Delhi High Court
United India Insurance Co Ltd. vs Shivani Sharma & Ors. on 22 December, 2017
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: December 22, 2017
(i) + MAC.APP. 632/2015 & CM APPL. 14190/2015
(ii) + MAC.APP. 634/2015 & CM APPL. 14194/2015
UNITED INDIA INSURANCE CO LTD. ..... Appellants
Through: Mr. Pradeep Gaur, Advocate
Versus
SHIVANI SHARMA & ORS. .....Respondents
Through: Mr. Parveen Kumar Mehndiratta,
Mr. S.C. Pandey & Mr. Ram Singh, Advocates
for respondents-Claimants
(iii) + MAC.APP. 735/2015
(iv) + MAC.APP. 739/2015
SHIVANI SHARMA
SHIVANI SHARMA & ANR. ..... Appellants
Through: Mr. Parveen Kumar Mehndiratta,
Mr. S.C. Pandey & Mr. Ram Singh, Advocates
Versus
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
MAC.APP. 632/2015 & connected matters Page 1 of 10
JUDGMENT
ORAL
1. In a vehicular accident, which took place on 14 th August, 2009,
Vikas Sharma had died and his wife and mother 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. Since the above-captioned four appeals arise out of common
impugned Award of 21st May, 2015, therefore, with the consent of
learned counsel for the parties, these four appeals have been heard
together and by this common judgment, they are being disposed of.
3. 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 two
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 two appeals, the Claimants are seeking
enhancement of compensation. Deceased-Vikas Sharma is survived by
his wife and his mother. Injured-Shivani Sharma, who is wife of
deceased-Vikas Sharma, has also sought enhancement of compensation
granted to her on account of injuries sustained in this accident.
4. On the basis of evidence led, learned Tribunal has granted
compensation of `35,60,000/-to legal heirs of deceased-Vikas Sharma
and its breakup is as under: -
Loss of dependency ` 32,00,000/-
Love and affection ` 1,00,000/-
Loss of consortium ` 1,00,000/-
Medical & incidental ` 1,00,000/-
expenses
Loss of estate ` 10,000/-
Funeral expenses ` 50,000/-
Total ` 35,60,000/-
5. Injured-Shivani Sharma has been granted compensation of
`3,69,000/- by learned Tribunal on account of injuries suffered by her in
this accident and its breakup is as under: -
Medicines and Medical ` 2,00,000/-
treatment
Pain and suffering ` 50,000/-
Loss of Amenities of life ` 30,000/-
Towards disfigurement ` 25,000/-
Conveyance ` 20,000/-
Special Diet ` 5,000/-
Attendant charges ` 9,000/-
Loss of Income ` 30,000/-
Total ` 3,69,000/-
6. 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.
7. Learned counsel for Insurer seeks grant of recovery rights qua the
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 and since the driving licence was not produced and
so, 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. 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.
Further, learned counsel for Insurer also seeks reduction of compensation
granted by learned Tribunal under the non-pecuniary heads.
8. On the other hand, to refute the aforesaid stand, learned counsel for
Claimants-Injured 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 seeks enhancement of compensation granted by submitting
that the compensation by learned Tribunal is inadequate.
9. Upon hearing and on perusal of the impugned Award and the
evidence on record, I find that the liability aspect has been already
considered by me while deciding connected appeals i.e. MAC. APPs
636/2015 & 637/2015 pertaining to this very accident and in the said
decision rendered on 20th December, 2017, this Court had already ruled
that the Insurer shall have the recovery rights qua the driver and owner of
the offending vehicle i.e. Tanker bearing Registration No. PB-11AM-
9305.
10. So far as deduction of 50% on account of contributory negligence
of deceased-Vikas Sharma is concerned, I find on perusal of the site plan
of the spot and evidence of witnesses on record that the accident had
taken place because the offending vehicle i.e. the tanker in question was
overtaking the jeep and it is not exactly a case of head on collusion. The
tanker had struck the right side of the car and the learned Tribunal has
erred in holding that PW-2 was talking with the driver of the vehicle. In
the face of evidence on record, it becomes clear that deceased-Vikas
Sharma was driving the offending vehicle and his wife was sitting by his
side and his mother-Smt. Lakhender Jyoti Sharma was sitting on the rear
side with her husband. On re-appreciation of evidence on record, I am of
the opinion that finding of contributory negligence is erroneous and is
hereby set aside.
11. During the course of hearing, it was vehemently urged by learned
counsel for Insurer that deceased-Vikas Sharma was unemployed for
about two years prior to this accident and so, his income has been
arbitrarily assessed by the learned Tribunal at `6,00,000/- per annum on
the basis of his earlier income. It is submitted by learned counsel for
Insurer that on the basis of minimum wages of a graduate, income of the
deceased-Vikas Sharma ought to have been assessed.
12. It is to be kept in mind that deceased-Vikas Sharma was an
Occupational Therapist and while considering his income of two years
prior to this accident, learned Tribunal has assessed his income to be
`6,00,000/- per annum. It is pertinent to note that two years prior to this
accident, Vikas Sharma was permanent resident of UK and was earning
Thirty Five thousand pounds per annum.
13. In the facts and circumstances of this case, considering the
qualifications of deceased Vikas Sharma and his past record, learned
Tribunal has rightly assessed his income to be `6,00,000/- per annum . So
far as the submission of Insurer of deceased Vikas Sharma being idle for
two years prior to the accident in question, I find that widow of deceased
Vikas Sharma in her evidence has stated that while in India, deceased-
Vikas Sharma had started consultancy business and was also
contemplating to go back to UK, as he had taken two years' break from
his job for enhancing the future prospects.
14. So far as loss of dependency on account of death of Vikas Sharma
is concerned, I find that the learned Tribunal has taken the dependency to
be `4,00,000/- after deducting1/3rd towards personal expenses. However,
the learned Tribunal has erred in not taking into account the Income Tax
Returns (ITR) of widow of the deceased, which shows that she had a
taxable income of `2,54,000/- in the financial year 2009-10. While taking
into consideration the ITR of widow of deceased of Vikas Sharma, the
loss of dependency is calculated at `1,46,000/- p.a.. While noting that
deceased-Vikas Sharma was aged 33 years at the time of the accident in
question, learned Tribunal has refused to grant compensation under the
head of "future prospects" by simply observing that deceased-Vikas
Sharma was not having a permanent job. In view of Supreme Court's
decision in National Insurance Company Ltd. Vs. Pranay Sethi & ors.
2017 SCC OnLine SC 1270, even self-employed persons are entitled to
grant of compensation under the head of "future prospects". Since
deceased-Vikas Sharma was a self employed professional aged 33 years
at the time of accident in question, therefore, he is entitled to addition of
40% of the income towards "future prospects". While taking the income
of deceased-Vikas Sharma to be `1,46,000/- per annum and after adding
40% towards "future prospects", the "loss of dependency" is assessed at
`2,04,400/-. By applying the multiplier of 16, the total "loss of
dependency" is assessed at `32,70,400/- instead of `32,00,000/- as
granted by learned Tribunal.
15. Supreme Court in Pranay Sethi (supra) has declared that the head
relating to "loss of care etc." does not exist, therefore, grant of
compensation of `1,00,000/- under the head of "loss of love and
affection" cannot be sustained and is accordingly set aside. In view of
Supreme Court's decision in Pranay Sethi (supra), the "funeral
expenses" granted to legal heirs of deceased-Vikas Sharma are
accordingly reduced from `50,000/- to `15,000/- but compensation of
`10,000/- under the head of "loss of estate" is enhanced to `15,000/- and
compensation under the head of "loss of consortium" is reduced from
`1,00,000/- to `40,000/-. However, award of `1,00,000/- under the head
of "medical and incidental expenses" is not disturbed. Thus, the
compensation payable to legal heirs of deceased Vikas Sharma in view of
Supreme Court's decision in Pranay Sethi (Supra), is re-assessed as
under:-
Loss of dependency ` 32,70,400/-
Loss of consortium ` 40,000/-
Medical & incidental ` 1,00,000/-
expenses
Loss of estate ` 15,000/-
Funeral expenses ` 15,000/-
Total ` 34,40,400/-
16. In view of aforesaid, compensation of `35,60,000/- granted to
legal heirs of deceased-Vikas Sharma by learned Tribunal is reduced to
`34,40,400/-.
17. So far as compensation granted to injured-Shivani 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 a co-ordinate Bench of this
Court in Reliance General Insurance Company Ltd. v. Amarjeet Singh
and Others, 2017 SCC OnLine Del 12241, in which injured had suffered
disability of 60%, 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-Shivani Sharma in the accident in question
stands already noticed by learned Tribunal in paragraphs No.71 to 74 of
impugned Award, which needs no reproduction. In the facts and
circumstances of this case, compensation granted to injured-Shivani
Sharma under the head of „pain and suffering‟ is enhanced from
`50,000/- to `1,50,000/- and under the head of „loss of amenities of life‟,
it is enhanced from `30,000/- to `1,50,000/-. A paltry compensation of
`25,000/- only has been granted by learned Tribunal to injured-Shivani
Sharma on account of her left hand becoming totally dysfunctional due to
this accident. To say the least, the compensation granted on account of
disfigurement of her left hand is wholly inadequate. In the facts and
circumstances of this case, the compensation granted under this head on
account of disfigurement is enhanced from `25,000/- to `1,00,000/-.
18. The facts and circumstances of this case persuade this Court to
hold that compensation of `20,000/-, `5,000/- and `9,000/- granted by
learned Tribunal to injured-Shivani Sharma under the heads of
„Conveyance‟, „Special Diet‟ and „Attendant Charges‟ is wholly
inadequate and it is accordingly enhanced to `50,000/-, `25,000/- and
`30,000/- respectively. It is matter of record that prior to this accident,
injured-Shivani Sharma was working with an NGO and after this
accident, she is not able to work in that NGO. To this effect, the evidence
of injured-Shivani Sharma remains unrebutted. Further, as per Income
Tax Returns of injured-Shivani Sharma for the assessment year 2009-10,
her income from NGO was `33,910/-, which is rounded off to `34,000/-
per annum. Since injured-Shivani Sharma is not able to earn anything
from NGO after this accident, therefore, „loss of future income‟ to her is
substantial. At the time of this accident, she was 38 years and so, in view
of Supreme Court's decision in Sarla Verma v. DTC, (2009) 6 SCC 121,
the applicable multiplier would be of 15. Thus, „loss of future income‟ to
injured-Shivani Sharma comes to `5,40,000/- (`5,10,000/- + `30,000/-).
In view thereof, compensation of `30,000/- granted to her by learned
Tribunal under the head of „loss of income‟ is found to be wholly
insufficient and is accordingly enhanced to `5,40,000/- under the head of
„loss of income/future income‟. Resultantly, the breakup of the modified
compensation granted to injured-Shivani Sharma is as under: -
Medicines and Medical ` 2,00,000/-
treatment
Loss of Income/future ` 5,40,000/-
income (`5,10,000/- +
`30,000/-)
Pain and suffering ` 1,50,000/-
Loss of Amenities of life ` 1,50,000/-
Towards disfigurement ` 1,00,000/-
Conveyance ` 50,000/-
Special Diet ` 25,000/-
Attendant charges ` 30,000/-
Total ` 12,45,000/-
19. 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 as 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.
20. With aforesaid modifications, the above-captioned four appeals
and the applications stand disposed of.
SUNIL GAUR
(JUDGE)
DECEMBER 22, 2017
s/r
