Delhi District Court
Shri Shyam Singh 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.184/14
Date of Institution:02.01.2014
IN THE MATTER OF:
1.Shri Shyam Singh
S/o Shri Ram Bharose
2. Pushpa Devi
W/o Shri Shyam Singh
Both residents of:
Nai Masiyar
P.O. Majhala
Tehsil Patiali
P. S. Raja Ka Rampur
Kashganj, U. P. ...Petitioners
Versus
1. Vikas Rathor
S/o Shri V.S. Rathor
H.No.130 A/3, Gautam Nagar
New Delhi.
2. Gitali Rathor
W/o Vikas Rathor
H.No.130 A/3, Gautam Nagar
New Delhi.
Suit No. 184/14 Page No. 1 of 47
Shyam v Vikas Rathor & Ors.
3. National Insurance Co. Ltd.
Regd. Office
DIV No.10, Flat No. 101106
N1, BMC House
Connaught Place
New Delhi 110001 ...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 Satish Kumar 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 Bhagwan Dass 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 Suit No. 184/14 Page No. 2 of 47 Shyam v Vikas Rathor & Ors.
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 petitioners 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 18 years and was working as a labourer with L & T Ltd. and drawing a salary of Rs.13,000/ per month besides other benefits etc. It is 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. It is averred that the accident had been caused by the respondent No.1 as a result of rash Suit No. 184/14 Page No. 3 of 47 Shyam v Vikas Rathor & Ors.
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 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 Suit No. 184/14 Page No. 4 of 47 Shyam v Vikas Rathor & Ors.
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 V. S. Rathor for Motorcycle/LMV (NT) only was found valid on the date of the accident. It is averred that the deceased was 18 years of age as per the post mortem report and no other proof of age had been supplied by the petitioners. Suit No. 184/14 Page No. 5 of 47 Shyam v Vikas Rathor & Ors.
It is averred that he was unmarried and left behind his mother as the only legal heir and dependent. 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 1/2 for personal expenses of the deceased and applying a multiplier of 13 as the age of the mother was more than 45 years the total dependency came to Rs.6,30,708/. An offer of Rs.6,75,708/ 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.
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 Suit No. 184/14 Page No. 6 of 47 Shyam v Vikas Rathor & Ors.
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 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 Suit No. 184/14 Page No. 7 of 47 Shyam v Vikas Rathor & Ors.
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 Shri Shyam Singh appeared in the witness box as PW2 and led his evidence by way of affidavit which is Ex.PW2/A reiterating the averments made in the claim petition. He stated that the deceased was aged about 18 years and having family consisting of his Grandmother, mother, father and 7 brothers and sisters. He stated that the whole family except brother of the deceased Raj Kishor was Suit No. 184/14 Page No. 8 of 47 Shyam v Vikas Rathor & Ors.
dependent upon the income of the deceased Late Shri Satish Kumar for the livelihood and as such due to death of the deceased his entire family members had suffered a great loss due to loss of its sole bread earner. He stated that the deceased late Shri Satish Kumar was working with L&T company as labourer and was earning Rs.13,500/ approximately per month. He stated that the family had also suffered mental agony and great amount of pain and suffering, fortune, loss of love etc. He relied upon the documents with the DAR which are Ex.PW2/1 (colly) and the copy of the PM report filed along with the DAR. Copy of certificate issued by the Gram Panchayat is Mark A and proof of salary is Mark B. He was not crossexamined on behalf of the respondents No. 1 and 2.
9. Shri Abhishek Pandey, Supervisor with Harsh Enterprises was examined as PW2 in suit No.183/14 and by order dated 15.7.2014 it was directed that his evidence be read in the present case as well. He 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 Toubro Ltd. near Moti Bagh which was contractor of Delhi Metro 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 Suit No. 184/14 Page No. 9 of 47 Shyam v Vikas Rathor & Ors.
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 1.4.2014. 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 15.7.2014 and 9.9.2014 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: 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 Suit No. 184/14 Page No. 10 of 47 Shyam v Vikas Rathor & Ors.
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."
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 Suit No. 184/14 Page No. 11 of 47 Shyam v Vikas Rathor & Ors.
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 Satish Kumar 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 Bhagwan Dass 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. 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 Suit No. 184/14 Page No. 12 of 47 Shyam v Vikas Rathor & Ors.
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 his affidavit Ex.PW2/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 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. and photographs. 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 Suit No. 184/14 Page No. 13 of 47 Shyam v Vikas Rathor & Ors.
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 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. Suit No. 184/14 Page No. 14 of 47 Shyam v Vikas Rathor & Ors.
16. During crossexamination by the learned counsel for the respondent No.3/ insurance company PW2 stated that he was not an eye witness to the accident. Thus PW2 stated that he 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 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 Suit No. 184/14 Page No. 15 of 47 Shyam v Vikas Rathor & Ors.
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 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. Suit No. 184/14 Page No. 16 of 47 Shyam v Vikas Rathor & Ors.
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. 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 Suit No. 184/14 Page No. 17 of 47 Shyam v Vikas Rathor & Ors.
of vehicle No.DL3CBV7369. In view of the testimony of PW1 and PW2 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 combined effect of ante mortem injuries 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.
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. PW2 was crossexamined on the point of dependency and during crossexamination by the learned counsel for the respondent No.3 PW2 denied the suggestion that Mark A and Mark B were forged and fabricated. He stated that he had a ration Suit No. 184/14 Page No. 18 of 47 Shyam v Vikas Rathor & Ors.
card but he had not brought the same. He stated that he is a labourer. He stated that one son and one daughter of his were married, three others were unmarried. He stated that four of his children were elder to the deceased son. He stated that his sons who were elder to the deceased worked as labourers. He stated that his wife did not work as a labourer. He admitted that he was residing in the village with his wife and other children. He stated that Satish was residing on rent in Delhi. He was paying rent of Rs.2,000/ p.m. He denied the suggestion that he, his wife and his other children were not financially dependent on the deceased. Thus PW2 denied the suggestion that Mark A which is the copy of certificate issued by the Gram Panchayat was forged and fabricated. He stated that he had a ration card but he had not brought the same and no copy of the same has been placed on record though the details of the family have been stated in Mark A. He stated that he is a labourer. He had stated about his other children as well but none of them can be regarded as dependent on the deceased once the father i.e. PW2 was alive and was working and he had also stated that his sons who were elder to the deceased worked as labourers. He admitted that he was residing in the village with his wife and other children and that Satish was residing on rent in Delhi and was paying rent of Rs.2,000/ p.m. but nothing much turns on the same. He stated that his wife did not work as a labourer. During examination by the Tribunal the petitioner Shyam Singh stated that he was 47 years old at present. He stated that his son was working with L&T. He stated that at the time of the accident he was working as labourer, and was earning Rs.13,500/ p.m. He stated that Suit No. 184/14 Page No. 19 of 47 Shyam v Vikas Rathor & Ors.
at present he was not doing anything though nothing has been brought on record to show that he was prevented from working due to ill health or any other reason. Even otherwise he was working at the time of the accident and as per the settled law the father cannot be regarded as a dependent. The petitioner No.2 Smt. Pushpa Devi stated that she was 40 years old at present. She stated that she did not do any work. She stated that apart from the deceased she had four children who were not doing anything at present, being two sons and two daughters. She stated that all were in the age group of 20 to 23 years. However PW2 had stated that his sons who were elder to the deceased were working as labourers. Being the mother the petitioner No.2 would be regarded as dependent on the deceased.
20. It is the case of the petitioners that the deceased Shri Satish Kumar was working as a labourer at the Metro site under L & T Ltd. It was averred that the deceased was aged 18 years and was working as a labourer with L & T Ltd. and drawing a salary of Rs.13,000/ 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. PW2 in paras 2, 3 and 7 of his affidavit Ex.PW2/A had deposed to that effect. He stated that the deceased was aged about 18 years and having family consisting of his grandmother, mother, father and 7 brothers and sisters. He stated that the whole family except brother of the deceased Raj Kishor was dependent upon the income of Suit No. 184/14 Page No. 20 of 47 Shyam v Vikas Rathor & Ors.
the deceased Late Shri Satish Kumar for the livelihood and as such due to death of the deceased his entire family members had suffered a great loss due to loss of its sole bread earner. He stated that the deceased late Shri Satish Kumar was working with L&T company as labourer and was earning Rs. 13,500/ approximately per month. He stated that the family had also suffered mental agony and great amount of pain and suffering, fortune, loss of love etc. Proof of salary is Mark B. During crossexamination by the learned counsel for the respondent No.3 PW2 stated that he had not placed on record any appointment letter in respect of his son. He denied the suggestion that Mark A and Mark B were forged and fabricated. He denied the suggestion that his son was not working with L&T but was a casual labourer or that he was not earning Rs.13,500/ per month. Thus PW2 stated that he had not placed on record any appointment letter in respect of his son. He denied the suggestion that Mark B which was stated to be the proof of salary was forged and fabricated. Suggestions were put to him that his son was not working with L&T but was a casual labourer or that he was not earning Rs.13,500/ per month which he denied.
21. Apart from Mark B no other document was produced to show how much amount the deceased was earning but thereafter Shri Abhishek Pandey, Supervisor with Harsh Enterprises was examined in suit No.183/14 and by order dated 15.7.2014 it was directed that his evidence be read in the present case as well. He stated that Harsh Enterprises was working as subcontractor Suit No. 184/14 Page No. 21 of 47 Shyam v Vikas Rathor & Ors.
of Larsen and Toubro Ltd. near Moti Bagh which was contractor of Delhi Metro 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. Thus PW Shri Abhishek Pandey had stated that Harsh Enterprises was working as sub contractor 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 was working with Harsh Enterprises as helper from 31.07.2013 to 10.11.2013 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 PW 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 Suit No. 184/14 Page No. 22 of 47 Shyam v Vikas Rathor & Ors.
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. 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 PW Shri Abhishek Pandey was crossexamined on the authority letter in his favour but nothing much turns on the same though he Suit No. 184/14 Page No. 23 of 47 Shyam v Vikas Rathor & Ors.
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, October and November, 2013 (the attendance card for November, 2013 does not contain any entry) 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 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. Suit No. 184/14 Page No. 24 of 47 Shyam v Vikas Rathor & Ors.
23. PW Abhishek Pandey had stated that late Satish 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.310/ and considering total working days as 26 in a month the monthly wages would work out to Rs.8,060/. Thus the income of the deceased for the computation of loss of dependency would be taken as Rs.8,060/ p.m.
24. It is the case of the petitioners that the deceased was aged about 18 years and it was so stated in the claim petition and PW2 had also deposed to that effect. 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 18 years. As per Mark A the year of birth of the deceased was 1993 which would make him around 20 years old on the date of the accident. 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 18 applies for calculating the loss of income where the age of the deceased is 15 to 20 years and 21 to 25 years. However as per the law in the case of death of a child, the multiplier would be as per the age of the mother and not as per the age of the deceased. In the case of Mohd. Hasnain & Ors. Vs. Jagram Meena & Ors. bearing MAC. APP. No. 152/2014, decided on Suit No. 184/14 Page No. 25 of 47 Shyam v Vikas Rathor & Ors.
24.03.2014 and in MAC.APP. 1227/2012 NEW INDIA ASSURANCE CO LTD. V. S.SHAMIM FATIMA & ORS decided on 1.4.2014 the multiplier was taken as per the age of the deceased. However In HDFC ERGO General Insurance Co. Ltd. v. Smt. Lalta Devi & Ors. MAC. APP. 189/2014 decided on 12.1.2015 the question of multiplier i.e. whether it has to be as per the age of the Claimant or as per the age of the deceased was gone into in and relying upon the judgments in U.P. SRTC v. Trilok Chandara, (1996) 4 SCC 362; General Manager, Kerala State Road Transport Corporation, Trivandrum v. Susamma Thomas (Mrs.) and Ors. (1994) 2 SCC 176; New India Assurance Company Ltd. v. Shanti Pathak (Smt.) & Ors., (2007) 10 SCC 1; Sarla Verma (Smt.) & Ors. v. Delhi Transport Corporation & Anr., (2009) 6 SCC 121 and National Insurance Company Ltd. v. Shyam Singh & Ors., (2011) 7 SCC 65, it was held that the multiplier will be as per the age of the deceased or the Claimant whichever is higher. It was observed:
"23. It is urged by the learned counsel for the Claimants that multiplier has to be as per the age of the deceased and not as per the age of the Claimants. In support of his contention, the learned counsel for the Claimants places reliance on Sarla Verma (Smt.) & Ors. v. Delhi Transport Corporation & Anr., (2009) 6 SCC 121 and Reshma Kumari & Ors. v. Madan Mohan & Anr., (2013) 9 SCC 65; wherein it was held that the multiplier has to be taken as per the age of the deceased.
24. This issue was gone into detail by this Court wherein the history of awarding reasonable compensation was gone into. This Court referred to a three Judge Bench decision in U.P. SRTC v. Trilok Chandara, (1996) 4 SCC 362; General Manager, Kerala State Suit No. 184/14 Page No. 26 of 47 Shyam v Vikas Rathor & Ors.
Road Transport Corporation, Trivandrum v. Susamma Thomas (Mrs.) and Ors. (1994) 2 SCC 176; another three Judge Bench decision of the Supreme Court in New India Assurance Company Ltd. v. Shanti Pathak (Smt.) & Ors., (2007) 10 SCC 1, Sarla Verma (Smt.) & Ors. v. Delhi Transport Corporation & Anr., (2009) 6 SCC 121 and National Insurance Company Ltd. v. Shyam Singh & Ors., (2011) 7 SCC 65, and in paras 4 to 8 observed as under: "4. As far as the selection of multiplier is concerned, the law is settled that the choice of multiplier is determined by the age of the deceased or that of the claimants whichever is higher. There is a three Judges Bench judgment of the Supreme Court in U.P. State Road Transport Corporation & Ors. v. Trilok Chandra & Ors., (1996) 4 SCC 362, where the Supreme Court relied on G.M., Kerala SRTC v. Susamma Thomas, (1994) 2 SCC 176 and reiterated that the choice of the multiplier is determined by the age of the deceased or that of the claimants whichever is more. Para 12 of the report is extracted hereunder: "12. For concluding the analysis it is necessary now to refer to the judgment of this Court in the case of General Manager, Kerala State Road Transport, v. Susamma Thomas: (1994) 2 SCC 176. In that case this Court culled out the basic principles governing the assessment of compensation emerging from the legal authorities cited above and reiterated that the multiplier method is the sound method of assessing compensation. The Court observed:
"The multiplier method involves the ascertainment of the loss of dependency or the multiplicand having regard to the circumstances Suit No. 184/14 Page No. 27 of 47 Shyam v Vikas Rathor & Ors.
of the case and capitalizing the multiplicand by an appropriate multiplier. The choice of the multiplier is determined by the age of the deceased (or that of the claimants, whichever is higher) and by the calculation as to what capital sum, if invested at a rate of interest appropriate to a stable economy, would yield the multiplicand by way of annual interest. In ascertaining this, regard should also be had to the fact that ultimately the capital sum should also be consumedup over the period for which the dependency is expected to last.
The principle was explained and illustrated by a mathematical example:
"The multiplier represents the number of Years' purchase on which the loss of dependency is capitalised. Take for instance a case where annual loss of dependency is Rs. 10,000. If a sum of Rs.1,00,000 is invested at 10% annual interest, the interest will take care of the dependency, perpetually. The multiplier in this case works out to 10. If the rate of interest is 5% per annum and not 10% then the multiplier needed to capitalise the loss of the annual dependency at Rs.10,000 would be 20. Then the multiplier i.e., the number of Years' purchase of 20 will yield the annual dependency perpetually. Then allowance to scale down the multiplier would have to be made taking into account the uncertainties of the future, the allowances for immediate lump sum payment, the period over which the dependency is to last being shorter and the capital feed also to be spent away over Suit No. 184/14 Page No. 28 of 47 Shyam v Vikas Rathor & Ors.
the period of dependency is to last etc. Usually in English Courts the operative multiplier rarely exceeds 16 as maximum. This will come down accordingly as the age of the deceased person (or that of the dependents, whichever is higher) goes up."
5.There is another three Judges‟ decision of the Supreme Court in New India Assurance Company Ltd. v. Shanti Pathak (Smt.) & Ors., (2007) 10 SCC 1, where in the case of the death of a bachelor, who was aged only 25 years, the multiplier of 5 was applied according to the age of the mother of the deceased, who was about 65 years at the time of the accident. Para 6 of the report is extracted hereunder: "6. Considering the income that was taken, the foundation for working out the compensation cannot be faulted. The monthly contribution was fixed at Rs.3,500/. In the normal course we would have remitted the matter to the High Court for consideration on the materials placed before it. But considering the fact that the matter is pending since long, it would be appropriate to take the multiplier of 5 considering the fact that the mother of the deceased is about 65 years at the time of the accident and age of the father is more than 65 years. Taking into account the monthly contribution at Rs.3,500/ as held by the Tribunal and the High Court, the entitlement of the claim would be Rs.2,10,000/. The same shall bear interest @ 7.5% p.a. from the date of the application for compensation. Payment already made shall be adjusted from the amount due."
Suit No. 184/14 Page No. 29 of 47 Shyam v Vikas Rathor & Ors.
6.Learned counsel for the Appellant referred to Sarla Verma (supra) in support of the proposition that age of the deceased is to be taken into consideration for selection of the multiplier. As an example the multiplier taken in various cases such as in Susamma Thomas (supra), U.P. SRTC v. Trilok Chandara, (1996) 4 SCC 362 as clarified in New India Assurance Co. Ltd. v. Charlie, (2005) 10 SCC 720 and the multiplier as mentioned in Second Schedule to the Motor Vehicles Act were compared and it was held that the multiplier as per Column No.4 in the said table was appropriate for application. Sarla Verma (supra) related to the death of one Rajinder Prakash who had left behind his widow, three minor children apart from his parents and the grandfather. Obviously, the age of the deceased was taken into consideration for the purpose of selection of the multiplier as the deceased left behind a widow younger to him, apart from three minor children. It was not laid down as a proposition of law that irrespective of the age of the claimants, the age of the deceased is to be taken into consideration for selection of the multiplier for calculation of the loss of dependency. It is true that in Mohd.
Ameeruddin (supra 2) and P.S. Somanathan (supra 3) and National Insurance Company Ltd. v. Azad Singh (supra 5), the Hon‟ble Supreme Court applied the multiplier according to the age of the deceased, yet in view of Trilok Chandra (supra) and Shanti Pathak (supra) decided by the three Judges of the Supreme Court, the judgment in Mohd. Ameeruddin (supra 2), P.S. Somanathan (supra 3) and Azad Singh (supra 5) cannot be taken as a precedent for selection of the multiplier.
7.In the latest judgment of the Supreme Court in National Insurance Company Ltd. v. Shyam Singh & Ors., (2011) 7 SCC 65, decided on04.07.2011, the Supreme Court referred to Ramesh Singh & Anr. v. Satbir Singh & Anr., Suit No. 184/14 Page No. 30 of 47 Shyam v Vikas Rathor & Ors.
(2008) 2 SCC 667 and held that the multiplier as per the age of the deceased or the claimant whichever is higher would be applicable. Para 9 and 10 of the report are apposite: "9. This Court in the case of Ramesh Singh & Anr. v. Satbir Singh & Anr., (2008) 2 SCC 667, after referring to the earlier judgments of this Court, in detail, dealt with the law with regard to determination of the multiplier in a similar situation as in the present case. The said findings of this Court are as under: "6. We have given anxious consideration to these contentions and are of the opinion that the same are devoid of any merits. Considering the law laid down in New India Assurance Co. Ltd. v.
Charlie, AIR 2005 SC 2157, it is clear that the choice of multiplier is determined by the age of the deceased or claimants whichever is higher.
Admittedly, the age of the father was 55 years.
The question of mother's age never cropped up because that was not the contention raised even before the Trial Court or before us. Taking the age to be 55 years, in our opinion, the courts below have not committed any illegality in applying the multiplier of 8 since the father was running 56th year of his life."
10.In our view, the dictum laid down in Ramesh Singh (supra) is applicable to the present case on all fours.
Accordingly, we hold that the Tribunal had rightfully applied the multiplier of 8 by taking the average of the parents of the deceased who Suit No. 184/14 Page No. 31 of 47 Shyam v Vikas Rathor & Ors.
were 55 and 56 years."
8.Similarly in Manam Saraswathi Sampoorna Kalavathi & Ors., v. The Manager, APSRTC, Tadepalligudem A.P. & Anr., (2010) 5 SCC 785, decided on 26.03.2010, the multiplier of 13 was applied in case of death of a young bachelor where the mother was 47 years of age."
25.There is no manner of doubt that the appropriate multiplier while awarding compensation for death of an unmarried boy, the multiplier will be selected on the basis of age of the mother of the deceased."
This has been reiterated in Oriental insurance Co. Ltd. v. Timal & Ors. MAC. APP. 214/2013 decided on 14.1.2015; Ashok Singh v. Radhe Raman MAC. APP. 63/2015 decided on 19.1.2015 and in Reliance v. Ram Bharose MAC. APP. 1157/2014 decided on 19.1.2015. Thus the multiplier applicable will be as per the age of the mother of the deceased in the case of an unmarried boy. The petitioners in the present case have not placed on record any specific document showing the age of the petitioner No.2 who is the mother of the deceased and during crossexamination by the learned counsel for the respondent No.3 PW2 stated that he had not placed on record any document showing the age of his wife. However as per Mark A which is a document produced by the petitioners themselves the year of birth of the petitioner No.2 Smt. Pushpa Devi was 1968. Accordingly she would be around 45 years old on the date of the accident i.e. 11.10.2013. As such the multiplier applicable in the instant case would be of 14.
Suit No. 184/14 Page No. 32 of 47 Shyam v Vikas Rathor & Ors.
25. Since the deceased was unmarried there would be 50% deduction towards personal and living expenses. As regards the future prospects in HDFC ERGO General Insurance Co. Ltd. v. Smt. Lalta Devi & Ors. (supra) 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 held that the judgment in Reshma Kumari & Ors. v. Madan Mohan & 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.
11.On the other hand, the learned counsel for the Insurance Company refers to a three Judge Bench decision of the Supreme Court in Reshma Kumari & Ors. v. Madan Mohan & Anr., (2013) 9 SCC 65 wherein while 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 Suit No. 184/14 Page No. 33 of 47 Shyam v Vikas Rathor & Ors.
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 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 Suit No. 184/14 Page No. 34 of 47 Shyam v Vikas Rathor & Ors.
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 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 Suit No. 184/14 Page No. 35 of 47 Shyam v Vikas Rathor & Ors.
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 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) Suit No. 184/14 Page No. 36 of 47 Shyam v Vikas Rathor & Ors.
"(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) 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 Suit No. 184/14 Page No. 37 of 47 Shyam v Vikas Rathor & Ors.
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 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 Suit No. 184/14 Page No. 38 of 47 Shyam v Vikas Rathor & Ors.
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 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]."
Suit No. 184/14 Page No. 39 of 47 Shyam v Vikas Rathor & Ors.
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 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 Suit No. 184/14 Page No. 40 of 47 Shyam v Vikas Rathor & Ors.
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 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.8,060/ is calculated as under :
Rs.8,060/ - Rs.4,030/ (i.e. 50% towards personal expenses) = Rs.4,030 X 12 (annually) X 14 (multiplier) = Rs.6,77,040/ rounded off to Rs.6,77,000/.Suit No. 184/14 Page No. 41 of 47
Shyam v Vikas Rathor & Ors.
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. However there is nothing to show the same.
The total compensation is determined as under:
Loss of dependency : Rs.6,77,000/
Love and affection : Rs.1,00,000/
Loss of Estate : Rs.10,000/
Funeral expenses : Rs.25,000/
Total : Rs.8,12,000/
Thus, the total compensation would amount to Rs.8,12,000/. RELIEF
27. The petitioners are awarded a sum of Rs.8,12,000/ (Rs.Eight Lacs Twelve 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 petitioner No.1 Shri Shyam Singh would be entitled to 20% share in the awarded amount and the petitioner No.2 Smt. Pushpa Devi would be entitled to 80% share in the awarded amount.
Suit No. 184/14 Page No. 42 of 47 Shyam v Vikas Rathor & Ors.
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 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 petitioner No.1 Shri Shyam Singh be released to him by transferring it into his savings account in UCO Bank, Patiala House Court, New Delhi. 20% of the share of the petitioner No.2 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. 184/14 Page No. 43 of 47
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 Shyam Singh and Pushpa Devi 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.2.
f) The withdrawal from the aforesaid account shall be permitted to the petitioner No.2 after due verification and the bank shall issue photo identity card to the petitioner No.2 to facilitate her identity.
g) No cheque book shall be issued to the petitioner No.2 without the permission of the court.
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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.2 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. 2 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. 184/14 Page No. 45 of 47 Shyam 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. 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 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 Suit No. 184/14 Page No. 46 of 47 Shyam v Vikas Rathor & Ors.
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 01.05.2015.
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. 184/14 Page No. 47 of 47 Shyam v Vikas Rathor & Ors.