Jagdish Chandra Pathak And ... vs Kundan Singh Pangty And Others
2023 Latest Caselaw 2489 UK

HIGH COURT OF UTTARAKHAND AT NAINITAL

        Appeal From Order No. 95 of 2018
Jagdish Chandra Pathak and others..........Appellants

                              Versus

Kundan Singh Pangty and others ...........Respondents
Present:-
             Mr. Tarun Pande, Advocate for the appellants.
             Mr. V.K. Kohli, Senior Advocate assisted by Mr. Kanti
             Ram Sharma, Advocate for respondent no.3.

Hon'ble Ravindra Maithani, J. (Oral)

Instant appeal has been preferred against the

judgment and order dated 04.12.2017, passed by Motor

Accidents Claims Tribunal/District Judge, Nainital in

M.A.C.P. No.18 of 2017, Shri Jagdish Chandra Pathak

and others vs. Kundan Singh Pangty and others, by

which, the appellants have been awarded total

`4,89,000/- compensation under the provisions of the

Motor Vehicles Act, 1988 ("the Act").

2. Heard learned counsel for the parties and

perused the record.

3. One of the questions that has been raised in

this petition is that the future prospects of the deceased

have not been counted while calculating the amount of

compensation.

4. It is the case of the appellants that such future

prospects ought to have been calculated in view of the

judgment in the case of Kirti and another vs. Oriental

Insurance Company Limited, (2021)2 SCC 166.

5. On the other hand, learned Senior Counsel

appearing for the respondents no.3 ("the Insurance

Company") would submit that Hon'ble Single Bench of

this Court in AO No.106 of 2018, The New India

Assurance Company Limited vs. Smt. Vimla Devi and

others has held that the judgment in the case of Kirti

(supra), is not in rem, therefore, the provisions of law as

laid down in the case of National Insurance Company

Limited vs. Pranay Sethi and others, (2017)16 SCC 680,

shall have binding effect.

6. In the case of Pranay Sethi (supra), the Hon'ble

Supreme Court discussed the law on compensation under

the Act. In para 59.4, the aspects of future prospects have

been discussed as follows:-

"59.4. In case the deceased was self-employed or on a fixed salary, an addition of 40% of the established income should be the warrant where the deceased was below the age of 40 years. An addition of 25% where the deceased was between the age of 40 to 50 years and 10% where the deceased was between the age of 50

to 60 years should be regarded as the necessary method of computation. The established income means the income minus the tax component."

7. In the case of Kirti (supra), Hon'ble Supreme

Court took note of the judgment in the case of Pranay

Sethi (supra) in para 40, which is observed as hereunder:-

"40. When it comes to the second category of cases, relating to notional income for non-earning victims, it is my opinion that the above principle applies with equal vigour, particularly with respect to homemakers. Once notional income is determined, the effects of inflation would equally apply. Further, no one would ever say that the improvements in skills that come with experience do not take place in the domain of work within the household. It is worth noting that, although not extensively discussed, this Court has been granting future prospects even in cases pertaining to notional income, as has been highlighted by my learned Brother, Surya Kant, J., in his opinion (Hem Raj v. Oriental Insurance Co. Ltd. [Hem Raj v. Oriental Insurance Co. Ltd., (2018) 15 SCC 654 : (2019) 1 SCC (Civ) 293 : (2019) 2 SCC (Cri) 864] ; Sunita Tokas v. New India Insurance Co. Ltd. [Sunita Tokas v. New India Insurance Co. Ltd., (2019) 20 SCC 688 : (2020) 4 SCC (Cri) 436] )."

8. But, this Court in the case of Smt. Vimla Devi

(supra), in para 10 distinguished the principles as laid

down by the Hon'ble Supreme Court in the case of Kirti

(supra) and observed as hereunder:-

"10. In fact, this Court is of the view that in order to answer the argument extended by the learned Counsel for the respondent, this Court, with all humility at its command is in disagreement with the findings of paragraph No.14, of the judgment of the Hon'ble Apex Court for the reason being that three Judges Bench judgment of the Hon'ble Apex Court, where it has dealt with the impact of Pranay Sethi

judgment, and has carved out a distinction in the light of the findings recorded in paragraph No.59.4, will not be a ratio in rem to be applied invariably in all the cases, particularly when the field stood covered by the ratio descents of the Constitution Bench judgment of the Hon'ble Apex Court in Pranay Sethi case. Hence, for the reasons aforesaid, the same would not apply in the instant case."

9. Hon'ble Supreme Court in the case of Kirti

(supra) has interpreted the principle of law as laid down

in the case of Pranay Sethi (supra), but it has been

distinguished by the Coordinate Bench of this Court. This

Court is of the view that this matter is required to be

decided by the Larger Bench. Hence, this Court refers the

following point for determination by a Larger Bench:-

(i) Whether the principle of future prospects

would be applicable in case of non-earning

victims, whose income is fixed notionally for

the purpose of computation of compensation

under the Motor Vehicles Act, 1988?

10. The Registry is directed to place the matter

before Hon'ble the Chief Justice for constitution of the

Bench.

(Ravindra Maithani, J.) 24.08.2023 Sanjay