$-11 * IN THE HIGH COURT OF DELHI AT NEW DELHI Decided on: 27th February, 2015 + MAC.APP. 1027/2012 RELIANCE GENERAL INSURANCE CO LTD. Appellant Through: Mr.[ENTITY], Advocate versus GEETA DEVI & ORS Respondents Through: Mr. [ENTITY], Advocate for Respondents no.1 to 7. CORAM: HON'BLE MR. JUSTICE G.P.MITTAL JUDGMENT
[ENTITY], J. (ORAL)
1. The appeal is directed against the judgment dated 11.07.2012 passed by the Motor Accident Claims Tribunal (the Claims Tribunal) whereby compensation of Rs.8,76,990/- was awarded for the death of [ENTITY] who suffered fatal injuries in a motor vehicular accident which occurred on 30.12.2008.
2. On appreciation of evidence, the Claims Tribunal found that the accident was caused on account of rash and negligent driving of truck bearing no.HR-63-A-3294 driven by Respondent no.8 [ENTITY]. In the absence of any evidence with regard to the deceased's income, the Claims Tribunal took minimum wages of a matriculate as per his qualification, made addition of 30% towards future prospects and deducted 1/10th towards personal and living expenses to compute the loss of dependency. The Claims Tribunal further awarded notional sums towards non-pecuniary damages and granted an overall compensation of Rs.8,76,990/-.
3. The following contentions are raised on behalf of the Appellant:
(i) In the absence of any evidence with regard to future prospects, addition of 30% was not permissible;
(ii) In a case where number of dependants is more than six, deduction towards personal and living expenses will be 1/5th as against 1/10th deducted by the Claims Tribunal;
(iii) The Appellant successfully proved breach of terms and conditions of the insurance policy as permit to drive the offending truck on the road was not produced in spite of notice (Ex.R3W1/1) served upon the owner(Respondent no.9) herein. The Claims Tribunal erred in declining recovery rights.
4. On the other hand, the learned counsel for Respondents no.1 to 7 states that the compensation awarded is just and reasonable.
Relying on Santosh Devi v. National Insurance Company Ltd.
& Ors., 2012 (6) SCC 421, the learned counsel for Respondents no.1 to 7 states that in case of a large family, deduction towards personal and living expenses has to be 1/10th.
5. The question of addition of future prospects and deduction towards personal and living expenses was gone into by a three Judge Bench of the Supreme Court in [ENTITY] & Ors. v.
Madan Mohan & Anr., (2013) 9 SCC 65 and the judgement in [ENTITY] (Smt.) & Ors. v. Delhi Transport Corporation & Anr., (2009) 6 SCC 121 was affirmed.
6. The question of grant of future prospects was also dealt with by this Court at great length in HDFC Ergo General Insurance Co.
Ltd. v. Smt. [ENTITY] and Ors. [CASE NUMBER] decided on 12.01.2015. Paras 8 to 21 of the report in [ENTITY] (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 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 [ENTITY], 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.
9. The learned counsel for the Claimants has referred to a three Judge Bench decision of the Supreme Court in [ENTITY] & 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 [ENTITY] (Smt.) & Ors. v. Delhi Transport Corporation & Anr., (2009) 6 SCC 121 was extended in [ENTITY] & 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 [ENTITY] & Ors. v. Madan Mohan & Anr., (2013) 9 SCC 65 wherein while approving the ratio with regard to future prospects in [ENTITY] (Smt.) & Ors. (supra) and relying on [PRECEDENT]; [PRECEDENT] and Abati Bezbaruah v. Dy.
Director General, Geological Survey of India & Anr., 2003 (3) SCC 148, the Supreme Court held as under:-
"38. With regard to the addition to income for future prospects, in [ENTITY] [[ENTITY] v. DTC, (2009) 6 SCC 121 : (2009) 2 SCC (Civ) 770 : (2009) 2 SCC (Cri) 1002], this Court has noted the earlier decisions in [PRECEDENT], [PRECEDENT] and [PRECEDENT] and in para 24 of the Report held as under: ([ENTITY] case [[ENTITY] v. DTC, (2009) 6 SCC 121 : (2009) 2 SCC (Civ) 770 : (2009) 2 SCC (Cri) 1002] , SCC p. 134):
"24. In view of the imponderables and uncertainties, we are in favour of adopting as a rule of thumb, an addition of 50% of actual salary to the actual salary income of the deceased towards future prospects, where the deceased had a permanent job and was below 40 years. (Where the annual income is in the taxable range, the words actual salary should be read as actual salary less tax). The addition should be only 30% if the age of the deceased was 40 to 50 years. There should be no addition, where the age of the deceased is more than 50 years. Though the evidence may indicate a different percentage of increase, it is necessary to standardise the addition to avoid different yardsticks being applied or different methods of calculation being adopted. Where the deceased was self-employed or was on a fixed salary (without provision for annual increments, etc.), the courts will usually take only the actual income at the time of death. A departure therefrom should be made only in rare 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 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 [PRECEDENT]; [PRECEDENT]; and Union of India & Ors. v. [ENTITY], (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 [ENTITY] & Ors. v. Madan Mohan & Anr., (2013) 9 SCC 65; the three Judge Bench was dealing with a reference made by a two Judge Bench ([ENTITY] and [ENTITY], J.J.). The two Honble 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 [ENTITY] (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 [ENTITY] relying on [PRECEDENT] 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 [ENTITY], the three Judge Bench decision in [ENTITY] (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 [PRECEDENT]. In paras 14 and 15, the Supreme Court observed as under:-
"14. Certain parallel developments will now have to be taken note of. In [ENTITY] 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 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 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 three- Judge Bench of this Court in [ENTITY] 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 [ENTITY] [[ENTITY] 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."
16. Further, the divergence of opinion in [ENTITY] & Ors. v. Madan Mohan & Anr., (2013) 9 SCC 65 and [ENTITY] & 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. [ENTITY] & 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 [ENTITY] (supra) was rendered at earlier point of time, as is clear, the same has not been noticed in [ENTITY] (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 [ENTITY] & Ors. (supra).
18. In [PRECEDENT] 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 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 itself feels that the view of the law taken by a Bench of lesser quorum, which view is in doubt, needs correction or reconsideration then by way of exception (and not as a rule) and for reasons given by it, it may proceed to hear the case and examine the correctness of the previous decision in question dispensing with the need of a specific reference or the order of the Chief Justice constituting the Bench and such listing. Such was the situation in [PRECEDENT] and [PRECEDENT]."
19. Similarly, in [PRECEDENT] in para 27, the Supreme Court observed as under:-
"27. However, even assuming that the decision in [CASE NUMBER] did not operate as res judicata, we are constrained to observe that even if the learned Judges who decided [CASE NUMBER] did not agree with the view taken by a coordinate Bench of equal strength in the earlier [CASE NUMBER] regarding the interpretation of [SECTION] 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. [ENTITY], (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 [ENTITY] case [PRECEDENT] was prior to the decision in [ENTITY] case [PRECEDENT] . 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 [ENTITY] case [PRECEDENT] was not noticed in [ENTITY] case [PRECEDENT] , the latter decision is a judgment per incuriam. The decision in [ENTITY] case [PRECEDENT] 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 [PRECEDENT], decided on 06.09.2013, went into this question and held that in view of the report in [ENTITY] (supra), the three Judge Bench decision in [ENTITY] & Ors. (supra) shall be taken as a binding precedent."
7. 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.
8. Deduction towards personal and living expenses in case of 7 dependants will be 1/5th as against 1/10th as granted by the Claims Tribunal. Applying the principles as laid down in [ENTITY] (supra) and affirmed in [ENTITY] & Ors., the loss of dependency comes to Rs.5,15,554/-(Rs.4,131/- x 12 - 1/5 x
9. In addition, in view of three Judge Bench decision of the Supreme Court judgment in [ENTITY] & 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.
10. The overall compensation therefore, comes to Rs.7,50,554/-.
LIABILITY:
11. It is urged by the learned counsel for the Appellant that the Appellant successfully proved the breach of the terms and conditions of the insurance policy by examining R3W1 [ENTITY]. Respondent no.9, who was the owner of the offending truck was issued a notice under [SECTION] [ACT] to produce the permit Ex.R3W1/1. The same was however, not produced. In spite of this, the Claims Tribunal made the Appellant liable to pay the compensation and even recovery rights were not granted to it. It is urged that the Appellant was at least entitled to recovery rights.
12. The Claims Tribunal dealt with the issue of liability in para 28 to 30 of the impugned judgment, which are extracted hereunder:
"28. In the present case the insurance company has only proved the notice u/[SECTION] [ACT] sent by its counsel to the owner of offending vehicle and have done nothing more. As already said there is no prosecution of the driver/owner by the State agency for driving the offending vehicle without permit.
29. Further in a latest judgment titled [PRECEDENT] decided on 05/10/10, the Honble High Court of Delhi has held that mere issuance of notice u/[SECTION] [ACT] by the insurance company to owner and driver of the offending vehicle does not go to prove much less conclusively that driver did not possess permit.
30. In view of the aforesaid discussion, it is clear that insurance company has utterly failed to prove the willful breach on part of the owner of the offending vehicle, the insurance company is not entitled for recovery rights for the breach of the terms and conditions of the policy. Simplicitor by producing its own officer to depose for the breach of the terms and conditions of the policy, the insurance company does not become entitled to the recovery rights without having further proof of the same. The prayer of the insurance company stands rejected accordingly."
13. A perusal of the report under [SECTION] [ACT].PW-1/7) will show that the photocopy of the permit of truck bearing no.
no.HR-63-A-3294 was seized by the police and was filed with the criminal case against the driver of the vehicle which was registered under [SECTION], [SECTION] [ACT]. The Appellant Insurance Company did not make any effort to get the photocopy of the permit verified. In view of this, it cannot be said that it was conscious and willful breach of the terms and conditions of the insurance policy proved by the Appellant. In my view, the Appellant failed to discharge the initial onus placed upon it. The Appellant's liability therefore, cannot be disputed.
14. The excess amount of Rs.1,26,436/- along with interest and the interest accrued during the pendency of the appeal shall be refunded to the Appellant Insurance Company.
15. The compensation payable to Respondents no.1 to 7 (claimants) shall be disbursed/held in Fixed Deposit in terms of the orders passed by the Claims Tribunal.
16. The appeal is disposed of in above terms.
17. Pending applications, if any, also stand disposed of.
18. Statutory amount, if any, deposited shall be refunded to the Appellant Insurance Company.
([ENTITY]) JUDGE FEBRUARY 27, 2015 pst