Gudia & Ors. v. Mukesh & Ors.

1. The Appellants seek enhancement of compensation of Rs.5,83,000/- awarded by the Motor Accident Claims Tribunal(the Claims Tribunal) for the death of Hem Raj who succumbed to fatal injuries sustained by him in a motor vehicular accident which occurred on 24.07.2007 at about 11:15 p.m. near Mukarba Chowk, G.T. Road, Delhi.

2. In the absence of any appeal by the Insurance Company or the owner and driver of the vehicle, finding on negligence reached by the Claims Tribunal has attained finality. 2015:DHC:228

3. A very short submission is raised by Mr. O.P. Mannie, the learned counsel for the Appellants. It is urged that the deceased was a self-employed person and was earning Rs.8,000/- per month at the time of his death. Even if the Claims Tribunal took minimum wages of an unskilled employee in the absence of any proof of income for arriving at the amount of compensation, there ought to have been an addition of 50% towards future prospects. Reliance is placed on a three Judge Bench decision in Rajesh & Ors. v. Rajbir Singh & Ors., (2013) 9 SCC 54 and Santosh Khandelwal & Ors. v. Abbas & Ors., MAC.APP.31/2010. It is urged that future prospects granted in case of a person earning fixed wages is on account of inflation and thus as held in Santosh Devi v. National Insurance Company Ltd. & Ors., 2012 (4) SCALE 559, addition of 50% ought to have been made by the Claims Tribunal in the present case also.

4. The learned counsel for the Appellants relying on Rajbir Singh(supra) contends that the compensation of Rs.10,000/towards loss of consortium is on the lower side, it ought to have been Rs.1,00,000/-. Similarly, the compensation awarded towards loss of love and affection is also sought to be raised.

5. 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 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 only 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 aged 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.

6. Of course, the three Judge Bench of the Supreme Court in its later judgment in Rajesh & Others (supra) relying upon 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 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.

7. 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:-

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 unless there are extraordinary and exceptional circumstances. Though the expression “exceptional and extraordinary circumstances” is not capable of any precise definition, in Shakti Devi v. New India Insurance Co. Ltd. [(2010) 14 SCC 575: (2012) 1 SCC (Civ) 766: (2011) 3 SCC (Cri) 848] there is a practical application of the aforesaid principle. The near certainty of the regular employment of the deceased in a government department following the retirement of his father was held to be a valid ground to compute the loss of income by taking into account the possible future earnings. The said loss of income, accordingly, was quantified at double the amount that the deceased was earning at the time of his death.”

8. 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 also 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 the 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.”

9. Now, the question is which of the two 3 Judge Bench judgments ought to be followed awaiting answer to the reference made by the Supreme Court in Pushpa & Ors. (supra).

10. 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:-