Kulwant Kaur & ORS v. Rakesh Kumar & ORS

-1In the High Court of Punjab and Haryana at Chandigarh Date of Decision: 21.2.2017 Kulwant Kaur and another ......Appellants

Versus

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

Present:

Mr. Harshit Jain, Advocate for the appellant.

None for respondent No. 1.

Mr. Neeraj Khanna, Advocate for Mr. Navin Kapur, Advocate for respondent No. 2.

**** ANITA CHAUDHRY, J This is the claimants' appeal seeking enhancement. The claimants are the legal heirs of Gurmail Singh who died in a vehicular accident on 30.12.2009. The Tribunal took the income to be Rs. 4500/- per month and added 30% towards future prospects and made a deduction of 1/3rd towards personal expenses. After applying the multiplier of 14 the compensation was calculated at Rs. 6,55,200/-. An addition of Rs. 5,000/- for loss of estate, Rs. 5,000/- for funeral expenses and Rs. 5,000/- for loss of consortium was added to raise the compensation to Rs. 6,70,200/-. However award of Rs. 6,00,000/- was passed as the claimants had only claimed Rs. 6,00,000/-.

The submission on behalf of the appellants while relying on

-2- 'Sanobanu Nazirbhai Mirza and others versus Ahmedabad Municipal Transport Service 2013(4) R.C.R. (Civil) 732' is that the Tribunal can award compensation more than what has claimed and if the legal heirs are entitled to more compensation then it should not have been denied. It was urged that the Tribunal had awarded less amount on the heads of loss of estate, funeral expenses and loss of consortium and those should be added. It was urged that the Tribunal had deducted 1/3rd towards personal expenses when the number of claimants were four and the deduction should have been 1/4th.

The submission on the other hand was that when the minimum wages had been taken then no addition towards future prospects should have been made and the matter is under consideration with the Apex Court. It was contended that it would be difficult for them to recover if the amount is allowed.

So far as the future prospects is concerned, 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 selfemployed, 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 if the later view is accepted. The award could not have been restricted to the amount claimed. The appellants were entitled to compensation for the number of heads and therefore award needs to be modified. The Tribunal had taken the minimum wages of Rs. 4500/- and had deducted 1/3rd towards personal expenses but considering the number of family members deduction should have been 1/4th.

-8have to be made again. After deducting 1/4th the amount available for the family would be Rs. 3375/- and the annual contribution would come to Rs. 40,500/-. After applying the multiplier of 14, the compensation would come to Rs. 5,67,000/-. To this, an addition of Rs. 20,000/- more shall have to be made for loss of estate, Rs. 20,000/- for funeral expenses, Rs. 95,000/- for loss of consortium and Rs. 1,00,000/- for loss of love and affection for the children which raises the total to Rs. 8,02,000/-. The Tribunal had allowed Rs. 6,00,000/- which would be deducted and the remaining amount would be payable to the appellants in the same ratio as was allowed by the Tribunal and at the same rate of interest i.e. 6% from the date of filing of the appeal i.e. 3.12.2013 till realization.

The appeal is partly allowed.

(ANITA CHAUDHRY) JUDGE February 21, 2017 Gurpreet Whether speaking/reasoned :

Yes Whether reportable :

No