bani Chakraborty 1999 ACJ 634 Gauhati wherein the claim was allowed after consideration of FIR before the Tribunal.
"In deciding a matter Tribunal should bear in mind the caution struck by the Apex Court that a claim before the Motor Accident Claims Tribunal is neither a criminal case nor a civil case. In a criminal case in order to have conviction, the matter is to be proved beyond reasonable doubt and in a civil case the matter is to be decided on the basis of preponderance of evidence, but in a claim before the Motor Accident Claim Tribunal the standard of proof is much below than what is required in a criminal case as well as in a civil case. No doubt 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 Suit No.48/15Premvati & Ors. vs. Satya Vir Singh & Ors. Page 10 of 33 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."
It may be observed that as per DAR/charge-sheet statement of one Amit @ Vimlender was recorded, who disclosed that Container no.MP 07 HB 1939 driven in a rash and negligent manner hit a delivery van bearing registration no.DL 1 LN 1006 on the right side from behind and thereafter hit a truck from behind. Further the truck with the unknown number fled from the spot and the driver of Container MP 07 HB 1939 fled from the spot on seeing the approaching public. The manner of accident stands corroborated by the site plan as well as the mechanical inspection report of the offending vehicle which reflects that the offending vehicle was damaged from front as it hit the delivery van from behind. It may further be observed that the testimony of R1W1 is not corroborated by the facts and circumstances on record and denial of the accident is a last ditch effort to escape the liability. Admittedly, Respondent no.1 stands charge-sheeted for the offence U/s 279/304A IPC. Further no complaint was filed on behalf of respondent no.1 with any higher authority alleging Suit No.48/15Premvati & Ors. vs. Satya Vir Singh & Ors. Page 11 of 33 false implication. Since negligence has to be assessed on touchstone of preponderance of probability, it has been established that the accident was caused due to rash and negligent driving of Container No. MP 07 HB 1939 by Respondent No.1. Issue No. 1 is accordingly decided in favour of the petitioners and against the respondents.
6. Issue No. (ii) Whether the petitioners are entitled to any compensation, if so, to what amount and from whom?
Counsel for petitioners contended that income of the deceased be assessed as Rs.15,000/- per month. However, the same has been vehemently opposed on behalf of insurance company.
It may be observed that no documentary proof of any nature has been filed on record to support the testimony of PW2 Raj Kumar that the deceased was employed at a salary of Rs.15,000/- per month. Admittedly, neither any attendance register, appointment letter or books of account were maintained nor any vouchers were obtained by PW2 to show the employment of deceased at salary of Rs.15,000/- per month. In the facts and circumstances the bald statement of PW2 cannot be accepted as proof of payment of salary of Rs.15,000/- per month. The income of the deceased is accordingly assessed on the basis of minimum wages of skilled labourer as notified by Suit No.48/15Premvati & Ors. vs. Satya Vir Singh & Ors. Page 12 of 33 the government of NCT of Delhi for the relevant period @ Rs.10,374/- per month since the deceased was in possession of a driving licence.
(a) If addition in income towards future prospects is to be made Petitioners have claimed that addition towards future prospects be made but the same has been vehemently opposed by counsel for Insurance Company.
It may be observed that in Shashikala & Ors. v. Gangalakshmamma & Anr. 2015 (2) T.A.C. 867 (SC), separate judgments were passed by Hon'ble Mr. Justice R. Banumathi and Hon'ble Mr. Justice V. Gopala Gowda on the point of assessment of addition to the income of the deceased towards the future prospects in case of salaried persons vis-a-vis where the deceased was self employed or on fixed wages. The case was directed to be placed before the Hon'ble Chief Justice of India for appropriate orders towards constitution of a suitable larger Bench since the issue already stood referred to a larger Bench in the case of National Insurance Company Ltd. v. Pushpa S.L.P. (C) No. 16735/2014. Hon'ble Apex Court in aforesaid case adverted to the judgements passed in Reshma 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 Suit No.48/15Premvati & Ors. vs. Satya Vir Singh & Ors. Page 13 of 33 noticed). Reference was also made to the judgements passed in Sarla Verma & Ors. v. Delhi Transport Corporation & Anr., 162 (2009) D.L.T. 278, Santosh Devi v. National Insurance Co. Ltd. & Ors., 2012 6 S.C.C. 421, Sanjay Verma v. Haryana Roadways, (2014) 3 S.C.C. 210, National Insurance Co. Ltd. v. Pushpa, S.L.P. (C) No. 16735/2014 (whereby the matter in relation to future prospects was referred to larger Bench). It may further be noticed that Hon'ble Apex Court in Shashikala's case did not provide addition towards future prospects pendente lite the aforesaid issue, wherein the deceased was an income tax payee carrying business of newspapers and had relied upon Income Tax Returns for the Assessment Years 2005-06 and 2006-07.
In the aforesaid context, reliance may be further placed upon MAC 79 of 2014 Bharti AXA General Insurance Company Ltd. vs. Smt. Poonam & Ors. decided on 27.05.2015 by Hon'ble Mr. Justice G.P. Mittal (Delhi High Court) wherein the judgements passed by the Hon'ble Apex Court in Munna Lal Jain & Anr. Vs. Vipin Kumar Sharma & Ors., Civil Appeal No.4497 of 2015 decided on 15.05.2015 {II (2015) ACC 806 (SC)} was also duly referred but the addition towards future prospects was denied in the absence of any evidence of bright future prospects. Reliance was therein placed upon Reshma Kumari & Others vs. Madan Mohan & Anr. (2013) 9 SCC 65 and HDFC Ergo General Insurance Company Ltd. vs. Smt. Lalta Devi & Others MAC APP No.189/2014 decided on 12.01.2015.
Suit No.48/15Premvati & Ors. vs. Satya Vir Singh & Ors. Page 14 of 33The observations made by the Hon'ble High Court on the aspect of addition of future prospects as discussed in para 21 to 23 of MAC No. 79 of 2014 Bharti AXA General Insurance Company Ltd. vs. Smt. Poonam & Ors. decided on 27.05.2015 (supra) may be beneficially quoted:
21. As far as future prospects are concerned, there is no evidence on record that the deceased had bright future prospects. The question of grant of future prospects was dealt with by this Court at great length in HDFC Ergo General Insurance Co. Ltd. v. Smt. Lalta Devi and Ors., MAC APP No. 189/2014, decided on 12.01.2015. Paras 8 to 21 of the report in Lalta Devi (supra) are extracted hereunder:
8.It is no gainsaying that in appropriate cases some addition towards future prospects must be made in case of death or injury of a person pursuing a professional course. At the same time, it cannot be laid down as a uniform principle that every person pursuing professional course will have a bright future. There may be a student pursuing engineering from the reputed engineering colleges like Indian Institute of Technology (IIT), Regional Engineering College or any other reputed college. At the same time, a number of engineering Colleges have mushroomed where an engineering graduate may find it difficult to secure a job of an engineer. In the instant case, deceased Aditya, as stated earlier was a student of an unknown engineering college, i.e. Echelon Institute of Technology, Faridabad which is claimed to be affiliated to Maharshi Dayanand University, Rohtak. The Claimants have placed on record result-cum-detailed Suit No.48/15Premvati & Ors. vs. Satya Vir Singh & Ors. Page 15 of 33 marks card of First and Second Semester.
It may be noted that the deceased had secured just ordinary marks in seven subjects and he had to re-appear in papers 1002 (Mathematical-I), 1006 (Foundation of Computer & Programming) and 1008 (Basics of Mechanical Engineering). Similarly, in the Second Semester the deceased was absent in one of the 12 papers and out of 11 subjects for which he had taken examination, he was to re-
appear in four subjects. Thus, it will be difficult to say that the deceased was a brilliant student or that he was pursuing engineering from a well known or even mediocre college.
"7. As far as addition towards future prospects is concerned, the issue has been examined at great length by this Court in HDFC ERGO General Insurance Co. Ltd. v. Smt. Lalta Devi & Ors. (supra). Paras 9 to 21 of the report in Lalta Devi are extracted hereunder:-
9. The learned counsel for the Claimants has referred to a three Judge Bench deci-
sion of the Supreme Court in Rajesh & Ors. v. Rajbir Singh & Ors., (2013) 9 SCC 54 to contend that the future prospects have to be added in all cases where a person is getting fixed wages or is a seasonal employee or is a student.
10. It is urged by the learned counsel for the Claimants that the law laid down in Sarla Verma (Smt.) & Ors. v. Delhi Trans- port Corporation & Anr., (2009) 6 SCC 121 was extended in Rajesh & Ors. v. Rajbir Singh & Ors., (2013) 9 SCC 54 to hold that future prospects ought to be extended in all cases.
11. On the other hand, the learned counsel for the Insurance Company refers to a three Suit No.48/15Premvati & Ors. vs. Satya Vir Singh & Ors. Page 16 of 33 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. 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 deci-
sions in Susamma Thomas [Ker-
ala SRTC v. Susamma Thomas, (1994) 2 SCC 176 : 1994 SCC (Cri) 335], Sarla Dixit [(1996) 3 SCC 179] and Abati Bezbaruah [Abati Bezbaruah v. Geological Survey of India, (2003) 3 SCC 148 : 2003 SCC (Cri) 746] and in para 24 of the Report held as un- der: (Sarla Verma case [Sarla Verma v. DTC, (2009) 6 SCC 121 : (2009) 2 SCC (Civ) 770 :
(2009) 2 SCC (Cri) 1002] , SCC p. 134):
"24. ... In view of the imponder-
ables and uncertainties, we are in favour of adopting as a rule of thumb, an addition of 50% of actual salary to the actual salary income of the deceased towards future prospects, where the deceased had a Suit No.48/15Premvati & Ors. vs. Satya Vir Singh & Ors. Page 17 of 33 permanent job and was below 40 years. (Where the annual income is in the taxable range, the words „ac- tual salary‟ should be read as „ac- tual 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 in- dicate 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-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 involv- ing special circumstances."
39. The standardization of addition to income for future prospects shall help in achieving certainty in arriv- ing at appropriate compensation.
We approve the method that an ad-
dition 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 Suit No.48/15Premvati & Ors. vs. Satya Vir Singh & Ors. Page 18 of 33 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 jus-
tified in extraordinary circum-
stances 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 diver- gence of opinion in judgments of benches of co-equal strength, earlier judgment will be taken as a binding precedent.
13. It may be noted that in Reshma 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 selec- tion of multiplier. It further laid down that addition towards future prospects to the ex- tent of 50% of the actual salary shall be made towards future prospects when the de- ceased had a permanent job and was below 40 years and addition of 30% should be made if the age of the deceased was between 40-50 years. No addition towards future Suit No.48/15Premvati & Ors. vs. Satya Vir Singh & Ors. Page 19 of 33 prospects shall be made where the deceased was self-employed or was getting a fixed salary without any provision of annual in- crement.
14. Of course, three Judge Bench of the Supreme Court in its later judgment in Ra- jesh relying on Santosh Devi v. National In- surance Company Ltd. & Ors., 2012 (6) SCC 421 observed that there would be addi- tion 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 Road- ways, (2014) 3 SCC 210. In paras 14 and 15, the Supreme Court observed as under:-
"14. Certain parallel developments will now have to be taken note of. In Reshma Kumari v. Madan Mohan [(2009) 13 SCC 422 :
(2009) 5 SCC (Civ) 143 : (2010) 1 SCC (Cri) 1044], a two-Judge Bench of this Court while considering the following ques-
tions took the view that the issue(s) needed resolution by a larger Bench: (SCC p. 425, para 10) "(1) Whether the multiplier speci-
fied in the Second Schedule ap-
pended to the Act should be scrupu-
lously applied in all the cases?
(2) Whether for determination of the multiplicand, the Act provides for any criterion, particularly as re-
gards determination of future prospects?"
Suit No.48/15Premvati & Ors. vs. Satya Vir Singh & Ors. Page 20 of 3315. Answering the above reference a three- Judge Bench of this Court in Reshma Kumari v. Madan Mohan [(2013) 9 SCC 65 : (2013) 4 SCC (Civ) 191 : (2013) 3 SCC (Cri) 826] (SCC p. 88, para 36) reiterated the view taken in Sarla Verma [Sarla Verma v. DTC, (2009) 6 SCC 121 : (2009) 2 SCC (Civ) 770 : (2009) 2 SCC (Cri) 1002] to the effect that in respect of a person who was on a fixed salary without provision for 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 un- less there are extraordinary and excep- tional circumstances. Though the ex- pression "exceptional and extraordi- nary 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 reg-
ular 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 in- come by taking into account the possi- ble future earnings. The said loss of in- come, accordingly, was quantified at double the amount that the deceased was earning at the time of his death."
16. Further, the divergence of opinion in Reshma Kumari & Ors. v. Madan Mohan & Anr., (2013) 9 SCC 65 and Rajesh & Ors. v. Rajbir Singh & Ors., (2013) 9 SCC 54 was noticed by the Supreme Court in another lat- est judgment in National Insurance Com- pany Ltd. v. Pushpa & Ors., CC No.8058/2014, decided on 02.07.2014 and in concluding paragraph while making Suit No.48/15Premvati & Ors. vs. Satya Vir Singh & Ors. Page 21 of 33 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 should be an authoritative pro- nouncement. Therefore, we think it appropriate to refer the matter to a larger Bench."
17. Now, the question is which of the 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 Se- nior Counsel for the parties and hav- ing examined the law laid down by the Constitution Benches in the abovesaid decisions, we would like to sum up the legal position in the following terms:
(1) The law laid down by this Court in a decision delivered by a Bench of larger strength is binding on any sub-
sequent 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 can- not disagree or dissent from the view of the law taken by a Bench of larger quorum. In Suit No.48/15Premvati & Ors. vs. Satya Vir Singh & Ors. Page 22 of 33 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 deci- sion has come up for consideration. It will be open only for a Bench of coequal strength to express an opinion doubting the correct- ness 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 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 it- self feels that the view of the law taken by a Bench of lesser quorum, which view is in doubt, needs correction or reconsideration then by way of exception (and not as a rule) and for reasons given by it, it may proceed to hear the case and examine the correctness of the previous decision in question dispens- ing with the need of a specific reference or the order of the Chief Justice constituting the Bench and such listing. Such was the sit- uation in Raghubir Singh [(1989) 2 SCC 754] and Hansoli Devi [(2002) 7 SCC 273]."
19. Similarly, in Safiya Bee v. Mohd. Vaja- hath Hussain @ Fasi, (2011) 2 SCC 94 in para 27, the Supreme Court observed as un- der:-
Suit No.48/15Premvati & Ors. vs. Satya Vir Singh & Ors. Page 23 of 33"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 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 ap- plication to the petition schedule property, judicial discipline and prac- tice required them to refer the issue to a larger Bench. The learned Judges were not right in overruling the state- ment of the law by a coordinate Bench of equal strength. It is an ac- cepted rule or principle that the state- ment of the law by a Bench is considered binding on a Bench of the same or lesser number of Judges. In case of doubt or disagreement about the decision of the earlier Bench, the well-accepted and desirable practice is that the later Bench would refer the case to a larger Bench."
20. In Union of India & Ors. v. S.K. Kapoor, (2011) 4 SCC 589 while holding that the de- cision of the Co- ordinate Bench is binding on the subsequent Bench of equal strength, held that the Bench of Co-ordinate strength can only make a reference to a larger Bench. In para 9 of the report, the Supreme Court held as under:-
"9. It may be noted that the decision in S.N. Narula case [(2011) 4 SCC 591] was prior to the decision in T.V. Patel case [(2007) 4 SCC 785 :
(2007) 2 SCC (L&S) 98]. It is well settled that if a subsequent coordinate Bench of equal strength wants to take a different view, it can only refer the Suit No.48/15Premvati & Ors. vs. Satya Vir Singh & Ors. Page 24 of 33 matter to a larger Bench, otherwise the prior decision of a coordinate Bench is binding on the subsequent Bench of equal strength. Since, the de-
cision in S.N. Narula case [(2011) 4 SCC 591] was not noticed in T.V. Pa-
tel case [(2007) 4 SCC 785 : (2007) 2 SCC (L&S) 98] , the latter decision is a judgment per incuriam. The deci-
sion 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 judg- ments of this Court."
21.This Court in New India Assurance Co. Ltd. v. Harpal Singh & Ors., MAC APP.138/2011, decided on 06.09.2013, went into this question and held that in view of the report in S.K. Kapoor (supra), the three Judge Bench decision in Reshma Kumari & Ors. (supra) shall be taken as a binding precedent."
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."
Observations in MAC Appeal No.544/07 decided on 06.05.2016 by Hon'ble Mr.Justice R.K.Gauba in ICICI Lombard General Insurance Company Ltd. vs. Smt. Nagina Begum & Anr. on the point of addition of future prospects may also be noticed.
"4. In the case reported as Sarla Verma & Ors. vs. Delhi Transport Corporation & Anr., (2009) 6 SCC 121, Supreme Court, inter-alia, ruled that the element of future prospects of increase in income will not be Suit No.48/15Premvati & Ors. vs. Satya Vir Singh & Ors. Page 25 of 33 granted in cases where the deceased was "self employed" or was working on a "fixed salary". Though this view was affirmed by a bench of three Hon'ble Judges in Reshma Kumari & Ors. vs. Madan Mohan & Anr., (2013) 9 SCC 65, on account of divergence of views, as arising from the ruling in Rajesh & Ors. vs. Rajbir & Ors., (2013) 9 SCC 54, the issue was later referred to a larger bench, inter-alia, by order dated 02.07.2014 in National Insurance Company Ltd. vs. Pushpa & Ors., (2015) 9 SCC 166.
5. Against the above backdrop, by judgment dated 22.01.2016 passed in MAC Appeal No.956/2012 (Sunil Kumar vs. Pyar Mohd.), this Court has found it proper to follow the view taken earlier by a learned single judge in MAC Appeal No.189/2014 (HDFC Ergo General Insurance Co. Ltd. vs. Smt. Lalta Devi & Ors.) decided on 12.01.2015, presently taking the decision in Reshma Kumari (Supra) as the binding precedent, till such time the law on the subject of future prospects for those who are "self-employed" or engaged in gainful employment at a "fixed salary" is clarified by a larger bench of the Supreme Court.
In view of the legal position as settled by the Hon'ble High Court in absence of any evidence with regard to permanent employment of the deceased and good future prospects, addition of income towards future prospects cannot be made for the purpose of compensation.
(b) Deduction towards personal and living expenses of the deceased:
As per Sarla Verma (Smt.) & Ors. vs. Delhi Transport Corporation & Anr. (2009) 6 SCC 121, the deduction towards personal and living expenses of the deceased should be Suit No.48/15Premvati & Ors. vs. Satya Vir Singh & Ors. Page 26 of 33 one-third (1/3rd) where the number of dependent family members is 2 to 3, 1/4th where the number of dependent family members is 4 to 6 and 1/5th where the number of dependent family member exceeds 6.
Since the deceased is survived by five dependents, i.e. wife, sons and father, the deduction towards personal and living expenses of the deceased shall be 1/4th as held in Sarla Verma's case (supra).
(c) Selection of multiplier:
As per the Voter's I-card (Ex.PW1/1), deceased was aged about 40 years on 01.01.2011. In view of above, on the date of accident (i.e. on 30.09.2015) deceased was aged about 43 years 09 months. As per Sarla Verma (Smt.) & Ors. vs. Delhi Transport Corporation & Anr. (2009) 6 SCC 121, multiplier of 14 is to be adopted for the purpose of assessment of compensation.
(d) Loss of financial dependency The loss of financial dependency of the petitioners is accordingly assessed at Rs.13,07,124/- [i.e. Rs.10,374/- (notional income per month) X 12 (months) X 14 (multiplier) X 3/4 (dependency)].
7. Compensation under non-pecuniary heads:Suit No.48/15Premvati & Ors. vs. Satya Vir Singh & Ors. Page 27 of 33
Though a wide discretion in determination of compensation is given but the amplitude of such powers has to be exercised in consonance with settled principles and it needs to be borne in mind that compensation is neither expected to be windfall or bonanza or source of profit but at the same time should not be pittance.
It has been held by the Hon'ble Apex Court in Rajesh & Ors. v. Rajbir Singh & Ors., (2013) 9 SCC 54 that the compensation is to be awarded for a sum of Rs.1 lakh each towards loss of love and affection and loss of consortium to wife, Rs.25,000/- towards funeral expenses and Rs.10,000/- towards loss of estate.
It may further be noticed that Hon'ble Apex Court awarded a sum of Rs.50,000/ to each parent for loss of love and affection relying upon judgement passed in M. Mansoor v. United India Insurance Co. Ltd., 2013 ACJ 2849 (SC). Further, interest @ 9% per annum was awarded on the award amount by the Hon'ble Apex Court in Municipal Corporation of Delhi v. Association of Victims of Uphaar Tragedy, 2012 ACJ 48 (SC).
Considering the facts and circumstances, petitioners are entitled to Rs.10,000/- towards loss of estate, Rs.1 lakh towards loss of consortium to wife, Rs.1 lakh towards loss of love and affection to wife and children, Rs.50,000/- to father of deceased for loss of love and affection and Rs.25,000/- towards funeral expenses of deceased.Suit No.48/15Premvati & Ors. vs. Satya Vir Singh & Ors. Page 28 of 33
8. Petitioners/claimants are accordingly entitled to compensation computed as under:
Loss of financial dependency Rs.13,07,124/- Loss of Consortium to Wife Rs.1,00,000/-
Loss of love and affection to
wife & children Rs.1,00,000/-
Loss of love and affection to father Rs.50,000/-
Loss of Estate Rs.10,000/-
Funeral Expenses Rs.25,000/-
________________
Total Rs.15,92,124/-
________________
(Rupees Fifteen Lakh Ninety Two Thousand One Hundred and Twenty Four Only) The claimants/petitioners are also entitled to interest @ 9% p.a. from the date of filing of claim petition w.e.f. 12.02.2015 till realization.
The amount of interim award, if any, shall however be deducted from the above amount, if the same has already been paid to the petitioners.
9. It is further held that Respondent No.1 (Driver), Respondent No.2 (Owner) and Respondent No.3 (Insurer) of the offending vehicle are jointly and severally liable to make the payment of compensation to the petitioners/claimants.
Suit No.48/15Premvati & Ors. vs. Satya Vir Singh & Ors. Page 29 of 3310. For the purpose of disbursement, petitioner no. 1 Prem Vati (wife of deceased) shall be entitled to 40% and petitioner no.2 Ajay Kumar, petitioner No.3 Harsh Kumar and petitioner no.4 Deepanshu (minor sons of deceased) and petitioner no.5 Karan Singh (father of deceased) shall be entitled to 15% each of the award amount and proportionate interest thereon.
On realization, an amount of Rs.50,000/- (Rupees Fifty Thousand only) shall be released to petitioner no.1 Prem Vati (wife of deceased) and remaining amount of her share along with proportionate up-to-date interest shall be kept in ten fixed deposits of equal amount in her name with a nationalized bank for a period of one year, two years, three years, four years, five years, six years, seven years, eight years, nine years and ten years without the facility of advance, loan or premature withdrawal with release of quarterly periodical interest in her account.
Further, the share of petitioner no.2 to 4 be put in fixed deposits in their respective names till they attain the age of majority without the facility of advance, loan or premature withdrawal with release of quarterly periodical interest in the account of petitioner no.1/mother for the benefit of minors.
Further, an amount of Rs.30,000/- (Rupees thirty thousand only) shall be released to petitioner no.5 (father of deceased) and remaining amount along with proportionate Suit No.48/15Premvati & Ors. vs. Satya Vir Singh & Ors. Page 30 of 33 interest shall be kept in five fixed deposits of equal amount in his name with a nationalized bank for a period of one year, two years, three years, four years and five years without the facility of advance, loan or premature withdrawal with release of quarterly periodical interest in his account.
The FDRs shall be prepared with the following conditions:-
i. The Bank shall open separate Saving Account in the name of petitioners and the entire interest on the aforesaid fixed deposit be credited in the said Saving Accounts periodically.
ii. The interest on the aforesaid fixed deposits shall be paid monthly by automatic credit of interest in the said Saving Accounts.
iii. Withdrawal from the aforesaid saving accounts shall be permitted to the petitioners after due verification and the Bank shall issue photo Identity Cards to petitioners to facilitate the identity.
iv. No cheque book be issued to the petitioners without the permission of the Court.
v. The original FDRs shall be retained by the Bank in the safe custody. However, the original Pass Books of the aforesaid Savings Account shall be given to petitioners along with the photocopy of the FDRs.
vi. No loan, advance or premature withdrawal shall be allowed on the said FDRs without the permission of this Court.
vii. On the request of the petitioners, the Bank shall transfer Suit No.48/15Premvati & Ors. vs. Satya Vir Singh & Ors. Page 31 of 33 the Saving Account to any other branch of nationalized bank in Delhi according to the convenience of the petitioners.
11. Relief Since the offending vehicle was duly insured, Respondent No.3/United India Insurance Company Ltd. is directed to deposit the award amount of Rs.15,92,124/- with interest @ 9% per annum from the date of filing of claim petition i.e. 12.02.2015 till realization with Nazir of this Court within 30 days under intimation to the petitioners, failing which the Insurance Company shall be liable to pay interest @ 12% per annum for the period of delay beyond 30 days.
Insurance Company/driver and owner of the offending vehicle are also directed to place on record the proof of deposit of the award amount, proof of delivery of notice in respect of deposit of the amount with the Tribunal to the claimants and complete details in respect of calculations of interest etc. in the court within 30 days from today.
A copy of this judgment be sent to Respondent No.3/ United India 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. A copy of this award be forwarded to the concerned Metropolitan Magistrate in terms of the orders passed by the Hon'ble High Court in FAO 842/2003 Rajesh Tyagi vs. Jaibir Suit No.48/15Premvati & Ors. vs. Satya Vir Singh & Ors. Page 32 of 33 Singh & Ors. vide order dated 12.12.2014 File be consigned to Record Room.
Announced in open court on 26th July, 2016 (Anoop Kumar Mendiratta) Judge MACT-1 (Central), Tis Hazari Courts, Delhi.
Suit No.48/15Premvati & Ors. vs. Satya Vir Singh & Ors. Page 33 of 33