United India Insurance Co.Ltd. vs Urmila Sharma & Ors.
2010 Latest Caselaw 629 Del

*IN THE HIGH COURT OF DELHI AT NEW DELHI

                   +      MAC.APP.No. 499/2007

                                Date of Decision: 4th February, 2010,
%


      UNITED INDIA INSURANCE CO.LTD.       ..... Appellant
                     Through Mr. A.K. De, Advocate.

                    versus

      URMILA SHARMA & ORS.         ..... Respondents
                   Through Mr. Rakesh Kumar Dudeja,
                   Advocate.

                           MAC.APP.No. 14/2008

      URMILA SHARMA & ORS         ..... Appellants
                   Through Mr. Rakesh Kumar Dudeja,
                   Advocate.


                    versus

      SULTAN & ORS                      ..... Respondents
                           Through Mr. A.K. De, Advocate.


CORAM :-
THE HON'BLE MR. JUSTICE J.R. MIDHA

1.      Whether Reporters of Local papers may           YES
        be allowed to see the Judgment?

2.      To be referred to the Reporter or not?          YES

3.      Whether the judgment should be                  YES
        reported in the Digest?

                          JUDGMENT (Oral)

1. The appellants have challenged the award of the

learned Tribunal whereby compensation of Rs.7,44,280/- has

been awarded to the claimants. The appellant, in appeal

No.499/2007, seeks reduction of the award amount whereas

the appellants, in appeal No.14/2008, are seeking

enhancement of the award amount.

2. The accident dated 1st June, 2005 resulted in the death

of Sushil Kumar Sharma. The deceased was survived by his

widow and three sons, who filed the claim petition before the

learned Tribunal.

3. The deceased was aged about 45 years at the time of

the accident and was working as beldar with Department of

Flood Control, Govt. of NCT of Delhi, drawing a salary of

Rs.7,538/-per month. The learned Tribunal added 50%

towards the future prospects, added 1/3rd towards the

personal expenses and applied the multiplier of 15 to

compute the loss of dependency at Rs.6,74,280/-. The

learned Tribunal deducted 50% towards contributory

negligence of the deceased. Rs.50,000/- was awarded

towards the medical expenses, Rs.5,000/- towards loss of

consortium, Rs.5,000 towards loss of estate and Rs.5,000/-

towards transportation charges. The learned Tribunal has

awarded total compensation of Rs.7,44,280/- to the

appellants.

4. The learned counsel for the appellant in MAC 499/2007

has urged the following grounds at the time of hearing of this

appeal:-

(i) The GPF of Rs.1,000/- be deducted from the salary

of the deceased for computing the compensation.

(ii) The multiplier be reduced from 15 to 13.

(ii) The medical expenses of Rs.50,000/- should be

set aside.

5. The learned counsel for the appellants in

MAC.APP.No.14/2008 has urged the following grounds at the

time of hearing of this appeal:-

(i) The finding of contributory negligence be set

aside.

(ii) The personal expenses be reduced from 1/3rd to

1/4th.

(iii) The compensation be awarded for loss of love and

affection.

(iv) The compensation for loss of estate be enhanced.

6. On 1st June, 2005, the deceased was returning from

Ghaziabad to his residence at Delhi. The deceased was pillion

rider on motor cycle No.DL-7S-AF-0316, driven by Vinay

Sharma. Near Hindon Airport, the aforesaid motor cycle was

hit by another motor cycle No.UP15-N-9922 coming from the

opposite direction. Vinay Sharma appeared in the witness

box and deposed that the accident occurred due to the rash

and negligent driving of the motor cycle No.UP15-N-9922

coming from the opposite direction. PW-3 proved the FIR

Ex.PW-3/2 which was registered against the driver of motor

cycle No.UP15-N-9922. The site plan of the accident was

prepared by the police and the certified copy thereof was

proved as Ex.PW-3/5. The site plan prepared by the police

clearly shows that the motor cycle of the deceased was on

the extreme left side of the road and the motor cycle

No.UP15-N-9922 came from the opposite direction on the

wrong side and hit the motor cycle of the deceased. The

rashness and negligence of the driver of motor cycle

No.UP15-N-9922 is clearly proved by the statement of PW-3,

FIR Ex.PW-3/2 and site plan prepared by the police. However,

the learned Tribunal did not consider the aforesaid evidence

on record and presumed the contributory negligence without

any basis. Even otherwise there could not be any

contributory negligence of the deceased who was sitting on

the pillion. For all the aforesaid reasons, the finding of the

contributory negligence of the deceased by the claims

Tribunal is set aside. It is held that the accident occurred due

to rash and negligent driving of motor cycle No.UP15-N-9922.

7. The deceased was aged 45 years and four months at

the time of the accident and was working as beldar drawing

a salary of Rs.7,538/-. The learned Tribunal deducted Rs.30/-

towards DGHS, Rs.15/- towards CGEIS and took the net

salary of the deceased as Rs.7,493/-. The learned counsel for

the appellant submits that Rs.1,000/- towards the GPF should

also be deducted from the salary of the deceased. There is

no infirmity in the finding of the learned Claims Tribunal. The

finding of the learned Tribunal in this regard is upheld.

8. The learned Tribunal has applied the multiplier of 15.

The appropriate multiplier at the age of 45 years and four

months is 13 according to the judgment of the Hon'ble

Supreme Court in the case of Sarla Verma Vs. Delhi

Transport Corporation, 2009 (6) Scale 129. The

deceased has leaving behind four legal representatives and

the appropriate deduction as per the judgment of Sarla

Verma (supra) is 1/4th. Following the judgment of the

Hon'ble Supreme Court, the multiplier is reduced from 15 to

13 and the personal expenses of the deceased are reduced

from 1/3rd to 1/4th.

9. The learned Tribunal has not awarded any

compensation for loss of love and affection. Rs. 5,000/- has

been awarded for loss of consortium and Rs.5,000/- towards

loss of estate. The compensation for loss of consortium is

enhanced from Rs.5,000/- to Rs.10,000/- and loss of estate is

enhanced from Rs.5,000/- to Rs.10,000/-. Rs. 10,000/- is

awarded towards loss of love and affection. The learned

Tribunal has awarded Rs.50,000/- towards medical expenses.

There is no proof of medical expenses. However, the

deceased remained in hospital only from 1.06.2005 to

4.06.2005. In these circumstances, medical expenses are

reduced from Rs.50,000/- to Rs.5,000/-. The appellants are

entitled to total compensation of Rs.13,59,846/- [(Rs.11,238

x 3/4 x 12 x 13) + Rs.10,000 + Rs.10,000 + Rs.10,000 +

Rs.5,000 + Rs.5,000 + Rs.5,000].

10. The MAC.APP.No.499/2007 and MAC.APP.No.14/2008

are partly allowed and the award amount is enhanced from

Rs.7,44,280/- to Rs.13,59,846/-.

11. The enhanced award amount along with interest be

deposited by United India Insurance Company with UCO Bank

A/c Urmil Sharma, Delhi High Court Branch by means of a

cheque through Mr. M.M. Tandon, Member-Retail Team, UCO

Bank Zonal, Parliament Street, New Delhi (Mobile No.

09310356400) within 30 days.

12. The order with respect to the disbursement of the

award amount shall be passed after examining the

appellants who are directed to remain present in Court on

the next date of hearing.

13. List the appeal on21st April, 2010 for compliance.

14. Copy of this order be given 'Dasti' to learned counsel

for both the parties under signature of Court Master.

J.R. MIDHA, J FEBRUARY 04, 2010 HL