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UNITED INDIA INSURANCE CO. LTD. versus MOHD. SHAKIR ALI AND OTHERS

High Court of Judicature at Allahabad

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United India Insurance Co. Ltd. v. Mohd. Shakir Ali And Others - FIRST APPEAL FROM ORDER No. 665 of 2001 [2001] RD-AH 45 (22 September 2001)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

-                                                                                                         RESERVED

1. Civil Misc. Review Application no. 155540 of 2005

On behalf of

Mohd. Shakir Ali . . . . . . . .  . . . .  . . . . .  . . .  . . . . . .  .  . . Applicant.

               In

     F.A.F.O. no. 665 of 2001

United India Insurance Co.Ltd.  .  Vs. Mohd. Shakir Ali & others'

And

2. Civil Misc. Review Application no. 155542 of 2005

On behalf of

Smt. Sabra Begum . . . . . . . .  . . . .  . . . . .  . . .  . . . . . .  .  . . Applicant.

               In

     F.A.F.O. no. 667 of 2001

United India Insurance Co.Ltd.  .  Vs. Smt. Sabra Begum & others

                                             And

3. Civil Misc. Review Application no. 155543 of 2005

On behalf of

Iqbal Ahmad . . .  .  . . . . . . . .  . . . .  . . . . .  . . .  . . . . . .  .  . . Applicant.

               In

     F.A.F.O. no. 671 of 2001

United India Insurance Co.Ltd.  .  Vs. Iqbal Ahmad  & others,

       And

4. Civil Misc. Review Application no. 155544 of 2005

On behalf of

Iqbal Ahmad . . .  . . . . . . . . .  . . . .  . . . . .  . . .  . . . . . .  .  . . Applicant.

               In

     F.A.F.O. no. 669 of 2001

United India Insurance Co.Ltd.  .  Vs. Iqbal Ahmad   & others,

And

5. Civil Misc. Review Application no. 155545 of   2005

On behalf of

Bismillah . . . . .  . . . . . . . . . .  . . . .  . . . . .  . . .  . . . . . .  .  . . Applicant.

               In

                           F.A.F.O. no. 670 of 2001

United India Insurance Co.Ltd.  .  Vs. Bismillah  & others,

And

6. Civil Misc. Review Application no. 155995 of 2005

On behalf of

Dr. Sagir Ahmad . . . . . . . .  . . . .  . . . . .  . . .  . . . . . .  .  . . Applicant.

               In

     F.A.F.O. no. 668 of 2001

United India Insurance Co.Ltd.  .  Vs. Dr. Sagir Ahmad  & others,

      And

7. Civil Misc. Review Application no. 155997 of 2005

On behalf of

Zafar Husain . . .  .  . . . . . . . .  . . . .  . . . . .  . . .  . . . . . .  .  . . Applicant.

               In

     F.A.F.O. no. 666 of 2001

United India Insurance Co.Ltd.  .  Vs.  .   Zafar Hussain and  & others,

---

Hon'ble Yatindra Singh,J.

Hon'ble R.K. Rastogi,J.

( Delivered by Hon. R.K. Rastogi,J. )

---

1. All these applications have arisen out of a common judgment and order dated 6.7.2005 passed in FAFOs. no. 665, 666, 667, 668, 669, 670 and 671 of 2001 and cross appeals no. 202203, 202202, 202197, 202198, 202199, 202200 and 202201of 2004. Since a common law point is involved in all these review applications, we have heard them together and are deciding them by a common order.

2. The relevant facts of these cases have been stated by us in our judgment dated 6.7.2005 delivered in the aforesaid   F.A.F.Os. and cross appeals. It may be mentioned that a Maruti Van had met with an accident on 15.5.1999. All the occupants of the Van, who were bachelors, had died on the spot. Their  heirs, who are their parents etc., filed claim petitions. Taking into consideration the respective income of the deceased persons as well as this fact that they were bachelors, dependency of the claimants was assessed to be  1/3rd  of their  income;  and according to the age of the claimants appropriate multipliers were applied. The only ground on which the review  has been sought  is that there should have been only 1/3rd  deduction in respect of  the expenses of the deceased and dependency of the claimants should have been assessed to be 2/3rd of their income and not 1/3rd (as was done in the above judgment), and so this judgment and order should be reviewed.

3. We have heard Sri Piyush Misra for the applicants and Sri V.C. Dixit for the opposite party, Insurance Company.

4. The learned counsel for the applicants cited before us a ruling of the Hon'ble Apex Court in the case of 'Gyan Chand Jain and  another  Vs. Permanand and others'  reported in 2003 (1) T.A.C. 490 (S.C.) and contended that in this case an unmarried person aged about 26 years had died and age of the father and the mother was 55 and 48 years respectively, and in this case  after deduction of 1/3rd  income towards personal expenses of the deceased, the remaining  2/3rd income of the deceased was determined as loss of dependency. It was contended that in view of this ruling of the   Hon'ble Apex Court,  only 1/3rd  deduction should have been made in respect of the income of the deceased persons and the remaining 2/3rd  portion of their income should have been awarded as compensation after applying  appropriate multiplier.

5. The learned counsel for the applicants also referred to Article 141 of the Constitution of India in which it has been provided that the law declared by the Supreme Court is binding  on all courts. He also cited before us  another ruling of the Hon'ble Apex Court in 'Karnataka State Road Transport Corporation Vs. Ashrafulla Khan and others' 2002(2) SCC 560 in which it has been held that the High Court is required to enforce rule of law  and it cannot  pass an order  or direction contrary to what has been injuncted by law. He also cited before us another ruling of the Hon'ble Apex Court  in 'Shiv Shakti Coop. Housing Society, Nagpur Vs. Swaraj Developers and others'. 2003(6) SCC 659 on the law of interpretation, in which it has been provided that it is well settled principle of law  that the court cannot read anything into a  statutory provision which is plain and unambiguous. His contention was that there is a provision in the II Schedule of the Motor Vehicles Act for reducing  the amount of compensation by 1/3rd in consideration of the expenses which the victim  had incurred towards maintaining himself, had he been alive;  and so there was no question of reducing this amount by 2/3rd. He also cited before us  a ruling of the Punjab and Haryana High Court in 'Ajit Kaur Vs. Kulwinder Singh and others' reported in 1996 (2) T.A.C. Page 82. In this case the deceased was  bachelor aged about 20 years and he was milk  vendor having income of Rs.900/- per month. The High Court was of the view that he was likely to be married  after five years  and so his contribution towards his parents was assessed to be Rs.600/- per month for a period of five years  and thereafter  it was reduced to Rs.300/- per month from the anticipated  time of his marriage. He also cited before us  a ruling of Orissa High Court in 'Sri Braj Mohan Jena and others Vs. Haripada Bayan and another' reported in 1996(2) T.A.C. Page 71. In this case the deceased was aged  about 16 years  and had done matriculation. His probable income was fixed by the High Court to be Rs.750/- per month and regarding his contribution towards his parents the following observations were made in para 6 of the judgment:

" Ordinarily, the 1/3 of the gross income has to be deducted towards personal expenses of the deceased and 2/3rd is to be taken as the  contribution for the family. Calculated on that basis , the deceased would have contributed Rs.500/- per month. It would be unpragmatic to hold that there would have been absolute consistency in the contribution. With the passage of time, the needs of the deceased was  likely to go up and thereby contribution for the parents would have   decreased. No arithmetical formula can be adopted to arrive at the exact figure. In the matters of this  nature probabilities and speculations have their own role. The Hilieu the social backdrop, the sphere to which the claimants and the deceased belong and the arena in which they function and such other subsidiary factors that govern their lives are also  to be taken into consideration.  Abstaining from precise calculation, it can be assessed that the contribution would have been Rs.350/- per month and Rs.4,200/-per year."

       

6. The learned counsel for the opposite party, Insurance Company, on the other hand, cited  before us another ruling of  the Hon'ble Apex Court  in 'Donat Louis Machado and others Vs. L. Ravindra and others'  2000 (1) T.A.C. 208 ( S.C.). In this case  a journalist aged about 31 years, who was bachelor, had died and claimants were  his father and sister. In this case   Hon'ble  Supreme Court  has taken the view that the deceased would  have spent 2/3rd  of his earning on his own family which he would have raised for himself and assessed the dependency of the claimants to be only 1/3rd   of his income. The learned counsel for the  Insurance Company contended that in this ruling,  Hon'ble Apex Court  has given cogent reasons for  fixing the dependency of  the parents and sister to 1/3rd of the amount only and has observed:

"it can easily be visualised  that the claimants who are the parents and unmarried  sister and who are dependent on him would  have  got at least 1/3rd amount as he would  have spent the rest  2/3rd amount of his  earnings on his own family which he would have raised and on himself."  

7. He further contended that in the ruling of  Hon'ble Apex Court in 'Gyan Chand  Jain and another Vs. Permanand and others' (supra ) though the deceased was bachelor, yet the  above aspect of the case  has not been considered. Relevant portion of the  observations of the Hon'ble  Apex Court is as under:

" We do  find a small infirmity in the order of the Tribunal. The income of the deceased was determined at Rs.1,638/- p.m. The Tribunal erred in determining the total loss of dependency at Rs.1,000/-p.m. The same should have been Rs.1,100/- per month and as only 1/3rd was to be  deducted towards the personal expenses of the deceased."

8. It was submitted by the learned counsel for the opposite party that this aspect of the case that where the deceased was unmarried and was of marriageable  age,  2/3rd  deduction should be made from his income when the claimants are his parents, as laid down by the  Hon'ble Apex Court in the case of Donat Louis Machado and others Vs. L.Ravindra and others (supra), has not been considered in the case of Gyan Chand (supra) and so the view taken by the Hon'ble Apex Court in the case of  Donat Louis Machado and others (supra)   in which reasons have also been given for making deduction of 2/3rd  amount from the income shall prevail when no reasons have been given in the ruling  in Gyan Chand  Jain (supra) for making deduction of 1/3rd  amount only in case of death of the deceased, who  is unmarried.

9. He further submitted that the rulings of Punjab and Haryana High Court  in Ajit Kaur Vs. Kulwinder Singh  and others and Orissa High Court in  Sri Braj Mohan Jena and others Vs. Haripada Bayan and another (supra) cited by the applicants also support his contention that where a bachelor had died, the dependency of the parents should be assessed to 1/3rd of his income.

10. The learned counsel for the applicants on the other hand submitted before us that the ruling of Hon'ble Apex Court in Donat Louis Machado 's case in which parents' dependency was assessed to be 1/3rd of the income of the deceased was delivered on 5.12.1997 and the ruling of the Hon'ble Apex Court in Gyan Chand Jain's case (supra) was delivered on 3..12.2002 and since it is a subsequent ruling, this ruling should be followed and the earlier ruling taking a contrary view should be presumed to have been over ruled.

11. We have considered the case law on this point. It was laid down by a Full Bench of this Court in Gopal Krishna Indley Vs. Vth Addl. District Judge, Kanpur and others AIR 1981 Allahabad  page 300 that when there is a conflict between two decisions of Hon'ble Apex Court by the judges of equal strength the decision of the latter Bench shall be binding. It may be mentioned that in this case the facts were that  the Bench of two Hon'ble Judges of the Supreme Court had held in Ram Swarup Rai Vs. Smt. Lilawati Devi-1980 A.L.J page 651that the benefit of exemption from applicability of the provisions of the U.P. Act no. 13 of 1972 for a period of ten years  shall be available to those buildings only which are constructed  after enforcement of the above Act, but in the subsequent ruling in Ratan Lal Vs. Smt. Malti Devi-A.I.R. 1980 S.C. Page 635 the Division Bench of two Hon'ble Judges  held that this benefit of exemption from applicability of  provisions of the U.P. Act no. 13 of 1972 shall be available for a period of ten years to those buildings also which had  been constructed prior to  enforcement of the above Act, but had not completed that  period of ten years on the date of enforcement of the Act. Since there was conflict between these two decisions, the  Full Bench of this Court held that the latter ruling shall be binding and observed in para 27 of the judgment that:

         

  " We would only content ourselves by saying that since  we are bound  by the latter decision of the Supreme    Court, we must follow the same. To us, it  appears   that the    latter  decision has impliedly overruled the  earlier."

12. This controversy again came  for consideration before the Full Bench of this Court in the case of Ganga Saran Vs. Civil Judge, Hapur reported in AIR 1991 Allahabad page 114. In this case the facts were that a Full Bench of this Court had laid down in 'Jupiter Chit Fund (Pvt) Ltd. Vs. Dwarka Diesh' -AIR 1979 Allahabad  page 218 that in view of the U.P. Amendment  of section 115 of the Civil Procedure Code  no revision lies  in the High Court  against an order passed by the District Judge or the  Addl. District Judge in an  appeal or revision. This view was affirmed by the Supreme Court in Vishesh Kumar Vs. Shanti Prasad- AIR 1980 SC 892 and in Sri Vishnu Autar Vs. Shiv Autar -AIR 1980 S.C. 1975. However, Hon'ble Supreme Court in Qamaruddin Vs. Rasul Baksh 1990 A.W.C. 308 S.C. without reference to the U.P. Amendment of Section 115 C.P.C. and without referring to its earlier rulings in the cases of Vishesh Kumar and  Vishnu Autar (supra) held that a revision was maintainable in the High Court even against  an appellate order passed by the District Judge, and so a controversy arose as to which ruling of Hon'ble Supreme Court should be followed. This controversy was described by the Full Bench in the following words:

" 7.   One line of decision is that if there is a conflict in two Supreme Court   decisions, the decision which is later in point of time would be binding on the High Courts. The second  line of decisions is that in case there is a conflict between the judgments of Supreme Court consisting of equal authorities, incidence  of time is not a relevant factor and the High Court must follow the judgment which appears it to lay down law elaborately and accurately."                                            

13. Their Lordships referred to a Full Bench ruling of the Punjab and Haryana High Court in M/S Indo Swiss Time Limited, Dundahera Vs. Umrao, A.I.R. 1981 Punj & Har 213 in which it was observed  that :

     "8. . . . . . . .  . . . .  . . .  . . .  . . .  . . .  . . .  . . . . . . .    

Now the contention that the latest judgment  of a co-ordinate Bench is to be mechanically followed and must have pre- eminence irrespective of any other consideration does not commend itself to me. When judgments of the superior Court are of co-equal Benches and, therefore, of matching authority then their weight  inevitably must be considered by the rationale and the logic thereof and not by the mere fortutious circumstances of the time and date on which they were rendered. It is manifest that when two directly conflicting judgments of the superior Court and of equal authority are extant then both of them cannot  be binding on the courts below. Inevitably a choice, though a difficult one, has to be made in such a situation. On principle it appears to me that the High Court  must follow  the judgment which appears to it to lay down the law more elaborately and accurately. The mere incidence of time whether the judgments  of coequal Benches of the Superior Court are earlier later is a consideration which appears to me as hardly relevant."

14. This ruling of  the Full bench of the Punjab & Haryana High Court was followed  by the Full Bench of the Bombay High Court in Special Land Acquisition Officer Vs. Municipal Corporation AIR 1988 Bombay  9. Relying upon both these  Full Bench rulings  of the Punjab & Haryana High Court  and the Bombay High Court, the Full Bench of this Court in Ganga Saran's case(supra) after  pointing out this fact that Hon'ble Supreme Court in Qamaruddin's case (supra) had not taken into consideration  the U.P. Amendment  of section 115 C.P.C. observed that the rulings of  the Hon'ble Apex Court in Vishesh Kumar  & Vishnu Autar's cases, which have taken the above amendment into consideration lay down the law  accurately, and so these earlier rulings are binding  and not the subsequent ruling in Qamaruddin's case.Their lordships observed in paras 9 & 10  of the judgment as under:

"9.   In such a situation it cannot be  held that the case of Qamaruddin (supra) lays down the law accurately. Further it also cannot be held that the decision of the Supreme Court in Qamaruddin's case overruled the decision of Full Bench of this Court which as noticed already, has been specifically affirmed in two decisions of the Supreme Court. It would not be reasonable  to say that even though Qamaruddin's case does not   notice U.P. Amendment Act and the earlier  decision of Supreme Court approving  the Full Bench decision of this Court, it must be deemed to have dissented or departed from earlier decisions or that it has over-ruled the Full Bench decision of this Court. It goes without saying that even the decision of the Supreme Court must be understood reasonably. It would not be reasonable to say that the Supreme Court would depart or dissent  from its earlier decision without even referring to them or without even referring to the relevant provisions of law."

"10.For the above reasons  it must be held that the decision of Supreme Court in Qamaruddin's case (1990 Allahabad WC 308) (supra) to the extent it holds that revision against an appellate  or  revisional  order  passed by the district court is maintainable  u/S.115, C.P.C. (as amended by U.P.Act 31/78) to the High Court  does not state the law accurately or overrule the decision of the Full Bench of this Court in Jupiter Chit Fund (Pvt.) Ltd. Vs. Dwarka Diesh AIR 1979 All. 218) (Supra) particularly when it has specifically been approved by the two earlier decision of the Supreme Court."

15. Now it is to be seen that according to the above ratio of the Full Bench ruling of this Court in Ganga Saran's case (supra) in case of conflict  between two rulings of the Hon'ble Apex Court of co-equal Benches, that ruling  which lays down law more accurately shall be binding. In the present case, the position is that in the ruling of Donat Louis Machado  (supra) the Hon'ble Apex Court has given reasons for awarding 1/3rd amount of the income of the deceased  to his parents as compensation. This view is also supported by the rulings of the Punjab and Haryana High Court and the Orissa High Court cited by the  learned counsel for applicants himself. Actually this point does not appear to have been pressed before the Hon'ble Apex Court in the case of Gyan Chand Jain (Supra ) nor the ruling in Donat Louis Machado's case (supra) appears to have been cited  in that case. Hence the Hon'ble Apex Court  simply noticing this fact that there was a calculation mistake in deducting the 1/3rd amount of salary from Rs.1638/- observed that   2/3rd of the amount of Rs.1638/- does not come to Rs.1000/- as held by the Tribunal and that it should be Rs.1100/- after 1/3rd deduction. The point that the deceased  bachelor,   would not have contributed more than 1/3rd of his salary for his parents  after his marriage,  which was  the ratio of the ruling in Donat Louis Machado's case ( supra), does not appear to have been pressed before  Hon'ble Apex Court in Gyan Chand Jain's case (supra) and so we are of the opinion  that in view  of Full Bench ruling of this Court in Ganga  Saran vs. Civil Judge, Hapur (supra) the earlier ruling of Hon'ble Apex Court in Donat Louis Machaod's case (supra) which  lays down the law more accurately is  binding upon this Court and so this ruling should be followed. All the aforesaid F.A.F.Os.  have been decided following the law  laid down in Donat Louis Machado's case (supra), and as such the judgment  does not suffer from any error or infirmity.

16. In this view of the matter, the review applications  have got no force and they are  liable to be  dismissed.

17. All the review applications are accordingly dismissed.

Dated:22.9.2005

RPP.


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