Om Parkash & ANR v. Ashok Kumar & ORS

-1In the High Court of Punjab and Haryana at Chandigarh F.A.O No. 946 of 2013 (O&M) Date of Decision: 11.7.2017 Om Parkash and another ......Appellants

Versus

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

Present:

Mr. V.K.Sheoran, Advocate for the appellants.

Mr. Navin Kapur, Advocate for respondent No. 3-Insurance Company.

**** ANITA CHAUDHRY, J This is the claimants' appeal seeking enhancement in the award dated 8.8.2012 passed by the Motor Accident Claims Tribunal, Bhiwani. Pardeep, a bachelor just 22 years met with an accident on 4.11.2011. The claimants are his parents. Pardeep was stated to be earning Rs. 10,000/- per month and was stated to be an agriculturist. The Tribunal found that there was no evidence that he owned any land or had any income. However, his income was taken as that of a labourer and assessed at Rs. 4800/- per month. The multiplier of 12 was applied and after making a deduction of 50% the compensation was calculated at Rs. 3,45,600/-. Rs. 20,000/- was awarded as funeral expenses raising the compensation to Rs. 3,65,600/-.

Counsel for the appellants contends that the Tribunal had wrongly applied the multiplier of 12 and it should have been 18 considering the age of the deceased. He further contends that an addition towards future

-2prospects should have been made and the amount awarded as funeral expenses was on the lower side. He also contends that the claimants were entitled to compensation for loss of love and affection and also for loss of estate. Reliance was placed upon 'Kalpanaraj and others versus Tamil Nadu State Transport Corporation 2015(2) SCC 764' and 'Vimal Kanwar and others versus Kishore Dan and others 2013(2) R.C.R. (Civil) 945'. The submission on the other hand is that the multiplier was correctly applied and in the case of death of a bachelor the age of the parents is to be taken into account and when notional income has been taken there can be no addition towards future prospects and the matter is also under consideration with the larger Bench.

So far as the income is concerned, there can be no change as there is no evidence. The deduction and the multiplier applied was correct. The multiplier had to be considering the age of the parents and not that of the deceased, where the deceased is a bachelor. 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,

-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. Some additions, however, need to be made as some amount has not been allowed. Therefore, I would allow Rs. 50,000/- for loss of love and affection for the mother. Rs. 5,000/- are added for funeral expenses and Rs. 1.00 lac for loss of estate. The total amount payable would be Rs. 1,55,000/- which would be payable to the claimants with interest @ 6% from the date of filing of the appeal till the amount is actually paid.

-8The appeal is partly allowed.

(ANITA CHAUDHRY) JUDGE July 11, 2017 Gurpreet Whether speaking/reasoned :

Yes Whether reportable :

No