Delhi District Court
Smt Fulpari W/O Late Sh Gopal Mandal vs 21. Chirag @ Chintu on 25 March, 2017
IN THE COURT OF SHRI VINAY SINGHAL
ADDITIONAL DISTRICT & SESSIONS JUDGE,
JUDGE, MACT-2, (CENTRAL), DELHI.
Suit No.357291-16
1. Smt Fulpari W/O Late Sh Gopal Mandal
2. Master Gagandeep Mandal S/O Late Sh Gopal Mandal
3. Master Gaurav Kumar S/O Late Sh Gopal Mandal
4. Master Gautam Kr Mandal S/O Late Sh Gopal Mandal
5. Sh Ram Lochan Mandal S/O Sh Aharphi Mandal
6. Smt Pramila Devi W/O Sh Ram Lochan Mandal
All r/o of House No. 24, Dagarsham PO, Sonki, District
Darbhanga,Bihar. ........PETITIONERS
Versus
21. Chirag @ Chintu
S/o Sh Krishan Lal
R/o - A-187, Block-A, Nehru Vihar, New Delhi
(Driver cum registered owner)
22. IFFCO-TOKIO General Insurance Co. Ltd.
I-107A, 1st Floor, Kirti Nagar.
New Delhi-15 (Insurer)
.......RESPONDENTS
Date of filing of Claim Petition : 08.05.2015
Arguments heard on : 28.02.2017
Judgment pronounced on : 25.03.2017
Suit No.35729116 - Fulpari Devi Vs Chirag @ Chintu . Page 1 of 31
JUDGMENT-CUM-AWARD:
INFORMATION IN TERMS OF PROVISIONS OF THE
MODIFIED
CLAIM TRIBUNAL AGREED PROCEDURE (MCTAP)
1 Date of Accident 28.01.2015
2 Date of intimation of the accident by the 30.01.2015
Investigation Officer to the Claims Tribunal
(Clasuse2)
3 Date of intimation of the accident by the 08.05.2015
Investigation Officer to the Insurance
Company (Clause2)
4 Date of filing of the Report under section 173 01.09.2015
Cr.PC before the Metropolitan Magistrate
(Clause 10)
5 Date of filing of Detailed Accident Information 08.05.2015
Report(DAR) by the Investigation Officer
before Claims Tribunal (Clause)
6 Date of service of DAR on the Insurance 08.05.2015
Company (clause11)
7 Date of service of DAR on the claimant(s) 08.05.2015
(Clause11)
8 Whether DAR was complete in all respects? ( Yes
Clause11)
9 If not state deficiencies in the DAR
10 Whether the police has verified the Yes
documents filed with DAR? (clause4)
11 Whether there was any delay or deficiency on No
the part of the Investigation Officer? If so,
whether any action/ direction warranted?
12 Date of appointment of the Designated Officer 11.09.2015
Suit No.35729116 - Fulpari Devi Vs Chirag @ Chintu . Page 2 of 31
by the Insurance Company
13 Name , address and contact number of the Not mentioned
Designated Officer of the Insurance
Company(Clause 19)
14 Whether the Designated officer of the No
insurance Company submitted his report
within 30 days of the DAR?(Clause 21)
15 Whether the Insurance Company admitted the Not admitted
liability? If so, whether the Designated Officer
of the Insurance Company fairly computed the
compensation in accordance with law.
(Clause22)
16 Whether there was any delay or deficiency on No
the part of the Designated officer of the
Insurance Company? If so whether any
action/ direction warranted?
17 Date of response of the claimant(s) to the NA
offer of the Insurance Company? (Clause 23)
18 Date of Award 25.03.2017
19 Whether the award was passed with the No
consent of the parties? (Clause 22)
20 Whether the claimants(s) examined at the Yes
time of passing of the award to ascertain his/
their financial condition? (Clause 26)
21 Whether the photographs, specimen Yes
signatures, proof of residence and particulars
of bank account of the injured/ legal heirs of
the deceased taken at the time of passing of
the award? (Clause26)
22 Mode of disbursement of the award amount to Mentioned in the award
the claimant(s) (Clause 28)
23 Next Date of compliance of the 25/05/2017
award(Clause30)
Suit No.35729116 - Fulpari Devi Vs Chirag @ Chintu . Page 3 of 31
1. Date of accident : 28.01.2015
2. Name of the deceased : Sh Gopal Mandal
3. Age of the deceased : 34 years
4. Occupation of the deceased : Caterer
5. Income of the deceased : 15,000/- per month
6. Name, age and relationship of legal representatives of
deceased
S.No Name Age Relation
1. Smt. Fulpari 29 yrs Wife
2. Master Gagandeep Mandal 06 yrs Son
3. Master Gaurav Kumar 04 yrs Son
Mandal
4. Master Gautam Kumar 01 yr Son
Mandal
5. Sh Ram Lochan Mandal 52 yrs Father
6. Smt Pramila Devi 46 yrs Mother
7. Computation of compensation
S.N Heads Claim of Response of Amount awarded
o. petitioner(s) Respondent
(s)
1. Income of the Rs. 15000/ Contested Rs. 176/ per day
deceased (A)
2. Future prospects (B) Rs.7500/ Contested
3. Less Personal Contested Rs. 44 per day
Expenses of the
deceased (C)
4. Monthly loss of the Rs.22500/ Contested Rs. 132/ per day
dependency(A+B)
C=D
Suit No.35729116 - Fulpari Devi Vs Chirag @ Chintu . Page 4 of 31
5. Annual loss of Rs 2,70,000/ Contested Rs 132
dependency (D x12) x365=48180/
6. Multiplier (E) 17 Contested 17
7. Total loss of 2,70,000x17 Contested 48180 x17=
dependency(Dx12xE 45,90,000/ 8,19,060/
= F)
8. Medical expenses Contested Nil
(G)
9. Compensation for Contested 6,00,000/
loss of love and
affection (H)
10. Compensation for Contested
loss of consortium
(I)
11. Compensation for Contested 10,000/
loss of Estate (J)
12. Compensation Contested 25,000/
towards funeral
expenses (K)
Total compensation Rs. 45,90,000/ Rs.14,54,060/
(F+G+H+I+J+K =L rounded off
14,55,000/
Interest
Suit No.35729116 - Fulpari Devi Vs Chirag @ Chintu . Page 5 of 31
PART-A
BRIEF FACTS OF ACCIDENT
1. Present claim Petition has been preferred under Section 166 and 140 of Motor Vehicles Act, 1988 (hereinafter referred to as 'the Act') claiming compensation for a sum of Rs.50,00,000/- (Rupees Fifty Lakh Only) in respect of accidental death of Gopal Mandal (since deceased) in a motor vehicular accident.
2. Brief facts of the case giving rise to the claim Petition are that on 28.01.2015 the deceased along with other persons was travelling in a Maruti Van as a passanger/occupant and when the said Van reached Shanti Van Chowk red ligh signal, it was hit by offending vehicle bearing No. DL-1CF-0689 owned and driven by respondent No.1. As a result of the said accident the vehicle, in which the deceased was travelling, turned turtled thereby causing injuries to the deceased and the other occupants of the said vehicle.
3. The deceased along with the other occupants was taken to the LNJP Hospital where he ultimately expired. An FIR bearing No. 91/2015 u/s 279/337/338/304A IPC was registered with the PS Kotwali.
4. It is further the case of the Petitioners that deceased aged about 30 years was employed as a Caterer earning around Rs. 15,000/- per month. Further, deceased who was stated to be the sole bread earner of his family stand survived by his wife, three minor sons and parents.
Suit No.35729116 - Fulpari Devi Vs Chirag @ Chintu . Page 6 of 31PART-B DEFENCE OF DRIVER AND OWNER RESPONDENT No. 1 & 2
5. In the Written Statement filed on behalf of Respondent No.1- driver and owner of the offending vehicle it was submitted that though the accident did occur but there was no fault on the part of the respondent No.1 and he has been impleaded in the impugned FIR only with a view to extort money.
PART-C DEFENCE OF INSURANCE COMPANY RESPONDENT No. 3
6. In the Written Statement, Respondent No.2 submitted that the offending vehicle was indeed insured with it for the relevant period but at the same time also submitted that the vehicle in which the deceased was travelling should have also been impleaded as a necessary party in the present case.
PART-D ISSUES
7. On the pleadings of the parties, following issues were framed for consideration vide order dated 05.10.2015 by ld. Predecessor:-
(i) Whether the deceased Gopal Mandal suffered Fatal injuries in an accident that took place on 28.01.2015 at about 00.10 hrs, involving Car bearing registration No. DL-10 CF-0869 driven and owned by the Responder No.1 rashly Suit No.35729116 - Fulpari Devi Vs Chirag @ Chintu . Page 7 of 31 and negligently and insured with the respondent No.2 OPP.
(ii) Whether the Petitioners are entitled to any compensation, if so, to what amount and from whom?
(iii) Relief.
PART-E PETITIONER'S EVIDENCE
8. In support of the claim, Petitioners examined petitioner No-1- wife of deceased as- PW1 who proved on record the birth certificate of the three minor sons of the deceased as well as the ID proofs of deceased, herself as well as the parents of the deceased.
9. However, the PW-1 has failed to prove on record the avermnet made in the petition to the effect of the deceased working as a Caterer earning Rs. 15,000/-.
10. The PW-1 has also failed to prove on record that the deceased was working at Delhi as on the date of the accident as all the documents i.e PW1/4 of the deceased pertain to District Darbhanga, Bihar coupled with the fact that even the ID proof of the present petitioners are not of Delhi but of Bihar.
PART-F RESPONDENT'S EVIDENCE
11. Evidence was not led on behalf of the Respondents.
Suit No.35729116 - Fulpari Devi Vs Chirag @ Chintu . Page 8 of 31PART-G FINDINGS/CONCLUSION
12. I have heard arguments addressed on behalf of the Petitioners, counsel for Respondent Insurance Company and perused the record.
My Issue-wise findings are as under :-
Issue No. (I)
(i) Whether the deceased Gopal Mandal suffered Fatal injuries in an accident that took place on 28.01.2015 at about 00.10 hrs, involving Car bearing registration No. DL-10 CF-0869 driven and owned by the Responder No.1 rashly and negligently and insured with the respondent No.2 OPP.
In Bimla Devi and Ors. V. Himachal Road Transport Corporation and Ors., (2009) 13 SC 530, it was held that in a Petition U/S 166 of the Motor Vehicles Act, 1988 the Claim Tribunal has to decide the negligence on the touchstone of preponderance of probability and holistic view is to be taken while dealing with the Claim Petition. In New India Assurance Co. Ltd. V. Sakshi Bhutani & ors, MAC APP. 550/2011 decided on 02.07.2012 by Hon'ble Mr. Justice G.P. Mittal (Delhi High Court), it was observed that it has to be borne in mind that the Motor Vehicles Act does not envisage holding a trial for a Petition preferred under Section 166 of the Act. Under Section 168 of the Act, a Claims Tribunal is enjoined to hold an inquiry to determine compensation which must appear to it to be just. Strict rules of evidence are not applicable in an inquiry conducted by the Claims Tribunal. Further in State of Mysore Vs. Suit No.35729116 - Fulpari Devi Vs Chirag @ Chintu . Page 9 of 31 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 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 Suit No.35729116 - Fulpari Devi Vs Chirag @ Chintu . Page 10 of 31 claim before the Motor Accident Claim Tribunal the standard of proof is much below than what is required in a criminal case as well as in a civil case. No doubt before the Tribunal, there must be some material on the basis of which the Tribunal can arrive or decide things necessary to be decided for awarding compensation. But the Tribunal is not expected to take or to adopt the nicety of a civil or of a criminal case. After all, it is a summary enquiry and this is a legislation for the welfare of the society. In N.K.V. Bros. (P) Ltd. v. M. Marumai Ammal, 1980 ACJ 435 (SC), the Supreme Court pointed out that the Accidents Claims Tribunal must take special care to see that innocent victims do not suffer and persons liable do not escape liability merely because of some doubt here and some obscurity there. The court should not succumb to niceties, technicalities and mystic maybes. The court is bound to take broad view of the whole matter."
In the instant case, though the respondent No.1 in his Written Statement has claimed that he has been falsely implicated but has neither come forward to cross examine the PW-1 nor has led any evidence in order to prove the said defence. Similarly the respondent No.2 insurance company has also not come forward to lead any evidence. Considering the fact that negligence has to be assessed on touchstone of preponderance of probability and a holistic view is to be taken, it has been established that the accident was caused due to rash and negligent driving of Respondent No.1. Issue No. 1 is decided in favour of the Petitioner and against the Respondents.
Suit No.35729116 - Fulpari Devi Vs Chirag @ Chintu . Page 11 of 3113. Issue No. (ii)
(ii) Whether the Petitioners are entitled to any compensation, if so, to what amount and from whom?
Counsel for Insurance Company contended that income of the deceased may be assessed on the basis of minimum wages of an unskilled worker working at Bihar since the petitioner have failed to prove that the deceased was employed at Delhi in any capacity whatsoever as on the date of accident.
Admittedly, no documentary evidence has been led on record to prove the employment of deceased or that deceased was earning Rs. 15,000/- per month. The claim Petition has been filed in Delhi since the accident has occurred at Delhi. However, there is nothing on record to suggest that the deceased was working at Delhi nor the PW1 has proved anything in this respect despite being specifically cross examined.
Hence, for the purpose of assessment of compensation, the notional income of the deceased is accordingly assessed on the basis of minimum wages of an unskilled worker as notified by Govt. of Bihar for the relevant period @ Rs. 176/- per day.
(a) If addition in income towards future prospects is to be made Petitioners have claimed that addition towards future prospects to the extent of 50% be made considering the fact that deceased was aged about 30 years but the same has been vehemently opposed by counsel for Insurance Company.
Suit No.35729116 - Fulpari Devi Vs Chirag @ Chintu . Page 12 of 31It 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 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 Suit No.35729116 - Fulpari Devi Vs Chirag @ Chintu . Page 13 of 31 MAC 79 of 2014 Bharti AXA General Insurance Company Ltd. vs. Smt. Poonam & Ors. decided on 27.05.2015 by Hon'ble Mr. Justice G.P. Mittal (Delhi High Court) wherein the judgements passed by the Hon'ble Apex Court in Munna Lal Jain & Anr. Vs. Vipin Kumar Sharma & Ors., Civil Appeal No.4497 of 2015 decided on 15.05.2015 {II (2015) ACC 806 (SC)} was also duly referred but the addition towards future prospects was denied in the absence of any evidence of bright future prospects. Reliance was therein placed upon Reshma Kumari & Others vs. Madan Mohan & Anr. (2013) 9 SCC 65 and HDFC Ergo General Insurance Company Ltd. vs. Smt. Lalta Devi & Others MAC APP No.189/2014 decided on 12.01.2015.
The observations made by the Hon'ble High Court on the aspect of addition of future prospects as discussed in para 21 to 23 of MAC No. 79 of 2014 Bharti AXA General Insurance Company Ltd. vs. Smt. Poonam & Ors. decided on 27.05.2015 (supra) may be beneficially quoted:
21. As far as future prospects are concerned, there is no evidence on record that the deceased had bright future prospects. The question of grant of future prospects was dealt with by this Court at great length in HDFC Ergo General 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:
23.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 Suit No.35729116 - Fulpari Devi Vs Chirag @ Chintu . Page 14 of 31 professional course. At the same time, it cannot be laid down as a uniform principle that every person pursuing professional course will have a bright future. There may be a student pursuing engineering from the reputed engineering colleges like Indian Institute of Technology (IIT), Regional Engineering College or any other reputed college. At the same time, a number of engineering Colleges have mushroomed where an engineering graduate may find it difficult to secure a job of an engineer. In the instant case, deceased Aditya, as stated earlier was a student of an unknown engineering college, i.e. Echelon Institute of Technology, Faridabad which is claimed to be affiliated to Maharshi Dayanand University, Rohtak. The Claimants have placed on record result-cum-detailed marks card of First and Second Semester. It may be noted that the deceased had secured just ordinary marks in seven subjects and he had to re-
appear in papers 1002 (Mathematical-I), 1006 (Foundation of Computer & Programming) and 1008 (Basics of Mechanical Engineering). Similarly, in the Second Semester the deceased was absent in one of the 12 papers and out of 11 subjects for which he had taken examination, he was to re-appear in four subjects. Thus, it will be difficult to say that the deceased was a brilliant student or that he was pursuing engineering from a well known or even mediocre college.
"7. As far as addition towards future prospects is concerned, the issue has been examined at great length by this Court in HDFC ERGO General Suit No.35729116 - Fulpari Devi Vs Chirag @ Chintu . Page 15 of 31 Insurance Co. Ltd. v. Smt. Lalta Devi & Ors. (supra). Paras 9 to 21 of the report in Lalta Devi are extracted hereunder:-
9. The learned counsel for the Claimants has referred to a three Judge Bench de-
cision of the Supreme Court in Rajesh & Ors. v. Rajbir Singh & Ors., (2013) 9 SCC 54 to contend that the future prospects have to be added in all cases where a person is getting fixed wages or is a seasonal employee or is a student.
10. It is urged by the learned counsel for the Claimants that the law laid down in Sarla Verma (Smt.) & Ors. v. Delhi Trans- port Corporation & Anr., (2009) 6 SCC 121 was extended in Rajesh & Ors. v.
Rajbir Singh & Ors., (2013) 9 SCC 54 to hold that future prospects ought to be extended in all cases.
11. On the other hand, the learned coun- sel for the Insurance Company refers to a three Judge Bench decision of the Supreme Court in Reshma Kumari & Ors. v. Madan Mohan & Anr., (2013) 9 SCC 65 wherein while approving the ratio with regard to future prospects in Sarla Verma (Smt.) & Ors. (supra) and relying on General Manager, Kerala State Road Transport Corporation, Trivandrum v. Susamma Thomas (Mrs.) and Ors. (1994) 2 SCC 176; Sarla Dixit v. Balwant Yadav, (1996) 3 SCC 179 and Abati Bezbaruah v. Dy. Director General, Geological Sur- vey of India & Anr., 2003 (3) SCC 148, the Supreme Court held as under:-
"38. With regard to the addition to income for future prospects, in Sarla Verma [Sarla Verma v.Suit No.35729116 - Fulpari Devi Vs Chirag @ Chintu . Page 16 of 31
DTC, (2009) 6 SCC 121 :
(2009) 2 SCC (Civ) 770 :
(2009) 2 SCC (Cri) 1002], this Court has noted the earlier deci-
sions in Susamma Thomas [Ker-
ala SRTC v. Susamma Thomas, (1994) 2 SCC 176 : 1994 SCC (Cri) 335], Sarla Dixit [(1996) 3 SCC 179] and Abati Bezbaruah [Abati Bezbaruah v. Geological Survey of India, (2003) 3 SCC 148 : 2003 SCC (Cri) 746] and in para 24 of the Report held as under: (Sarla Verma case [Sarla Verma v. DTC, (2009) 6 SCC 121 : (2009) 2 SCC (Civ) 770 :
(2009) 2 SCC (Cri) 1002] , SCC p. 134):
"24. ... In view of the imponder-
ables and uncertainties, we are in favour of adopting as a rule of thumb, an addition of 50% of ac-
tual salary to the actual salary in- come of the deceased towards fu-
ture prospects, where the deceased had a permanent job and was be-
low 40 years. (Where the annual income is in the taxable range, the words „actual salary‟ should be read as „actual salary less tax‟). The addition should be only 30% if the age of the deceased was 40 to 50 years. There should be no addition, where the age of the de- ceased is more than 50 years.
Though the evidence may indicate a different percentage of in-
crease, it is necessary to standard- ise the addition to avoid different yardsticks being applied or differ- ent methods of calculation being Suit No.35729116 - Fulpari Devi Vs Chirag @ Chintu . Page 17 of 31 adopted. Where the deceased was self-employed or was on a fixed salary (without provision for an- nual increments, etc.), the courts will usually take only the actual income at the time of death. A de-
parture therefrom should be made only in rare and exceptional cases involving special circumstances."
39. The standardization of addi-
tion to income for future prospects shall help in achieving certainty in arriving at appropriate compensa- tion. We approve the method that an addition of 50% of actual salary be made to the actual salary income of the deceased to-
wards future prospects where the deceased had a permanent job and was below 40 years and the addition should be only 30% if the age of the deceased was 40 to 50 years and no addition should be made where the age of the de-
ceased is more than 50 years.
Where the annual income is in the taxable range, the actual salary shall mean actual salary less tax.
In the cases where the deceased was self-employed or was on a fixed salary without provision for annual increments, the actual income at the time of death with-
out any addition to income for future prospects will be appro-
priate. A departure from the above principle can only be justified in extraordinary circumstances and very exceptional cases."
12. The learned counsel for the Insurance Company relies upon a Suit No.35729116 - Fulpari Devi Vs Chirag @ Chintu . Page 18 of 31 Constitutional Bench judgment of the Supreme Court in Central Board of Da- woodi Bohra Community & Anr. v. State of Maharashtra & Anr., (2005) 2 SCC 673; Safiya Bee v. Mohd. Vajahath Hussain @ Fasi, (2011) 2 SCC 94; and Union of India & Ors. v. S.K. Kapoor, (2011) 4 SCC 589 to contend that in case of divergence of opinion in judgments of benches of co- equal strength, earlier judgment will be taken as a binding precedent.
13. It may be noted that in Reshma Kumari & Ors. v. Madan Mohan & Anr., (2013) 9 SCC 65; the three Judge Bench was dealing with a reference made by a two Judge Bench (S.B. Sinha and Cyriac Joseph, J.J.). The two Hon'ble Judges wanted an authoritative pro- nouncement from a Larger Bench on the question of applicability of the multiplier and whether the inflation was built in the multiplier. The three Judge Bench ap- proved the two Judge Bench decision of the Supreme Court in Sarla Verma (Smt.) & Ors. v. Delhi Transport Corporation & Anr., (2009) 6 SCC 121 with regard to the selection of multiplier. It further laid down that addition towards future prospects to the extent of 50% of the actual salary shall be made towards future prospects when the deceased had a permanent job and was below 40 years and addition of 30% should be made if the age of the deceased was between 40-50 years. No addition to- wards future prospects shall be made where the deceased was self-employed or was getting a fixed salary without any pro- vision of annual increment.
14. Of course, three Judge Bench of the Supreme Court in its later judgment in Ra- jesh relying on Santosh Devi v. National Suit No.35729116 - Fulpari Devi Vs Chirag @ Chintu . Page 19 of 31 Insurance Company Ltd. & Ors., 2012 (6) SCC 421 observed that there would be ad- dition of 30% and 50%, depending upon the age of the deceased, towards future prospects even in the case of self-employed persons. It may, however, be noted that in Rajesh, the three Judge Bench decision in Reshma Kumari (supra) was not brought to the notice of their Lordships.
15. The divergence of opin-
ion was noted by another three Judge Bench of the Supreme Court in Sanjay Verma v. Haryana Roadways, (2014) 3 SCC 210. In paras 14 and 15, the Supreme Court observed as under:-
"14. Certain parallel developments will now have to be taken note of. In Reshma Kumari v. Madan Mohan [(2009) 13 SCC 422 : (2009) 5 SCC (Civ) 143 : (2010) 1 SCC (Cri) 1044], a two-Judge Bench of this Court while considering the following questions took the view that the issue(s) needed resolution by a larger Bench: (SCC p. 425, para 10) "(1) Whether the multiplier speci-
fied in the Second Schedule ap-
pended to the Act should be scrupulously applied in all the cases?
(2) Whether for determination of the multiplicand, the Act provides for any criterion, particularly as regards determination of fu-
ture prospects?"
15. Answering the above reference a three- Judge Bench of this Court in Reshma Kumari v. Madan Mohan [(2013) 9 SCC 65 : (2013) 4 SCC Suit No.35729116 - Fulpari Devi Vs Chirag @ Chintu . Page 20 of 31 (Civ) 191 : (2013) 3 SCC (Cri) 826] (SCC p. 88, para 36) reiterated the view taken in Sarla Verma [Sarla Verma v. DTC, (2009) 6 SCC 121 :
(2009) 2 SCC (Civ) 770 : (2009) 2 SCC (Cri) 1002] to the effect that in respect of a person who was on a fixed salary without provision for an-
nual increments or who was self-em- ployed the actual income at the time of death should be taken into account for determining the loss of income un- less there are extraordinary and ex- ceptional circumstances. Though the expression "exceptional and extraor- dinary circumstances" is not capable of any precise definition, in Shakti Devi v. New India Insurance Co. Ltd. [(2010) 14 SCC 575 : (2012) 1 SCC (Civ) 766 : (2011) 3 SCC (Cri) 848] there is a practical application of the aforesaid principle. The near cer- tainty of the regular employment of the deceased in a government depart- ment following the retirement of his father was held to be a valid ground to compute the loss of income by tak- ing into account the possible future earnings. The said loss of income, ac- cordingly, was quantified at double the amount that the deceased was earning at the time of his death."
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, de- cided on 02.07.2014 and in concluding paragraph while making reference to Suit No.35729116 - Fulpari Devi Vs Chirag @ Chintu . Page 21 of 31 the Larger Bench, the Supreme Court held as under:-
"Be it noted, though the decision in Reshma (supra) was rendered at ear- lier point of time, as is clear, the same has not been noticed in Rajesh (supra) and that is why divergent opinions have been expressed. We are of the considered opinion that as regards the manner of addition of income of future prospects there should be an authori- tative pronouncement. Therefore, we think it appropriate to refer the matter to a larger Bench."
17. Now, the question is which of the judg- ments ought to be followed awaiting an- swer to the reference made by the Supreme Court in Pushpa & Ors. (supra).
18. In Central Board of Dawoodi Bohra Community & Anr. v. State of Maharashtra & Anr., (2005) 2 SCC 673 in para 12, the Supreme Court observed as under:-
"12. Having carefully considered the submissions made by the learned Se- nior Counsel for the parties and hav- ing examined the law laid down by the Constitution Benches in the abovesaid decisions, we would like to sum up the legal position in the following terms:
(1) The law laid down by this Court in a decision delivered by a Bench of larger strength is binding on any subsequent Bench of lesser or co-
equal strength.
(2) [Ed.: Para 12(2) corrected vide Offi-
cial Corrigendum No. Suit No.35729116 - Fulpari Devi Vs Chirag @ Chintu . Page 22 of 31 F.3/Ed.B.J./21/2005 dated 3- 3-2005.] A Bench of lesser quorum cannot disagree or dissent from the view of the law taken by a Bench of larger quorum. In case of doubt all that the Bench of lesser quorum can do is to invite the attention of the Chief Jus- tice 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 correctness of the view taken by the earlier Bench of coequal strength, where- upon the matter may be placed for hearing before a Bench consisting of a quorum larger than the one which pronounced the decision laying down the law the correct- ness of which is doubted.
(3) [Ed.: Para 12(3) corrected vide Offi-
cial Corrigendum No. F.3/Ed.B.J./7/2005 dated 17- 1-2005.] The above rules are subject to two exceptions:
(i) the abovesaid rules do not bind the dis-
cretion of the Chief Justice in whom vests the power of framing the roster and who can direct any particular matter to be placed for hearing before any particular Bench of any strength; and (ii) in spite of the rules laid down hereinabove, if the matter has already come up for hearing before a Bench of larger quorum and that Bench itself feels that the view of the law taken by a Bench of lesser quorum, which view is in doubt, needs correction or re- consideration 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 Suit No.35729116 - Fulpari Devi Vs Chirag @ Chintu . Page 23 of 31 and such listing. Such was the situation in Raghubir Singh [(1989) 2 SCC 754] and Hansoli Devi [(2002) 7 SCC 273]."
19. Similarly, in Safiya Bee v. Mohd. Vaja- hath Hussain @ Fasi, (2011) 2 SCC 94 in para 27, the Supreme Court observed as under:-
"27. However, even assuming that the decision in WP No. 35561 of 1998 did not operate as res judi-
cata, we are to observe that even if the learned Judges who decided WP No. 304 of 2001 did not agree with the view taken by a coordinate Bench of equal strength in the ear- lier WP No. 35561 of 1998 regard-
ing the interpretation of Section 2(c) of the Act and its application to the Petition schedule property, judicial discipline and practice required them to refer the issue to a larger Bench. The learned Judges were not right in overruling the statement of the law by a coordinate Bench of equal strength. It is an accepted rule or principle that the statement of the law by a Bench is consid-
ered binding on a Bench of the same or lesser number of Judges. In case of doubt or disagreement about the decision of the earlier Bench, the well-accepted and desirable prac- tice is that the later Bench would re- fer the case to a larger Bench."
20. In Union of India & Ors. v. S.K. Kapoor, (2011) 4 SCC 589 while holding that the decision of the Co- ordinate Bench is binding on the subsequent Bench of equal strength, held that the Bench of Co-ordinate strength can only Suit No.35729116 - Fulpari Devi Vs Chirag @ Chintu . Page 24 of 31 make a reference to a larger Bench. In para 9 of the report, the Supreme Court held as under:-
"9. It may be noted that the decision in S.N. Narula case [(2011) 4 SCC 591] was prior to the decision in T.V. Patel case [(2007) 4 SCC 785 :
(2007) 2 SCC (L&S) 98] . It is well settled that if a subsequent coordi-
nate Bench of equal strength wants to take a different view, it can only refer the matter to a larger Bench, otherwise the prior decision of a co- ordinate Bench is binding on the subsequent Bench of equal strength. Since, the decision in S.N. Narula case [(2011) 4 SCC 591] was not noticed in T.V. Patel case [(2007) 4 SCC 785 : (2007) 2 SCC (L&S) 98] , the latter decision is a judgment per incuriam. The decision in S.N. Narula case [(2011) 4 SCC 591] was binding on the subsequent Bench of equal strength and hence, it could not take a contrary view, as is settled by a series of judgments of this Court."
21.This Court in New India Assurance Co. Ltd. v. Harpal Singh & Ors., MAC APP.138/2011, decided on 06.09.2013, went into this question and held that in view of the report in S.K. Kapoor (supra), the three Judge Bench decision in Reshma Kumari & Ors. (supra) shall be taken as a binding precedent."
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.
Suit No.35729116 - Fulpari Devi Vs Chirag @ Chintu . Page 25 of 3122.Thus, in absence of any evidence of good future prospects, no addition towards future prospects ought to have been made by the Claims Tribunal."
In view of the legal position as discussed by the Hon'ble High Court and in absence of any evidence with regard to good future prospects of deceased, addition of income towards future prospects cannot be made for the purpose of compensation.
(b) Deduction towards personal and living expenses of the deceased:
Counsel for Petitioners submitted that deceased is survived by his wife, three minor children and parents and as such deduction of 1/4 be made towards personal and living expenses.
As per Sarla Verma (Smt.) & Ors. vs. Delhi Transport Corporation & Anr. (2009) 6 SCC 121, the deduction towards personal and living expenses of the deceased should be 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 six dependents, i.e. wife, parents and three minor children, the deduction towards personal and living expenses of the deceased shall be 1/4 th as held in Sarla Verma's case (supra).Suit No.35729116 - Fulpari Devi Vs Chirag @ Chintu . Page 26 of 31
(c) Selection of multiplier:
As per the Ex PW1/4 i.e the election ID Card of the deceased, he was 20 years of age as on 01.01.2005.
As the accident occurred on 28.01.2015, the deceased age was 30 years as on that date. Accordingly, as held in Sarla Verma (Smt.) & Ors. vs. Delhi Transport Corporation & Anr. (2009) 6 SCC 121, the multiplier of 17 is to be adopted for the purpose of assessment of compensation.
(d) Loss of financial dependency In the light of aforesaid facts, loss of financial dependency of the Petitioners comes to Rs. 8,19,060 /-[i.e. Rs. 176/- (notional income) X 365 days X 17 (multiplier) X 3/4 (dependency)].
14. Compensation under non-pecuniary heads:
It has been held by the Hon'ble Apex Court in Rajesh & Ors. v. Rajbir Singh & Ors., (2013) 9 SCC 54 that the compensation is to be awarded for a sum of Rs.1 lakh each towards loss of love and affection and loss of consortium, Rs.25,000/- towards funeral expenses and Rs.10,000/- towards loss of estate.
However, in 2015 ACJ 1286 Asha Verman and others v. Maharaj Singh and others Hon'ble Apex Court has awarded a sum of Rs.1 lakh to each child relying upon judgement passed in Jiju Suit No.35729116 - Fulpari Devi Vs Chirag @ Chintu . Page 27 of 31 Kuruvila v. Kunjujamma Mohan, 2013 ACJ 2141 (SC) and Rs.50,000/ to each parent for loss of love and affection relying upon judgement passed in M. Mansoor v. United India Insurance Co. Ltd., 2013 ACJ 2849 (SC) Further, interest @ 9% per annum was awarded on the award amount by the Hon'ble Apex Court in Municipal Corporation of Delhi v. Association of Victims of Uphaar Tragedy, 2012 ACJ 48 (SC).
Though a wide discretion in determination of compensation is given but the amplitude of such powers has to be exercised in consonance with settled principles and it needs to be borne in mind that compensation is neither expected to be windfall or bonanza or source of profit but at the same time should not be pittance.
Considering the facts and circumstances Petitioners are entitled to Rs.1 lakh towards loss of love and affection towards them. Also Petitioners are entitled to Rs.10,000/- towards loss of estate and Rs.25,000/- towards funeral expenses of deceased.
15. Petitioners/claimants are accordingly entitled to compensation computed as under:
Loss of financial dependency Rs. 8,19,060/- Loss of love and affection to each petitioner Rs.6,00,000/-
Loss of Estate Rs.10,000/-
Funeral Expenses Rs.25,000/-
________________
Total Rs.14,54,060/-
________________
Round off- 14,55,000/-
(Rupees Fourteen Lacs Fifty Five thousand only) Suit No.35729116 - Fulpari Devi Vs Chirag @ Chintu . Page 28 of 31 The claimants/Petitioners are also entitled to interest @ 9% p.a. from the date of filing of DAR w.e.f. 08.05.2015 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.
16. It is further held that Respondent No.1 (Driver cum owner), Respondent No.2 (Insurer) of the offending vehicle are jointly and severally liable to make the payment of compensation to the Petitioners/claimants.
17. For the purpose of disbursement, Petitioner no. 2 to 6 shall be entitled to 15% each of the award amount whereas petitioner No 1 being the wife of the deceased having burden of raising the minor children is also entitled to 25 % of the award amount and proportionate interest thereon.
18. Out of the award amount Rs 1.20 lacs be released to the petitioners for their immediate need.
19. The remaining amount of Rs. 98,250/- out of the total amount of Rs. 2,18,250/- i.e 15 % share of petitioner No 5 & 6 and Rs. 3,63,750/- out of total amount of Rs. 3,63,750/- i.e 25% share of petitioner No.1 along with proportionate up-to-date interest shall be kept in FDRs for a period of ten years.
20. The above said share of Petitioner No.1, 5 & 6 together with proportionate up-to-date interest shall be kept in terms of the judgment of Hon'ble High Court of Delhi cited as Rajesh Tyagi Vs Jaiveer Singh in FAO No.842/2003 with SBI/PNB in 120 FDRs of Suit No.35729116 - Fulpari Devi Vs Chirag @ Chintu . Page 29 of 31 equal amount each for the period for 1 to 120 months with commulative interest with the following conditions :-
1. Original fixed deposit receipts be retained by the bank in safe custody, However, a statement containing FDR number, FDR amount, date of maturity of FDR and maturity amount of the FDRs be given to the claimant (s).
2. The maturity amount of the FDR be credited in the saving account of the claimant(s) near the place of their residence.
3. No cheque book be issued to the claimant(s) in the savings bank account without permission of the court.
4. No loan, advance or withdrawwal be allowed on the fixed deposits without permission of the court.
5. The Bank shall not permit any joint names(s) to be be added in the savings bank account or fixed deposits accounts of the victim.
21. Petitioner No 2 to 4 being minor, their share amount of 15 % less 20,000/- each ( share of amount released for immediate need) be kept in FDR till they attain the age of maturity in their name, without the facility of advance, loan or premature withdrawal, with the provision of quarterly periodical interest to petitioner No.1 being natural guardian, for the welfare of minor children.
22. Relief Since the offending vehicle was duly insured, Respondent No.2- Insurance Company Ltd.is directed to deposit the award amount of Rs. 14,55,000/- with interest @ 9% per Suit No.35729116 - Fulpari Devi Vs Chirag @ Chintu . Page 30 of 31 annum from the date of filing of DAR i.e. 08.05.2015 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.2/ Insurance Company Ltd. for compliance within the time granted.
Nazir is directed to place a report on record in the event of non-receipt/deposit of the compensation amount within the time granted. File be consigned to Record Room.
Announced in open court (VINAY SINGHAL) on 25th March 2017 Judge MACT-2 (Central), Tis Hazari Courts, Delhi.
Suit No.35729116 - Fulpari Devi Vs Chirag @ Chintu . Page 31 of 31 Suit No.35729116 - Fulpari Devi Vs Chirag @ Chintu . Page 32 of 31