Delhi High Court
Ganga Devi & Ors. vs Sanjeev Sharma & Ors. on 23 February, 2015
Author: G.P. Mittal
$-7
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 23rd February, 2015
+ MAC.APP.1000/2012
GANGA DEVI & ORS. ..... Appellants
Through: Mr. Maya Ram, Adv.
versus
SANJEEV SHARMA & ORS. ..... Respondents
Through: Mr. J.P.N.Shahi, Adv. for R-3.
CORAM:
HON'BLE MR. JUSTICE G.P.MITTAL
JUDGMENT
G. P. MITTAL, J. (ORAL)
1. The appeal is for enhancement of compensation and for setting
aside the finding that the cause of death of deceased Mahesh
Chander was not on account of the injuries suffered in a motor
vehicular accident which occurred on 21.12.2006.
2. A Claim Petition under Section 166 read with Section 140 of
the Motor Vehicles Act, 1988 (the M.V. Act) for grant of
compensation for injuries suffered by Mahesh Chander and
consequent death was preferred by the Appellants against the
driver, owner and insurer of the offending vehicle, a tempo
traveler bearing registration no.DL-IVA-5302.
3. On appreciation of evidence, the Motor Accident Claims
Tribunal (the Claims Tribunal) found that the accident was
caused because of rash and negligent driving of the tempo
traveler. The Claims Tribunal proceeded to award
compensation of Rs.1,30,300/- in favour of the Appellants. The
Claims Tribunal held that although deceased Mahesh Chander
had suffered dangerous injuries in the motor vehicular accident
which occurred on 21.12.2006 but the Appellants had failed to
establish that death was the proximate cause of the injuries
suffered in the accident and therefore, it awarded the
compensation as stated above.
4. The following contentions are raised on behalf of the
Appellants:-
(i) It is true that postmortem examination on the dead body
was not conducted. At the same time, from the nature of
injuries proved on record and the death report given by
Dr. Matlub Alam Khan from Indian Spinal Injuries
Centre, Vasant Kunj, New Delhi, it was sufficiently
established that deceased Mahesh Chander died on
10.01.2007 on account of the dangerous injuries suffered
by him in the motor vehicular accident on 21.12.2006;
and
(ii) Deceased Mahesh Chander had an income of Rs.10,000/-
per month. He was survived by 7 dependants. The
Appellants are entitled to compensation towards loss of
dependency and under non-pecuniary heads in terms of
the judgment of the Supreme Court in Sarla Verma (Smt.)
& Ors. v. Delhi Transport Corporation & Anr., (2009) 6
SCC 121 and Rajesh & Ors. v. Rajbir Singh & Ors.,
(2013) 9 SCC 54.
5. On the other hand, learned counsel for the Oriental Insurance
Company Limited urges that since the Appellants failed to
establish that death was the proximate cause of the accident, the
Claims Tribunal rightly did not award any compensation
towards loss of dependency.
CAUSE OF DAETH
6. It is established from the documents placed on record that
immediately after the accident deceased Mahesh Chander was
removed to Indian Spinal Injuries Centre, Vasant Kunj, New
Delhi. He was found to have suffered dangerous head injuries
and was consequently admitted in ICU. Various endorsements
recorded on the MLC reveal that at least till 26.12.2006, 7:00
p.m., deceased Mahesh Chander was unfit to make a statement.
It appears that deceased Mahesh Chander recovered and was
discharged from the hospital on 05.01.2007. However, his
condition deteriorated on 10.01.2007. Consequently, he was
again removed to Indian Spinal Injuries Centre, Vasant Kunj,
New Delhi and was declared brought dead by Dr. Matlub Alam
Khan as per the death certificate Annexure A-7 placed on
record. While dealing with the cause of death, the Claims
Tribunal held as under:-
"20. The third and last witness examined on behalf
of petitioner was Dr. Dhruv Kumar Chaturvedi as
PW 3. This witness was summoned to prove
Discharge Summary of Indian Spinal Injuries
Centre which was exhibited as Ex.PW 3/A.
21. As per Discharge Summary, the final diagnosis
is described as RTA with head injury ( acute SDH
left fronto-Temporo-Parietal region and mass
effect on left lateral ventricle and mid brain with
mild mid line shift to right with bilateral multiple
focal Hemorrhagic, contusion with cerebral
oedema) with bilateral pleural effusion with known
case of coronary artery disease with old IWMI
(stemi).
22. As per Discharge Summary, the patient had
progressed well gradually and NCCT head done
on 3.1.2007 revealed near total regression of SDH
with resolution of haemorrhage and no shift of mid
line structures was seen. It stated in the Discharge
Summary that at the time of discharge patient is
conscious but slightly disoriented, afebrile,
accepting orally, no vomiting or seizure present,
passing normal stools and urine and
haemodynamically stable.
23. PW 3 stated in his statement that the deceased
was admitted in the Indian Spinal Injuries Centre
on 21.12.2006 with the history of sustaining
injuries in a road side accident and he remained
on treatment till 05.01.2007 and was discharged
on the said date. He identified his signatures on
the Discharge Summaryat point A. He further
stated that at the time of discharge, the condition
of Sh. Mahesh Chander was stable. As per the
Discharge Summary, the patient was having some
heart ailment. PW - 3 stated that " I cannot say
with certainty as to whether the injuries for which
he was treated in our hospital was the exact cause
of his death."
7. Dr. Dhruv Kumar Chaturvedi (PW-3) was examined by the
Appellants to prove the discharge summary. Admittedly, Dr.
Dhruv Kumar Chaturvedi did not examine deceased Mahesh
Chander when he was brought to the hospital when his
condition deteriorated on 10.01.2007. Therefore, he could not
have given any definite opinion about the cause of death.
Unfortunately, the observations made by PW-3 that "I cannot
say with certainty as to whether the injuries for which he was
treated in our hospital was the exact cause of his death" were
out of the context to hold that the deceased's death was not on
account of the injuries suffered in the accident. Regrettably,
the Claims Tribunal completely closed its eyes to the dangerous
head injuries suffered by the deceased in the accident as was
observed and stated in the discharge summary and extracted
above from para 21 of the impugned judgment.
8. It is quite strange that although the death report which discloses
the cause of death by Dr. Matlub Alam Khan from Indian
Spinal Injuries Centre, Vasant Kunj, New Delhi, was available
on record, the same was not even referred to in the impugned
judgment. From the injuries suffered by deceased Mahesh
Chander as evident in MLC Ex.PW-1/4, Discharge summary
Ex.PW-3/A and the death report dated 10.01.2007 at 5:35 a.m.,
it is clearly established that deceased Mahesh Chander died on
account of the injuries suffered in the accident on 21.12.2006. It
may be noted that not even an iota of evidence was produced to
contradict the above stated evidence. Consequently, the
Appellants are entitled to compensation in addition to the
compensation awarded to them for the expenditure on
treatment, special diet, etc.
COMPENSATION
9. In her Affidavit Ex.P-1/A, Appellant Ganga Devi, deceased's
widow testified that her husband was plying taxi at IGI airport
and was earning ` 8,000/- to `10,000/- per month from his two
taxies. In cross-examination, she stated that her husband used
to give her `10,000/- to `11,000/- per month for household
expenses. Appellant no.1 was not confronted about the
contradictions in the examination-in-chief and the cross-
examination. Appellant Ganga Devi claimed in cross-
examination that her husband was a Science graduate but no
certificate with regard to the deceased's qualification was
placed on record. At the same time, it was not disputed that
deceased Mahesh Chander used to ply taxi. There is proof of
just one taxi in the shape of registration certificate Ex.P-1/11
placed on record. Therefore, it can very well be concluded that
deceased Mahesh Chander owned one taxi which he used to ply.
10. In December, 2006, at the time of the accident, the minimum
wages of a skilled worker were `3695/- per month and the
wages of a Graduate were `4031/- per month. As stated above,
documentary evidence with regard to deceased's qualification
was not proved by the Appellants. In the year 2006, at the time
of Mahesh Chander's death, I will assume the income of a taxi
driver who owns his own taxi to be `250/- per day. On taking
working days as 25 in a month, the monthly income will come
to `6250/-
11. Deceased Mahesh Chander was born in 1954 and was aged
about 52 years on the date of the accident. He was survived by
7 dependants. Deduction towards personal and living expenses
therefore, will be 1/5th. The loss of dependency accordingly on
a multiplier of 11 will come to `6,60,000/- (6250/- x 12 x 4/5 x
11).
12. In addition, the Appellants would be entitled to a compensation
of `1,00,000/- each towards loss of love and affection and loss
of consortium and `25,000/- towards funeral expenses and
`10,000/- towards loss to estate.
13. The Appellants are further entitled to a sum of `1,30,300/-
towards treatment, etc. as granted by the Claims Tribunal.
14. The overall compensation hence, comes to `10,25,300/-.
15. The enhanced compensation of `8,95,000/- shall carry interest
@ 7.5% per annum from the date of filing the Claim Petition till
its payment.
16. 10% each of the awarded compensation shall go to the
Appellants no.2 to 7. Rest 40% shall enure for the benefit of
Appellant no.1.
17. 50% of the compensation payable to Appellants no.2 to 7 shall
be held in fixed deposit for one year. Rest 50% shall be released
on deposit.
18. 75% of the compensation payable to Appellant no.1 shall be
held in fixed deposit for a period of two years, four years and
six years proportionately. Rest 25% shall be released on deposit.
19. Compensation payable to Appellants no.5 and 6 shall be held in
fixed deposit till they attain the age of 21 years. However, the
Appellants will be entitled to have premature withdrawal for the
purpose of their studies or for immediate need by approaching
the Claims Tribunal.
20. Respondent Oriental Insurance Company shall deposit the
enhanced compensation along with proportionate interest within
a period of six weeks, failing which the Appellants shall be
entitled to interest @ 12% per annum from the date of this
judgment.
21. The appeal is allowed in above terms.
22. Pending applications, if any, stand disposed of.
(G.P. MITTAL)
JUDGE
FEBRUARY 23, 2015
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