Sandeep & ANR v. Deepak Kumar & ORS

-1In the High Court of Punjab and Haryana at Chandigarh F.A.O No. 382 of 2014 (O&M) Date of Decision: 03.3.2017 Sandeep and another ......Appellants

Versus

Deepak Kumar and others ......Respondents CORAM: HON'BLE MRS. JUSTICE ANITA CHAUDHRY

Present:

Mr. J.S.Saneta, Advocate for the appellants.

Mr. Rajbir Singh, Advocate for respondent No. 3.

**** ANITA CHAUDHRY, J This is the claimants' appeal seeking enhancement of the award passed by the Motor Accident Claims Tribunal, Panipat. The son and daughter of Shabo alias Soma filed a claim petition seeking compensation for the death of their mother which took place in a vehicular accident which occurred on 28.2.2011. The deceased was 50 years old. She was working with Antic Art Export Pvt. Ltd. The claimants summoned the record from Shabo's office and on the basis thereof took the income to be Rs. 3500/- i.e. over and above the wages she was getting and applied the multiplier of 13 to calculate the loss as Rs. 3,64,000/-. An addition of Rs. 5,000/- was made for funeral expenses raising the total to Rs. 3,69,000/-.

The submission on behalf of the appellant is that some addition should have been made towards future prospects and less amount has been

-2awarded for funeral expenses and no amount had been allowed for loss of love and affection and loss of estate.

The submission on the other hand was that the Tribunal though had noted that the deceased was getting salary in the range of Rs. 2,000/- and the highest being Rs. 2688/- but still it took the notional income to be Rs.3500/- and no addition to future prospect should be made as the deceased was not a permanent employee and therefore there is a variation in the wages and it appears that she was on daily wages and there was no evidence that she was a permanent employee.

In the case Reshma Kumari v. Madan Mohan (2013) 9 SCC 65 the three Judge Bench of Supreme Court had reiterated the view taken in Sarla Verma v. DTC, (2009) 6 SCC 121 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.

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 National Insurance Company Ltd. v. Pushpa & Ors., CC No. 8058/2014, decided on 02.07.2014 and the concluding paragraph while making reference to the Larger Bench, it was observed 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

-3authoritative pronouncement. Therefore, we think it appropriate to refer the matter to a larger Bench."

Para Nos. 27 and 28 of Union of India and another versus Raghubir Singh (dead) by LRs. Etc. [(1989) 2 SCC 754], reproduced in para No. 17 of Safiya Bee v. Mohd. Vajahath Hussain @ Fasi, (2011) 2 SCC 94 are relevant and are reproduced for ready reference:- "27. What then should be the position in regard to the effect of the law pronounced by a Division Bench in relation to a case realising the same point subsequently before a Division Bench of a smaller number of Judges? There is no constitutional or statutory prescription in the matter, and the point is governed entirely by the practice in India of the courts sanctified by repeated affirmation over a century of time.

It cannot be doubted that in order to promote consistency and certainty in the law laid down by a superior Court, the ideal condition would be that the entire Court should sit in all cases to decide questions of law, and for that reason the Supreme Court of the United States does so.

-4appropriate. It is in order to guard against the possibility of inconsistent decisions on points of law by different Division Benches that the rule has been evolved, in order to promote consistency and certainty in the development of the law and its contemporary status, that the statement of the law by a Division Bench is considered binding on a Division Bench of the same or lesser number of Judges. This principle has been followed in India by several generations of Judges. We may refer to a few of the recent cases on the point. In John Martin v. State of West Bengal, (1975) 3 SCC 836, a Division Bench of three Judges found it right to follow the law declared in Haradhan Saha v. State of West Bengal, (1975) 3 SCC 198, decided by a Division Bench of five Judges, in preference to Bhut Nath Mate v.

State of West Bengal, (1974) 1 SCC 645 decided by a Division Bench of two Judges. Again in Indira Nehru Gandhi v. Raj Narain, 1975 Supp. SCC 1, Beg J held that the Constitution Bench of five Judges was bound by the Constitution Bench of thirteen Judges in Kesavananda Bharati v.State of Kerala, (1973) 4 SCC 225. In Ganapati Sitaram Balvalkar v. Waman Shripad Mage, (1981) 4 SCC 143, this Court expressly stated that the view taken on a point of law by a Division Bench of four Judges of this Court was binding on a Division Bench of three Judges of the Court. And in Mattulal v.

-5pronouncement of a Division Bench of a larger number of Judges had to be preferred over the decision of a Division Bench of a smaller number of Judges. This Court also laid down in Acharya Maharajshri Narandraprasadji Anandprasadji Maharaj v. State of Gujarat, (1975) 1 SCC 11 that even where the strength of two differing Division Benches consisted of the same number of Judges, it was not open to one Division Bench to decide the correctness or otherwise of the views of the other. The principle was reaffirmed in Union of India v. Godfrey Philips India Ltd., (1985) 4 SCC 369 which noted that a Division Bench of two Judges of this Court in Jit Ram Shiv Kumar v. State of Haryana, (1981) 1 SCC 11 had differed from the view taken by an earlier Division Bench of two Judges in Motilal Padampat Sugar Mills v. State of U.P.

, (1979) 2 SCC 409 on the point whether the doctrine of promissory estoppel could be defeated by invoking the defence of executive necessity, and holding that to do so was wholly unacceptable reference was made to the well accepted and desirable practice of the later bench referring the case to a larger Bench when the learned Judges found that the situation called for such reference.

28. We are of opinion that a pronouncement of law by a Division Bench of this Court is binding on a Division Bench of the same or a smaller number of Judges, and in order that such decision be binding, it is not necessary that it should be a decision rendered by the Full Court or a Constitution Bench of

-6the Court. ....."

In Central Board of Dawoodi Bohra Community and Anr. v. State of Maharashtra and Anr. [(2005) 2 SCC 673], (para 12), a Constitution Bench of this Court summed 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 co-equal strength.

(2) 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 co-equal strength to express an opinion doubting the correctness of the view taken by the earlier Bench of co-equal 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) 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

-7matter 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 Chief Justice constituting the Bench and such listing."

The claimants had summoned the clerk from Antic Art Export and a certificate Ex. P-1 was furnished. The appointment letter was not produced. It is a private organization where the deceased was working as a sweeper. It was not a permanent job.

There are no exceptional or extraordinary circumstances in the case and I do not propose to make any addition for future prospects. The matter has been referred to the Larger Bench and it would not be possible for the insurance company to make recoveries later. I would not make any change in the income as there is no appeal from the insurance company. However, the award requires modification as the amount awarded for funeral expenses is on the lower side. I would add Rs. 20,000/- for the funeral expenses, Rs. 1,00,000/- for loss of love and affection and Rs. 25,000/- towards loss of estate raising the total to Rs. 1,45,000/-. The amount shall be payable at the same rate of interest as was allowed by the Tribunal from the date of filing of the appeal i.e. 24.12.2013 till realization.

-8The award is modified. The appeal is partly allowed. (ANITA CHAUDHRY) JUDGE March 03, 2017 Gurpreet Whether speaking/reasoned :

Yes Whether reportable :

No