Delhi High Court
United India Insurance Co. Ltd. vs Yashpal Sharma & Ors. on 8 February, 2016
$~10 & 11
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 8th February, 2016
+ MAC.APP. 1037/2011 & CM No. 21113/2011
UNITED INDIA INSURANCE CO. LTD. ..... Appellant
Through: Mr. Rajesh Dwivedi for Mr. A.K.
De, Adv.
versus
YASHPAL SHARMA & ORS. ..... Respondents
Through: Mr. O.P. Manie, Adv. for R-1.
+ MAC.APP. 591/2013
YASHPAL SHARMA & ORS. ..... Appellants
Through: Mr. O.P. Manie, Adv.
versus
UNITED INDIA INSURANCE CO. LTD. ..... Respondent
Through: Mr. Rajesh Dwivedi for Mr. A.K.
De, Adv.
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT
R.K.GAUBA, J (ORAL):
1. Both these appeals arise out of the judgment dated 02.07.2011 of
motor accident claims tribunal (the tribunal) in motor accident claim case
No. 875/2010 and hence have been heard and are being decided together.
The insurance company (appellant in MAC Appeal No. 1037/2011) was
third respondent before the tribunal and came up with the grievance that
the plea about contributory negligence on the part of the deceased (Rahul
Sharma) was not considered. The claimant (Yashpal Sharma) filed cross-
objections in the course of the hearing on appeal of the insurance
company, and the said objections were treated as an independent appeal
(MAC Appeal No. 591/2013) whereby prayer for enhancement of the
compensation has been pressed.
2. On the night of 22-23.10.2004, Rahul Sharma riding on his
motorcycle bearing registration No. DL 7AB 5496 (the motorcycle) met
with an accident involving collision against Maruti Car bearing
registration No. DL 4CF 7803 (the offending vehicle). The driver and the
owner of the offending vehicle were impleaded as first and second
respondents before the tribunal and are now second and third respondents
in the appeal filed on behalf of the insurance company. The offending
vehicle was concededly covered against third party risk by an insurance
policy taken out by the registered owner of the offending vehicle from the
appellant insurance company. The motorcycle rider Rahul Sharma
suffered injuries in the accident and was taken to hospital where during
surgical procedure he slipped into coma. He remained comatose till he
died in hospital on 9.1.2007. The claim petition had been filed during his
lifetime on 8.7.2005 through his father Yashpal Sharma. On account of
the death, the claim petition was converted suitably into a claim arising
out of death, by the father, the sole surviving legal heir.
3. The driver, the owner of the offending vehicle and the insurance
company, inter alia, took up the defence that the accident had occurred
due to negligence on the part of the motorcycle driven by Rahul Sharma
(the deceased) as he was driving the same under the influence of alcohol.
One specific issue in this regard (i.e. issue No. 2) was also framed, the
burden of proof in which regard was placed on the insurance company.
Evidence was led and thereafter inquiry was concluded. The tribunal
considered the contention of the claimant that the accident had occurred
due to rash or negligent driving of the offending vehicle by the first
respondent before the tribunal and not because of negligence on the part
of the deceased. It accepted the evidence led by the claimant through
Manjeet Singh (PW-7) and noted that neither the insurance company nor
the owner of the offending vehicle had led any evidence on their behalf
and, thus, the plea of negligence on the part of the deceased was rejected
and the claimant was entitled to compensation on the principle of fault
liability under Section 166 of Motor Vehicles Act, 1988 (MV Act).
4. The sole contention raised by the insurance company with regard
to the alleged contributory negligence of the deceased cannot be accepted
in the face of the above noted facts mentioned in the impugned judgment.
The claimant had examined an eye witness (PW-7). Neither the driver of
the offending vehicle nor the insurance company led any evidence in
rebuttal. In these circumstances, the learned tribunal rightly accepted the
evidence of PW-7 to return the finding that the accident had occurred due
to rash/negligent driving of the offending vehicle. Merely because the
charge-sheet shows consumption of some amount of alcohol by the
deceased, it cannot be said that he had contributed to the negligence. In
order to prove such contentions, it was the burden of the party raking up
the issue to show by some evidence that the consumption of alcohol by
the motorcycle rider was beyond statutory permissible limits so as to
render him unfit to drive the motorcycle on public road.
5. In above view, the appeal of the insurance company is without
substance and must be dismissed.
6. The tribunal concluded that the deceased was 25 year old when the
death occurred. In absence of any formal prove of his earnings it adopted
the minimum wages payable at the time of death as the benchmark and
adopted the multiplier of 11 to calculate the loss of earning, the age of the
solitary claimant (father) being 51 years at the time of accident. The
tribunal deducted 3/4th of the earnings towards personal and living
expenses of the deceased to award compensation on account of loss of
earnings noting, inter alia , that he was a bachelor.
7. I agree with the submission that the approach of the tribunal was
erroneous. The deceased had slipped into coma on 23.10.2004. He never
regained consciousness. He died in comatose state after about 26 months.
For all practical purposes, for the dependent father his son Rahul Sharma
virtually died on 23.10.2004. The loss of dependency, thus, needs to be
calculated assuming the date of accident (23.10.2004) as the date of
reckoning. The minimum wages payable to a matriculate on the date of
accident were ₹ 3342/90 or ₹ 3343/-. Given the fact that deceased was
bachelor and the claimant father was the solitary person dependent upon
him, personal and living expenses required to be deducted to the extent of
50% rather than 3/4. In these circumstances, the monthly loss of
dependency comes to ₹ 1671/90. Adopting the multiplier of 11, the total
loss of dependency, thus, comes to (1671.9 X 12 X 11) ₹ 2,20,690/80
rounded off to ` 2,20,700/-.
8. The claimant father had led some evidence to show that he had
paid nursing charges to the tune of ₹ 58,347/- since the deceased required
services of a nurse day and night during the period of hospitalization.
The tribunal was not satisfied with the said evidence, inter alia, on the
ground that proper proof of identity of the nurses had not been disclosed.
There is no denial of the fact that the deceased Rahul Sharma in comatose
condition did require services of a nurse round the clock. In these
circumstances, the learned counsel for the claimant fairly conceded that
the simpler method would be to calculate the expenditure towards nursing
care by awarding the minimum wages payable to a skilled worker for the
period of 26 months. The minimum wages payable to a single nurse in
October, 2004 were ₹ 3318/90 per month. The expenditure for engaging
two nurses would be ₹ 6638/- per month. Thus, compensation towards
the expenditure on nursing care would come to (₹ 6638 X 26) ₹
1,72,588/-.
9. The tribunal awarded compensation in the sum of ₹ 5,78, 275/-
towards medical bills and ₹ 25,000/- towards conveyance and special
diet. The tribunal further granted ₹ 10,000/- on account of loss of love &
affection and ₹ 5,000/- towards funeral expenses.
10. This court agrees that the compensation under the non-pecuniary
heads of loss of love & affection and funeral expenses is on the lower
side. Similarly, compensation on account of loss of estate also deserves
to be added.
11. Having regard to the date of accident (October, 2004),
compensation in the sum of ₹ 1 lakh towards loss of love & affection, ₹
25,000/- towards funeral expenses and ₹ 10,000/- towards loss of estate
appears to be just and proper. [Pushkar Mehra vs. Brij Mohan Kushwaha
& Ors. 2013 (14) SCALE 26; 2013 SCC Online SC 1233].
12. The total compensation payable in favour of the claimant, thus,
may be summarised as under:-
Loss of dependency ₹ 2, 20, 700/-
Expenditure towards medical bills ₹ 5, 78,275/-
Expenditure towards nursing care ₹ 1, 72,588/-
Special diet and conveyance ₹ 25,000/-
Loss of love & affection ₹ 1, 00,000/-
Funeral expenses ₹ 25,000/-
Loss of estate ₹ 10,000/-
₹ 11,31,563/- rounded
off to ₹ 11,32,000/-
13. The compensation awarded in favour of the claimant (appellant in
MAC Appeal No. 591/20013) is enhanced accordingly. It shall carry
interest as levied by the tribunal.
14. When the appeal of the insurance company (MAC Appeal No.
1037/2011) was entertained, by order dated 22.11.2011 it was directed to
deposit ₹ 6,68, 655/- with the Registrar General of this Court in a fixed
deposit initially for a period of one year to be renewed from time to time.
By order dated 14.2.2013, 60 % of the deposited amount was allowed to
be released in favour of the claimant. The balance is still lying in fixed
deposit account in terms of the earlier order. It is noted that the tribunal
did not give any directions in the impugned judgment to protect the
awarded compensation in terms of the judgment in General Manager,
Kerala State Road Transport Corporation, Trivandrum, vs. Susamma
Thomas (Mrs.) & Ors. (1994) 2 SCC 176.
15. In these circumstances, the entire balance now payable to the
claimant in terms of modified award shall be put in fixed deposit receipt
in the name of the claimant for a period of 7 years in a nationalized bank
with liberty to withdraw monthly interest therefrom.
16. The insurance company is directed to satisfy the award by
depositing the balance with the tribunal within 30 days of this order. The
Registrar General is directed to transfer the balance amount lying in this
Court in terms of the earlier order to the tribunal for disbursal in terms of
the above noted directions within 30 days.
17. The statutory deposit, if made, by the insurance company is
refunded.
18. The tribunal's record shall be returned alongwith a copy of this
judgment.
19. Both the appeals stand disposed of in above terms.
R.K. GAUBA
(JUDGE)
FEBRUARY 08, 2016
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