Delhi District Court
Ms. Neelam W/O Late Sh. Dheeraj Kumar vs Sh. Rakesh S/O Sh. Nayadar Singh on 3 October, 2015
IN THE COURT OF MS. SANTOSH SNEHI MANN,
JUDGE, MOTOR ACCIDENT CLAIMS TRIBUNAL02, WEST DISTRICT,
TIS HAZARI COURTS, DELHI
Suit No.: 634/2014
Unique Case ID No.: 02401C049702013
1. Ms. Neelam W/o Late Sh. Dheeraj Kumar
2. Ms. Pearl D/o Late Sh. Dheeraj Kumar - aged 06 years
3. Ms. Bhumika D/o Late Sh. Dheeraj Kumar - aged 04 years
4. Sh. Naman S/o Late Sh. Dheeraj Kumar - 03 years
5. Sh. Mahavir Prasad S/o Late Sh. Jai Narain
(Petitioners No. 2 & 4 are minor through their mother and
natural guardian Ms. Neelam, Petitioner No. 1).
All R/o: House No. 135, Ward No. 19, Gali No. 2,
Nai Basti, Bahadurgarh, Distt. Jhajjar,
Haryana - 124507. .......... Petitioners
Versus
1. Sh. Rakesh S/o Sh. Nayadar Singh
R/o: House No. 150, VPO Ladrawan,
Tehsil Bahadurgarh, Distt. Jhajjar,
Haryana.
(DrivercumOwner)
2. IFFCO Tokio General Insurance Company Limited
th
503, 5 Floor, Aggarwal Millennium Tower,
Netaji Subhash Place, Pitampura,
New Delhi - 110034
(Insurer) .......... Respondents
Date of Institution : 20.09.2013
Arguments heard on : 28.09.2015
Judgment pronounced on : 03.10.2015
Suit No.: 634/2014 Page No. 1 of 31
AWARD
This is a claim petition filed under Section 166 & 140 of the Motor Vehicles Act, 1988 (hereinafter referred as M. V. Act) by the wife, children and parents of the deceased Dheeraj Kumar for compensation of Rs. 50,00,000/ (Rupees Fifty Lacs Only) alongwith interest @ 18% p.a. in respect of fatal injuries suffered by Dheeraj Kumar in a vehicular accident on the intervening night of 04 & 05.09.2013.
2. Detailed Accident Report (DAR) has been filed by the Investigating Officer (hereinafter referred as IO) containing copy of the criminal proceedings including FIR and the ChargeSheet.
3. Brief facts of the vehicular accident as averred in the Claim Petition and DAR are that on the intervening night of 04 & 05.09.2013 deceased Dheeraj Kumar left his shop at Delhi Haat, INA Market, New Delhi in Wagon R Car bearing Registration No. DL2CAA6451 at about 11.00 O'clock in the night. When the deceased reached at the crossing of Jagdev Singh Tillu Marg and New Rohtak Road Tikri Kalan, Mundka, Delhi, he was hit by a Dumper bearing Registration No. HR63A9825. Allegedly the dumper coming from Bahadurgarh side at a high speed, hit the car of the deceased, while taking a sudden UTurn at the crossing. The offending vehicle, Dumper bearing Registration No. HR63A9825, was driven by Rakesh (Respondent No. 1), who is also the registered owner of the vehicle, which was insured with IFFCO Tokio General Insurance Company Limited, respondent No. 2. Consequent to the violent impact, car driver, Dheeraj Kumar suffered grievous injuries and died in the hospital.
4. FIR No. 188/2013, under Section 279/337 IPC was registered at Police Station Mundka about the accident. Matter was investigated by the police and chargesheet has been filed under Section 279/304A IPC against Rakesh, driver Suit No.: 634/2014 Page No. 2 of 31 cumowner of the offending vehicle (Respondent No. 1).
5. In the written statement filed by Rakesh, drivercumowner of the offending vehicle (Respondent No. 1), it is not disputed that the offending vehicle Dumper bearing Registration No. HR63A9825 was involved in the accident. It is also not disputed that the answering respondent was driving the offending vehicle at the time of the accident. However, it is claimed that the accident took place due to negligence of the deceased. It is averred that the offending vehicle was duly insured with IFFCO Tokio General Insurance Company Limited, respondent No. 2 vide Policy No. 82421554 valid from 29.12.2012 to 28.12.2013.
6. In the written statement filed by IFFCO Tokio General Insurance Company Limited, respondent No. 2, it is admitted that the offending vehicle Dumper bearing Registration No. HR63A9825 involved in the accident was duly insured vide Policy No. 82421554 valid from 29.12.2012 to 28.12.2013 in the name of Rakesh, respondent No. 1, including the date of the accident. However, liability of the Insurance Company is contested on the ground that there is a violation of permit.
7. From the pleadings of the parties, contentions raised and material on record, the following issues were framed by the Ld. Predecessor vide order dated 19.07.2014:
1. Whether the deceased late Sh. Dheeraj Kumar suffered fatal injuries in an accident that took place on 04.09.2013 at about 11.00 pm involving Dumper bearing No. HR63A9825 driven and owned by respondent No. 1 and insured with respondent No. 2/Insurance Company?
OPP
2. Whether the petitioner is entitled for compensation? If so, to what amount and from whom?
Suit No.: 634/2014 Page No. 3 of 31
3. Relief.
8. Petitioners have examined Ms. Neelam, wife fo the deceased as PW1 and an eye witness Sh. Chander Kant @ Sunder Kant, as PW2.
9. Respondent No. 1 Rakesh, driver of the offending vehicle has examined himself as RW1 and Insurance Company has examined Sh. Abhishek Kujur, its Assistant Manager as R2W1.
10. I have heard Sh. S. K. Singh, counsel for the petitioner, Sh. Sanjay Dalal, counsel for the respondent No. 1 and Sh. Akshay Kumar, counsel for the respondent No. 2 Insurance Company. I have carefully perused the record.
11. My findings on the issues are as under:
Issue No. 1:
Whether the deceased late Sh. Dheeraj Kumar suffered fatal injuries in an accident that took place on 04.09.2013 at about 11.00 pm involving Dumper bearing No. HR63A9825 driven and owned by respondent No. 1 and insured with respondent No. 2/Insurance Company? OPP
12. In a claim petition filed by LRs of the deceased for compensation under Section 166 of the M. V. Act, onus is on the petitioners to prove that the deceased suffered fatal injuries in a vehicular accident caused by the wrongful act or negligence of the driver of the offending vehicle.
13. PW2 Sh. Chander Kant @ Sunder Kant is an eye witness and brother of the deceased. He has deposed in the affidavit (Ex. PW2/A) about the manner of the accident. He has also placed on record his driving license Ex. PW2/1. He has stated in the affidavit that on 04.09.2013 at about 11.00 pm he was going to Bahadurgarh on motorcycle while his deceased brother Dheeraj Kumar was going Suit No.: 634/2014 Page No. 4 of 31 ahead of him in the car. He stated that when the car reached at the crossing of Jagdev Singh Tillu Marg and main Rohtak Road near Tikri Kalan, Mundka, Delhi a Dumper bearing Registration No. HR63A9825 came from Bahadurgah side and took a sudden Uturn, in rash and negligent manner, as a result the Dumper hit the car of his brother, who suffered grievous injuries and died at Sanjay Gandhi Memorial Hospital due to the injuries received in the accident.
14. In the crossexamination of PW2 Sh. Chander Kant @ Sunder Kant on behalf of the respondent No. 1 Rakesh, it has come that the deceased was younger brother of this witness and that they both left their shop at Delhi Hatt, INA Market, New Delhi at about 09.30 pm. The witness was at a distance of about 4050 meters at the time of the accident and there was light on the road. The witness stated that police was called by some passerby and PCR came. He accompanied the PCR officials, who admitted his brother in the hospital. It has also come in the crossexamination that he remained in the hospital for about 20 minutes and thereafter got busy for making arrangements for ambulance to shift his injured brother to another hospital, but he died around 02.00 am. He denied the suggestion that he was not present at the spot or that he is not an eye witness of the accident. He denied the suggestion that he is a planted witness and denied the suggestion that accident took place due to negligence of his deceased brother.
15. It is a settled legal position that while deciding the petition under Section 166 of the M. V. Act, the Claims Tribunal has to decide negligence on the touch stone of preponderance of probabilities. Reference in this regard is made to the observations of the Hon'ble Supreme Court of India in Kaushnumma Begum and Others v/s New India Assurance Company Limited, 2001 ACJ 421 SC, wherein it was held that the issue of wrongful act or omission on the part of the Suit No.: 634/2014 Page No. 5 of 31 driver of motor vehicle involved in the accident is of secondary importance and mere use or involvement of motor vehicle in causing bodily injuries or death to a human being or damage to property would make the petition maintainable under Section 166 & 140 of the M. V. Act.
16. In this context observation of the Hon'ble High Court of Delhi in National Insurance Company Limited Vs. Pushpa Rana, 2009 ACJ 287 is also relevant.
It was held that if the petitioner files the certified copy of the criminal record showing the completion of investigation by the police or filing of charge sheet for the offences under Section 279/304A IPC or the certified copy of the FIR in addition to copy of recovery memo and mechanical inspection report of the offending vehicle, these documents are sufficient proof to reach at the conclusion in the enquiry proceedings that the driver was negligent. Hon'ble High Court also observed that the proceedings under the Motor Vehicles Act are not akin to the proceedings in a civil suit and therefore strict rules of evidence are not required to be followed in this proceedings.
17. This aspect was also considered recently by the High Court of Delhi in a matter titled United India Insurance Company Ltd. vs. Smt. Rinki @ Rinku & Others, MAC App. No. 200/2012 decided on 23.07.2012. The Court held as under:
"The Claims Tribunal was conscious of the fact that negligence is a sine qua non to a Petition under Section 166 of the Motor Vehicles Act, 1988 (the Act). It is also true that the proceedings for grant of compensation under the Act are neither governed by the criminal procedures nor are a civil suit. A reference may be made to a judgment of the Supreme Court Bimla Devi and Ors. vs. Himachal Suit No.: 634/2014 Page No. 6 of 31 Road Transport Corporation and Ors, (2009) 13 SC 530 where it was held as under:
"15. In a situation of this nature, the Tribunal has rightly taken a holistic view of the matter. It was necessary to be borne in mind that strict proof of any accident caused by a particular bus in a particular manner may not be possible to be done by the claimant. The claimants were merely to establish their case on the touchstone of preponderance of probability. The standard of proof beyond reasonable doubt could not have been applied."
18. Despite lengthy crossexamination of PW2 Sh. Chander Kant @ Sunder Kant, nothing has come in his crossexamination to create any doubt about the credibility of his statement and the fact that he is an eye witness. His testimony has remained unshaken on material facts of the accident. The witness has very specifically narrated the sequence of accident, which is supported and corroborated by the site plan filed in the DAR.
19. MarkA in the site plan is the place of the accident, which is the middle of the road at crossing. Direction of the car of the deceased on the main Rohtak Road shows that he was going straight. Direction of the offending vehicle dumper indicated in the site plan shows that while coming from Bahadurgarh side it took a right turn at the crossing either to take a UTurn or to enter Jagdev Singh Tillu Marg. Since the deceased was going straight on the road, he had the 'right to way' to go straight. Obligation was on the driver of the offending vehicle which took turn at the crossing to give way to the vehicle going straight on the main Rohtak Road. The site plan is not disputed. On the face of it, it shows total negligence and rashness on the part of the driver of the offending vehicle i.e. Suit No.: 634/2014 Page No. 7 of 31 Dumper bearing Registration No. HR63A9825.
20. Sh. Rakesh, driver of the offending vehicle filed affidavit (Ex. R1W1/A) and has testified that at the time of the accident when he took UTurn on main Rohtak Road Highway, deceased came from the Nangloi side in Wagon R Car in zigzag manner and dashed against the dumper driven by the respondent, which was in a stationary position. In the crossexamination on behalf of the petitioners, Rakesh (R1W1) admitted that on the basis of FIR filed against him, he was charge sheeted to face criminal trial. He also admitted that he has not filed any complaint to any authority for false implication in this case. Ofcourse, he denied the suggestion that the accident took place due to his negligence. In the cross examination on behalf of the IFFCO Tokio General Insurance Company Limited, he admitted that permit of the vehicle is valid for Haryana State whereas the accident took place in Delhi.
21. Deposition of driver of the offending vehicle Rakesh as R1W1 has failed to substantiate the defence taken that the car hit the stationary dumper at the crossing. Whereas, testimony of eye witness PW2 Sh. Chander Kant @ Sunder Kant and the fact that driver of the dumper has been chargesheeted to face criminal trial for rash and negligent driving and for causing death consequently establish that the accident was caused due to rash and negligent driving of Rakesh, driver of the dumper.
22. According to the Postmortem Report of the deceased Dheeraj Kumar filed alongwith the DAR, he died due to cerebral damage as a result of blunt force impact and all injuries were antimortem in nature possible in the manner alleged i.e. Road Traffic Accident.
23. On the basis of material on record, above observations and discussion, I Suit No.: 634/2014 Page No. 8 of 31 hold that the accident involving Dumper bearing Registration No. HR63A9825, took place due to negligence of its driver Rakesh, respondent No. 1 and further that deceased Dheeraj Kumar died of fatal injuries suffered in this accident.
24. Issue No. 1 is decided in favour of the petitioner and against the respondents.
Findings on Issue No. 2:
Whether the petitioner is entitled for compensation? If so, to what amount and from whom?
25. In Sarla Verma (Smt) and Others vs. Delhi Transport Corporation and Another, (2009) 6 Supreme Court Cases 121, Hon'ble Supreme Court of India laid down general principals for computation of compensation in death cases. The relevant paras of the judgment are reproduced as under:
18. Basically only three facts need to be established by the claimants for assessing compensation in the case of death:
(a) age of the deceased;
(b) income of the deceased; and
(c) the number of dependents.
This issues to be determined by the Tribunal to arrive at the loss of dependency are:
(i) additions/deductions to be made for arriving at the income;
(ii) the deduction to be made towards the personal living expenses of the deceased; and
(iii) the multiplier to be applied with reference to the age of the deceased.
If these determinations are standardized, there will be uniformity and consistency in the decisions. There will be lesser need for detailed evidence. It will also be easier for the Insurance Companies to settle accident claims without delay.
19. To have uniformity and consistency, the Tribunals Suit No.: 634/2014 Page No. 9 of 31 should determine compensation in cases of death, by the following wellsettled steps:
Step1 (Ascertaining the multiplicand) The income of the deceased per annum should be determined. Out of the said income a deduction should be made in regard to the amount which the deceased would have spent on himself by way of personal and living expenses. The balance, which is considered to be the contribution to the dependent family, constitutes the multiplicand.
Step2 (Ascertaining the multiplier) Having regard to the age of the deceased and period of active career, the appropriate multiplier should be selected. This does not mean ascertaining the number of years he would have lived or worked but for the accident. Having regard to several imponderables in life and economic factors, a table of multiplier with reference to the age has been identified by this Court. The multiplier should be chosen from the said table with reference to the age of the deceased.
Step3 (Actual Calculation) The annual contribution to the family (multiplicand) when multiplied by such multiplier gives the 'loss of dependency' to the family.
Thereafter, a conventional amount in the range of Rs. 5,000/ to Rs. 10,000/ may be added as loss of estates. Where the deceased is survived by his widow, another conventional amount in the range of Rs. 5,000/ to Rs. 10,000/ should be added under the head of loss of consortium. But no amount is to be awarded under the head of pain, suffering or hardship caused to the legal heirs of the deceased.
The funeral expenses, cost of transportation of the body (if incurred) and the cost of any medical treatment of the deceased before death (if incurred) should also be added.Suit No.: 634/2014 Page No. 10 of 31
Age of the deceased
26. PW1 Ms. Neelam, wife of the deceased Dheeraj Kumar, has filed on record Matriculation Examination Award Sheet of the deceased issued by Board of School Education Haryana as Ex. PW1/12, which shows Date of Birth the deceased Dheeraj Kumar as 30.12.1978. This document has not been disputed by any of the respondents. The accident took place on 04.09.2013. As per the document on record, age of the deceased was 34 years and 09 months on the date of the accident.
Income of the deceased
27. PW1 Neelam, wife of the deceased has deposed in the affidavit (Ex. PW1/A) that her husband was doing the business of Wooden Handicraft and was earning Rs. 20,000/ per month. Senior Secondary Certificate Examination (Ex. PW1/10) is filed as proof of educational qualification of the deceased. She has also filed on record copy of a Certificate issued by Haryana State Karigar Association (Regd.), Bahadurgarh in the name of the deceased for doing one year skilled course in Wooden Craft as Ex. PW1/9 and Provisional National Trade Cer tificate Ex. PW1/11, issued to the deceased by Department of Industrial Training and Vocational Education, Haryana for undergoing 02 years training. These documents have also been filed by the IO in the DAR and nothing has come in the crossexamination of the witness to dispute these documents, which proves that deceased was a skilled craftsman in wooden work.
28. In the crossexamination of PW1 Ms. Neelam, she has stated that her husband was not an Income Tax Assessee and that there are no documents to show employment of her deceased husband in Wooden Handicraft. Suit No.: 634/2014 Page No. 11 of 31
29. While the counsel for the petitioners has submitted that monthly income of the deceased be assessed on the basis of Minimum Wages Rates of a Skilled Person in Delhi, it is argued by the counsel for the Insurance Company that since there is no proof of employment of the deceased as a Craftsman, his monthly income be assessed on the basis of Minimum Wages of an unskilled person. Another argument of the counsel for the Insurance Company is that Minimum Wages applicable in Haryana be taken into consideration because the documents filed on record are of Haryana and there is no document of employment of the de ceased in Delhi.
30. The undisputed documents on record prove and establish that deceased was a 12th pass Skilled Craftsman of Wood Work. In the absence of any document of specific employment, monthly income of the deceased can be assessed on the basis of Minimum Wages of a 12th pass Skilled Worker.
31. Now the issue for consideration is whether Minimum Wages applicable in Delhi or in Haryana would be applicable to assess income of the deceased. As per the statement of PW2 Sh. Chander Kant @ Sunder Kant, brother of the deceased and also the criminal proceedings, the deceased and his brother PW2 Sh. Chander Kant @ Sunder Kant were running a shop at Delhi Hatt, INA Market, New Delhi. At the time of the accident, they were returning home to Bahadurgarh. These facts have not been controverted by the respondents either by way of evidence or by way of crossexamination of the witnesses. Just because the certificates of skill qualification & the education and residence is of Haryana, is no ground to presume that the deceased shall be working only in Haryana. It is a matter of common knowledge that people living in neighbouring cities of Delhi in NCR, daily commute to Delhi for work and return. Therefore, keeping in view the Suit No.: 634/2014 Page No. 12 of 31 specific statement of PW2 Sh. Chander Kant @ Sunder Kant and copy of the criminal proceedings where it has come specifically that deceased alongwith his brother was running a Handicraft Shop at Delhi Hatt, INA Market, New Delhi, it is believed that deceased was working in Delhi. Therefore, monthly income of the deceased is to be assessed on the basis of Minimum Wages of a Skilled 12 th pass worker in Delhi. Accordingly, monthly income of the deceased at the time of the accident is assessed as Rs. 9,386/ (Rupees Nine Thousand Three Hundred Eighty Six only) and the annual income of the deceased would be Rs. 1,12,632/ {(Rs. 9,386 X 12) (Rupees One Lac Twelve Thousand Six Hundred Thirty Two Only)}.
Number of dependents:
32. It is the case of the petitioners that deceased is survived by his wife Ms. Neelam, his three minor children (Baby Pearl, Baby Bhumika and Master Naman), his father Sh. Mahavir Prasad and mother Ms. Santra.
33. It has come in the affidavit of PW1 Ms. Neelam, wife of the deceased that her motherinlaw Ms. Santra (Petitioner No. 6) has died on 12.05.2014 during the pendency of the case. Consequently, Ms. Santra, (Petitioner No. 6) has been deleted from the array of the parties by the Ld. Predecessor vide order dated 25.11.2014.
34. It has also come in the crossexamination of PW1 Ms. Neelam that Mahavir Prasad, father of the deceased (Petitioner No. 5) is engaged in the business of Wooden Craft. Therefore, he cannot be dependent on the deceased.
35. In the above circumstances, deceased is survived by four dependent LRs, which includes his wife Ms. Neelam and three minor children namely Suit No.: 634/2014 Page No. 13 of 31 Ms. Pearl (Date of Birth 19.02.2007), Ms. Bhumika (Date of Birth 14.12.2008) and Sh. Naman (Date of Birth 23.07.2010).
Addition in the income towards future prospects:
36. Petitioners have sought addition in the income of the deceased towards future prospects to the extent of Rs. 50%, since he was employed as a Craftsman. It is contested by the counsel for the respondent Insurance Company on the ground that no such addition can be given in the absence of evidence in this regard.
37. As far as the addition towards the future prospects is concerned the issue has been examined at great length by the Hon'ble High Court of Delhi in various judgments wherein the law laid down in Sarla Verma (Smt.) & Ors. vs. Delhi Transport Corporation & Anr. (2009) 6 SCC 121 and Reshma Kumari & Ors. Vs. Madan Mohan & Anr. (2013) 9 SCC 65 has been analysed in detail. Reference may be made to MAC APP. 325/2013 decided on 28th January, 2015 U.P. State Road Transport Corporation vs. Shahida & Ors. By the Hon'ble Mr. Justice G. P. Mittal. In the aforesaid case, deceased Shaukat Ali aged about 37 years was alleged to be supplying milk and earning Rs.10,000/ per month and the Tribunal had awarded addition of 30% towards future prospects of the income of the deceased. However, it was held by the Hon'ble High Court that no addition of 30% towards future prospects was permissible in the absence of any evidence with regard to future prospects. The observations made by the Hon'ble High Court on the aspect of calculation of future prospects as discussed in para 7 of aforesaid judgment in this regard are quoted for reference:
Suit No.: 634/2014 Page No. 14 of 31
"7. As far as addition towards future prospects is concerned, the issue has been examined at great length by this Court in MAC APP. No. 189/2014 HDFC ERGO General Insurance Company Limited vs. Smt. Lalta Devi & Ors. 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 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.) & Or.s vs. 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 179 and Abati Bezbaruah v. Dy. Director Genera, Geological Survey of India & Anr., 2003 (3) SCC 148, the Supreme Court held as under:
Suit No.: 634/2014 Page No. 15 of 31 "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 Suit No.: 634/2014 Page No. 16 of 31 standardise the addition to avoid different yardsticks being applied or different methods of calculation being adopted. Where the deceased was selfemployed or was on a fixed salary (without provision for annual increments, etc.), the courts will usually take only the actual income at the time of death. A departure therefrom should be made only in rare and exceptional cases involving special circumstances."
39. The standardization of addition to income for future prospects shall help in achieving certainty in arriving at appropriate compensation. We approve the method that an addition of 50% of actual salary be made to the actual salary income of the deceased towards future prospects where the deceased had a permanent job and was below 40 years and the addition should be only 30% if the age of the deceased was 40 to 50 years and no addition should 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 Suit No.: 634/2014 Page No. 17 of 31 departure from the above principle can only be justified in extraordinary circumstances and very exceptional cases."
12. The learned counsel for the Insurance Company relies upon a Constitutional Bench judgment of the Supreme Court in Central Board of Dawoodi Bohra Community & Anr.
v. State of Maharashtra & Anr., (2005) 2 SCC 673; Safiya Bee v. Mohd. Vajahath Hussain @ Fasi, (2011) 2 SCC 94; and Union of India & Ors. v. S.K. Kapoor, (2011) 4 SCC 589 to contend that in case of divergence of opinion in judgments of benches of coequal strength, earlier judgment will be taken as a binding precedent.
13. It may be noted that in Reshma Kumari & Ors. v. Madan Mohan & Anr., (2013) 9 SCC 65; the three Judge Bench was dealing with a reference made by a two Judge Bench (S.B. Sinha and Cyriac Joseph, J.J.). The two Hon‟ble Judges wanted an authoritative pronouncement from a Larger Bench on the question of applicability of the multiplier and whether the inflation was built in the multiplier. The three Judge Bench approved the two Judge Bench decision of the Supreme Court in Sarla Verma (Smt.) & Ors. v. Delhi Transport Corporation & Anr., (2009) 6 SCC 121 with regard to the selection of multiplier. It further laid down that addition towards future prospects to the extent of 50% of the actual salary shall be made towards future prospects when the deceased had a permanent job and was below 40 years and addition of 30% should be made if the age of Suit No.: 634/2014 Page No. 18 of 31 the deceased was between 4050 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 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 selfemployed persons. It may, however, be noted that in Rajesh, the three Judge Bench decision in Reshma Kumari (supra) was not brought to the notice of their Lordships.
15. The divergence of opinion was noted by another three Judge Bench of the Supreme Court in Sanjay Verma v. Haryana Roadways, (2014) 3 SCC 210. In paras 14 and 15, the Supreme Court observed as under:
"14. Certain parallel developments will now have to be taken note of. In Reshma Kumari v. Madan Mohan [(2009) 13 SCC 422 : (2009) 5 SCC (Civ) 143 : (2010) 1 SCC (Cri) 1044], a twoJudge Bench of this Court while considering the following questions took the view that the issue(s) needed resolution by a larger Bench:
(SCC p.425, para 10).
"(1) Whether the multiplier specified in the Second Schedule appended to the Act should be Suit No.: 634/2014 Page No. 19 of 31 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 self employed 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 Company Limited [(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 Suit No.: 634/2014 Page No. 20 of 31 be a valid ground to compute the loss of income by taking into account the possible future earnings. The said loss of income, accordingly, was quantified at double the amount that the deceased was earning at the time of his death."
16. Further, the divergence of opinion in Reshma Kumari & Ors. v. Madan Mohan & Anr., (2013) 9 SCC 65 and Rajesh & Ors. v.
Rajbir Singh & Ors., (2013) 9 SCC 54 was noticed by the Supreme Court in another latest judgment in National Insurance Company Ltd. v. Pushpa & Ors., CC No.8058/2014, decided on 02.07.2014 and in concluding paragraph while making reference to the Larger Bench, the Supreme Court held as under:
"Be it noted, though the decision in Reshma (supra) was rendered at earlier point of time, as is clear, the same has not been noticed in Rajesh (supra) and that is why divergent opinions have been expressed. We are of the considered opinion that as regards the manner of addition of income of future prospects there 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).
Suit No.: 634/2014 Page No. 21 of 31
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 3.3.2005.] A Bench of lesser quorum cannot disagree or dissent from the view of the law taken by a Bench of larger quorum. In case of doubt all that the Bench of lesser quorum can do is to invite the attention of the Chief 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 Suit No.: 634/2014 Page No. 22 of 31 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 (ii) in spite of the rules laid down hereinabove, if the matter has already come up for hearing before a Bench of larger quorum and that Bench itself feels that the view of the law taken by a Bench of lesser quorum, which view is in doubt, needs correction or 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 specif ic reference or the order of the Chief Justice constituting the Bench and such listing. Such was the situation in Raghubir Singh [(1989) 2 SCC 754] and Hansoli Devi [(2002) 7 SCC 273]."
19. Similarly, in Safiya Bee v. Mohd. Vajahath Suit No.: 634/2014 Page No. 23 of 31 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 resjudicata, we are to observe that even if the learned Judges who decided WP No. 304 of 2001 did not agree with the view taken by a coordinate Bench of equal strength in the earlier WP No. 35561 of 1998 regarding the interpretation of Section 2(c) of the Act and its 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 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 Suit No.: 634/2014 Page No. 24 of 31 case [(2007) 4 SCC 785 : (2007) 2 SCC (L&S) 98]. It is well settled that if a subsequent coordinate Bench of equal strength wants to take a different view, it can only refer the matter to a larger Bench, otherwise the prior decision of a coordinate Bench is binding on the subsequent Bench of equal strength.
Since, the decision in S.N. Narula case [(2011) 4 SCC 591] was not noticed in T.V. Patel case [(2007) 4 SCC 785 :
(2007) 2 SCC (L&S) 98], the latter decision is a judgment per incuriam.
The decision in S.N. Narula case [(2011) 4 SCC 591] was binding on the subsequent Bench of equal strength and hence, it could not take a contrary view, as is settled by a series of judgments of this Court."
21. This Court in New India Assurance Co.
Ltd. v. Harpal Singh & Ors., MAC APP.
138/2011, decided on 06.09.2013, went into this question and held that in view of the report in S.K. Kapoor (supra), the three Judge Bench decision in Reshma Kumari & Ors. (supra) shall be taken as a binding precedent."
38. In view of the legal position discussed above, no addition can be made in the monthly income of the deceased Dheeraj Kumar who was a Wooden Craftsman, towards future prospects for the purpose of calculating compensation, as no evidence in this regard has been putforth. Deduction towards personal living expenses of the deceased:
39. Deceased Dheeraj Kumar was married at the time of the accident. He is survived by his wife Ms. Neelam, his three children namely Ms. Pearl, Suit No.: 634/2014 Page No. 25 of 31 Ms. Bhumika and Sh. Naman. On the basis of the criteria laid down in Sarla Verma case (supra), deduction towards personal and living expenses of the deceased would be 1/4th of the income. Therefore, annual contribution to the family by the deceased would be Rs. 84,474/ {Rs. 1,12,632/ (annual income)
- 28,158/ (1/4rd of the income)}, which is ascertained as multiplicand. Selection of multiplier:
40. Age of the deceased was 34 years and 05 month on the date of the accident. He was a married person. Keeping in view the criteria laid down in Sarla Verma case (supra), multiplier applicable according to age of the deceased would be 16.
Loss of financial dependency:
41. On the basis of facts and circumstances of this case and the material on record, total loss of financial dependency of the wife and children of the deceased would be Rs. 13,51,584 {Rs. 84,474 (multiplicand) X 16 (multiplier)}. (Rupees Thirteen Lacs Fifty One Thousand Five Hundred Eighty Four Only). Compensation under nonpecuniary heads:
42. In view of the judgment in Rajesh & Others v. Rajbir Singh & Others (2013) 9 SCC 54, petitioners are entitled to a sum of Rs. 1,00,000/ (Rupees One Lac Only) towards loss of love and affection, Rs. 25,000/ (Rupees Twenty Five Thousand Only) towards funeral expenses and Rs. 10,000/ (Rupees Ten Thousand Only) towards loss of estate. Ms. Neelam (Petitioner No. 1) is also entitled to a sum of Rs. 1,00,000/ (Rupees One Lac Only) towards loss of consortium.
Suit No.: 634/2014 Page No. 26 of 31 Computation of compensation:
43. The total compensation is assessed as under:
Sl. No. Heads Amount
1. Loss of Financial Dependency 13,51,584
2. Loss of Love & Affection 1,00,000
3. Funeral Expenses 25,000
4. Loss of Estate 10,000
5. Loss of Consortium 1,00,000
Total 15,86,584
Petitioners are entitled to get Rs. 15,86,584/ (Rupees Fifteen Lacs Eighty Six Thousand Five Hundred Eighty Four Only) as compensation. They are also entitled to get interest @ 9% p.a. from the date of filing of the claim petition i.e. 20.09.2013 till its realisation.
Apportionment:
44. Each of the three minor children of the deceased Sh. Dheeraj Kumar will have 25% share in the award amount. Ms. Neelam, wife of the deceased (Petitioner No. 1) will have 20% share in the award amount and Sh. Mahavir Prasad father of the deceased (Petitioner No. 5) will have 5% share in the award amount with proportionate interest thereon.
Liability:
45. Respondent No. 1/Rakesh is liable to pay compensation being the driver of the offending vehicle as the accident took place due to his rash and negligent conduct. He is also the owner of the offending vehicle. So, he is liable to pay compensation being the owner of the offending vehicle also.Suit No.: 634/2014 Page No. 27 of 31
46. It is not disputed by the respondents that the offending vehicle was duly insured with the respondent No. 2 IFFCO Tokio General Insurance Company Limited vide Policy No. 82421554 valid from 29.12.2012 to 28.12.2013.
47. Respondent No. 2 Insurance Company has contested the liability on the ground that there has been a breach of specified condition of the policy with respect to permit condition. It is contended that while the permit of the vehicle was for the State of Haryana, it was found to be driven in Delhi.
48. The permit of the offending vehicle filed alongwith the DAR is valid for the State of Haryana. This fact is also admitted by the respondent driver Rakesh (Respondent No. 1) in his crossexamination as R1W1.
49. According to Section 149 (2)(a), the insurer is entitled to contest the liability when there is a breach of condition of the policy with respect to 'purpose' allowed by the permit, for use of the vehicle, where the vehicle is a transport vehicle. Plain reading of the Section shows that only such breach of permit is available as a defence to the insurer, where it relates to the 'purpose', for which the vehicle is used.
50. The contention raised by the Insurance Company is not about a breach of the condition with respect to purpose of use in the permit, but for plying the vehicle in another State. Therefore, since the breach of the permit is not with respect to 'purpose', it does not fall within the permissible limits of defence available to the insurer Section 149 (2) of the M. V. Act.
51. Issue of breach of a condition and its consequence to avoid the liability towards insured was discussed in detail by the Hon'ble Apex Court in Sarla Verma case (supra). It was held that the Tribunals interpreting the policy conditions would apply the 'rule of main purpose' and the concept of Suit No.: 634/2014 Page No. 28 of 31 'fundamental breach' to allow defences available to the insurer under Section 149 (2) of the Act.
52. The violation of route/State to ply the offending vehicle is not violation of the purpose of permit condition. Neither it comes under the category of the 'rule of main purpose' and 'fundamental breach'. (Reliance is placed on the decision of Delhi High Court in Saket Educational Society & Others vs. ICICI Lombard General Insurance Company Limited Motor & Others, MAC APP No. 721/2010 dated 18.09.2015 & City Water Supplier vs. The New India Assurance Company Limited, MAC APP No. 708/2012 decided on 12.02.2014).
53. Counsel for the Insurance Company has relied on National Insurance Company Limited vs. Challa Bharathamma & Others, (2004) 7 Supreme Court Cases 517 to argue that since the vehicle was found plying in State of Delhi while it had the permit to ply in State of Haryana, insurer deserves recovery right against the insured. The facts in the judgment cited were different. In the judgment cited vehicle involved in the accident did not have any permit, whereas in the present case, there is a valid permit to ply the vehicle.
54. In view of the above observations and discussion, respondent No. 2 IFFCO Tokio General Insurance Company Limited is jointly and severally liable to pay the compensation to the petitioners. Since the offending vehicle was duly insured to cover the third party risk, respondent No. 2 Insurance Company is under the statutory liability to pay the compensation to the petitioners.
Relief:
55. On the basis of findings on Issues No. 1 & 2, I award an amount of Rs. 15,86,584/ (Rupees Fifteen Lacs Eighty Six Thousand Five Hundred Eighty Four Only) as compensation to the petitioners. They are also entitled to Suit No.: 634/2014 Page No. 29 of 31 get interest @ 9% p.a. from the date of filing of the claim petition i.e. 20.09.2013 till its realisation.
Mode of payment and disbursement:
56. Respondent No. 2 Insurance Company shall deposit the award amount within 30 days from the date of Award in the State Bank of India, Tis Hazari Branch, Delhi in the name of the petitioners under intimation to the petitioners and the Tribunal. In default of payment within the prescribed period, respondent No. 2 Insurance Company shall be liable to pay interest @ 12% p.a. for the period of delay till its realisation.
57. While making the deposit, Insurance Company shall mention the particulars of this case, name of the Tribunal and the date of decision on the back side of the cheque. Insurance Company shall also file copy of the award attested by its responsible officer in the bank at the time of deposit. Insurance Company is further directed to place on record proof of deposit of the award amount, proof of delivery of notice to the petitioners in respect of deposit of the award amount and complete details in respect of calculation of interest etc. in the Tribunal within 30 days with effect from today.
58. In order to avoid the compensation money being frittered away, the entire share of the children shall be kept in FDRs till they attain the age of majority. 50% of the share of the petitioner Neelam, wife of the deceased shall be kept in FDR for a period of five years. No loan or advance shall be allowed against these deposits. However, petitioner No. 1 Ms. Neelam can withdraw the quarterly interest from the deposit of her share and share of her children, being mother.Suit No.: 634/2014 Page No. 30 of 31
59. Petitioners shall open account in State Bank of India, Tis Hazari Branch, Delhi. Manager of the Bank shall comply and release the award amount to the petitioners in terms of the Award.
60. Copy of the Award be given to the parties free of cost.
61. Nazir is directed to prepare a separate file for compliance report and put up the same on 07.11.2015.
62. File be consigned to Record Room.
Announced in the open Court (Santosh Snehi Mann) on 03.10.2015 Judge, Motor Accident Claims Tribunal02, West District, Tis Hazari Courts, Delhi Suit No.: 634/2014 Page No. 31 of 31