Delhi High Court
United India Insurance Co Ltd. vs Shivani Sharma Lakhender Jyoti ... on 20 December, 2017
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: December 20, 2017
(i) + MAC.APP. 632/2015 & CM APPL. 14190/2015
(ii) + MAC.APP. 634/2015 & CM APPL. 14194/2015
(iii) + MAC.APP. 636/2015 & CM APPL. 14203/2015
(iv) + MAC.APP. 637/2015 & CM APPL. 14207/2015
UNITED INDIA INSURANCE CO LTD. ..... Appellants
Through: Mr. Pradeep Gaur, Advocate
Versus
SHIVANI SHARMA
LAKHENDER JYOTI SHARMA & ORS. .....Respondents
Through: Mr. Parveen Kumar Mehndiratta,
Mr. S.C. Pandey & Mr. Ram Singh, Advocates
for respondents-Claimants
(v) + MAC.APP. 735/2015
(vi) + MAC.APP. 736/2015
(vii) + MAC.APP. 738/2015
(viii) + MAC.APP. 739/2015
SHIVANI SHARMA
LAKHENDER JYOTI SHARMA & ORS.
LAKHENDER JYOTI SHARMA
SHIVANI SHARMA & ANR. ..... Appellants
Through: Mr. Parveen Kumar Mehndiratta,
Mr. S.C. Pandey & Mr. Ram Singh, Advocates
Versus
MAC.APP. 632/2015 & connected matters Page 1 of 9
RAJINDER SINGH & ORS (M/S UNITED INDIA INSURANCE
COMPANY LTD.) .....Respondents
Through: Mr. Pradeep Gaur, Advocate for
respondent-Insurer
CORAM:
HON'BLE MR. JUSTICE SUNIL GAUR
JUDGMENT
ORAL
1. In a vehicular accident, which took place on 14 th August, 2009,
Varinder Kumar Sharma and his son-Vikas Sharma had died, whereas his
wife and daughter-in-law had survived with grievous injuries. For the
sake of convenience, United India Insurance Co. Ltd is hereinafter
referred to as Insurer and legal heirs of deceased as Claimants. Despite
service, owner and driver of offending vehicle in question have not
appeared before the Motor Accident Claims Tribunal in question and
before this Court.
2. The facts, as noted in impugned Award of 21 st May, 2015, need not
be recapitulated for the reason that Insurer in above-captioned first four
appeals, seeks grant of recovery rights qua the owner and driver of
offending vehicle i.e. Tanker bearing Registration No. PB-11AM-9305,
whereas in the remaining four appeals, the Claimants are seeking
enhancement of compensation. Deceased-Varinder Kumar Sharma is
survived by his wife, his son-Vishal Sharma and daughter-in-law,
whereas deceased -Vikas Sharma is survived by his wife and his mother.
Injured-Lakhender Jyoti Sharma and injured-Shivani Sharma, who are
the wife and daughter-in-law of deceased-Varinder Kumar Sharma, have
also sought enhancement of compensation granted to them on account of
injuries sustained by them in this accident.
3. On the basis of evidence led, learned tribunal has granted
compensation of `8,10,000/- to legal heirs of deceased-Varinder Kumar
Sharma and the breakup of the compensation granted is as under: -
Loss of estate ` 5,60,000/-
Love and affection ` 1,00,000/-
Loss of consortium ` 1,00,000/-
Funeral expenses ` 50,000/-
Total ` 8,10,000/-
4. Injured-Lakhender Jyoti Sharma has been granted compensation of
`3,21,000/- by learned Tribunal on account of injuries suffered by her in
this accident and its breakup is as under: -
Medicines and Medical ` 1,32,000/-
treatment
Pain and suffering ` 50,000/-
Loss of Amenities of life ` 25,000/-
Towards disability ` 15,000/-
Conveyance ` 25,000/-
Special Diet ` 5,000/-
Attendant charges ` 9,000/-
Loss of Income ` 60,000/-
Total ` 3,21,000/-
5. The compensation awarded by learned Tribunal to legal heirs of
deceased and to injured persons, carries interest @ 7.5% per annum and
the mode of apportionment of liability and its disbursal is contained in
paragraphs No. 85 to 89 of the Award.
6. Learned counsel for Insurer seeks grant of recovery rights qua
respondents No. 2 and 3 i.e. driver and owner of the offending vehicle, as
Notice under Order 12 Rule 8 of CPC, has been served upon owner of the
offending vehicle, but it was not responded to. It is submitted that the
liability to pay compensation, as granted by learned Tribunal, is of owner
and driver of the offending vehicle i.e. Tanker in question as the driving
licence was not produced by respondents No. 2 and 3. Thus, it is
submitted that learned Tribunal has erroneously denied recovery rights to
Insurer by observing that Insurer has not shown violation of any term or
condition of the Insurance Policy.
7. To refute the aforesaid stand, learned counsel for Claimants relies
upon decision of High Court of Orissa in New India Assurance Co. Ltd.
V. Debajani Sahu and Others, 1999 (1) T.A.C. 597 (Ori.) and decision of
a co-ordinate Bench of this Court in Sanjay v. Suresh Chand and Ors.,
2012 SCC OnLine Del 4038. He further submits that no case for
reduction of compensation is made out. It is thus submitted that
compensation granted is wholly inadequate and it needs to be suitably
enhanced.
8. Though above-captioned appeals have been heard together with the
consent of learned counsel for the parties, but it now transpires that two
appeals i.e. MAC. APP. 739/2015 & 735/2015 by legal heirs of deceased-
Vikas Sharma and Shivani seeking enhancement of compensation and
two cross-appeals of the Insurer i.e. MAC. APP. 632/2015 & 634/2015,
have to be segregated and remaining appeals are being decided by this
common judgment.
9. Upon hearing and on perusal of the impugned Award, evidence on
record and decision of Supreme Court in United India Insurance Co. Ltd.
Vs. Lehru & Ors. (2003) 3 SCC 338, I find that on the liability aspect, the
Insurer is on sound footing, as it is the positive case of Insurer that Notice
under Order 12 Rule 8 of CPC was given to the owner and driver of the
offending vehicle in question to produce the driving license but they have
failed to produce it. Despite substituted service, none has appeared on
behalf of owner and driver of offending vehicle in question.
10. It is not in dispute that the condition of holding a valid driving
license is one of the terms and conditions of the insurance policy in
question. It is being so said in the face of evidence of witness-R3/W/1,
who has proved the factum of issuance of Notice under Order 12 Rule 8
CPC and has also proved the insurance policy of the offending vehicle in
question. So, the decision in Debajani Sahu (supra) and Sanjay (supra)
are distinguishable on facts.
11. Supreme Court in Lehru (supra) has reiterated that if there is any
conscious and wilful breach of Section 149 (2) (a) (ii) of the Motor
Vehicles Act, 1988, then the insurance company would still remain liable
to innocent third party but may recover the compensation paid from the
insured. In the instant case, there is a breach of an essential condition of
insurance policy in question i.e. of non-production of driving licence of
offending vehicle in question, therefore, Insurer would first pay the
awarded compensation to the claimants and thereafter, recover it from the
insured.
12. So far as the compensation granted under the non-pecuniary heads
to legal heirs of deceased Varinder Kumar Sharma is concerned, I find
that the compensation of `5,60,000/- has been awarded under the head of
"loss of estate". Undisputedly, legal heirs of Varinder Kumar Sharma
were working and the learned tribunal on finding that there was no
dependency, has not granted any compensation under the head of „loss of
dependency‟. Accordingly, in view of Supreme Court's decision in
Pranay Sethi (Supra), compensation of `5,60,000/- granted to LRs of
deceased-Varinder Kumar Shama under the head of "loss of estate" is
reduced to `15,000/- and compensation of `1,00,000/- granted under the
head of "loss of love and affection" cannot be sustained and is
accordingly set aside. In the face of Supreme Court's decision in Pranay
Sethi (Supra), compensation granted under the head of "loss of
consortium" is reduced from `1,00,000/- to `40,000/- and compensation
under the head "funeral expenses" is reduced from `50,000/- to
`15,000/-. Thus, the compensation payable to legal heirs of deceased
Varinder Kumar Sharma under the non-pecuniary heads in view of
Supreme Court's decision in Pranay Sethi (Supra), is as under:-
Loss of estate ` 15,000/-
Loss of consortium ` 40,000/-
Funeral expenses ` 15,000/-
Total ` 70,000/-
13. As far as compensation granted to injured-Lakhender Jyoti Sharma
is concerned, I find that there is no scope for any reduction or any
enhancement of compensation granted under the head of „medicines and
medical treatment‟. However, compensation granted to her under the
non-pecuniary heads needs to be enhanced, as in an injury case, a co-
ordinate Bench of this Court in Reliance General Insurance Company
Ltd. v. Amarjeet Singh and Others, 2017 SCC OnLine Del 12241 has
granted compensation of `1,50,000/- each under the heads of „pain and
suffering‟ and „loss of amenities of life‟. The disability suffered by
injured-Lakhender Jyoti Sharma in the accident in question is already
noticed by learned Tribunal in impugned Award and so, needs no
reproduction. Though the extent of disability suffered by injured-
Lakhender Jyoti Sharma is 5%, the nature of disability is permanent and
that too in relation to her right upper limb. In the facts and circumstances
of this case, compensation granted to injured-Lakhender Jyoti Sharma
under the head of „pain and suffering‟ is enhanced from `50,000/- to
`75,000/- and compensation under the head of „loss of amenities of life‟ is
enhanced from `25,000/- to `1,00,000/-. A paltry compensation of
`25,000/- only has been granted by learned Tribunal to injured-
Lakhender Jyoti Sharma on account of disability suffered by her in this
accident. To say the least, disability in upper right limb suffered by
injured-Lakhender Jyoti Sharma is of permanent nature and so, the
compensation granted to her is wholly inadequate. In the facts and
circumstances of this case, the compensation granted under this head on
account of „disfigurement‟ is enhanced from `15,000/- to `75,000/-. The
facts and circumstances of this case persuade this Court to hold that
compensation of `25,000/-, `5,000/- and `9,000/- granted by learned
Tribunal to injured-Lakhender Jyoti Sharma under the heads of
„Conveyance‟, „Special Diet‟ and „Attendant Charges‟ is inadequate and
it is accordingly enhanced to `30,000/-, `15,000/- and `15,000/-
respectively. Resultantly, the breakup of the modified compensation
granted to injured-Shivani Sharma is as under: -
Medicines and Medical ` 1,32,000/-
treatment
Pain and suffering ` 75,000/-
Loss of Amenities of life ` 1,00,000/-
Towards disability ` 75,000/-
Conveyance ` 30,000/-
Special Diet ` 15,000/-
Attendant charges ` 15,000/-
Loss of Income ` 60,000/-
Total ` 5,02,000/-
14. In light of the aforesaid, compensation granted to legal heirs of
deceased-Varinder Kumar Sharma by learned Tribunal is reduced from
`8,10,000/- to `70,000/- and the compensation granted to injured-
Lakhender Jyoti Sharma by learned Tribunal is enhanced from
`3,21,000/- to `5,02,000/-.
15. In view of Supreme Court's Constitution Bench decision in Pranay
Sethi (Supra), the rate of interest on the modified compensation shall be
@ 9% per annum instead of 7.5% per annum granted by learned
Tribunal. The compensation as modified above shall be payable, in the
first instance, by Insurer with right to recover it from the owner and
driver of the offending vehicle i.e. Tanker bearing Registration No. PB-
11AM-9305.
16. In view of the aforesaid, above-captioned four appeals i.e. MAC.
APPs. 636/2015, 637/2015, 736/2015 & 738/2015, and the applications
stand disposed of while modifying the impugned Award in the above-said
terms. As regards remaining four appeals i.e. MAC APPs i.e. 632/2015,
634/2015, 735/2015 & 739/2015, they need to be heard afresh and vide
separate orders of even date, they are directed to be listed on 22nd
December, 2017 for hearing afresh.
SUNIL GAUR
(JUDGE)
DECEMBER 20, 2017
s/r
