Full Text
$-10 HIGH COURT OF DELHI
Date of Decision: 27th February, 2015
UP STATE ROAD TRANSPORT CORPORATION. ..... Appellant
Through: Mr.Shadab Khan, Advocate for Ms. Garima Prashad, Advocate
Through: Mr. S.N. Parashar, Advocate for Respondents no.1 to 5.
JUDGMENT
1. The appeal is directed against the judgment dated 21.05.2012 passed by the Motor Accident Claims Tribunal (the Claims Tribunal) whereby compensation of Rs.11,03,000/- was 2015:DHC:1913 awarded in favour of Respondents no.1 to 5 for the death of Vipin Kumar Sharma who suffered fatal injuries in a motor vehicular accident which occurred on 24.06.2009.
2. On appreciation of evidence, the Claims Tribunal found that the accident was caused because of rash and negligent driving of UP State Road Transport Corporation(UPSRTC) bus bearing no.UP-21-N-6671 which was driven by Hari Prakash, Appellant’s driver in a rash and negligent manner. It was claimed that the deceased was working as a Manager with Sunrise Institute of Education and Technology, Kudikhera Dhoom Dadri, Noida(U.P.) and was getting a salary of Rs.25,000/- per month. PW-3 examined by the Respondents, however, denied that the deceased was employed in nonteaching staff with Sunrise Institute of Education and Technology. The Claims Tribunal therefore, assessed the income of the deceased to be Rs.6,000/- per month to award the loss of dependency at Rs.10,53,000/-. The Claims Tribunal further awarded notional sums towards non-pecuniary damages and granted an overall compensation of Rs.11,03,000/-.
3. Following contentions are raised on behalf of the Appellant:
(i) UPSRTC bus no. UP-21-N-6671 was not involved in the accident; thus, the Appellant had no liability to pay the compensation; and
(ii) The compensation awarded is excessive and exorbitant as there was no material to believe the income of the deceased to be Rs.6,000/- per month; the Claims Tribunal ought not to have made addition towards future prospects in the absence of any evidence with regard to the same.
4. On the other hand, Mr. S.N. Parashar, Advocate appearing for Respondents no.1 to 5 states that negligence was duly proved and the compensation awarded is just and reasonable. It is stated that the compensation awarded towards non-pecuniary damages is on the lower side. NEGLIGENCE:
5. Issue of negligence was dealt with by the Claims Tribunal in paras 7 to 10 of the impugned judgment, which are extracted hereunder:
6. Thus, it is evident that Pravesh Bhardwaj(PW-2) who was an eye witness to the accident deposed about the manner of the accident that the deceased was crushed under the wheels of the offending bus while its driver was reversing. The plea put forth by the driver in his examination as R1W[1] was that he did not cause the incident and he simply noticed the deceased when he got down from the bus and saw him lying injured at some distance. PW-2 could not have implicated the driver of UPSRTC bus if it was not involved in the accident. The Claims Tribunal rightly appreciated and noticed the evidence of the eye witness and the driver and reached the conclusion that the accident was caused on account of rash and negligent driving of bus no. UP-21-N-6671. I affirm the said finding reached by the Claims Tribunal.
MULTIPLICAND
7. The Respondents’ plea that the deceased was working as a Manager with Sunrise Institute of Education and Technology was disbelieved as PW[3], their own witness testified that as per the record, the deceased was not on the rolls of non-teaching staff. Thus, in the absence of any specific employment, the Claims Tribunal took the earning of the deceased to be Rs.6,000/- per month. The minimum wages of the Graduate on the date of the accident was Rs.4,694/- per month. In the absence of any reliable evidence with regard to the deceased’s income or the job carried by him, the Claims Tribunal ought to have taken his income as per the minimum wages of a Graduate which was Rs.4,694/- per month at the relevant time.
8. 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:
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 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 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 co-equal strength, earlier judgment will be taken as a binding precedent.
13. It may be noted that in Reshma Kumari & Ors. v. Madan Mohan & Anr., (2013) 9 SCC 65; the three Judge Bench was dealing with a reference made by a two Judge Bench (S.B. Sinha and Cyriac Joseph, J.J.). The two Hon‟ble Judges wanted an authoritative pronouncement from a Larger Bench on the question of applicability of the multiplier and whether the inflation was built in the multiplier. The three Judge Bench approved the two Judge Bench decision of the Supreme Court in Sarla Verma (Smt.) & Ors. v. Delhi Transport Corporation & Anr., (2009) 6 SCC 121 with regard to the selection of multiplier. It further laid down that addition towards future prospects to the extent of 50% of the actual salary shall be made towards future prospects when the deceased had a permanent job and was below 40 years and addition of 30% should be made if the age of the deceased was between 40-50 years. No addition 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 self-employed persons. It may, however, be noted that in Rajesh, the three Judge Bench decision in Reshma Kumari (supra) was not brought to the notice of their Lordships.
15. The divergence of opinion was noted by another three Judge Bench of the Supreme Court in Sanjay Verma v. Haryana Roadways, (2014) 3 SCC 210. In paras 14 and 15, the Supreme Court observed as under:-
the view taken in Sarla Verma [Sarla 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 Co. Ltd. [(2010) 14 SCC 575:
(Cri) 848] there is a practical application of the aforesaid principle. The near certainty of the regular employment of the deceased in a government department following the retirement of his father was held to be a valid ground to compute the loss of income by taking into account the possible future earnings. The said loss of income, accordingly, was quantified at double the amount that the deceased was earning at the time of his death.”
16. Further, the divergence of opinion in Reshma Kumari & Ors. v. Madan Mohan & Anr., (2013) 9 SCC 65 and Rajesh & Ors. v. Rajbir Singh & Ors., (2013) 9 SCC 54 was noticed by the Supreme Court in another latest judgment in National Insurance Company Ltd. v. Pushpa & Ors., CC No.8058/2014, decided on 02.07.2014 and in concluding paragraph while making reference to the Larger Bench, the Supreme Court held as under:- “Be it noted, though the decision in Reshma (supra) was rendered at earlier point of time, as is clear, the same has not been noticed in Rajesh (supra) and that is why divergent opinions have been expressed. We are of the considered opinion that as regards the manner of addition of income of future prospects there should be an authoritative pronouncement. Therefore, we think it appropriate to refer the matter to a larger Bench.”
17. Now, the question is which of the judgments ought to be followed awaiting answer to the reference made by the Supreme Court in Pushpa & Ors. (supra).
18. In Central Board of Dawoodi Bohra Community & Anr. v. State of Maharashtra & Anr., (2005) 2 SCC 673 in para 12, the Supreme Court observed as under:-
19. Similarly, in Safiya Bee v. Mohd. Vajahath Hussain @ Fasi, (2011) 2 SCC 94 in para 27, the Supreme Court observed as under:-
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 Co-ordinate strength can only make a reference to a larger Bench. In para 9 of the report, the Supreme Court held as under:-
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.”
9. Thus, in the absence of any evidence of good future prospects, no addition towards future prospects ought to have been made by the Claims Tribunal. The loss of dependency thus, comes to Rs.6,33,690/-(Rs.4,694/- x 12 x 3/4 x 15).
10. In addition, in view of three Judge Bench decision of the Supreme Court judgment in Rajesh & Ors. v. Rajbir Singh & Ors., (2013) 9 SCC 54, I further award a sum of Rs.1,00,000/each towards loss of love and affection and loss of consortium, Rs.25,000/- towards funeral expenses and Rs.10,000/- towards loss to estate.
11. The overall compensation therefore, comes to Rs.8,68,690/-.
12. The excess amount of Rs.2,34,310/- along with interest and the interest accrued during the pendency of the appeal shall be refunded to the Appellant.
13. The compensation payable to Respondents no.1 to 5 (claimants) shall be disbursed/held in Fixed Deposit in terms of the orders passed by the Claims Tribunal.
14. Pending applications, if any, also stand disposed of.
15. Statutory amount, if any, deposited shall be refunded to the Appellant Insurance Company.
JUDGE FEBRUARY 27, 2015 pst