Delhi District Court
Smt. Raj Kumari vs Shri Phool Kumar @ Phool Kanwar on 31 October, 2015
IN THE COURT OF ANOOP KUMAR MENDIRATTA,
JUDGE, MACT-1 (CENTRAL), DELHI.
Suit No.901/11
Unique Case ID No.02401C-0597912011
1. Smt. Raj Kumari
W/o Late Shri Ved Parkash (Wife)
2. Baby Indu,
D/o Late Shri Ved Parkash (Daughter)
3. Master Bhim Sen,
S/o Late Shri Ved Parkash (Son)
All R/o H.No.17/66, Than Singh Nagar,
Anand Parbat, New Delhi.
(Petitioner No.2 & 3 being minors through their mother
and natural guardian Smt. Raj Kumari/petitioner no.1)
........PETITIONERS
Versus
1. Shri Phool Kumar @ Phool Kanwar
S/o Shri Ajmer Singh,
R/o Ritahal Phogat,
PS Sadar C.D. City, Distt, Rohtak, Haryana
(Driver)
2. M/s Highway Logistic Pvt. Ltd.
Through its Managing Director
Sh.Mahender Singh,
R/o E-5/2, Rawal Pindi Garden, P.O. Chikaber Pur,
Suit No.901/11 - Raj Kumari & Ors. vs. Phool Kumar @ Phool Kanwar & Ors. Page 1 of 31
U.P. Border, Ghaziabad, U.P. (Owner)
3. Shriram General Insurance Company Ltd.
Issuing Office at E-8, EPIP, RIICO Industrial Area,
Sitapur, Jaipur, Rajasthan-302 022 (Insurer)
.......RESPONDENTS
Date of filing of Claim Petition : 19.12.2011
Arguments heard on : 31.10.2015
Award passed on : 31.10.2015
JUDGMENT
1. Present claim petition has been preferred under Section 166 and 140 of Motor Vehicles Act, 1988 (hereinafter referred to as 'the Act') claiming compensation of a sum of Rs.50,00,000/- (Rupees Fifty Lakh Only) in respect of accidental death of deceased Ved Parkash in a motor vehicular accident.
2. Brief facts of the case are that on 04.06.2011 at about 5:00AM deceased Ved Parkash along with other persons was coming back from Haridwar to Delhi on his car bearing registration no. DL 4CF 4258. When the car reached near Vinupura Chauraha on Muzaffar Nagar road, it was hit by truck no. UP 14AH 9668 approaching from Muzaffar Nagar side driven by Respondent No. 1 in a rash and negligent manner. Ved Prakash received fatal injuries and was declared brought dead at District Hospital Muzaffar Nagar, U.P. The accident was Suit No.901/11 - Raj Kumari & Ors. vs. Phool Kumar @ Phool Kanwar & Ors. Page 2 of 31 witnessed by one Harender Singh who was following the deceased in another car as well as by the other occupants of the car in which deceased was travelling. FIR No.164/2011 u/s 279/338/304A IPC was registered at PS: Chhappar, District Muzaffar Nagar, U.P. regarding the accident.
It is further the case of petitioners that deceased aged about 38 years was working as 'Field Marketing Manager' with M/s S.K. Creations, Industrial Area, Anand Parbat at a salary of Rs.16,000/- per month along with other perks and benefits. Deceased Ved Parkash is further stated to be survived by Petitioner no.1 Smt. Raj Kumari (wife) along with minor daughter (Indu) and son (Bhim Sen).
3. Respondent No.1 & 2 in the joint written statement denied the manner of accident and submitted that the petition is bad for non-joinder and mis jonider of necessary parties. It was further submitted that the accident occurred due to negligence on the part of driver of car no. DL 4CF 4258 who tried to overtake and in the process struck with the offending vehicle which was driven by Respondent No.1. It was further submitted that the offending vehicle was duly insured at the relevant time.
In the written statement filed on behalf of Respondent No.3 Shriram General Insurance Company Ltd., it was submitted that Insurance Company is not liable to pay any compensation to the petitioners in case the driver and owner of the offending vehicle have violated the terms and conditions of Suit No.901/11 - Raj Kumari & Ors. vs. Phool Kumar @ Phool Kanwar & Ors. Page 3 of 31 the insurance policy. Further, the compensation claimed in the petition was stated to be exaggerated and excessive. However, it was admitted that vehicle bearing registration no. UP 14AH 9668 was insured with Respondent No.3 for the period 15.01.2011 to 14.01.2012 which covers the date of accident.
4. On the pleadings of the parties, following issues were framed for consideration by ld. Predecessor vide order dated 15.05.2012:
1. Whether the deceased Shri Ved Parkash had died due to injuries sustained by him in an accident which took place on 04.06.2011 at 5:00 AM within the jurisdiction of PS Chhappar, Distt. Muzaffar Nagar, UP due to rash and negligent driving of vehicle bearing Regn. No. UP 14 AH 9668 by respondent No.1?
2. Whether the petitioners are entitled to any compensation, if so, to what amount and from whom?
3. Relief.
5. In support of the claim petition, petitioners led evidence of PW1 Raj Kumari (wife of deceased), PW2 Sanjay Goswami (employer of deceased) and PW3 Pratap (eyewitness).Suit No.901/11 - Raj Kumari & Ors. vs. Phool Kumar @ Phool Kanwar & Ors. Page 4 of 31
PW1 Smt. Raj Kumari testified on the lines of claim petition and further proved the certified copy of the criminal case record (Ex.PW1/1) including certified copy of postmortem report (Ex.PY) & copy of chargeseheet (Ex.PX), original salary certificate of deceased (Ex.PW1/2), copy of ration card (Ex.P1), death certificate of deceased Ved Parkash (Ex.PW1/3), copy of election I-card of deceased (Ex.PW1/4), copy of driving licence of deceased (Mark X), copy of election I-card of PW1 (Ex.PW1/5), copy of PAN card of deceased (Mark Z), copy of 12th standard marksheet of deceased (Mark Z1), copy of school transfer certificate of deceased (Mark Z2).
During cross-examination, she stated that before the accident her husband was working with Sanjay Goswami who is nephew/bhanja of deceased. She further stated that deceased was maintaining a bank account which was closed after his death. Further, she was presently residing with Sanjay Goswami and his family who is the Proprietor of M/s S.K. Creation with whom the deceased was working. She denied that the salary certificate of deceased was false and fabricated and had been issued to get a false claim.
PW2 Sanjay Goswami testified that deceased was working with the firm M/s S.K. Creation at a salary of Rs. 15,000/- plus perks and benefits. He further testified that he had issued salary certificate for the period 01.04.2008 to 31.03.2009 @ Rs.14,000/- per month, 01.04.2009 to 31.03.2010 @ Rs. 14,000/- per month and 01.04.2010 to 31.03.2011 @ Rs.15,000/- per month.
Suit No.901/11 - Raj Kumari & Ors. vs. Phool Kumar @ Phool Kanwar & Ors. Page 5 of 31During cross examination, he stated that deceased worked with M/s S.K. Creation for about three and a half years but no record was maintained in respect of the employment as he was not maintaining the cash payment register, salary register and attendance register. He further stated that after the death of deceased no other person was employed in place of deceased. He further admitted that he was related as bhanja (nephew) of deceased and had been residing with the family of deceased for about last 8 years.
PW3 Pratap testified that he was following the car of deceased at the time of accident and the accident took place due to rash and negligent driving of truck no UP 14 AH 966. Further, the accident was witnessed by him as well as Harender Singh.
During cross-examination, he stated that they were returning after puja from Haridwar and there were five persons in the car driven by Ved Parkash (deceased). Further, there was no other car between his car and the car driven by Ved Parkash. He further stated that Harender Singh informed the police after the accident. He further clarified that the car in which he was seated was driven by Harender Singh at a speed of 30-40 KM per hour and was at a distance of 30-40 meters from the car of deceased. The truck was coming at a speed of 60-70 KM per hour. He denied the suggestion that Ved Parkash was driving the car at a high speed and tried to overtake the truck and in the process struck against the truck. He further denied the suggestion that he was not an eyewitness to the accident and had appeared at Suit No.901/11 - Raj Kumari & Ors. vs. Phool Kumar @ Phool Kanwar & Ors. Page 6 of 31 instance of the petitioners.
No evidence was led on behalf of respondents despite opportunity.
6. I have heard arguments addressed by counsel for parties and perused the record.
Counsel for petitioner made submissions on the lines of claim petition and also filed written submissions on record.
On the other hand, Counsel for Insurance Company vehemently contended that income of the deceased cannot be considered @ Rs.15,000/- per month merely on the basis of salary certificates placed on record as the same is not supported by any other record to infer the employment of deceased with M/s S.K. Creation. It was further submitted that no document such as salary register, cash payment register or attendance register was produced by PW2 Sanjay Goswami to prove the employment of deceased.
My Issue-wise findings are as under :-
Issue No. (i) Whether the deceased Shri Ved Prakash had died due to injuries sustained by him in an accident which took place on 04.06.2011 at 05:00 AM within the jurisdiction of PS Chhappar, Distt. Muzaffar Nagar, U.P. due to Suit No.901/11 - Raj Kumari & Ors. vs. Phool Kumar @ Phool Kanwar & Ors. Page 7 of 31 rash and negligent driving of vehicle bearing Regn. No. UP 14 AH 9668 by respondent No. 1?
In Bimla Devi and Ors. V. Himachal Road Transport Corporation and Ors., (2009) 13 SC 530, it was held that a petition u/s 166 of the Motor Vehicles Act, 1988 the Claim Tribunal has to decide the negligence on the touchstone of preponderance of probability and holistic view is to be taken while dealing with the Claim Petition. In New India Assurance Co. Ltd. V. Sakshi Bhutani & ors, MAC APP. 550/2011 decided on 02.07.2012 by Hon'ble Mr. Justice G.P. Mittal (Delhi High Court), it was observed that it has to be borne in mind that the Motor Vehicles Act does not envisage holding a trial for a petition preferred under Section 166 of the Act. Under Section 168 of the Act, a Claims Tribunal is enjoined to hold an inquiry to determine compensation which must appear to it to be just.
Strict rules of evidence are not applicable in an inquiry conducted by the Claims Tribunal. Further in State of Mysore Vs. S.S. Makapur, 1993 (2) SCR 943, the Supreme Court held that the Tribunals exercising quasi-judicial functions are not courts and are not bound by strict rules of evidence. The relevant portion of the report is extracted hereunder:
".......that tribunals exercising quasi- judicial functions are not courts and that therefore they are not bound to follow the procedure prescribed for trial of actions in courts nor are they bound by strict rules of evidence. They can unlike courts, obtain Suit No.901/11 - Raj Kumari & Ors. vs. Phool Kumar @ Phool Kanwar & Ors. Page 8 of 31 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 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 Suit No.901/11 - Raj Kumari & Ors. vs. Phool Kumar @ Phool Kanwar & Ors. Page 9 of 31 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 present case, PW3 Pratap had witnessed the accident as he was following the car no. DL 4 CF 4258 driven by deceased while travelling from Haridwar to Delhi. He testified that the accident had taken place as the car driven by deceased was hit by truck no. UP 14 AH 9668 coming from Muzaffar Nagar side and was driven by Respondent No.1 at a high speed in a rash and negligent manner. Consequently, deceased along with other persons suffered injuries and wre rushed to District Hospital, Muzaffar Nagar, U.P. wherein Ved Prakash was declared brought dead. PW3 clarified that the car in which PW3 was seated was at a distance of 30-40 meters from the car driven by deceased and the offending truck was approaching at a speed of about 60-70 Kmph. He denied the Suit No.901/11 - Raj Kumari & Ors. vs. Phool Kumar @ Phool Kanwar & Ors. Page 10 of 31 suggestion that Ved Parkash was drowsy and the accident occurred while the deceased tried to overtake the truck. Testimony of PW-3 Pratap could not be dented during cross- examination. It may also be noticed that testimony of PW-3 has not been controverted by driver of the offending vehicle as he failed to enter the witness box.
In the facts and circumstances, I do not find any grounds to disbelieve the manner of accident as deposed by PW3 and the accident occurred due to rash and negligent driving by Respondent No.1. Issue No. 1 is accordingly decided in favour of the petitioners and against the respondents.
8. Issue No. (ii) Whether the petitioners are entitled to any compensation, if so, to what amount and from whom?
Counsel for the petitioners contended that deceased Ved Parkash was employed as Field Marketing Manager with M/s S.K. Creation and was lastly drawing a salary of Rs.15,000/- per month as per the salary certificate proved by PW2.
However, the same was vehemently opposed by counsel for Insurance Company and it was submitted that merely on basis of oral evidence of PW-2 Sanjay Goswami, it cannot be held that the deceased was employed with M/s S.K. Creation at a salary of Rs.15,000/- per month since PW2 failed to substantiate Suit No.901/11 - Raj Kumari & Ors. vs. Phool Kumar @ Phool Kanwar & Ors. Page 11 of 31 the same by production of any record relating to employment of deceased. It was pointed out that PW2 is admittedly nephew of deceased and the salary certificate appears to have been created to claim enhanced compensation. As such, it was prayed that income of the deceased be assessed on the basis of minimum wages as notified by Govt. of NCT of Delhi for a unskilled worker @ Rs.6,422/- per month for the relevant period.
It may be noticed that PW2 Sanjay Goswami admitted during cross-examination that he is Bhanja (nephew) of deceased and is residing with the family of deceased for the last eight years. He failed to produce any record which is normally maintained in respect of the employees to show if the deceased was employed with M/s S.K. Creation. An employer may not maintain the attendance register but is expected to maintain at least a cash payment register even in case the payment is made in cash or to produce any other document to prove the employment.
In the absence of any record of employment, it is difficult to accept the salary certificate issued by PW2 regarding employment of deceased at a salary of Rs.15,000/- per month from 01.04.2010 to 31.03.2011 as deposed by him. In the facts and circumstances, I am of the considered view that certificate as to employment and salary drawn by the deceased is not sufficient proof of the employment of deceased and same deserves to be discarded. Reliance in this regard may also be placed upon judgement passed by the Hon'ble High Court of Punjab & Haryana in Sarla Rani and others vs. Charan Singh and another FAO No.2314 of 2003 (O&M) decided on 15.01.2015 Suit No.901/11 - Raj Kumari & Ors. vs. Phool Kumar @ Phool Kanwar & Ors. Page 12 of 31 wherein the salary certificate regarding employment of deceased as Accountant in a private firm at a salary of Rs.4,500/- was not accepted in the absence of books of account, attendance register and other documents and the income of deceased was assessed as a labourer according to wages prevalent at relevant time.
In the present case, deceased Ved Parkash was in possession of a driving licence for LMV (Non transport) and is claimed to be 10th pass, though the original marksheet has not been produced on record and only the photocopies are relied.
Considering the facts and circumstances, I am of the considered view that income of the deceased be assessed at minimum wages of a skilled worker as notified by Govt. of NCT of Delhi for the relevant period @ Rs.7,826/- per month.
(b) 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 39 years and employed with M/s S.K. Creation.
It may be noticed that in Shashikala & Ors. v. Gangalakshmamma & Anr. 2015 (2) T.A.C. 867 (SC), separate judgements were passed by Hon'ble Mr. Justice R. Banumathi and Hon'ble Mr. Justice V. Gopala Gowda on the point of assessment of addition to the income of the deceased towards the future prospects in case of salaried persons vis-a-vis where the Suit No.901/11 - Raj Kumari & Ors. vs. Phool Kumar @ Phool Kanwar & Ors. Page 13 of 31 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 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 Suit No.901/11 - Raj Kumari & Ors. vs. Phool Kumar @ Phool Kanwar & Ors. Page 14 of 31 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:
8.It is no gainsaying that in appropriate cases some addition towards future prospects must be made in case of death or injury of a person pursuing a professional course. At the same time, it cannot be laid down as a uniform principle that every person pursuing professional course will have a bright future. There may be a Suit No.901/11 - Raj Kumari & Ors. vs. Phool Kumar @ Phool Kanwar & Ors. Page 15 of 31 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 Insurance Co. Ltd. v. Smt. Lalta Devi & Ors. (supra). Paras 9 to 21 of the report in Lalta Devi are extracted hereunder:-
9. The learned counsel for the Claimants has referred to a three Judge Bench deci- sion of the Supreme Court in Rajesh & Ors. v. Rajbir Singh & Ors., (2013) 9 SCC 54 to contend that the future prospects have to Suit No.901/11 - Raj Kumari & Ors. vs. Phool Kumar @ Phool Kanwar & Ors. Page 16 of 31 be added in all cases where a person is get- ting 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. Ra- jbir Singh & Ors., (2013) 9 SCC 54 to hold that future prospects ought to be extend- ed 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 Mo-
han & Anr., (2013) 9 SCC 65 wherein while approving the ratio with regard to fu- ture prospects in Sarla Verma (Smt.) & Ors. (supra) and relying on General Man- ager, Kerala State Road Transport Corpo- ration, 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 Gen- eral, Geological Survey of India & Anr., 2003 (3) SCC 148, the Supreme Court held as under:-
"38. With regard to the addition to income for future prospects, in Sarla Verma [Sarla Verma v.
DTC, (2009) 6 SCC 121 : (2009) 2 SCC (Civ) 770 :
(2009) 2 SCC (Cri) 1002], this Court has noted the earlier deci-
sions in Susamma Thomas [Ker-
ala SRTC v. Susamma Thomas, (1994) 2 SCC 176 : 1994 SCC (Cri) 335], Sarla Dixit [(1996) 3 SCC 179] and Abati Bezbaruah [Abati Bezbaruah v. Geological Survey of India, (2003) 3 SCC 148 : 2003 SCC (Cri) 746] and in Suit No.901/11 - Raj Kumari & Ors. vs. Phool Kumar @ Phool Kanwar & Ors. Page 17 of 31 para 24 of the Report held as un- der: (Sarla Verma case [Sarla Verma v. DTC, (2009) 6 SCC 121 : (2009) 2 SCC (Civ) 770 :
(2009) 2 SCC (Cri) 1002] , SCC p. 134):
"24. ... In view of the imponder- ables and uncertainties, we are in favour of adopting as a rule of thumb, an addition of 50% of actual salary to the actual salary income of the deceased towards future prospects, where the deceased had a permanent job and was below 40 years. (Where the annual income is in the taxable range, the words „ac- tual salary‟ should be read as „ac- tual salary less tax‟). The addition should be only 30% if the age of the deceased was 40 to 50 years. There should be no addition, where the age of the deceased is more than 50 years. Though the evidence may in- dicate a different percentage of increase, it is necessary to stan- dardise the addition to avoid differ- ent yardsticks being applied or dif- ferent methods of calculation being adopted. Where the deceased was self-employed or was on a fixed salary (without provision for annual increments, etc.), the courts will usually take only the actual income at the time of death. A departure therefrom should be made only in rare and exceptional cases involv- ing special circumstances."
39. The standardization of addition to income for future prospects shall help in achieving certainty in arriv- ing at appropriate compensation.
We approve the method that an ad-
dition of 50% of actual salary be made to the actual salary income of Suit No.901/11 - Raj Kumari & Ors. vs. Phool Kumar @ Phool Kanwar & Ors. Page 18 of 31 the deceased towards future prospects where the deceased had a permanent job and was below 40 years and the addition should be only 30% if the age of the deceased was 40 to 50 years and no addition should be made where the age of the deceased is more than 50 years.
Where the annual income is in the taxable range, the actual salary shall mean actual salary less tax. In the cases where the deceased was self-employed or was on a fixed salary without provision for annual increments, the actual income at the time of death without any addition to income for future prospects will be appropriate. A departure from the above principle can only be jus-
tified in extraordinary circum-
stances and very exceptional cases."
12. The learned counsel for the Insurance Company relies upon a Constitutional Bench judgment of the Supreme Court in Central Board of Dawoodi Bohra Community & Anr. v. State of Maharashtra & Anr., (2005) 2 SCC 673; Safiya Bee v. Mohd. Vajahath Hussain @ Fasi, (2011) 2 SCC 94; and Union of India & Ors. v. S.K. Kapoor, (2011) 4 SCC 589 to contend that in case of divergence of opinion in judgments of benches of co-equal strength, earlier judg- ment will be taken as a binding precedent.
13. It may be noted that in Reshma Kumari & Ors. v. Madan Mohan & Anr., (2013) 9 SCC 65; the three Judge Bench was dealing with a reference made by a two Judge Bench (S.B. Sinha and Cyriac Joseph, J.J.). The two Hon'ble Judges wanted an authoritative pronouncement from a Larger Bench on the question of applicability of the multiplier and whether the inflation was built in the multiplier. The three Judge Bench approved Suit No.901/11 - Raj Kumari & Ors. vs. Phool Kumar @ Phool Kanwar & Ors. Page 19 of 31 the two Judge Bench decision of the Supreme Court in Sarla Verma (Smt.) & Ors. v. Delhi Transport Corporation & Anr., (2009) 6 SCC 121 with regard to the selec- tion of multiplier. It further laid down that addition towards future prospects to the ex- tent of 50% of the actual salary shall be made towards future prospects when the de- ceased had a permanent job and was below 40 years and addition of 30% should be made if the age of the deceased was between 40-50 years. No addition towards future prospects shall be made where the deceased was self-employed or was getting a fixed salary without any provision of annual in- crement.
14. Of course, three Judge Bench of the Supreme Court in its later judgment in Ra- jesh relying on Santosh Devi v. National In- surance Company Ltd. & Ors., 2012 (6) SCC 421 observed that there would be addi- tion of 30% and 50%, depending upon the age of the deceased, towards future prospects even in the case of self-employed persons. It may, however, be noted that in Rajesh, the three Judge Bench decision in Reshma Kumari (supra) was not brought to the notice of their Lordships.
15. The divergence of opinion was noted by another three Judge Bench of the Supreme Court in Sanjay Verma v. Haryana Road- ways, (2014) 3 SCC 210. In paras 14 and 15, the Supreme Court observed as under:-
"14. Certain parallel developments will now have to be taken note of. In Reshma Kumari v. Madan Mohan [(2009) 13 SCC 422 :
(2009) 5 SCC (Civ) 143 : (2010) 1 SCC (Cri) 1044], a two-Judge Bench of this Court while considering the following ques-
tions took the view that the issue(s) needed resolution by a larger Bench: (SCC p. 425, para 10) Suit No.901/11 - Raj Kumari & Ors. vs. Phool Kumar @ Phool Kanwar & Ors. Page 20 of 31 "(1) Whether the multiplier speci-
fied in the Second Schedule append-
ed 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 re-
gards determination of future
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 (Civ) 191 : (2013) 3 SCC (Cri) 826] (SCC p.
88, para 36) reiterated the view taken in Sarla Verma [Sarla Verma v. DTC, (2009) 6 SCC 121 : (2009) 2 SCC (Civ) 770 : (2009) 2 SCC (Cri) 1002] to the effect that in respect of a person who was on a fixed salary without provision for annual increments or who was self- employed the actual income at the time of death should be taken into account for determining the loss of income un- less there are extraordinary and excep- tional circumstances. Though the ex- pression "exceptional and extraordi- nary circumstances" is not capable of any precise definition, in Shakti Devi v. New India Insurance Co. Ltd. [(2010) 14 SCC 575 : (2012) 1 SCC (Civ) 766 :
(2011) 3 SCC (Cri) 848] there is a practical application of the aforesaid principle. The near certainty of the reg-
ular employment of the deceased in a government department following the retirement of his father was held to be a valid ground to compute the loss of in- come by taking into account the possi- ble future earnings. The said loss of in- come, accordingly, was quantified at double the amount that the deceased was earning at the time of his death."
Suit No.901/11 - Raj Kumari & Ors. vs. Phool Kumar @ Phool Kanwar & Ors. Page 21 of 3116. Further, the divergence of opinion in Reshma Kumari & Ors. v. Madan Mohan & Anr., (2013) 9 SCC 65 and Rajesh & Ors. v. Rajbir Singh & Ors., (2013) 9 SCC 54 was noticed by the Supreme Court in another lat- est judgment in National Insurance Compa- ny 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 pro- nouncement. Therefore, we think it appropriate to refer the matter to a larg- er Bench."
17. Now, the question is which of the judg- ments ought to be followed awaiting answer to the reference made by the Supreme Court in Pushpa & Ors. (supra).
18. In Central Board of Dawoodi Bohra Community & Anr. v. State of Maharashtra & Anr., (2005) 2 SCC 673 in para 12, the Supreme Court observed as under:-
"12. Having carefully considered the submissions made by the learned Se- nior Counsel for the parties and hav- ing examined the law laid down by the Constitution Benches in the abovesaid decisions, we would like to sum up the legal position in the following terms:
(1) The law laid down by this Court in a decision delivered by a Bench of larger strength is binding on any sub-Suit No.901/11 - Raj Kumari & Ors. vs. Phool Kumar @ Phool Kanwar & Ors. Page 22 of 31
sequent Bench of lesser or coequal strength.
(2) [Ed.: Para 12(2) corrected vide Official Corrigendum No. F.3/Ed.B.J./21/2005 dated 3- 3-2005.] A Bench of lesser quorum can- not disagree or dissent from the view of the law taken by a Bench of larger quorum. In case of doubt all that the Bench of lesser quorum can do is to invite the attention of the Chief Justice and request for the matter being placed for hearing before a Bench of larger quorum than the Bench whose deci- sion has come up for consideration. It will be open only for a Bench of coequal strength to express an opinion doubting the correct- ness of the view taken by the earlier Bench of coequal strength, whereupon the matter may be placed for hearing before a Bench consisting of a quorum larger than the one which pronounced the decision laying down the law the correctness of which is doubted.
(3) [Ed.: Para 12(3) corrected vide Official Corrigendum No. F.3/Ed.B.J./7/2005 dated 17- 1-2005.] The above rules are subject to two exceptions: (i) the abovesaid rules do not bind the discretion of the Chief Justice in whom vests the power of framing the roster and who can direct any particular matter to be placed for hearing before any particular Bench of any strength; and (ii) in spite of the rules laid down hereinabove, if the matter has already come up for hearing before a Bench of larger quorum and that Bench it- self feels that the view of the law taken by a Bench of lesser quorum, which view is in doubt, needs correction or reconsideration then by way of exception (and not as a rule) and for reasons given by it, it may proceed to hear the case and examine the correctness of the previous decision in question dispens- ing with the need of a specific reference or the order of the Chief Justice constituting the Bench and such listing. Such was the sit- uation in Raghubir Singh [(1989) 2 SCC Suit No.901/11 - Raj Kumari & Ors. vs. Phool Kumar @ Phool Kanwar & Ors. Page 23 of 31 754] and Hansoli Devi [(2002) 7 SCC 273]."
19. Similarly, in Safiya Bee v. Mohd. Vaja- hath Hussain @ Fasi, (2011) 2 SCC 94 in para 27, the Supreme Court observed as un- der:-
"27. However, even assuming that the decision in WP No. 35561 of 1998 did not operate as res judicata, we are to observe that even if the learned Judges who decided WP No. 304 of 2001 did not agree with the view taken by a coordinate Bench of equal strength in the earlier WP No. 35561 of 1998 regarding the inter- pretation 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 well-accepted and desirable practice is that the later Bench would refer the case to a larger Bench."
20. In Union of India & Ors. v. S.K. Kapoor, (2011) 4 SCC 589 while holding that the 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 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 Suit No.901/11 - Raj Kumari & Ors. vs. Phool Kumar @ Phool Kanwar & Ors. Page 24 of 31 591] was prior to the decision in T.V. Patel case [(2007) 4 SCC 785 :
(2007) 2 SCC (L&S) 98] . It is well settled that if a subsequent coordinate Bench of equal strength wants to take a different view, it can only refer the matter to a larger Bench, otherwise the prior decision of a coordinate Bench is binding on the subsequent Bench of equal strength. Since, the de-
cision in S.N. Narula case [(2011) 4 SCC 591] was not noticed in T.V. Pa-
tel case [(2007) 4 SCC 785 : (2007) 2 SCC (L&S) 98] , the latter decision is a judgment per incuriam. The 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 re- port in S.K. Kapoor (supra), the three Judge Bench decision in Reshma Kumari & Ors. (supra) shall be taken as a binding prece- dent."
21.In the instant case, the deceased's actual or potential income is taken as Rs.20,000/- per month. Even if it is taken that the deceased was working with 'Dainik Janwani Samachar Patra', there was no evidence with regard to his good future prospects or that the deceased was in permanent employment.
22.Thus, in absence of any evidence of good future prospects, no addition towards future prospects ought to have been made by the Claims Tribunal."
In view of the legal position as discussed by the Hon'ble High Court and in absence of any evidence with regard to good future prospects of deceased, addition of Suit No.901/11 - Raj Kumari & Ors. vs. Phool Kumar @ Phool Kanwar & Ors. Page 25 of 31 income towards future prospects cannot be made for the purpose of compensation.
(c) Deduction towards personal and living expenses of the deceased:
The deceased is survived by three dependents i.e. wife and two minor children.
As per Sarla Verma (Smt.) & Ors. vs. Delhi Transport Corporation & Anr. (2009) 6 SCC 121, where the deceased was married, 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.
Accordingly deduction towards personal and living expenses of the deceased shall be 1/3rd considering the number of dependents as 3 as held in Sarla Verma (supra).
(d) Selection of multiplier:
As per copy of School Transfer Certificate of petitioner (Mark Z-2), the date of birth of deceased was 01.07.1971 and as such he was aged about 39 years 11 months approximately on the date of accident. Accordingly, as held in Sarla Verma (Smt.) & Ors. vs. Delhi Transport Corporation & Suit No.901/11 - Raj Kumari & Ors. vs. Phool Kumar @ Phool Kanwar & Ors. Page 26 of 31 Anr. (2009) 6 SCC 121, the multiplier of 15 is to be adopted for the purpose of assessment.
(e) Loss of financial dependency In the light of aforesaid facts, loss of financial dependency of the petitioners comes to Rs.9,39,120/-{i.e. Rs.7,826/- (monthly income) X 12 (months) X 15 (multiplier) X 2/3 (dependency)}.
9. 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, Hon'ble Supreme Court awarded Rs.
1,00,000/ towards loss of estate in the case of Asha Verman & Others v. Maharaj Singh & Others, 2015 ACJ 1286 relying upon Kalpanaraj v. State of Tamil Nadu State Trans. Corpn., 2014 ACJ 1388 (SC). Further, interest @ 9% per annum was awarded on the award amount by the Hon'ble Apex Court in Suit No.901/11 - Raj Kumari & Ors. vs. Phool Kumar @ Phool Kanwar & Ors. Page 27 of 31 Municipal Corporation of Delhi v. Association of Victims of Uphaar Tragedy, 2012 ACJ 48 (SC).
Accordingly, petitioners are entitled to Rs.1 lakh towards loss of estate, Rs.1 lakh towards loss of consortium to wife, Rs.1 lakh towards loss of love and affection to children and Rs.25,000/ towards funeral expenses.
10. The petitioners/claimants are accordingly entitled to compensation computed as under:
Loss of financial dependency Rs.9,39,120/-
Loss of love and affection to children Rs.1,00,000/
Loss of consortium to wife Rs.1,00,000/
Loss of Estate Rs.1,00,000/
Funeral Expenses Rs.25,000/
______________
Total Rs.12,64,120/
________________
(Rupees Twelve Lakh Sixty Four Thousand One Hundred and Twenty only) The claimants/petitioners are also entitled to interest @ 9% p.a. from the date of filing of petition i.e. w.e.f. 19.12.2011 Suit No.901/11 - Raj Kumari & Ors. vs. Phool Kumar @ Phool Kanwar & Ors. Page 28 of 31 till realization.
The amount of interim award, if any, shall be deducted from the above amount, if the same has already been paid to the petitioners.
11. For the purpose of disbursement, petitioner no.1 Smt. Raj Kumari (wife of deceased) shall be entitled to 60% and petitioner no. 2 Indu and petitioner no.3 Bhim Sen (i.e. minor children of deceased) shall be entitled to 20% each of the award amount and proportionate interest thereon.
On realization, an amount of Rs.1,50,000/- (Rupees One Lakh Fifty Thousand Only) shall be released to petitioner no. 1 Smt. Raj Kumari from her share. The amount of share of petitioner no. 2 & 3 (i.e. minor children of deceased) along with proportionate up-to-date interest shall be kept in fixed deposit in their respective names with a nationalised bank till they attain the age of majority without the facility of advance, loan or premature withdrawal with release of quarterly periodical interest in the account of petitioner no. 1 being mother/natural guardian.
Further, the remaining amount of share of petitioner no. 1 Smt. Raj Kumari (wife of deceased) along with proportionate up-to-date interest shall be kept in ten fixed deposits of equal amount in her name for a period of one year, two years, three years, four years, five years, six years, seven Suit No.901/11 - Raj Kumari & Ors. vs. Phool Kumar @ Phool Kanwar & Ors. Page 29 of 31 years, eight years, nine years and ten years respectively without the facility of advance, loan or premature withdrawal with release of quarterly periodical interest in her account.
12. Relief Since the offending vehicle was duly insured, Respondent No.3/Shriram General Insurance Company Ltd. is directed to deposit the award amount of Rs.12,64,120/ with interest @ 9% per annum from the date of filing of claim petition i.e. 19.12.2011 till realization with Nazir 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/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 this amount with the Tribunal to the claimant and complete details in respect of calculations of interest etc. in the court within 30 days from today.
A copy of this judgement be sent to respondent No.3/ Shriram General Insurance Company Ltd. for compliance within the time granted.
Nazir is directed to place a report on record in the event of non-receipt/deposit of the compensation amount within the Suit No.901/11 - Raj Kumari & Ors. vs. Phool Kumar @ Phool Kanwar & Ors. Page 30 of 31 time granted.
File be consigned to Record Room.
Announced in open court (Anoop Kumar Mendiratta) on 31st October, 2015 Judge MACT-1 (Central), Tis Hazari Courts, Delhi Suit No.901/11 - Raj Kumari & Ors. vs. Phool Kumar @ Phool Kanwar & Ors. Page 31 of 31