Joti Devi Etc v. Punjab Roadways Depot Pathankot Etc

-1In the High Court of Punjab and Haryana at Chandigarh F.A.O No. 5300 of 2014 (O&M) Date of Decision: 3.4.2017 Joti Devi and others ......Appellants

Versus

Punjab Roadways Depot Pathankot and others .....Respondents CORAM: HON'BLE MRS. JUSTICE ANITA CHAUDHRY

Present:

Mr. R.D.Sharma, Advocate for the appellants.

Mr. L.C.Aggarwal, AAG, Punjab for respondents No. 1 to 3 and 5.

**** ANITA CHAUDHRY, J CM-14589-CII-2014 Application is allowed for the reasons stated therein. Delay of 6 days in filing the appeal is condoned. FAO-5300-2014 This is the claimants appeal seeking enhancement of the award dated 9.12.2013 passed by the Motor Accident Claims Tribunal, Pathankot. Rajesh son of petitioners No. 1 and 2 met with an accident on 15.8.2011 when he was returning on his motor cycle. He was stated to be a student and was also running a dairy. The Tribunal had held that the claimants could not lead evidence to show that the deceased was running a dairy or was earning Rs. 10,000/- per month and, therefore, he was taken to be a labourer and his income was taken at Rs. 4,000/- per month. Since the deceased was a bachelor, deduction of 50% was made and the multiplier of 18 was applied to calculate the compensation at Rs. 4,32,000/-. A sum of Rs. 5,000/- was allowed to the parents as funeral expenses raising the total

-2to Rs. 4,37,000/-. The claim was partly allowed only to claimants No. 1 and

2. Rest of the claimants were held to be not dependents on the deceased. Counsel for the appellants has urged that the income taken was on the lower side and the amount given towards funeral expenses is on the lower side and the Tribunal had failed to award any amount for loss of love and affection and for loss of estate. It was urged that an addition towards future prospects should have been made. Reliance was placed upon Munna Lal Jain and another versus Vipin Kumar Sharma and others 2015(3) SCC (Civil) 315 and Reshma Kumari and others versus Madan Mohan and another 2013(9) SCC 65.

On the other hand, the submission is that the multiplier of 18 was wrongly applied and if the correct multiplier taking the age of the parents is applied, then the amount which has been additionally given can be taken as compensation on the other heads and no increase should be allowed.

In the case Reshma Kumari v. Madan Mohan (supra) 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,

-3decided 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 authoritative 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.

-4convenience that the Court should sit in Divisions, each Division being constituted of Judges whose number may be determined by the exigencies of judicial need, by the nature of the case including any statutory mandate relative thereto, and by such other considerations which the Chief Justice, in whom such authority devolves by convention, may find most appropriate. 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.

-5Court 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. Radhe Lal, (1974) 2 SCC 365, this Court specifically observed that where the view expressed by two different Division Benches of this Court could not be reconciled, the pronouncement 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.

-6called 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 the 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.

-7-

(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 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 Chief Justice constituting the Bench and such listing."

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. The next question to be considered is the multiplier applicable in this case. The submission made by learned counsel for the appellants was that the multiplier has to be according to the age of the deceased as referred to in the IInd Schedule as well in view of the latest decision of the Supreme Court in Munnal Lal Jain Vs. Vipin Kumar Sharma (supra), is liable to be rejected in view of the decision of Supreme Court in UPSRTC Vs. Trilok Chandra (1996) 4 SCC 362 which shall be a binding precedent. The logic

-8of taking the age of the deceased or the claimant as laid down in General Manager, Kerala State Road Transport Corporation vs. Susamma Thomas 1994 (2) SCC 176 and Trilok Chandara (supra), was not brought to the notice of the Supreme Court in Munna Lal Jain & Anr. (supra). Otherwise also, in view of the judgment in Safiya Bee's case (supra) and Union of India and Ors. v. S.K. Kapoor, (2011) 4 SCC 589, the law laid down in U.P.SRTC v. Trilok Chandara, (1996) 4 SCC 362 shall be taken as a binding precedent.

There is no evidence that the deceased was earning any amount. The minimum wages in Punjab in 2011 was around Rs. 4,000/- per month. Therefore, I would not make any addition in that amount. The deduction of 50% was rightly made but the calculations will have to be made all over again as the multiplier taking the age of the deceased was applied. The correct multiplier applicable can be taken to be 15 and the compensation would be Rs. 4,000 ÷ 2 = Rs. 2,000 x 12 x 15 = Rs. 3,60,000/-. To this, a sum of Rs. 5,000/- more should be added as funeral expenses. Rs. 50,000/- are added on account of loss of love and affection and Rs. 50,000/- are added on account of loss of estate. The total of this comes to Rs. 4,65,000/-. The Tribunal has awarded Rs. 4,37,000/- which would be deducted and the balance amount would be payable to the appellants at the same rate of interest as allowed by the Tribunal from the date of filing of the appeal till realization.

The appeal is partly allowed.

(ANITA CHAUDHRY) JUDGE April 03, 2017 Gurpreet Whether speaking/reasoned :

Yes Whether reportable :

No