Yashpal Sharma & Ors. v. United India Insurance Co. Ltd.

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 ofthe deceased (Rahul Sharma) was not considered. The claimant (Yashpal Sharma) filed cross- MACA No.1037/2011 &591/2013 7 A to objections in the course of the hearing „ oontpany. and thesaid objectionsweretrlted T" aAAn A treated as an independent anneal (MAC Appeal No. 591/20n^ ^xrior.. u 11^^' ^ Ptayer for enhancement of the compensation has been pressed.

2. On the nigh, of 22-23.10.2004, Rahul Sharnta riding on his motorcycle beanng registration No. DL 7AB 5496 (the motorcycle) met W.th an ace.dent involving collision against Maruti Car bearing regtstration No. DL 4CF 7803 (the offending vehicle). The driver and the owner of the offending vehicle were impieaded as first and second respondents before the tribunal and arenow second and third respondents in the appeal filed on behalfofthe insurance company. The offending vehicle was concededly covered against third parly risk by an insurance policy taken out by the registered owner ofthe 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 inhospital on 9.1.2007. The claimpetitionhad been filed duringhis lifetime on 8.7.2005 through his father Yashpal Sharma. On account of the death, the claim petition was converted suitably into aclaim arising out ofdeath, 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 ofthe motorcycle driven by Rahul Sharma (the deceased) as he was driving the same under the influence ofalcohol. One specific issue in this regard {i.e. issue No. 2) was also framed, the burden oi proof in which regard was placed on the insurance company. Evidence was led and thereafter inquiry was concluded. The tribunal MACA No.1037/2011 &591/2013 Page 2 of[7] considered the contention ofthe claimant that the aceident had occurred due to rash or negligent driving of the offending vehicle by the first respondent before the tribunal and not beeause of negligence on the part ofthe deceased. It aeeepted the evidence led by the claimant through Manjeet Singh (PW-7) and noted that neither the insurance company nor the Qwner of the offending vehicle had led any evidence on their behalf and, thus, the plea of negligence on the part ofthe 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).

4. The sole contention raised by the insuranee company with regard to the alleged contributory negligence of the deceased cannotbe accepted in the face of the above noted facts mentioned in the impugned Judgment. The claimant had examined an eye vi^itness (PW-7). Neither the driver of the offending vehiele nor the insuranee eompany led any evidence in rebuttal. In these cireumstances, the learned tribunal rightly accepted the evidence of PW-7 to return the finding thatthe 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 eontributed to the negligence. In order to prove such contentions, it was the burden ofthe party raking u]3 the issue to show by some evidence that the eonsumption of alcohol by the motoreycle rider was beyond statutory permissible limits so as to renderhim unfit to drivethe motorcycle on publicroad.

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

6. Thetribunal concluded thatthe deceased was 25 year old when the death occurred. In absence ofany formal prove ofhis earnings it adopted MACA No. 1037/2011 <6 591/2013 ^of? A[4] J -i' 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 3/4'"^ 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.

7. I agree with the submission that the approach of the tribunal was erroneous. The deceased had slipped into comaon 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 amatriculate 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] X12 X11) ? 2,20,690/80 rounded offto ? 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 hospitahzation. The tribunal was not satisfied with the said evidence, inter alia, on the ground that proper proofofidentity ofthe nurses had not been disclosed. There is no denial ofthe fact that the deceased Rahul Sharma in 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 claimant fairly conceded that the simpler method would be to calculate the expenditure towards nursing eare by awarding the minimum wages payable to a skilledworker 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 eare would come to (? 6638 X 26) ? I,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 ofloss of love & affection and ? 5,000/- towards funeral expenses.

10. This court agrees that the compensation under the non-pecuniar)' heads of loss of love & affection and funeral expenses is on the lower side. Similarly, compensation on account ofloss ofestate also deserves to be added.

II. Having regard to the date of accident (October, 2004), compensation in the sum of ? 1lakh 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 SCO Online SC 1233].

12. The total compensation payable in favour of the claimant, thus, may be summarised asunder:- Loss of dependency Expenditure towards medical bills Expenditure towards nursing care Special diet 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/-

13. The compensation awarded in favour of the claimant (appellant in MAC Appeal No. 591/2001[3]) is enhanced accordingly. It shall cany 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 afixed deposit initially for aperiod ofone year to be renewed fom time to time. By order dated 14.2.2013, 60 %ofthe deposited amount was allowed to be released in favour ofthe claimant. The balance is still lying in fixed deposit account in terms ofthe 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) 2SCO 176.

15. In these circumstances, the entire balance now payable to the claimant in terms ofmodified award shall be put in fixed deposit receipt in the name ofthe claimant for aperiod of7years in anationalized bank with liberty to withdraw monthly interest therefrom.