Sh Yashpal Sharma & Ors v. Sh Yashpal Sharma & Ors

JUDGMENT R.K.GAUBA. J (ORALI: For detailed judgment, the decision dated

08.02.2016 in MAC.APP. 1037/2011may be referred to. FEBRUARY 08, 2016 W.K. GAIJKA ^ (JUDGE) J IN THE HIGH COURT OF DELHI AT NEW DELHI DateofDecision:8^''February,2016 ^ MAC.APP.1037/2011 &CM No. 21113/2011 UNITEDINDIAINSURANCECO. LTD. Appellant Through: Mr. RajeshDwivedifor Mr. A.K. De, Adv. versus YASHPALSHARMA&ORS. Respondents Tlirough: Mr. O.P. Manie,Adv. for R-1 + MAC.APP. 591/2011 YASHPALSHARMA&ORS. Appellants Through: Mi*. O.P. Manie,Adv. versus UNITEDINDIAINSURANCECO. LTD Respondent Through: Mr. RajeshDwivedifor Mr. A.K. De, Adv. CORAM: HON'BLE MR. JUSTICE R.K.GAUBA JUDGMENT R.K.GAUBA, J rORAT J:

¶1Both these appeals arise out of the judgmentdated 02.07.2011 of motoraccidentclaimstribunal(thetribunal)in motoraccidentclaim case No. 875/2010and hencehave been heard and are beingdecidedtogether. The insurancecompany(appellantin MAC AppealNo. 1037/2011)was third respondentbeforethe tribunaland came up with the grievancethat the plea aboutcontributorynegligenceon the partofthe deceased(Rahul Sharma)was not considered. The claimant(YashpalSharma)filed cross-MACA No.1037/2011&591/2013 A to objections in the course of the hearing " oontpany.and the said objectionsweretrltedT" aAAn A treated as an independentanneal (MAC Appeal No. 591/20n^ ^xrior.. u 11^^' ^ Ptayer for enhancementof the compensationhas beenpressed.

¶2On the nigh, of 22-23.10.2004,Rahul Sharnta riding on his motorcyclebeanngregistrationNo. DL 7AB 5496 (the motorcycle)met W.th an ace.dent involving collision against Maruti Car bearing regtstrationNo. DL 4CF 7803 (theoffendingvehicle). Thedriverand the owner of the offending vehicle were impieaded as first and second respondentsbeforethe tribunaland arenowsecondand thirdrespondents in the appeal filed on behalfof the insurancecompany. The offending vehiclewas concededlycoveredagainstthirdparlyrisk by an insurance policytakenout by the registeredownerofthe offendingvehiclefrom the appellant insurance company. The motorcycle rider Rahul Sharma sufferedinjuriesin the accidentand was taken to hospitalwhereduring surgicalprocedurehe slipped into coma. He remainedcomatosetill he died in hospitalon 9.1.2007. The claimpetitionhad beenfiled duringhis lifetimeon 8.7.2005throughhis father Yashpal Sharma. On accountof the death, the claimpetitionwas convertedsuitablyinto aclaim arising out ofdeath,by the father,the solesurvivinglegalheir.

¶3The driver, the owner of the offendingvehicle and the insurance company, inter alia, took up the defencethat the accidenthad occurred due to negligenceon the part ofthe motorcycledriven by Rahul Sharma (the deceased)as he was drivingthe same underthe influenceofalcohol. One specificissue in this regard {i.e. issue No. 2) was also framed, the burden oi proofin which regard was placedon the insurancecompany. Evidence was led and thereafterinquiry was concluded. The tribunal MACA No.1037/2011&591/2013 consideredthe contentionofthe claimantthat the aceidenthad occurred due to rash or negligent driving of the offendingvehicle by the first respondentbeforethe tribunaland not beeauseof negligenceon the part of the deceased. It aeeeptedthe evidence led by the claimantthrough ManjeetSingh (PW-7) and noted that neitherthe insurancecompanynor the Qwner of the offendingvehiclehad led any evidenceon their behalf and, thus, the plea of negligence on the part of the deceased was rejected and the elaimant was entitled to compensation on the principle of fault liability under Section 166 of Motor Vehicles Act, 1988 (MY Act).

¶4The sole contention raised by the insuranee company with regard to the alleged contributorynegligenceof the deceasedcannotbe accepted in the face of the above noted facts mentioned in the impugned Judgment. The claimanthad examinedan eye vi^itness(PW-7). Neitherthe driverof the offendingvehiele nor the insuranee eompany led any evidence in rebuttal. In these cireumstances,the learnedtribunal rightly acceptedthe evidenceof PW-7 to returnthe findingthatthe accidenthad occurreddue to rash/negligentdriving of the offendingvehicle. Merely because the charge-sheetshows consumption of some amount of alcohol by the deceased,it cannotbe said that he.had eontributedto the negligence. In orderto prove such contentions,it was the burdenofthe party rakingu]3 the issue to show by some evidencethat the eonsumptionof alcohol by the motoreyclerider was beyond statutorypermissiblelimits so as to renderhim unfit to drivethe motorcycleon publicroad.

¶5In above view, the appeal of the insurance company is without substance and must be dismissed.

¶6Thetribunalconcludedthatthe deceasedwas 25 year old when the death occurred.In absenceofany formalproveofhis earningsit adopted MACA No.1037/2011<6 591/2013 ^of? A4 J -i' the minimum wages payable at the time of death as the benchmark and adoptedthe multiplierof 11 to calculatethe loss of earning,the age of the solitary claimant' (father) being 51 years at the time of accident. The tribunal deducted 3/4'"^ of the eamings 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.

¶7I agree with the submissionthat the approachof the tribunalwas erroneous.The deceasedhad slippedinto comaon 23.10.2004. He never regainedconsciousness.He died in comatosestateafterabout26 months. For all practicalpurposes,for the dependentfatherhis son Rahul Sharma virtuallydied 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 minimumwages payableto amatriculateon the date of accidentwere ? 3342/90 or ^ 3343/-. Given the fact that deceasedwas bachelorand the claimantfather was the solitarypersondependentupon him, personaland livingexpensesrequiredto be deductedto the extentof 50% rather than 3/4. In these circumstances,the monthly loss of dependencycomesto ^1671/90. Adopting'themultiplierof 11, the total loss of dependency,thus, comes to (1671.9 X12 X11) ? 2,20,690/80 rounded off to ? 2,20,700/-.

¶8The claimantfather had led some evidenceto show that he had paidnursingchargesto thetuneof? 58,347/-sincethe deceasedrequired services of a nurse day and night during the period of hospitahzation. The tribunalwas not satisfiedwith the said evidence,inter alia, on the groundthatproperproofofidentityofthe nurseshad not been disclosed. Thereis no denialofthe factthatthe deceasedRahul Sharmain comatose condition did require services of a nurse round the clock. In these MACA No.1037/2011 & 591/2013 circumstances,the learned counsel for the claimantfairly concededthat the simplermethodwouldbe to calculatethe expendituretowardsnursing eare by awardingthe minimumwages payableto a skilledworkerfor the period of 26 months. The minimumwages 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 eare would come to (? 6638 X 26) ? I,72,588/-.

¶9The tribunal awarded compensationin the sum of ? 5,78, 275/- towards medical bills and ? 25,000/- towards conveyance and special diet. The tribunalfurthergranted? 10,000/-on accountofloss of love & affection and ? 5,000/- towards funeral expenses.

¶10This court agrees that the compensationunder the non-pecuniar)' heads of loss of love & affectionand funeral expenses is on the lower side. Similarly,compensationon accountofloss ofestate also deserves to be added. II. Having regard to the date of accident (October, 2004), compensationin the sum of? 1lakh towardsloss of love &affection,? 25,000/-towards funeral expensesand ? 10,000/-towards loss of estate appearsto be justand proper.[PushkarMehra vs. BrijMohanKushwaha &Ors. 2013 (14) SCALE26; 2013 SCO OnlineSC 1233].

¶12The total compensationpayable in favour of the claimant, thus, may be summarisedasunder:-Loss of dependency Expendituretowardsmedicalbills Expendituretowardsnursingcare Specialdiet and conveyance MACA No.1037/2011 & 591/2013 ? 2, 20, 700/-? 5, 78,275/-? 1,72,588/-? 25,000/-r Loss of love & affection Funeral expenses Loss of estate ? 1, 00,000/-? 25,000/-? 10,000/-? 11,31,563/-rounded off to ? 11,32,000/-

¶13The compensationawardedin favour of the claimant(appellantin MAC Appeal No. 591/20013) is enhanced accordingly. It shall cany interest as levied by the tribunal.

¶14When the appeal of the insurance company (MAC Appeal No. 1037/2011)was entertained,by orderdated 22.11.2011it was directedto deposit? 6,68, 655/- with the RegistrarGeneralof this Court in afixed depositinitiallyfor aperiodofone yearto be renewedfom time to time. By orderdated 14.2.2013,60 %ofthe depositedamountwas allowedto be releasedin favour ofthe claimant. The balanceis still lying in fixed depositaccountin terms ofthe earlierorder. It is notedthatthe tribunal did not give any directions in the impugnedjudgment to protect the awarded compensationin terms of the judgmentin GeneralManager, Kerala State Road Transport Corporation, Trivandrum, vs. Susamma Thomas(Mrs.) &Ors. (1994)2SCO 176.

¶15In these circumstances,the entire balance now payable to the claimantin terms ofmodifiedaward shall be put in fixed depositreceipt in the name ofthe claimantfor aperiodof7years in anationalizedbank with libertyto withdrawmonthlyinteresttherefrom.

¶16The insurance company is directed to satisfy the awaid by depositingthe balancewiththe tribunalwithin30 days ofthis order. The RegistrarGeneralis directedto transferthe balanceamountlying in this MACA NO.J037/20H & 591/2013 Courtinterms ofthe earlierorderto the tribunalfor disbursalin terms of the abovenoteddirectionswithin30 days.

¶17The statutory deposit, if made, by the insurance company is refunded.

¶18The tribunal's record shall be returned alongwith a copy of this judgment.

¶19Both the appeals stand disposed of in above terms. R.K. (JUDGE) FEBRUARY 08, 2016 nk I r-iA-c/) /V MACA No. 1037/20J1 & 591/2013 \1 * IN THE HIGH COURT OF DELHI AT NEW DELHI + , MAC.APP. 1037/2011 UNITEDINDIAINSURANCECO LTD Appellant Through: None. versus YASH PAL SHARMA& ORS Respondents ^ , Through: Mr. O. P. Mannie,Adv. forR-l. AND + MAC.APP. 591/2013 SH YASHPAL SHARMA & ORS ..... Appellants Through: Mr. O. P. Mannie, Adv. versus UNITED INDIA INSURANCE CO. LTD. Respondent Through: None. CORAM: HON'BLE MR. JUSTICE R.K.GAUBA ORDER %

11.03.2016 CM APPL. 8905/2016 (correction^ in MAC.APP. 1037/2011 & CM APPL. 8906/2016 (correction) in MAC APP.591/2013 Heard. The figure "Rs.58,347/-"in second line of para 8 of the judgment dated 08.02.2016 of this court would read "Rs.5,84,379/-" as mentioned in r para 18of the impugnedjudgmentofthetribunal. No goodgroundsto grantthe futureprospectsas is now argued.* The correction is incorporatedin the judgment dated 08.02.2016 accordingly. The registryshalluploadthe correctedcopyofthejudgment. The applicationsstanddisposedof. A, J MARCH 11, 2016/ssc

$--11 * IN THE HIGH COURT OF DELHI AT NEW DELHI DateofDecision:8"" February,2016 + MAC.APP. 591/2011 YASHPALSHARMA&ORS. Appellants Through: Mr. O.P. Manie,Adv. Versus UNITEDINDIAINSURANCECO. LTD. Respondent Through: Mr. Rajesh Dwivedi for Mr. A.K. De, Adv. CORAM: HON'BLE MR. JUSTICE R.K.GAUBA