Delhi District Court
Smt. Lakhender Jyoti Sharma vs Common on 21 May, 2015
IN THE COURT OF MS. GEETANJLI GOEL, PO: MOTOR ACCIDENT
CLAIMS TRIBUNAL2, PATIALA HOUSE COURTS, NEW DELHI
Suit No.138/14
Date of Institution: 10.08.2010
IN THE MATTER OF:
1. Smt. Lakhender Jyoti Sharma
W/o Late Shri Virender Kumar Sharma
2. Shri Vishal Sharma
S/o Late Shri Virender Kumar Sharma
Both R/o E6/D, DDA Flats
Munirka
New Delhi110067
3. Smt. Shivani Sharma
W/o Late Shri Vikas Sharma
At present r/o Flat No.8073
Sector D8, Vasant Kunj
New Delhi 110070. ...Petitioners
SUIT No.139/14
Date of Institution: 10.08.2010
IN THE MATTER OF:
Ms. Lakhender Jyoti Sharma
W/o Late Shri Virender Kumar Sharma
R/o H.No.E6/D, DDA Flats
Munirka
Suit No. 138/14, 139/14, 141/14 & 151/14 Page No. 1 of 116
New Delhi 110067. ...Petitioner
SUIT No.141/14
Date of Institution: 10.08.2010
IN THE MATTER OF:
1. Ms. Shivani Sharma
W/o Late Shri Vikas Sharma
R/o E6/D, DDA Flats
Munirka
New Delhi110067
And at present
Resident of Flat No.8073
Sector D8, Vasant Kunj
New Delhi110070.
2. Ms. Lakhender Jyoti Sharma
W/o Late Shri Virender Kumar Sharma
R/o H.No. E6/D, DDA Flats
Munirka
New Delhi110067. ....Petitioners
Suit No.151/14
Date of Institution: 10.08.2010
IN THE MATTER OF:
Ms. Shivani Sharma
W/o Late Shri Vikas Sharma
R/o E6/D, DDA Flats
Munirka
New Delhi 110067
Suit No. 138/14, 139/14, 141/14 & 151/14 Page No. 2 of 116
And at present
Resident of Flat No.8073
Sector D8, Vasant Kunj
New Delhi 110070. ....Petitioner
Versus
COMMON RESPONDENTS
1. Shri Rajinder Singh
S/o Shri Jagir Singh
R/o Village Diwana
TehsilPehwa
Distt Kurukshetra
Haryana.
2. Ramanpreet Singh
S/o Shri Varinder Singh
R/o H.No.503, Street No.5
Gurunanak Nagar
Patiala, Punjab.
3. M/s United India Insurance Co. Ltd.
Near Polytechnic Chowk
Bal Bhawan Road
Ambala City
2nd Address
8th Floor, Kanchanjunga Building
Barakhamba Road
New Delhi. ...Respondents
Suit No. 138/14, 139/14, 141/14 & 151/14 Page No. 3 of 116
Final Arguments heard : 29.04.2015
Award reserved for : 21.05.2015
Date of Award : 21.05.2015
AWARD
1. Vide this common judgmentcumaward, I proceed to decide four
petitions bearing No.138/14, 139/14, 141/14 and 151/14 filed u/s 166 and 140 of
Motor Vehicle Act, 1988, as amended uptodate (hereinafter referred to as the
Act) for grant of compensation arising out of the same road accident.
2. It is the case of the petitioners that on 14.08.2009 at about 2.15 p.m. the
deceased Shri Varinder Kumar Sharma S/o Late Shri Devi Dutt Sharma along
with his wife Smt. Lakhender Jyoti Sharma, son Shri Vikas Sharma and
daughter in law Smt. Shivani Sharma were going towards Manali from
Chandigarh by their car bearing No.HR51U4716. The car was being driven
by the son of the deceased while his wife (daughter in law) was sitting at the
front seat. The deceased Shri Varinder Kumar Sharma and his wife were
sitting on the back seat of the car. The car was being driven by the son of the
deceased at a moderate speed and according to the traffic rules and on the
correct portion/ side of the road. When the car reached at NH21 Mor at that
time a Tanker bearing registration No.PB11AM9305 came from the opposite
side after overtaking the other vehicles going ahead of the tanker and hit with
the front portion of the Tanker on the front portion of the car. Due to the
forceful impact the car was dragged for a considerable distance. It is alleged
Suit No. 138/14, 139/14, 141/14 & 151/14 Page No. 4 of 116
that the tanker was being driven by its driver/ respondent No.1 at a very fast
speed, rashly, negligently, without blowing any horn and in contravention of the
traffic rules and came from the opposite direction and overtook the other
vehicles and hit the front right side portion of the car with great force after
coming to the wrong side of the road. With the sudden forceful impact the car
of the deceased was dragged and all the occupants of the car sustained
injuries. It is averred that the deceased died at the spot. The wife of the
deceased, his son and daughter in law also sustained injuries in the accident.
The son of the deceased was transferred to the PGI Hospital, Chandigarh,
where he succumbed to death on 22.08.2009. The daughter in law also
sustained injuries in the accident. It is stated that FIR No.231/09 was
registered at PS Sunder Nagar, Distt. Mandi (H.P.) under sections
279/337/338/304A IPC. It is alleged that the offending vehicle/ tanker was at
such a high speed that after hitting the car with a great force it hit other
vehicles coming from the back of the petitioners' car. It is contended that the
accident took place due to sole rash and negligent driving of the respondent
No.1 who was driving his vehicle at a very high speed and without observing
the traffic rules and caring for the traffic moving on the side busy road and if
the respondent No.1 had been cautious in his driving he would have avoided
the accident. It is averred that the principle of res ipsa loquitur applies in the
case and it was for the respondent No.1/ driver to prove that he was not
negligent at the time of driving the tanker/ offending vehicle. It is alleged that
the offending vehicle Tanker bearing registration No.PB11AM9305 was being
Suit No. 138/14, 139/14, 141/14 & 151/14 Page No. 5 of 116
driven by the respondent No.1 in a rash and negligent manner under the
supervision and control of the respondent No.2 and the vehicle was insured
with the respondent No.3 at the time of the accident, hence the respondent
No.3 was liable to pay compensation to the petitioners and to indemnify its
insured, hence all the respondents were liable to pay compensation to the
petitioners jointly and severally.
FACTS OF SUIT No.138/14
3. It is averred that due to the accident the deceased Shri Varinder Kumar Sharma sustained head injuries and other multiple injuries all over the body. The body of the deceased was subjected to post mortem at Civil Hospital, Sunder Nagar, Distt. Mandi on 15.08.2009. It is stated that the petitioners had spent a sum of Rs.1 lac on conveyance, bringing back the body to Delhi, funeral and last rites ceremonies of the deceased. It is contended that at the time of the accident the deceased was aged about 63 years and was having a good health and physique. The deceased left behind his widow aged about 58 years, his son aged about 29 years and the widow of son of the deceased (son of the deceased also died in the accident after the death of the deceased) aged about 38 years. It is submitted that the deceased was highly qualified and had done Bachelor of Laws from Delhi University. The deceased was retired from Supreme Court of India and was working at the post of "Assistant Registrar", at the time of his retirement on 31.03.2006. After the Suit No. 138/14, 139/14, 141/14 & 151/14 Page No. 6 of 116 retirement the deceased was enrolled as an Advocate with Bar Council of Delhi vide Enrolment No.D645/2006. It is averred that on 04.12.2006 the deceased got a job after retirement from the Hon'ble High Court of Delhi at the post of Special Metropolitan Magistrate, City Zone, Delhi and retired on 7.8.2009 and had an offer to join again at the same post. At the time of his death the deceased was earning Rs.50,000/ approximately.
4. It is contended that due to the sudden death of the deceased the petitioners suffered great mental torture, pain and agony. The life of the petitioners all of a sudden was shattered due to the death of the deceased. The petitioner No.1 lost her husband at the age when she required the company of her husband to share the responsibility, the petitioner No.2 lost his father at the time when he required his supervision, control and guidance for taking decision in all the important matters of life and the petitioner No.3 was already physically disabled and the deceased being a thorough gentleman, having practical knowledge of life and a good fatherinlaw was always helping her in taking the decisions in all the important matters. It is contended that if the deceased had been alive he would have cared for his family and also given guidance in the crucial period and control in all the matters but due to the sudden death the petitioners were at the mercy of their relatives and friends. It is averred that the deceased was helping the petitioners in all day to day affairs and other important matters and was a very loving and caring husband. He used to give all care and help to the petitioner No.1 in all financial Suit No. 138/14, 139/14, 141/14 & 151/14 Page No. 7 of 116 matters and due to the sudden death of the deceased, the petitioner No.1 suffered huge loss of love and affection, future prospects, lifelong good companion which every woman wished to have at her age of life, loss of enjoyment in life, loss of caring etc, besides financial loss. It is alleged that the losses suffered by the petitioners on account of the sudden death of the deceased were much more and could not be compensated in terms of money. It is prayed that an amount of Rs.50,00,000/ be awarded as compensation in favour of the petitioners and against the respondents.
FACTS OF SUIT No.139/14
5. It is the case of the petitioner Smt. Lakhender Jyoti Sharma that due to the accident she sustained fractures in both bone right forearm with fracture orbit wall with fracture nasal bone with minimal SAH and other multiple injuries all over the body. After the accident the petitioner was transferred to the nearby PGI Hospital in Chandigarh and thereafter the petitioner was shifted to Delhi at Max Super Speciality Hospital, Saket, New Delhi on 15.08.2009 with severe injuries to right forearm, face and head. An operation of open reduction and internal fixation of fracture both bone right forearm with LCDCP under GA was done on 15.08.2009 in the Max Hospital. It is averred that the petitioner remained admitted in Max Hospital from 15.08.2009 to 21.08.2009. After discharge from the hospital the petitioner remained as an outdoor patient and was going to the hospitals regularly for Neurosurgery OPD and Suit No. 138/14, 139/14, 141/14 & 151/14 Page No. 8 of 116 Ophthalmologist checkups as advised by the doctors at the time of discharge. The petitioner had thus far spent a sum of Rs.4,00,000/ on medicine, conveyance, dental appointments, eye haziness, physiotherapy, frozen shoulder, special diet and still was incurring on the same heads as she was still under treatment as she was having pain. It is stated that at the time of the accident the petitioner was aged about 58 years and was having good health and good physique and was working as PS to Director General, Bureau of Indian Standards, 9 Bahadur Shah Zafar Marg, New Delhi and was earning a sum of Rs.37,420/ per month. It is contended that due to the injuries sustained in the accident the petitioner could not attend her office and was advised bed rest from 15.08.2009 to 15.11.2009 which caused great mental pain, agony and torture to the petitioner as she never remained on leave for such a long period. Due to the injuries sustained in the accident, the petitioner could not work from her right hand and was unable to carry/ lift any article from her right hand. It is submitted that even at the time of continuous writing the petitioner started having pain in her hand. As such there was permanent disability to the petitioner which caused great mental torture, pain and agony. The petitioner could not work as efficiently as she was working prior to the accident which caused great disappointment in general life. It is averred that as the petitioner was unable to do the house hold jobs she had to employ a full time maid servant which caused additional financial burden to the petitioner. Suit No. 138/14, 139/14, 141/14 & 151/14 Page No. 9 of 116
6. It is alleged that due to the injuries sustained in the accident which caused nonfunctioning of the right hand properly the petitioner developed inferiority complex among the society as it would be difficult for her to take/ lift/ carry any articles which she was doing prior to the accident. As the petitioner sustained injuries in her right hand there were permanent marks of stitches in her right hand due to which she developed an inferiority complex and she used to wear full sleeves blouse or Kameej/ Kurta to hide the marks from the friends and relatives/public even in hot weather. The petitioner could not put her right hand straight and could not drive a car and she had to travel in a taxi or auto which caused further financial burden on the petitioner as going in own car instead of taxi was much cheaper. It is submitted that the petitioner is a Member of Automobiles Association of India and has a Santro Car No.DL3CAT1060. It is stated that due to the injuries on her forehead and right eye there was a permanent mark on the forehead of the petitioner. The doctors had put stitches on her forehead upto the right eye and the mark of massive stitches was visible from the naked eye and the petitioner avoided to take part/attend any family functions and had been forced to cut off from the society which caused great mental pain and agony to the petitioner. It is averred that the losses suffered by the petitioner in the accident were much more and could not be compensated in terms of money. It is prayed that an amount of Rs.50,00,000/ be awarded as compensation in favour of the petitioner and against the respondents.
Suit No. 138/14, 139/14, 141/14 & 151/14 Page No. 10 of 116 FACTS OF SUIT No.141/14
7. It is averred that due to the accident the deceased Vikas Sharma sustained injuries on right femur, lacerated wound on scalp, chin, face and head injury and other multiple injuries all over the body and was bleeding continuously and was transferred to Postgraduate Institute of Medical Education and Research, Chandigarh, Department of Forensic Medicine, Chandigarh. On 15.08.2009 the deceased was shifted to PGI Hospital, Chandigarh, and remained in the Hospital upto 22.08.2009 when he succumbed to death on 22.08.2009 at about 4.20 a.m. The body of the deceased was subjected to postmortem at PGI Hospital, Chandigarh. It is stated that during the period the deceased was in the hospital the petitioners had spent a sum of Rs.2,00,000/ on medicine, conveyance etc. After the death the petitioners had spent a sum of Rs.1 lac on bringing back the body to Delhi, funeral and last rites ceremonies of the deceased. It is averred that at the time of the accident the deceased was aged about 33 years and was having a good health and physique. The deceased left behind the petitioners as his legal heirs. It is contended that the deceased was an NRI and highly qualified and had done (i) Bachelor of Occupational Therapy from the University of Calcutta in 199498, (ii) Training of Trainers on promotion of Non Handicapping Environment for Persons with Disabilities from United Nations (ESCAP) Bangkok, Thailand in March 2000 (iii) Refresher course in Advanced Rehabilitation Management from Association Italiana per la Solidarieta tra I Suit No. 138/14, 139/14, 141/14 & 151/14 Page No. 11 of 116 Popoli, San Raffaele Hospital, Milan, Italy in November, 2001 (iv) M.Sc. Inclusive Environments: Design and Management in 20042006 (Distinction) from University of Reading, Reading Berkshire, U.K. The deceased was a member of National Core Access Committee, Ministry of Social Justice and Empowerment, Government of India from May 2001 to September 2002 and also the coauthor of "Planning a Carrier Free Environment", Office of Chief Commissioner for Disabilities, Ministry of Social Justice and Empowerment, Government of India (June 2001) and also "Low Cost Access Solutions for Developing Countries" a paper published in Voice an Indian magazine on disability (February 2001). It is averred that the deceased was initially granted a "Work Permit Visa" at UK till 3.9.2007 which was extended till 22.9.2007 and in August, 2007 he was granted Permanent Residency status. By having PR status the deceased could live either in UK for an indefinite period or leave UK for an indefinite period or come back to UK as per his own wish.
8. It is contended that the deceased was working in U.K. from 2002 till September, 2007. The deceased joined Heatherwood and Wexham Park Hospital (NHS Trust) on 23.09.2002 as SeniorII in Medical Elderly Team and was upgraded to SeniorI on 07.04.2003 and he worked there till 12.09.2004. Thereafter the deceased changed the job and joined "Royal Berkshire and Battle Hospital NHS Trust", London Road, Reading, RG1 5AN, England, U.K. as a Senior I (band7) Occupational Therapist and was getting the salary of 33,744/ pounds Rs.23,62,080/ approximately @ Rs.70/ per pound and he Suit No. 138/14, 139/14, 141/14 & 151/14 Page No. 12 of 116 worked there till 22.09.2007. In October, 2007 the deceased came back to India from U.K. only to bring professionalism into the disability sector and started consultancy and training on accessibility solutions which were relevant for making building structure of any kind able and friendly to disabled persons in partnership under the name and style of M/s Access Ability. The deceased also designed the unique web such as www.free2wheel.co.in a Delhi travel guide for disabled persons and www.employability.co.in a job portal for people with disabilities. It is stated that the deceased was earning about Rs.1,25,000/ per month from the said profession. However he applied for a job in U.K. and was having an employment offer to join in U.K. at a monthly salary of 35,980 pounds (35,980 x Rs.70/ = 25,18,600/) i.e. more than the amount what he was getting earlier but due to the unfortunate accident the deceased could not join and the petitioners suffered a great financial loss. It is averred that the deceased had a work force for all types of jobs required for his profession and the workforce employed by the deceased was Architects, occupational therapist, MBA Graduate and social workers etc. It is contended that the deceased was hard working, having excellent communication skills and was a very popular team member and was awarded 'Helen Keller Award'. A number of 'Articles' had also been written for the work done by the deceased in leading newspapers after seeing his excellency in work for the disabled persons.
9. It is stated that the deceased married the petitioner No.1 on 13.04.2009 and was planning to relocate to UK and settle there along with his family. As Suit No. 138/14, 139/14, 141/14 & 151/14 Page No. 13 of 116 the petitioner No.2 mother of the deceased was going to retire in 2011 she was also interested to settle in UK along with her son and family. The petitioners were very happy as they also wanted to settle there. But due to the unfortunate accident all the hopes of the petitioners had been smashed which caused great mental pain, torture and agony to the petitioners. It is averred that due to the sudden death of the deceased the petitioners suffered great mental torture, pain and agony. The life of the petitioners all of a sudden was shattered due to the death of the deceased. The petitioner No.1 was already disabled and the deceased was helping her in all the day to day and other matters and was a very loving and caring husband. He used to give all care and help to the petitioner No.1 in all the financial matters. It is alleged that due to the sudden death, the petitioner No.1 suffered huge loss of love and affection, future prospects, lifelong good companion which every woman wished to have in her life, loss of enjoyment in life, loss of caring etc. besides financial loss. The petitioner No.1 lost her husband at an age when she required the company of her husband to share the day to day responsibilities. The petitioner No.2 who lost her husband in the unfortunate accident on 14.08.2009 also lost her sondeceased and if the deceased had been alive he would have cared for his mother and family and would have also given guidance in the crucial period and control in all the matters but due to the sudden death the petitioners were at the mercy of their relatives and friends. It is averred that the losses suffered by the petitioners on account of the sudden death of the deceased were much more and could not be compensated in Suit No. 138/14, 139/14, 141/14 & 151/14 Page No. 14 of 116 terms of money.
10. It is stated that the petitioner No.1 is a physically challenged person and was married to a non disabled person who was helping her in her day to day affairs and other matters. The petitioner No.1 also sustained injuries in her hand which further made the petitioner more disabled. The left hand of the petitioner No.1 was not functioning and she had to work only with her right hand. She was unable to write or catch hold of any articles/ goods from her left hand which caused great mental pain, agony to the petitioner No.1. The right leg of the petitioner No.1 was also fractured in the accident and whenever the family of the petitioners went for an outing or for any job the deceased used to help the petitioner No.1 to shift into the car from the wheelchair but due to the injuries in her right leg the petitioner No.1 was unable to shift from the wheelchair into a car anymore or bed or elsewhere and she required the help of minimum 2 attendants/ outside persons which caused great mental torture and financial burden to the petitioners and the petitioner No.1 required constantly a servant who could help her in shifting from the wheelchair to other place which caused great mental pain and agony to the petitioners. It is prayed that an amount of Rs.2,00,00,000/ be awarded as compensation in favour of the petitioners and against the respondents on account of mental torture, pain and agony and loss of love and affection, loss of pleasure in life, loss of supervision and control, amount spent on medicine, conveyance, special diet etc. besides financial loss.
Suit No. 138/14, 139/14, 141/14 & 151/14 Page No. 15 of 116 FACTS OF SUIT No.151/14
11. It is the case of the petitioner Smt. Shivani Sharma that due to the accident she sustained compound fracture supracondylar fracture right femur with metacarpal fracture left 3rd and 4th in a quadriplegic, injuries in her left hand and right leg and other injuries all over the body. After the accident the petitioner was transferred to nearby PGI Hospital, Chandigarh and thereafter the petitioner was shifted to Delhi at Max Super Speciality Hospital, Saket, New Delhi on 15.08.2009. An operation of ORIF with locking plate fixation right distal femur was done on 15.08.2009 in the Max Hospital. The petitioner remained admitted in Max Hospital from 15.08.2009 to 22.08.2009. It is stated that after discharge from the hospital the petitioner remained as an outdoor patient and was going to the hospitals regularly for regular checkup as advised by the doctors at the time of discharge. The petitioner had thus far spent a sum of Rs.4,00,000/on medicine, conveyance, special diet and was still incurring on the same heads as the petitioner was still under treatment as she was having physiotherapy. It is contended that at the time of the accident the petitioner was aged about 38 years and was running an NGO and was also running a consultancy firm under the name of "Access Ability" in partnership with her husband and was earning a sum of Rs.40,000/ per month from the business. It is alleged that due to the trauma and mental agony of the accident and the death of her husband and business partner the petitioner had to dissolve the partnership and wind up the business, hence she was suffering Suit No. 138/14, 139/14, 141/14 & 151/14 Page No. 16 of 116 financial loss and mode for future earning.
12. It is stated that the petitioner was married on 13.04.2009 and in the unfortunate accident she lost her husband after just four months of being married which caused great mental pain, agony and torture to the petitioner and the petitioner was solely dependent upon her parents and relatives. It is averred that the petitioner is physically disabled and was married with a non disabled person who was helping her in her day to day affairs and other matters. The petitioner was happy with her husband who was very loving and caring husband. But the husband of the petitioner also died in the accident and the petitioner also sustained injuries in her hand which further made the petitioner more disabled. The left hand of the petitioner was not functioning and she had to work only with her right hand. She was unable to write or catch hold of any articles/ goods from her left hand which caused great mental pain, agony to the petitioner. It is stated that the right leg of the petitioner was also fractured in the accident and due to the injuries in her right leg the petitioner was unable to shift from the wheelchair into a car, bed, toilet or elsewhere. She constantly required servants who could help her in shifting from the wheelchair to other places which caused a great financial burden and mental pain and agony to the petitioner. It is submitted that the petitioner had done Diploma in Hotel Management from Institute of Hotel Management Pusa, New Delhi (ii) Training of Trainers on promotion of NonHandicapping Environment for Persons with Disabilities in March 2000, (iii) Diploma in Architecture Suit No. 138/14, 139/14, 141/14 & 151/14 Page No. 17 of 116 Technology from Edxcel UK and (iv) M. Sc. Inclusive Environments: Design and Management from University of Reading, Reading Berkshire U.K. The petitioner had been awarded (i) Helen Keller Award in 2008, Sulabh International Women of the year award in 1996, Red and White social bravery award in 1999, Neerja Bhanot Award in 2004 National (Role Model) award given by the President of India in 2004, Cavinkare Ability Mastery Award in 2008 and Helen Keller Award in 2008. The petitioner was also granted educational scholarship from Tata and Snowdon U. K. Scholarship from 20042006. It is contended that due to the injuries in the accident the petitioner was unable to work hard as she was working prior to the accident and she was not in a position to get any more scholarship or award. It is averred that the losses suffered by the petitioner in the accident were much more and could not be compensated in terms of money. It is prayed that an amount of Rs. 75,00,000/ be awarded as compensation in favour of the petitioner and against the respondents on account of injuries sustained in the accident, mental torture, pain and agony, loss of future prospect, loss of enjoyment in life, and the amount spent for treatment which the petitioner was still incurring besides huge financial loss.
13. Written statement was filed on behalf of the respondent No.1 taking the preliminary objections that the petition had been filed just to extort money and the vehicle Tanker bearing No.PB11AM9305 had been falsely involved in the case and as such there was no cause of action against the respondent No.1. It Suit No. 138/14, 139/14, 141/14 & 151/14 Page No. 18 of 116 is averred that the petitioners have not come to the Court with clean hands and the material facts had been concealed by the petitioners from the Court. It is alleged that the petitioners had wrongfully presented the facts before the Court. It is contended that the petitioners had not joined the insurance company of the vehicle bearing No.HR51U4716 in the array of the respondents which was a necessary party. It is averred that the amount claimed is very excessive and unreasonable without any legal basis thereto. The averments made in the claim petition were denied. It is submitted that the respondent No.1 has been falsely implicated in the criminal case by the police. It was denied specifically that the vehicle Tanker bearing No.PB11AM9305 was involved in the accident as alleged. It is submitted that the said vehicle was falsely involved by the petitioners in collusion with the local police in order to raise a false claim. It is denied that the alleged accident took place due to the rash and negligent driving of the respondent No.1 who drove the offending vehicle at a very high speed, rashly and negligently.
14. Written statement was filed on behalf of the respondent No.3 taking the preliminary objections that the respondent No.3 was not liable to pay any amount of compensation in case it was found that the driver of the vehicle bearing No.PB11AM9305 was not holding valid and effective driving license at the time of the alleged accident or that he was not driving the vehicle as per the instructions of the insured/ owner of the vehicle or that the owner of vehicle No.PB11AM9305 was not holding valid permit and valid certificate of fitness Suit No. 138/14, 139/14, 141/14 & 151/14 Page No. 19 of 116 for plying his vehicle on road as required under the provisions of M.V. Act and the rules framed thereunder. It is submitted that the accident was caused not because of the rash and negligent driving of the driver of the offending vehicle rather it was the deceased Shri Vikas Sharma who was driving the car No.HR51U4716 in a negligent manner and was not adhering to the traffic rules at the time of the accident. It is contended that the claimants have not impleaded the owner and insured of the car as necessary parties in the case. The averments made in the claim petitions were denied. It is submitted that the respondent No.3 had not received any information regarding the alleged accident on the said date, time and place from the insured of the vehicle or otherwise. It is averred that the respondent No.2 got the vehicle insured with the respondent No.3 as the owner of the vehicle and the vehicle bearing No.PB11AM9305 was insured with the respondent No.3 in the name of the respondent No.2 under policy issued for the period 19.6.2009 to 18.6.2010.
15. Vide order dated 24.1.2011 of my learned predecessor interim award under Section 140 MV Act was passed in favour of the petitioner No.1 in suit No.138/14 and against the respondent No.3. On 24.1.2011 it was stated by the learned counsel for the respondent No.3 that the documents were verified and found to be genuine. Vide order dated 28.2.2011 of my learned predecessor, the respondent No.2 was directed to be served by way of publication in 'Punjab Kesari'. By order dated 27.4.2011 the name of the newspaper was changed from 'Punjab Kesari' to 'Statesman'. The respondent No.1 was Suit No. 138/14, 139/14, 141/14 & 151/14 Page No. 20 of 116 proceeded exparte vide order dated 22.7.2011 of my learned predecessor. The respondent No.2 was served by way of publication in 'Statesman' dated 20.8.2011. Vide order dated 5.10.2011 of my learned predecessor the respondent No.2 was proceeded exparte. From the pleadings of the parties, the following issues were framed vide order dated 05.10.2011 of my learned predecessor:
Suit No.138/14
1. Whether the deceased sustained fatal injuries in the accident which occurred on 14.08.2009 at about 2.15 PM near village Bhour, PS Sunder Nagar, District Mandi, Himachal Pradesh due to rash and negligent driving of vehicle No.PB11AM9305 by respondent no.1, owned by respondent no.2 and insured with respondent no.3? OPP.
2. Whether the petitioner is entitled for compensation? If so, to what amount and from whom?
3.Relief.Suit No.139/14
1. Whether the petitioner sustained injuries in the accident which occurred on 14.08.2009 at about 2.15 PM near village Bhour, PS Sunder Nagar, District Mandi, Himachal Pradesh due to rash and negligent driving of vehicle No.PB11AM9305 by respondent no.1, owned by respondent no.2 and insured with respondent no.3? OPP.
Suit No. 138/14, 139/14, 141/14 & 151/14 Page No. 21 of 116
2. Whether the petitioner is entitled for compensation? If so, to what amount and from whom?
3.Relief.Suit No.141/14
1. Whether the deceased sustained fatal injuries in the accident which occurred on 14.08.2009 at about 2.15 PM near village Bhour, PS Sunder Nagar, District Mandi, Himachal Pradesh due to rash and negligent driving of vehicle No.PB11AM9305 by respondent no.1, owned by respondent no.2 and insured with respondent no.3? OPP.
2. Whether the petitioner is entitled for compensation? If so, to what amount and from whom?
3.Relief.Suit No.151/14
1. Whether the petitioner sustained injuries in the accident which occurred on 14.08.2009 at about 2.15 PM near village Bhour, PS Sunder Nagar, District Mandi, Himachal Pradesh due to rash and negligent driving of vehicle No.PB11AM9305 by respondent no.1, owned by respondent no.2 and insured with respondent no.3? OPP.
2. Whether the petitioner is entitled for compensation? If so, to what amount and from whom?
Suit No. 138/14, 139/14, 141/14 & 151/14 Page No. 22 of 116
3.Relief.
Vide order dated 2.1.2012 of my learned predecessor, the present suits No. 138/14, 139/14, 141/14 and 151/14 were directed to be consolidated for the purpose of trial and decision as they arise out of the same accident and the present suit No.138/14 was to be the lead case wherein the evidence would be recorded. Vide order dated 19.03.2012 of my learned predecessor, an application filed under Section 170 of the Motor Vehicle Act on behalf of the respondent No.3 was allowed. Vide order dated 19.9.2014 application for issuance of disability certificate in respect of Smt. Lakhender Jyoti Sharma and Smt. Shivani Sharma was allowed.
16. On behalf of the petitioners, Shri Keshav Babu Sengar, Medical Record Technician, Max Hear and Vascular, Saket was produced in the witness box as PW1 and he had brought the medical record as well as bills in respect of the treatment of Smt. Shivani Sharma and Ms. Jyoti Sharma. The medical record and bills of Smt. Shivani Sharma are Ex.PW1/A (colly). The medical record and bills of Ms. Jyoti are Ex.PW1/B (colly). He had also brought the original treatment record of patient Lakhender Jyoti Sharma and of patient Shivani Sharma and the same is Ex.PW1/1 and Ex.PW1/2 (colly). The hospital bills of patient Jyoti Sharma are Ex.PW1/3 and of Shivani Sharma are Ex.PW1/4.
17. Smt. Lakhender Jyoti Sharma appeared in the witness box as PW2 and led her evidence by way of affidavit which is Ex.PW2/A reiterating the Suit No. 138/14, 139/14, 141/14 & 151/14 Page No. 23 of 116 averments made in the claim petitions. She stated that on 04.08.2009 she had made a holiday trip programme with her family i.e. her husband, her son and his wife for Manali from 14.08.2009 to 17.08.2009 and booked the accommodation in BIS Holiday Home Manali through her office. She stated that as in the said accident her husband and her son (later on died on 22.08.2009) and daughter in law also sustained injuries no one was there to look after them. She and her daughter in law were shifted to Delhi at Max Super Speciality Hospital, Saket, New Delhi on 15.08.2009 in separate Ambulance and she had spent a sum of Rs.60,000/ at that time. She stated that due to the injuries she was advised to avoid forward bending, low/long sitting, weight lifting and bumpy ride. As such she had to take taxi instead of auto for attending the hospital or going to her office/other places, which was more expensive causing further financial loss to her. The monthly expenditure for conveyance had also increased and she had spent a sum of Rs.1 lac on conveyance. Due to the injuries her vision was also affected and she remained under the treatment of Venu Eye Institute and Research Centre and she had been regularly consulting doctors and taking medicine as per their advice. In the accident her dental had also shaken and she had been consulting the dental surgeon in the said regard and had paid a sum of Rs.50,000/ for her dental treatment. She stated that after discharge from hospital she remained as an outdoor patient and was going to the hospital regularly for regular checkup as advised by the doctors at the time of discharge. Due to the injuries she also remained under the treatment of neurosurgeon, dental and eye Suit No. 138/14, 139/14, 141/14 & 151/14 Page No. 24 of 116 specialist. She had spent more than Rs.5,00,000/ till date on medicine, xray, doctors' fees etc and was still incurring under the same head as she was still under treatment. Some time she had not taken the bills due to emergency and some time the payment was given by her however medicine was brought by her relatives and they did not hand over the bills to her.
18. PW2 further deposed that she had employed an attendant/nurse to look after her as her husband had also died in the accident and no female member was there to look after her. She had employed the attendant for one year @ Rs.7,000/ per month and spent a sum of Rs.84,000/. She was unable to do the house hold jobs as such she had to employ a full time maid servant which caused an additional financial burden to her and she had been paying a sum of Rs.6,000/ to the full time maid servant and had spent more than Rs.2.5 lacs thus far on the said account. She stated that she had done her B. A. Degree Course from Delhi University in the year 1972 and also Post Graduate Diploma in Personnel Management and Industrial Relations. She stated that she had to spend a sum of Rs.3,000/ extra per month on transportation. She stated that on 30.04.2011 she had retired from her service on superannuation and due to the injuries in her hand she could not do the house hold work. Prior to the accident she was very active and doing all her household jobs herself but at present she was dependent upon the servant which caused great mental pain and agony to her besides financial loss. She was always active in her whole life and had vast experience of management and was interested to Suit No. 138/14, 139/14, 141/14 & 151/14 Page No. 25 of 116 work in private sector after retirement so that she could maintain her standard of living but due to the injuries sustained in the accident she was unable to get the job which caused great mental pain and agony to her. She stated that she could have got a job of salary ranging between Rs.40,000/ to Rs.50,000/ per month but all her hopes had been smashed due to the injuries sustained in the accident and she was totally dependent upon the meager amount of her pension. She stated that due to the injuries she had to take special diet which further caused financial loss to her and she spent a sum of Rs.1 lac thus far on special diet.
19. PW2 also deposed that in the accident her husband Shri V. K. Sharma also sustained head injuries and other multiple injuries all over the body and died at the spot. She stated that petitioners had spent a sum of Rs.1 lac on conveyance for bringing back the body to Delhi, funeral and last rites ceremonies of the deceased. She stated that the deceased was selected as Principal Private Secretary to Chairman, Cauvery Water Disputes Tribunal (CWDT) on deputation from 1997 to 2003 and thereafter returned to his parent employer at the post of "Assistant Registrar", in the Hon'ble Supreme Court of India till his retirement on 31.03.2006 on superannuation. On 04.12.2006 the deceased got a job from the Hon'ble High Court of Delhi at the post of Special Metropolitan Magistrate, Delhi for a period of one year and the term of appointment of the deceased was extended upto 31.12.2008 vide notification dated 28.01.2008 and thereafter upto 31.03.2009 and then upto 31.07.2009 Suit No. 138/14, 139/14, 141/14 & 151/14 Page No. 26 of 116 vide notification dated 01.05.2009. The deceased was getting Rs.18,000/ per month which included Rs.12,500/ towards out of pocket expenses, Rs.2,500/ as transport allowance and Rs.3,000/ towards dress allowance. On 06.05.2009 the deceased requested the Hon'ble High Court of Delhi for the extension of his tenure and he was hopeful that the same would be extended as per the past practice. On 03.07.2009 the Cauvery Water Disputes Tribunal invited application for the post of Principal Private Secretary in which the deceased had already worked as such he applied for the said post and was hoping to get the same as he had already worked for 6 years at the said post. She stated that the deceased was getting pension and at present PW2 was getting family pension of Rs.11,280/. She stated that the deceased was an income tax assesse and at the time of death the deceased was earning Rs. 50,000/ per month approximately from consultancy besides his pension. She stated that the accident was reported in all the daily newspapers. Reservation letter for the trip to Manali is Ex.PW2/1, MLC of PW2 is Ex.PW2/2, discharge summary of Max Speciality Hospital, Saket is Ex.PW2/3, prescription slips issued by hospital/ doctors are Ex.PW2/4 to Ex.PW2/10, bills are Ex.PW2/11 to 32, certificate of the hospital advising bed rest to PW2 is Ex.PW2/33, BA degree of PW2 is Ex.PW2/34, certificate of completion of Management Course is Ex.PW2/35, salary certificate of PW2 is Ex.PW2/36, identity card of PW2 is Ex.PW2/37, ITR is Ex.PW2/38, office memorandum is Ex.PW2/39, death certificate of Shri V.K. Sharma is Ex.PW2/40, selection letter of the deceased is Ex.PW2/41, office order dated 11.3.1997 is Ex.PW2/42, identity card is Suit No. 138/14, 139/14, 141/14 & 151/14 Page No. 27 of 116 Ex.PW2/43, office order issued by Hon'ble Supreme Court of India in respect of retirement of the deceased is Ex.PW2/44, registration certificate as Advocate is Ex.PW2/45, identity card issued by Bar Council of Delhi is Ex.PW2/46, notification dated 4.12.2006 for appointment of the deceased as Special Metropolitan Magistrate, Delhi is Ex.PW2/47, notification dated 28.1.2008 is Ex.PW2/48, notification for extension of term of appointment is Ex.PW2/49, notification dated 1.5.2009 is Ex.PW2/50, request letter for extension of tenure is Ex.PW2/51, application dated 1.8.2009 for the post of Principal Private Secretary, Cauvery Water Disputes Tribunal is Ex.PW2/52, pension certificate of the deceased is Ex.PW2/53, ITR for the year 200809 is Ex.PW2/54, charge sheet filed before the learned Judicial Magistrate, Sunder Nagar, HP is Ex.PW2/55, certified copy of FIR is Ex.PW2/56, copy of RC of the offending vehicle is Ex.PW2/57, certified copy of site plan is Ex.PW2/58, PMR of Shri V.K. Sharma is Ex.PW2/59, seizure memo of receipt of dead body is Ex.PW2/60, certified copy of release order of the offending vehicle is Ex.PW2/61, certified copy of statement of respondent No.2 recorded under Section 161 Cr.P.C. is Ex.PW2/62, statement of Mechanical Inspector is Ex.PW2/63, statements of witnesses recorded by the police under Section 161 Cr.P.C. are Ex.PW2/64 to Ex.PW2/70, MLC of Ms. Shivani is Ex.PW2/71, MLC of Shri Vikas Sharma is Ex.PW2/72 and PMR of Shri Vikas Sharma is Ex.PW2/73 and newspaper reporting of the accident is Mark A. Suit No. 138/14, 139/14, 141/14 & 151/14 Page No. 28 of 116
20. Smt. Shivani Sharma appeared in the witness box as PW3 and led her evidence by way of affidavit which is Ex.PW3/A. She stated that as there was no one to look after her and her husband, mother in law and father in law also sustained injuries in the accident she was shifted to PGI, Chandigarh and then to Delhi at Max Super Speciality Hospital, Saket, New Delhi on 15.08.2009 in an Ambulance. She had spent a sum of Rs.50,000/ at that time. She stated that immediately on arrival two surgeries were undertaken on her, one surgery of ORIF with locking plate fixation right distal femur and second surgery to fix the metacarpals in the left hand. The two surgeries were done on 15.08.2009 in the Max Hospital. She stated that she had thus far spent a sum of Rs.4 lacs on medicine, conveyance, special diet and was still incurring on the same heads as she was still under treatment as she was having physiotherapy. She stated that at the time of accident she was aged about 38 years and was running an NGO and doing the consultancy in relation to promoting accessibility in built environments for persons with disabilities and was earning a sum of Rs.40,000/ per month from the said profession. Due to the trauma and mental agony of the accident and the death of her husband she could not run her NGO and undertake consultancy, hence she was suffering financial loss and mode of future earning. She stated that at present she was solely dependent upon her parents and relatives. She stated that earlier she was operating computer with her two fingers but now due to injuries in her hand she was unable to operate the computer which caused great mental pain, agony to her. She stated that her right leg was also fractured in the unfortunate Suit No. 138/14, 139/14, 141/14 & 151/14 Page No. 29 of 116 accident. She stated that plate fixation had been undertaken in her right leg and the same may require replacement or removal any time and she would have to incur a huge amount for the same which would cause great financial burden, mental pain and agony to the petitioner. She stated that after the loss of her husband there was no one to look after her and she was totally dependent on her relatives to support her financially and otherwise.
21. PW3 further deposed that the deceased Shri Vikas Sharma besides teaching was also having clinical experience and had worked as a volunteer at the Occupational Therapy Department Special School Wing, Air Force Golden Jubilee Institute, New Delhi from 15.04.1998 to 15.05.1998. The deceased taught as lecturer on "Home Modifications" and "ADL Adaptation's" for Rehabilitation Council of India's Career Training Programme from April 2001 to July 2002. He taught as Master Trainer for the Government of India Program for all a New Initiative from June 2001 to May 2002. He taught as Guest lecturer on Accessibility and Assistive Technology for M.Sc. Occupational Therapy (Neurology & Orthopedics) program of the Jamia Hamdard University New Delhi India from February, 2002 to September, 2002. On 02.08.2002 the deceased got an offer from M/s Heatherwood and Wexham Park Hospital (NHS Trust) United Kingdom, for the post of SeniorII Occupational Therapist at a starting salary of 20,980 pounds plus London Supplement of 706 pounds and an additional 2.5% as cost of living allowance. In September, 2002 the deceased went to UK and also visited other countries in relation to his work of Suit No. 138/14, 139/14, 141/14 & 151/14 Page No. 30 of 116 Occupational Therapist and to attend seminars/workshops. She stated that in 2004 the deceased applied in "Royal Berkshire and Battle Hospital NHS Trust", London Road, Reading RG1 5AN, England, U. K. for the Post of Senior 1 Occupational Therapist which vide letter dated 09.06.2005 informed that his current salary would be at higher pay point and vide letter dated 24.11.2005 informed that the salary of the deceased would be 30247 pounds. In August 2007 the deceased resigned from the job to come back to India for future prospect and to live with his family and also to get married. His employer while relieving him vide certificate/letter dated 20.08.2007 had stated that the deceased was still required and his employment was secure and ongoing.
22. PW3 also deposed that the deceased had at times discussed with the petitioners to settle in UK and the petitioners also agreed but due to the unfortunate accident all the hopes of the petitioners had been shattered. She stated that the deceased was not satisfied with the consultancy and training on accessibility and was therefore planning to return to UK in September/October 2009 as he was having permanent residency status and was in the process of applying for a job at the hospital where he was working previously for which he had an open offer to return. The deceased on 10.08.2009 has also sent a mail through Facebook to his brother Shri Vishal from Delhi who was at that time in U.K. about his planning to visit UK around 10th September, 2009. The deceased had attended various courses held in connection with the disabled persons in India as well as abroad from 1998 till his death. Various articles in Suit No. 138/14, 139/14, 141/14 & 151/14 Page No. 31 of 116 respect of occupational therapy and to promote low cost access solutions, sensitizing decision makers on the issue and encouraging independent living by designing ingenious aids were written by the deceased and the same were published in leading newspapers. The deceased was a professional member of various professional bodies and statutory bodies (organizations) such as (i) British Association of Occupational Therapist vide membership No.BT0230133 and joined on 01.04.2003 (ii) All India Occupational Therapists Association vide membership No.L2206/98 (Life member) (iii) Academic Council of Occupational Therapy India vide registration No.05044 (iv) National Core Access Committee Ministry of Social Justice and Empowerment Government of India. He was registered vide registration No.OT35556 with the Health Professions Council, Park House, 184 Kennington Park Road, London SE 11 4BU U. K. and was entitled to practice as Occupational Therapist in U.K. She stated that with the loss of her husband she lost all hopes of fulfilling the human need of motherhood. Discharge summary of PW3 is Ex.PW3/1, medical bills are Ex.PW3/2, ITR of PW3 is Ex.PW3/3, educational certificates of PW3 are Ex.PW3/4/1 to Ex.PW3/4/4, copies of award certificates are Ex.PW3/5/1 to Ex.PW3/5/4, copies of newspapers containing articles about the contribution of PW3 are Ex.PW3/6 (colly), medical expense bills of the deceased Shri Vikas Sharma are Ex.PW3/7 (colly), educational qualification certificates of the deceased are Ex.PW3/8/1 to Ex.PW3/8/10, copy of certificate dated 11.9.2002 issued by the Chief Commissioner for Persons with Disabilities is Ex.PW3/9, certificate issued by school is Ex.PW3/10, letter dated Suit No. 138/14, 139/14, 141/14 & 151/14 Page No. 32 of 116 2.8.2002 is Ex.PW3/11, copy of passports is Ex.PW3/12, experience certificate is Ex.PW3/13, salary slips are Ex.PW3/14 (colly), work permit is Ex.PW3/15, PR certificate is Ex.PW3/16, letter dated 23.6.2004 is Ex.PW3/17, letter dated 9.7.2004 is Ex.PW3/18, letter dated 9.6.2005 is Ex.PW3/19, letter dated 24.11.2005 is Ex.PW3/20, salary slips and tax deduction certificates are Ex.PW3/21 (colly), copies of letters issued by the employer of the deceased are Ex.PW3/22 (colly), copy of print out of facebook is Ex.PW3/23, certificates issued in respect of courses attended by the deceased are Ex.PW3/24/1 to Ex.PW3/24/10, copies of newspaper cuttings are Mark C (colly), appreciation letter dated 1.1.2007 issued by the Ministry is Ex.PW3/25, certificates regarding the courses attended are Ex.PW3/26 and 27, certificates issued by the concerned offices are Ex.PW3/28/1 to Ex.PW3/28/3 and registration certificate to practice as Occupational Therapist in UK is Ex.PW3/29 (colly).
23. Dr. H.N. Bajaj, Head of Department of Ortho Spine Surgery, Max Hospital, Saket was produced in the witness box as PW4 and he deposed that the petitioner Lakhender Jyoti Sharma was examined by him on 15.08.09 on the date when she was admitted in the hospital. She had been brought from the hospital at Chandigarh. She remained admitted under the care of the hospital till 21.08.09 and the treatment record is Ex.PW1/1 (colly) including the discharge summary. He stated that at present she was not undergoing any treatment under his care. He stated that the petitioner Shivani Sharma was examined by him on 15.08.09 on the date when she was admitted in the Suit No. 138/14, 139/14, 141/14 & 151/14 Page No. 33 of 116 hospital. She had been brought from the hospital at Chandigarh. She remained admitted under the care of the hospital till 22.08.09 and the treatment record is Ex.PW1/2 (colly) including the discharge summary. He stated that at present she was not undergoing any treatment under his care. PE was closed on 1.3.2014.
24. On behalf of the respondent No.3 Shri B.S. Rawat, Assistant Manager was produced in the witness box as R3W1 who led his evidence by way of affidavit which is Ex.R3W1/A. He stated that the office issued the insurance policy to the insured namely Ramanpreet Singh in respect of the vehicle PB11AM9305. Copy of the policy/ cover note is Ex.R3W1/1. He stated that on the instruction of the office, the counsel of the company issued notice under Order 12 Rule 8 CPC to the owner of the offending vehicle. Copy of the legal notice and postal receipts are Ex.R3W1/2 (colly). He was not crossexamined on behalf of the respondent No.1. RE was closed on 9.5.2014.
25. I have heard the Learned Counsel for the petitioners as well as the Learned Counsel for the respondent No.3 and perused the record. Written submissions were also filed on behalf of the petitioners which I have perused.
26. My findings on the specific issues are as under:
Suit No. 138/14, 139/14, 141/14 & 151/14 Page No. 34 of 116 Issue No. 1
27. As the petitions have been filed U/s 166 M.V Act it was incumbent upon the petitioners to prove that the injured/ deceased sustained injuries in an accident caused due to the rash and negligent driving by the driver of the offending vehicle. To determine the negligence of the driver of the offending vehicle it has been held in National Insurance Company Ltd. vs Pushpa Rana & Another 2009 Accident Claims Journal 287 as follows:
"The last contention of the appellant insurance company is that the respondents/claimants should have proved negligence on the part of the driver and in this regard the counsel has placed reliance on the judgment of the Hon'ble Apex Court in Oriental Insurance Company Ltd. V. Meena Variyal (supra). On perusal of the award of the Tribunal, it becomes clear that the wife of the deceased had produced: (i) certified copy of the criminal record of criminal case in FIR No.955 of 2004, pertaining to involvement of offending vehicle (ii) criminal record showing completion of investigation of police and issue of charge sheet under sections 279/304A, Indian Penal Code against the driver;
(iii) certified copy of FIR, wherein criminal case against the driver was lodged; and (iv) recovery memo and mechanical inspection report of offending vehicle and vehicle of deceased.
These documents are sufficient proofs to reach the conclusion that the driver was negligent. Proceedings under the Motor Vehicle Act are not akin to proceedings in a civil suit and hence strict rules of evidence are not required to be followed in this regard. Hence, this contention of the counsel for the appellant also falls face down. There is ample evidence on record to prove negligence on part of the driver."
Suit No. 138/14, 139/14, 141/14 & 151/14 Page No. 35 of 116 It is established law that in a claim petition under Motor Vehicle Act, the standard of proof to establish rash and negligent driving by the driver of the offending vehicle is not at par with the criminal case where such rashness and negligence is required to be proved beyond all shadow of reasonable doubt. In Kaushnamma Begum and others v. New India Assurance Company Limited, it was inter alia held by the Hon'ble Supreme Court that the issue of wrongful act or omission on the part of the driver of the motor vehicle involved in the accident has been left to a secondary importance and mere use or involvement of motor vehicle in causing bodily injury or death to a human being or damage to property would make the petition maintainable under Sections 166 and 140 of the Motor Vehicle Act.
28. The case of the petitioners is that on 14.08.2009 at about 2.15 p.m. the deceased Shri Varinder Kumar Sharma S/o Late Shri Devi Dutt Sharma along with his wife Smt. Lakhender Jyoti Sharma, son Shri Vikas Sharma and daughter in law Smt. Shivani Sharma were going towards Manali from Chandigarh by their car bearing No.HR51U4716. The car was being driven by the son of the deceased while his wife (daughter in law) was sitting at the front seat. The deceased Shri Varinder Kumar Sharma and his wife were sitting on the back seat of the car. The car was being driven by the son of the deceased at a moderate speed and according to the traffic rules and on the correct portion/ side of the road. When the car reached at NH21 Mor at that time a Tanker bearing registration No.PB11AM9305 came from the opposite side Suit No. 138/14, 139/14, 141/14 & 151/14 Page No. 36 of 116 after overtaking the other vehicles going ahead of the tanker and hit with the front portion of the Tanker on the front portion of the car. Due to the forceful impact the car was dragged for a considerable distance. It was alleged that the tanker was being driven by its driver/ respondent No.1 at a very fast speed, rashly, negligently, without blowing any horn and in contravention of the traffic rules and came from the opposite direction and overtook the other vehicles and hit the front right side portion of the car with great force after coming to the wrong side of the road. With the sudden forceful impact the car of the deceased was dragged and all the occupants of the car sustained injuries. It was averred that the deceased Shri V.K. Sharma died at the spot. The wife of the deceased, his son and daughter in law also sustained injuries in the accident. The son of the deceased was transferred to the PGI Hospital, Chandigarh, where he succumbed to death on 22.08.2009. The daughter in law also sustained injuries in the accident. It was stated that FIR No.231/09 was registered at PS Sunder Nagar, Distt. Mandi (H.P.) under sections 279/337/338/304A IPC. It was alleged that the offending vehicle/ tanker was at such a high speed that after hitting the car with a great force it hit other vehicles coming from the back of the petitioners' car. It was contended that the accident took place due to sole rash and negligent driving of the respondent No.1 who was driving his vehicle at a very high speed and without observing the traffic rules and caring for the traffic moving on the side busy road and if the respondent No.1 had been cautious in his driving he would have avoided the accident. In paras 2 to 7 and 46 to 48 of her affidavit Ex.PW2/A the Suit No. 138/14, 139/14, 141/14 & 151/14 Page No. 37 of 116 petitioner Smt. Lakhender Jyoti Sharma had reiterated the mode and manner of the accident as stated in the claim petitions. Likewise in paras 2 to 5 and 52 and 53 of her affidavit Ex.PW3/A the petitioner Smt. Shivani Sharma had reiterated the mode and manner of the accident as stated in the claim petitions.
29. The petitioners have placed on record certified copies of the criminal record consisting of certified copy of charge sheet filed before the learned Judicial Magistrate, Sunder Nagar, HP which is Ex.PW2/55, certified copy of FIR which is Ex.PW2/56, copy of RC of the offending vehicle which is Ex.PW2/57, certified copy of site plan which is Ex.PW2/58, PMR of Shri V.K. Sharma which is Ex.PW2/59, seizure memo of receipt of dead body which is Ex.PW2/60, certified copy of release order of the offending vehicle which is Ex.PW2/61, certified copy of statement of respondent No.2 recorded under Section 161 Cr.P.C. which is Ex.PW2/62, statement of Mechanical Inspector which is Ex.PW2/63, statements of witnesses recorded by the police under Section 161 Cr.P.C. which are Ex.PW2/64 to Ex.PW2/70, MLC of Ms. Shivani which is Ex.PW2/71, MLC of Shri Vikas Sharma which is Ex.PW2/72 and PMR of Shri Vikas Sharma which is Ex.PW2/73 and newspaper reporting of the accident is Mark A. As per the FIR No.231/2009 under sections 279/337/338/304A IPC, PS Sunder Nagar, Mandi the case was registered on the basis of complaint of Vikas Sharma who had subsequently died wherein he had stated about the manner of the accident. As per the charge sheet the Suit No. 138/14, 139/14, 141/14 & 151/14 Page No. 38 of 116 respondent No.1 has been charge sheeted for the offence under sections 279/337/338/304A IPC and sections 187, 181 MV Act.
30. The respondent No.2 had not appeared to file the written statement nor to crossexamine PWs and was proceeded exparte. The respondent No.1 had filed the written statement averring that the vehicle Tanker bearing No.PB11 AM9305 had been falsely involved in the case and as such there was no cause of action against the respondent No.1. It was contended that the petitioners had not joined the insurance company of the vehicle bearing No.HR51U4716 in the array of the respondents which was a necessary party. It was submitted that the respondent No.1 had been falsely implicated in the criminal case by the police. It was denied specifically that the vehicle Tanker bearing No.PB11AM9305 was involved in the accident as alleged. It was submitted that the said vehicle was falsely involved by the petitioners in collusion with the local police in order to raise a false claim. It was denied that the alleged accident took place due to the rash and negligent driving of the respondent No.1 who drove the offending vehicle at a very high speed, rashly and negligently. However the respondent No.1 did not appear to crossexamine PWs and was proceeded exparte.
31. During crossexamination by the learned counsel for the respondent No.3 PW2 stated that at the time the accident took place she was discussing with her husband the route they were taking and she saw that they Suit No. 138/14, 139/14, 141/14 & 151/14 Page No. 39 of 116 had crossed some shops. She stated that she had seen the offending vehicle coming from the front volunteered the offending vehicle had overtaken another vehicle and hit their car from the front. She stated that it was a circuitous road as found in hilly areas but there was no sharp turn at the spot of accident. The accident had taken place in the middle of the road. She admitted that the offending vehicle had hit their car from the side volunteered the impact with which it hit their car was very high. What she had stated about the offending vehicle hitting their vehicle from the side was correct. She stated that the vehicle which was overtaken by the offending vehicle was a Jeep. She denied the suggestion that the offending vehicle had come from behind and hit their car since the car was in the middle of the road volunteered the offending vehicle had pushed their vehicle towards the back. She stated that the road was 15 to 20 feet wide. Thus PW2 stated that at the time the accident took place she was discussing with her husband the route they were taking and she saw that they had crossed some shops and the site plan also shows some shops. She stated that she had seen the offending vehicle coming from the front and volunteered that the offending vehicle had overtaken another vehicle and hit their car from the front. She stated that it was a circuitous road as found in hilly areas but there was no sharp turn at the spot of accident and again the site plan shows that the accident had taken place almost at a bend and in the middle of the road as stated by PW2. She admitted that the offending vehicle had hit their car from the side and volunteered the impact with which it hit their car was very high. A suggestion was put to her that the Suit No. 138/14, 139/14, 141/14 & 151/14 Page No. 40 of 116 offending vehicle had come from behind and hit their car since the car was in the middle of the road which she denied and volunteered that the offending vehicle had pushed their vehicle towards the back. Again the site plan mentions that the car was dragged back and the spot where the car was found has also been shown.
32. During crossexamination by the learned counsel for the respondent No. 3 PW3 stated that she was sitting on the front passenger seat with her husband in the driver seat at the time of the accident. She had seen the accident taking place. She stated that there was no occasion to tell her husband about the accident. She stated that the accident had taken place from the right side. Thus PW3 reiterated that she was sitting on the front passenger seat with her husband in the driver seat at the time of the accident. She also stated that she had seen the accident taking place though there was no occasion to tell her husband about the accident. She stated that the accident had taken place from the right side. The respondents No.1 and 2 who are the driver and owner of the offending vehicle have not adduced any evidence to dispute the version put forth by the petitioners or in the criminal record. The criminal record has been placed on record which shows that the respondent No.1 has been charged for the offence under Sections 279/337/338/304A IPC. In Basant Kaur and others v. Chattar Pal Singh and others 2003 ACJ 369 MP (DB) it was observed that registration of criminal case against the driver of the offending vehicle was enough to record a finding Suit No. 138/14, 139/14, 141/14 & 151/14 Page No. 41 of 116 that the driver of the offending vehicle was responsible for causing the accident. The respondents have also not led any evidence to prove any other version of the accident. There is no evidence from the respondents to disprove the particulars of the accident or the involvement of vehicle No.PB11AM9305. In view of the testimony of PW2 and PW3 and the documents on record which have remained unrebutted, the negligence of the respondent No.1 has been prima facie proved. At the same time PW2 admitted that the offending vehicle had hit their car from the side and PW3 had also stated that the accident had taken place from the right side. However it is the case of the petitioners that the offending vehicle had hit the front right side portion of the car and it was clearly a case of head on collision and the accident had taken place in the middle of the road as stated by PW2. Further PW2 had stated that she had seen the offending vehicle coming from the front and PW3 had also stated that she had seen the accident taken place. As such it is clear that the deceased Vikas Sharma would also have seen the offending vehicle come. As such it was for the deceased as well to have taken due care and caution. In these circumstances it is clear that both the deceased and the respondent No.1 had contributed to the happening of the accident. The Hon'ble Supreme Court in Bijoy Kumar Dugar v. Bidya Dhar Dutta II (2006) SLT 651 observed:
"The MACT has not accepted the evidence of PW2 to prove that the driver of the offending bus was driving the vehicle in abnormal speed. If the bus was being driven by the driver Suit No. 138/14, 139/14, 141/14 & 151/14 Page No. 42 of 116 abnormally in a zigzag manner, as PW2 wanted to believe the Court, it was, but natural, as a prudent man for the deceased to have taken due care and precaution to avoid headon collision when he had already seen the bus from a long distance coming from the opposite direction. It was headon collision in which both the vehicles were damaged and unfortunately, Raj Kumar Dugar died on the spot. The MACT, in our view, has rightly observed that had it been the knocking on one side of the car, the negligence or rashness could have been wholly fastened or attributable to the driver of the bus, but when the vehicles had a headon collision, the drivers of both the vehicles should be held responsible to have contributed equally to the accident."
In the instant case as well it was for both to have taken due care and precaution and when the vehicles had a headon collision both the deceased and the respondent No.1 are held responsible to have contributed to the accident. Accordingly the negligence of the deceased Shri Vikas Sharma is apportioned as 50% and of the respondent No.1 as 50%.
34. It was stated that due to the sudden forceful impact of the accident all the occupants of the car sustained injuries. It was averred that the deceased Shri V.K. Sharma died at the spot. The wife of the deceased, his son and daughter in law also sustained injuries in the accident. The son of the deceased was transferred to the PGI Hospital, Chandigarh, where he succumbed to death on 22.08.2009. The daughter in law also sustained injuries in the accident. The MLCs of Smt. Lakhender Jyoti Sharma and of Smt. Shivani Sharma are on record which show the injuries sustained by the Suit No. 138/14, 139/14, 141/14 & 151/14 Page No. 43 of 116 petitioners. The post mortem report of Shri Vikas Sharma is on record as per which the cause of death was septicaemic shock as a result of intraabdominal injuries. As per the post mortem report of Shri V.K. Sharma, he died of head injury which led to cardio respiratory arrest. Thus it stands established that the petitioners/ deceased persons had sustained injuries in the alleged accident. This issue is accordingly decided in favour of the petitioners and against the respondents.
Issue No.2
35. Since issue No.1 has been decided in favour of the petitioners they would be entitled to compensation as per the provisions of the Act. COMPENSATION IN SUIT No.138/14
36. The petitioners are the legal representatives of the deceased Shri V.K. Sharma being the wife, son and daughter in law of the deceased. PW2 was crossexamined on the point of dependency and during crossexamination by the learned counsel for the respondent No.3 PW2 stated that her husband was not dependent on her. She stated that she and her husband used to do their own expenditure volunteered he used to spend on the household expenses. She also used to contribute towards household expenditures. Thus PW2 stated that she and her husband used to do their own expenditure though she Suit No. 138/14, 139/14, 141/14 & 151/14 Page No. 44 of 116 volunteered that he used to spend on the household expenses. She stated that she also used to contribute towards household expenditures. It is pertinent that as per the case of the petitioners themselves, Smt. Lakhender Jyoti Sharma was working as PS to Director General, Bureau of Indian Standards, 9 Bahadur Shah Zafar Marg, New Delhi and was earning a sum of Rs.37,420/ per month. As such she had her own independent source of income and cannot be regarded as dependent on the deceased. Further the petitioner No.2 Shri Vishal Sharma was a major and the petitioners had themselves stated that he was 29 years old and as such he cannot be regarded as dependent on the deceased. As regards the petitioner No.3, it is significant that her husband had also died in the same accident and as such she would be regarded, if at all as dependent on her husband besides the fact that as per her case she had her own source of income and she would not be regarded as dependent on the deceased. Thus the petitioners had their own independent source of income and as such they could not be regarded as dependent on the deceased.
37. Once the petitioners could not be regarded as dependent on the deceased the petitioners would not be entitled to compensation for loss of dependency. The only question that arises is of loss to estate. Regarding the principles to be followed while computing loss to estate in MAC.APP.No. 601/2007 Keith Rowe v. Prashant Sagar and Ors., 2011 ACJ 1734 the Hon'ble High Court of Delhi referred to the judgment of the Hon'ble Suit No. 138/14, 139/14, 141/14 & 151/14 Page No. 45 of 116 Karnataka High Court in the case of A. Manavalagan v. A. Krishnamurthy and Ors., I(2005) ACC 304/ 2005 ACJ 1992, wherein it was held as under: "8. On the contentions urged, the following questions arise for consideration:
What are the principles for determining compensation, where the claimant is not a dependant?
12. In Gobald Motor Service v. R.M.K. Veluswami, MANU/SC/0016/1961: [1962]1SCR929 referring to Sections 1 and 2 of the Fatal Accidents Act (Sections 1A and 2 after 1951 amendment to the said Act), the Supreme Court pointed out the difference between damages recoverable under the said two Sections. It was held that while under Section 1 (new Section 1A) damages are recoverable for the benefit of the persons mentioned therein, under Section 2, compensation goes to the benefit of the estate; whereas under Section 1, damages are payable in respect of loss sustained by the persons mentioned therein, under Section 2 damages can be claimed inter alia for loss of expectation of life and loss to the estate. The Supreme Court held that persons who claim benefit under Section 1 and 2 need not be the same as the claims under the said two Sections are based upon different causes of action. The Supreme Court held:
The principle in its application to the Indian Act has been clearly and succinctly stated by a division bench of the Lahore High Court in Secretary Of State v. Gokal Chand (AIR 1925 Lah 636). In that case, Sir Shadilal CJ observed thus:
The law contemplates two sorts of damages: the one is the pecuniary loss to the estate of the Suit No. 138/14, 139/14, 141/14 & 151/14 Page No. 46 of 116 deceased resulting from the accident; the other is the pecuniary loss sustained by the members of his family through his death. The action for the latter is brought by the legal representatives, not for the estate, but as trustees for the relatives beneficially entitled; while the damages for the loss caused to the estate are claimed on behalf of the estate and when recovered from part of the assets of the estate.
An illustration may clarify the position X is the income of the estate of the deceased, Y is the yearly expenditure incurred by him on his dependants (we will ignore the other expenditure incurred by him). XY, i.e., Z is the amount he saves every year. The capitalised value of the income spend on the dependants, subject to relevant deductions, is the pecuniary loss sustained by the members of his family though his death. The capitalised value of his income, subject to relevant deductions, would be the loss caused to the estate by his death. If the claimants under both the heads are the same, and if they get compensation for the entire loss caused to the estate, they cannot claim again under the head of personal loss the capitalised income that might have been spent on them if the deceased were alive. Conversely, if they got compensation under Section 1, representing the amount that the deceased would have spent on them, if alive, to that extent there should be deduction in their claim under Section 2 of the Act in respect of compensation for the loss caused to the estate. To put it differently, if under Section 1 they got capitalised value of Y; under Section 2 they could get only the capitalised value of Z, for the Suit No. 138/14, 139/14, 141/14 & 151/14 Page No. 47 of 116 capitalised value of Y+Z, i.e., X, would be the capitalised value of his entire income.
The rights of action under Section 1 and 2 of the Act are quite distinct and independent. If a person taking benefit under both the Sections is the same, he cannot be permitted to recover twice over for the same loss. In awarding damages under both the heads, there shall not be duplication of the same claim, that is, if any part of the compensation representing the loss to the estate goes into the calculation of personal loss under Section 1 of the Act, the portion shall be excluded in giving compensation under Section 2 and vice versa...
15. Where a breadwinner dies and his wife, children and parents, who are normally depending on the deceased, claim compensation, the method of computation is now standardized.
The Court first finds out the income of the deceased, then estimates how much he would have spent for himself (for his personal and living expenses). The balance is taken as the contribution to the dependents (family). The said estimate of the amount contributed to the family per year, which is the annual dependency, becomes the basis for arriving at the compensation, it is converted into a lump sum by multiplying it by the number of years during which he would have contributed to the family (duly scaled down to take several uncertainties into account). Thus, the annual dependency becomes the multiplicand and the number of years' purchase becomes the multiplier. As it is well settled that there cannot be a duplication of award under Sections 1A and 2 of the FA Act, where the main head for award of compensation is loss of dependency, the Courts will not duplicate the award under the head of loss of estate. Instead a conventional sum (Say Rs. 10,000/) is awarded under the head of loss of estate, where the income has already been taken note Suit No. 138/14, 139/14, 141/14 & 151/14 Page No. 48 of 116 of under the head of loss of dependency.
16.But, what would be the position if the claimant, though a legal heir is not a dependant of the deceased? Obviously, the question of awarding any amount under the head of loss of dependency would not arise, as there was no financial dependency. In fact in this case, the deceased was not even managing the 'house hold' as is normally done by a housewife as the husband and wife were living in different places due to exigencies of service and the couple had no children. In such a case, the main head of compensation will be loss to estate under Section 2 of the Fatal Accidents Act. The claim petition becomes one on behalf of the estate of the deceased and the compensation received becomes part of the assets of the estate. Consequently what is to be awarded under the head of loss of dependency under Section 1A would be nil, as there is no real pecuniary loss to the members of the family.
17. In Gammell v. Wilson, 1981(1) ALL ER. 578 the House of Lords held that in addition to the conventional and moderate damages for loss of expectation of life, damages for loss to the estate should include damages for loss of earnings of the lost years. The annual loss to the estate was computed to be the amount that the deceased would have been able to save after meeting the cost of his living and damages for loss to the estate were computed after applying a suitable multiplier to the annual loss. Gammel was relied on in Susamma Thomas (Supra) and by the Madhya Pradesh High Court in Ramesh Chandra v.
M.P.State Road Transport Corporation, 1983 ACJ 221.
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19. We may summarise the principles enunciated, thus:
Suit No. 138/14, 139/14, 141/14 & 151/14 Page No. 49 of 116
(i) The law contemplates two categories of damages on the death of a person. The first is the pecuniary loss sustained by the dependant members of his family as a result of such death. The second is the loss caused to the estate of the deceased as a result of such death. In the first category, the action is brought by the legal representatives, as trustees for the dependants beneficially entitled. In the second category, the action is brought by the legal representatives, on behalf of the estate of the deceased and the compensation, when recovered, forms part of the assets of the estate. In the first category of cases, the Tribunal in exercise of power under Section 168 of the Act, can specify the persons to whom compensation should be paid and also specify how it should be distributed (Note: for example, if the dependants of a deceased Hindu are a widow aged 35 years and mother aged 75 years, irrespective of the fact that they succeed equally under Hindu Succession Act, the Tribunal may award a larger share to the widow and a smaller share to the mother, as the widow is likely to live longer). But in the second category of cases, no such adjustments or alternation of shares is permissible and the entire amount has to be awarded to the benefit of the estate. Even if the Tribunal wants to specify the sharing of the compensation amount, it may have to divide the amount strictly in accordance with the personal law governing succession, as the amount awarded and recovered forms part of the estate of the deceased.
(ii)Where the claim is by the dependants, the basis for award of compensation is the loss of dependency, that is loss of what was contributed by the deceased to such claimants. A conventional amount is awarded towards loss of expectation of life, under the head of loss to estate.
Suit No. 138/14, 139/14, 141/14 & 151/14 Page No. 50 of 116
(iii)Where the claim by the legal representatives of the deceased who were not dependants of the deceased, then the basis for award of compensation is the loss to the estate, that is the loss of savings by the deceased.
A conventional sum for loss of expectation of life, is added.
(iv)The procedure for determination of loss to estate is broadly the same as the procedure for determination of the loss of dependency. Both involve ascertaining the multiplicand and capitalising it by multiplying it by an appropriate multiplier. But, the significant difference is in the figure arrived at as multiplicand in cases where the claimants who are dependants claim loss of dependency, and in cases where the claimants who are not dependents claim loss to estate. The annual contribution to the family constitutes the multiplicand in the case of loss of dependency, whereas the annual savings of the deceased becomes the multiplicand in the case of loss to estate. The method of selection of multiplier is however the same in both cases.
20.The following illustrations with reference to the case of a deceased who was aged 40 years with a monthly income of Rs. 9000/ will bring out the difference between cases where claimants are dependents and cases were claimants are not dependents.
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(iv) If the deceased is survived by an educated employed wife earning an amount almost equal to that of her husband and if each was maintaining a separate establishment, the question of 'loss of dependency' may not arise. Each will be spending from Suit No. 138/14, 139/14, 141/14 & 151/14 Page No. 51 of 116 his/her earning towards his living and personal expenses. Even if both pool their income and spend from the common income pool, the position will be the same. In such a case the amount spent for personal and living expenses by each spouse from his/her income will be comparatively higher, that is one fourth of his/her income. Each would be saving only the balance, that is one fourth (which may be pooled or maintained separately). If the saving is taken as onefourth (that is 25%), the loss to the estate would be Rs. 2250/ per month or Rs. 27000/ per annum, By adopting the multiplier of 14, the loss to estate will be Rs. 3,78,000/.
Note: The position would be different if the husband and wife, were both earning, and living together under a common roof, sharing the expenses. As stated in Burgess v. Florence Nightingale Hospital 1955(1) Q.B. 349, 'when a husband and wife, with separate incomes are living together and sharing their expenses, and in consequence of that fact, their joint living expenses are less than twice the expenses of each one living separately, then each, by the fact of sharing, is conferring a benefit on the other'. This results in a higher savings, say, one third of the income; In addition each spouse loses the benefit of services rendered by the other in managing the household, which can be evaluated at say Rs. 1,000/ per month or Rs.
12,000/ per annum). In such a situation, the claimant (surviving spouse) will be entitled to compensation both under the head of loss of dependency (for loss of services rendered in managing the household) and loss to estate (savings to an extent of one third of the income that is Rs. 3,000/ per month or Rs. 36000/ per annum). Therefore, the loss of dependency would be 12000x14=168,000/ and loss to estate would be 36000x14=504,000/. In all Rs.6,72,000/ will be the compensation.
(v) If the deceased was a bachelor and the claimants are two nondependent brothers/sisters aged 47 years and 45 years with Suit No. 138/14, 139/14, 141/14 & 151/14 Page No. 52 of 116 independent income, the position would be different. As the deceased did not have a 'family', the tendency would be to spend more on oneself and the savings would be hardly 15%. If the saving is taken as 15% (Rs.1350/ per month), the annual savings would be Rs. 16,200/ which would be the multiplicand. The multiplier will be 13 with reference to the age of the claimants and the loss of estate would be Rs. 2,10,600/ per annum.
Though the quantum of savings will vary from person to person, there is a need to standardise the quantum of savings for determining the loss to estate (where the claimants are not dependants) in the absence of specific evidence to the contrary. The quantum of savings can be taken as onethird of the income of the deceased where the spouses are having a common establishment and onefourth where the spouses are having independent establishments. The above will apply where the family consists of nondependant spouse/children/parents. Where the claimants are nondependant brothers/sisters claiming on behalf of the estate, the savings can be taken as 15 % of the income. The above percentages, one of course, subject to any specific evidence to the contrary led by the claimants." As such where the loss is only to the estate the quantum of savings can be taken as onethird of the income of the deceased where the parties are having a common establishment and onefourth where the parties are having independent establishments and the same applies where the family consists of nondependent spouse/children/parents. In the instant case the persons entitled to loss to estate are the wife, son and widow of another son of the deceased. Since the deceased would be regarded as residing with the Suit No. 138/14, 139/14, 141/14 & 151/14 Page No. 53 of 116 petitioners the quantum of savings would be taken as onethird of the income of the deceased.
38. The petitioners have claimed loss of dependency on the basis that at the time of the accident the deceased was aged about 63 years and was having a good health and physique. It was submitted that the deceased was highly qualified and had done Bachelor of Laws from Delhi University. The deceased was retired from Supreme Court of India and was working at the post of "Assistant Registrar", at the time of his retirement on 31.03.2006. After the retirement the deceased was enrolled as an Advocate with Bar Council of Delhi vide Enrolment No.D645/2006. It was averred that on 04.12.2006 the deceased got a job after retirement from the Hon'ble High Court of Delhi at the post of Special Metropolitan Magistrate, City Zone, Delhi and retired on 7.8.2009 and had an offer to join again at the same post. At the time of his death the deceased was earning Rs.50,000/ approximately. It was contended that due to the sudden death of the deceased the petitioners suffered great mental torture, pain and agony. The life of the petitioners all of a sudden was shattered due to the death of the deceased. The petitioner No.1 lost her husband at the age when she required the company of her husband to share the responsibility, the petitioner No.2 lost his father at the time when he required his supervision, control and guidance for taking decision in all the important matters of life and the petitioner No.3 was already physically disabled and the deceased being a thorough gentleman, having practical Suit No. 138/14, 139/14, 141/14 & 151/14 Page No. 54 of 116 knowledge of life and a good fatherinlaw was always helping her in taking the decisions in all the important matters. It was contended that if the deceased had been alive he would have cared for his family and also given guidance in the crucial period and control in all the matters but due to the sudden death the petitioners were at the mercy of their relatives and friends. It was averred that the deceased was helping the petitioners in all day to day affairs and other important matters and was a very loving and caring husband. He used to give all care and help to the petitioner No.1 in all financial matters and due to the sudden death of the deceased, the petitioner No.1 suffered huge loss of love and affection, future prospects, lifelong good companion which every woman wished to have at her age of life, loss of enjoyment in life, loss of caring etc, besides financial loss.
39. PW2 in paras 32 to 44 of her affidavit Ex.PW2/A had deposed to that effect. She stated that on 04.12.2006 the deceased got a job from the Hon'ble High Court of Delhi at the post of Special Metropolitan Magistrate, Delhi for a period of one year and the term of appointment of the deceased was extended upto 31.12.2008 vide notification dated 28.01.2008 and thereafter upto 31.03.2009 and then upto 31.07.2009 vide notification dated 01.05.2009. The deceased was getting Rs.18,000/ per month which included Rs.12,500/ towards out of pocket expenses, Rs.2,500/ as transport allowance and Rs. 3,000/ towards dress allowance. On 06.05.2009 the deceased requested the Hon'ble High Court of Delhi for the extension of his tenure and he was hopeful Suit No. 138/14, 139/14, 141/14 & 151/14 Page No. 55 of 116 that the same would be extended as per the past practice. On 03.07.2009 the Cauvery Water Disputes Tribunal invited application for the post of Principal Private Secretary in which the deceased had already worked as such he applied for the said post and was hoping to get the same as he had already worked for 6 years at the said post. She stated that the deceased was getting pension and at present PW2 was getting family pension of Rs.11,280/. She stated that the deceased was an income tax assesse and at the time of death the deceased was earning Rs.50,000/ per month approximately from consultancy besides his pension. Selection letter of the deceased is Ex.PW2/41, office order dated 11.3.1997 is Ex.PW2/42, identity card is Ex.PW2/43, office order issued by Hon'ble Supreme Court of India in respect of retirement of the deceased is Ex.PW2/44, registration certificate as Advocate is Ex.PW2/45, identity card issued by Bar Council of Delhi is Ex.PW2/46, notification dated 4.12.2006 for appointment of the deceased as Special Metropolitan Magistrate, Delhi is Ex.PW2/47, notification dated 28.1.2008 is Ex.PW2/48, notification for extension of term of appointment is Ex.PW2/49, notification dated 1.5.2009 is Ex.PW2/50, request letter for extension of tenure is Ex.PW2/51, application dated 1.8.2009 for the post of Principal Private Secretary, Cauvery Water Disputes Tribunal is Ex.PW2/52, pension certificate of the deceased is Ex.PW2/53 and ITR for the year 200809 is Ex.PW2/54.
Suit No. 138/14, 139/14, 141/14 & 151/14 Page No. 56 of 116
40. During crossexamination by the learned counsel for the respondent No.3 PW2 admitted that they were receiving family pension amounting to Rs.11,000/ p.m in respect of her husband as per the entitlement. She stated that she was receiving 1/3rd pension in respect of her husband as well as per entitlement. Thus PW2 was crossexamined on receiving family pension and she stated that she was receiving family pension amounting to Rs.11,000/ p.m in respect of her husband as per the entitlement. However that would not be material for decision in the present case as the Hon'ble Supreme Court in Vimal Kanwar & Ors. v. Kishore Dan & Ors. II (2013) ACC 752 (SC) had held that PF, pension, insurance and similarly any cash, bank balance, shares, fixed deposits etc. are all a pecuniary advantage receivable by the heirs on account of one's death but all these have no correlation with amount receivable under a statute occasioned only on account of accidental death and such amount will not come within the periphery of Motor Vehicles Act towards the pecuniary advantage liable for deduction. Thus the family pension receivable by the petitioners on account of the death of the deceased would be a pecuniary advantage which would have no correlation with the amount receivable under a statute occasioned only on account of accidental death of the deceased. It is the case of the petitioners themselves that on the date of the accident the deceased had already retired from his service. Further his tenure as Special Metropolitan Magistrate was over. Though he had applied for extension of the tenure there is nothing to show that he had received the extension. He had also applied for the post of Principal Private Secretary, Suit No. 138/14, 139/14, 141/14 & 151/14 Page No. 57 of 116 Cauvery Water Disputes Tribunal but again there is nothing to show that he had received any offer. It was then stated that the deceased was working as an Advocate and doing consultancy but no specific evidence has been produced to show the same. Moreover his tenure as Special Metropolitan Magistrate had come to an end only on 31.7.2009 and the accident had taken place on 14.8.2009.
41. The ITR of the deceased has been placed on record as Ex.PW2/54 and the same shows the gross total income of the deceased as Rs.5,72,769/. However the computation of taxable income annexed with the same shows that the income from salary was Rs.2,79,236/ and the remaining amount pertained to income from other sources which cannot be included. Another document placed on record shows the said income as pension. As such there is nothing to show any income apart from pension. While the pension is not to be taken into account, the difference in the pension received by the deceased and the amount of family pension which is being received by the petitioners can be taken into account. Further the deceased was doing other works though at the time of the accident there is nothing specific to show what he was doing. Considering the facts and circumstances of the case, the income of the deceased for computation of loss of estate is taken as Rs. 2,40,000/ p.a. after deduction towards income tax. Taking onethird of the same, the income for the computation of loss of estate would be Rs.80,000/ p.a. Suit No. 138/14, 139/14, 141/14 & 151/14 Page No. 58 of 116
42. It is the case of the petitioners that the deceased was aged about 63 years and it was so stated in the claim petition. The pension certificate of the deceased is Ex.PW2/53 as per which the date of birth of the deceased was 2.3.1946. As such he would have been more than 63 years old on the date of the accident i.e. 14.8.2009. As per the judgment of the Hon'ble Supreme Court in Sarla Verma and others v. Delhi Transport Corporation and others 2009 ACJ 1298 (SC) the multiplier of 7 applies where the age of the deceased is 61 to 65 years. There can be no deduction towards personal and living expenses once only one third of the income is considered as the saving. In M.S. Sherawat and Others v. Oriental Insurance Company Ltd. MAC. APP. 142 OF 2011 decided on 11.5.2012 by the Hon'ble High Court of Delhi it was held:
"...the learned counsel for the Appellants is right that there cannot be deduction of 1/4th towards the personal and living expenditure of the deceased because 2/3rd of the deceased's income has already been taken as her personal and living expenditure and 1/3rd is taken as the saving which ultimately comes in the hands of the legal representatives as loss to estate. No such deduction of 1/4th was made either in A. Manavalagan (supra) or in Keith Rowe (supra)."
43. As regards the future prospects in HDFC ERGO General Insurance Co. Ltd. v. Smt. Lalta Devi & Ors. MAC. APP.189/2014 decided on 12.1.2015 which has been further relied on in Shriram General Insurance Co. Ltd. v. Preeti & Ors. MAC. APP. 1145/2013 decided on 28.1.2015 and U.P. State Suit No. 138/14, 139/14, 141/14 & 151/14 Page No. 59 of 116 Road Transport Corporation v. Shahida & Ors. MAC. APP. 325/2013 decided on 28.1.2015 it was held that the judgment in Reshma Kumari & Ors. v. Madan Mohan & Anr. (2013) 9 SCC 65 shall be taken as a binding precedent in which judgment the Hon'ble Supreme Court while approving the ratio with regard to future prospects in Sarla Verma (Smt.) & Ors. (supra) held as under: "38. With regard to the addition to income for future prospects, in Sarla Verma [Sarla Verma v. DTC, (2009) 6 SCC 121 : (2009) 2 SCC (Civ) 770 : (2009) 2 SCC (Cri) 1002], this Court has noted the earlier decisions in Susamma Thomas [Kerala SRTC v. Susamma Thomas, (1994) 2 SCC 176 : 1994 SCC (Cri) 335] , Sarla Dixit[(1996) 3 SCC 179] and Abati Bezbaruah [Abati Bezbaruah v. Geological Survey of India, (2003) 3 SCC 148 : 2003 SCC (Cri) 746] and in para 24 of the Report held as under: (Sarla Verma case [Sarla Verma v. DTC, (2009) 6 SCC 121 : (2009) 2 SCC (Civ) 770 : (2009) 2 SCC (Cri) 1002], SCC p. 134) "24. ... In view of the imponderables and uncertainties, we are in favour of adopting as a rule of thumb, an addition of 50% of actual salary to the actual salary income of the deceased towards future prospects, where the deceased had a permanent job and was below 40 years. (Where the annual income is in the taxable range, the words "actual salary‟ should be read as actual salary less tax‟). The addition should be only 30% if the age of the deceased was 40 to 50 years. There should be no addition, where the age of the deceased is more than 50 years. Though the evidence may indicate a Suit No. 138/14, 139/14, 141/14 & 151/14 Page No. 60 of 116 different percentage of increase, it is necessary to standardise the addition to avoid different yardsticks being applied or different methods of calculation being adopted. Where the deceased was self employed or was on a fixed salary (without provision for annual increments, etc.), the courts will usually take only the actual income at the time of death. A departure therefrom should be made only in rare and exceptional cases involving special circumstances."
39. The standardization of addition to income for future prospects shall help in achieving certainty in arriving at appropriate compensation. We approve the method that an addition of 50% of actual salary be made to the actual salary income of the deceased towards future prospects where the deceased had a permanent job and was below 40 years and the addition should be only 30% if the age of the deceased was 40 to 50 years and no addition should be made where the age of the deceased is more than 50 years. Where the annual income is in the taxable range, the actual salary shall mean actual salary less tax. In the cases where the deceased was selfemployed or was on a fixed salary without provision for annual increments, the actual income at the time of death without any addition to income for future prospects will be appropriate. A departure from the above principle can only be justified in extraordinary circumstances and very exceptional cases." As the deceased was more than 50 years old the petitioners would not be entitled to addition of any amount towards future prospects. Suit No. 138/14, 139/14, 141/14 & 151/14 Page No. 61 of 116 Accordingly the loss to estate as per the annual income i.e. Rs.80,000/ is calculated as under :
Rs.80,000/ X 7 (multiplier) = Rs.5,60,000/.
44. The petitioners are also entitled to compensation for loss of consortium, loss of love and affection and funeral expenses. PW2 had deposed that the petitioners had spent a sum of Rs.1 lac on conveyance, bringing back the dead body to Delhi, funeral and last rites of the deceased. However there is nothing to show the same.
The total compensation is determined as under:
Loss to estate : Rs.5,60,000/
Love and affection : Rs.1,00,000/
Loss of consortium : Rs.1,00,000/
Funeral expenses : Rs.50,000/
Total : Rs.8,10,000/
Thus the total compensation would be Rs.8,10,000/.
COMPENSATION IN SUIT No.139/14
45. The law is well settled that the compensation has to be awarded in personal injury cases under the following heads: (1) for loss of earnings during the period of treatment (2) loss of future earnings on account of Suit No. 138/14, 139/14, 141/14 & 151/14 Page No. 62 of 116 permanent disability (3) expenses suffered by her on her treatment, hospitalization, medicines, transportation, nourishing food etc. In addition, she is further entitled to nonpecuniary damages/general damages which include (1) damages for pain, suffering and trauma as a consequence of injuries and (2) loss of expectation of life.
MEDICINES AND MEDICAL TREATMENT
46. The case of the petitioner Smt. Lakhender Jyoti Sharma is that due to the accident on 14.8.2009 she sustained fractures in both bone right forearm with fracture orbit wall with fracture nasal bone with minimal SAH and other multiple injuries all over the body. After the accident the petitioner was transferred to the nearby PGI Hospital in Chandigarh and thereafter the petitioner was shifted to Delhi at Max Super Speciality Hospital, Saket, New Delhi on 15.08.2009 with severe injuries to right forearm, face and head. An operation of open reduction and internal fixation of fracture both bone right forearm with LCDCP under GA was done on 15.08.2009 in the Max Hospital. It was averred that the petitioner remained admitted in Max Hospital from 15.08.2009 to 21.08.2009. After discharge from the hospital the petitioner remained as an outdoor patient and was going to the hospitals regularly for Neurosurgery OPD and Ophthalmologist checkups as advised by the doctors at the time of discharge. The petitioner had thus far spent a sum of Rs. 4,00,000/ on medicine, conveyance, dental appointments, eye haziness, Suit No. 138/14, 139/14, 141/14 & 151/14 Page No. 63 of 116 physiotherapy, frozen shoulder, special diet and still was incurring on the same heads as she was still under treatment as she was having pain. It was stated that at the time of the accident the petitioner was aged about 58 years and was having good health and good physique. She was advised bed rest from 15.08.2009 to 15.11.2009 which caused great mental pain, agony and torture to the petitioner as she never remained on leave for such a long period. Due to the injuries sustained in the accident, the petitioner could not work from her right hand and was unable to carry/ lift any article from her right hand. It was submitted that even at the time of continuous writing the petitioner started having pain in her hand. As such there was permanent disability to the petitioner which caused great mental torture, pain and agony. The petitioner could not work as efficiently as she was working prior to the accident which caused great disappointment in general life. It was alleged that due to the injuries sustained in the accident which caused nonfunctioning of the right hand properly the petitioner developed inferiority complex among the society as it would be difficult for her to take/ lift/ carry any articles which she was doing prior to the accident. As the petitioner sustained injuries in her right hand there were permanent marks of stitches in her right hand due to which she developed an inferiority complex and she used to wear full sleeves blouse or Kameej/ Kurta to hide the marks from the friends and relatives/public even in hot weather. The petitioner could not put her right hand straight and could not drive a car. It was stated that due to the injuries on her forehead and right eye there was a permanent mark on the forehead of the petitioner. The doctors Suit No. 138/14, 139/14, 141/14 & 151/14 Page No. 64 of 116 had put stitches on her forehead upto the right eye and the mark of massive stitches was visible from the naked eye and the petitioner avoided to take part/attend any family functions and had been forced to cut off from the society which caused great mental pain and agony to the petitioner.
47. The petitioner in paras 5, 6, 813, and 2023 of her affidavit had deposed to that effect. She stated that due to the injuries she was advised to avoid forward bending, low/long sitting, weight lifting and bumpy ride. Due to the injuries her vision was also affected and she remained under the treatment of Venu Eye Institute and Research Centre and she had been regularly consulting doctors and taking medicine as per their advice. In the accident her dental had also shaken and she had been consulting the dental surgeon in the said regard and had paid a sum of Rs.50,000/ for her dental treatment. She stated that after discharge from hospital she remained as an outdoor patient and was going to the hospital regularly for regular checkup as advised by the doctors at the time of discharge. Due to the injuries she also remained under the treatment of neurosurgeon, dental and eye specialist. She had spent more than Rs.5,00,000/ till date on medicine, xray, doctors' fees etc and was still incurring under the same head as she was still under treatment. Some time she had not taken the bills due to emergency and some time the payment was given by her however medicine was brought by her relatives and they did not hand over the bills to her. Prior to the accident she was very active and doing all her household jobs herself but at present she was dependent upon the Suit No. 138/14, 139/14, 141/14 & 151/14 Page No. 65 of 116 servant which caused great mental pain and agony to her besides financial loss. MLC of PW2 is Ex.PW2/2, discharge summary of Max Speciality Hospital, Saket is Ex.PW2/3, prescription slips issued by hospital/ doctors are Ex.PW2/4 to Ex.PW2/10, bills are Ex.PW2/11 to 32 and certificate of the hospital advising bed rest to PW2 is Ex.PW2/33. The MLC of the petitioner is on record which shows the injuries sustained by the petitioner and as per the same the nature of injuries was opined to be grievous. The documents placed on record show that the petitioner had sustained fracture both bone right forearm with fracture orbit wall with fracture nasal bone with minimal SAH. The documents also show that she remained admitted in hospital from 15.8.2009 to 21.8.2009. Thus the injuries were grievous in nature. The petitioner had also got disability due to the accident and the disability certificate is on record as per which the petitioner had partial restriction of forearm mobility which was resulting in 5% permanent physical impairment in relation to her right upper limb and the disability was not likely to improve. Thus the petitioner had suffered permanent physical impairment.
48. During crossexamination by the learned counsel for the respondent No. 3 PW2 stated that she did not receive reimbursement for the medical expenses from her office. She stated that at the time of the accident the CGHS card of her husband did not contain her name and the hospital that is, Max Hospital was not approved hospital as per the CGHS norms. She stated that she did not move any application for reimbursement of medical expenses to Suit No. 138/14, 139/14, 141/14 & 151/14 Page No. 66 of 116 her office. She stated that she was not entitled to any such reimbursement from her office. She had not placed on record any bill regarding the dental treatment. She denied the suggestion that she had placed on record inflated medical bills or that she had falsely claimed Rs.5 lacs towards medical expenses. She had not placed on record any certificate to show permanent disability volunteered she was still facing difficulties on account of the accident. She denied the suggestion that she was not suffering from any such disability as would make her incapable of taking up any further employment. Thus PW2 stated she had not placed on record any certificate to show permanent disability volunteered she was still facing difficulties on account of the accident. However subsequently the disability certificate was received. She stated that she did not receive reimbursement for the medical expenses from her office and there is even nothing to show that she had received reimbursement. She had not placed on record any bill regarding the dental treatment.
49. The petitioner in support of her case had examined PW1 who had brought the medical record as well as bills in respect of her treatment which are Ex.PW1/B (colly). The original treatment record of patient Lakhender Jyoti Sharma is Ex.PW1/1 and the hospital bills of patient Jyoti Sharma are Ex.PW1/3. During crossexamination by the learned counsel for the insurance company PW1 stated that he was working in the hospital since the year 2009. He joined the hospital as Medical Record Technician. He had no personal Suit No. 138/14, 139/14, 141/14 & 151/14 Page No. 67 of 116 knowledge of the case. He admitted that the records filed by him were not prepared in his presence. He could not say whether all the doctors who were signatory on the documents filed by him on record were still working with the hospital or not volunteered some of the doctors may still be working. He stated that the payments in respect of the bills which had been filed on record, were not made in his presence. He could not tell the mode of payment of the bills filed on record. He denied the suggestion that the documents filed by him were forged and fabricated documents. Thus PW1 had no personal knowledge of the case. He admitted that the records filed by him were not prepared in his presence. He stated that the payments in respect of the bills which had been filed on record, were not made in his presence and he could not tell the mode of payment of the bills filed on record. However there is nothing to dispute the record produced by him. It cannot be disputed that the petitioner had sustained injuries in the accident and underwent treatment for the same. The petitioner had stated that she had spent more than Rs.5,00,000/ till date on medicine, xray, doctors' fees etc and was still incurring under the same head as she was still under treatment. The petitioner has placed on record original bills for an amount of Rs.1,28,800/ (the petitioner would not be entitled to the amount of the bills of which photocopies have been placed on record). Looking to the nature of the injuries the petitioner is held entitled to the amount of the bills. The petitioner would have incurred some expenses on the treatment even subsequently. Accordingly an amount of Rs.1,32,000/ is awarded towards medical treatment and expenses including the amount of the bills. Suit No. 138/14, 139/14, 141/14 & 151/14 Page No. 68 of 116 PAIN AND SUFFERING AND LOSS OF AMENITIES OF LIFE
50. It has been held in Divisional Controller, K. S. R. T. C v Mahadeva Shetty and another AIR 2003 Supreme Court 4172 as under:
13."The damages for vehicular accidents are in the nature of compensation in money for loss of any kind caused to any person. In case of personal injury the position is different from loss of property. In the later case there is possibility of repair or restoration. But in the case of personal injury, the possibility of repair or restoration is practically nonexistent. In Parry V. Cleaver (1969 1 All. E. R. 555) Lord Morris stated as follows:
"To compensate in money for pain and for the physical consequences is invariably difficult, but...... no other process can be devised than that of making monetary assessment."
The case of the petitioner is that due to the accident on 14.8.2009 she sustained fractures in both bone right forearm with fracture orbit wall with fracture nasal bone with minimal SAH and other multiple injuries all over the body. It was averred that the petitioner remained admitted in Max Hospital from 15.08.2009 to 21.08.2009. After discharge from the hospital the petitioner remained as an outdoor patient and was going to the hospitals regularly for Neurosurgery OPD and Ophthalmologist checkups as advised by the doctors at the time of discharge. It was stated that at the time of the accident the petitioner was aged about 58 years and was having good health and good physique. She was advised bed rest from 15.08.2009 to 15.11.2009 which caused great mental pain, agony and torture to the petitioner as she never Suit No. 138/14, 139/14, 141/14 & 151/14 Page No. 69 of 116 remained on leave for such a long period. Due to the injuries sustained in the accident, the petitioner could not work from her right hand and was unable to carry/ lift any article from her right hand. It was submitted that even at the time of continuous writing the petitioner started having pain in her hand. As such there was permanent disability to the petitioner which caused great mental torture, pain and agony. The petitioner could not work as efficiently as she was working prior to the accident which caused great disappointment in general life. It was alleged that due to the injuries sustained in the accident which caused nonfunctioning of the right hand properly the petitioner developed inferiority complex among the society as it would be difficult for her to take/ lift/ carry any articles which she was doing prior to the accident. As the petitioner sustained injuries in her right hand there were permanent marks of stitches in her right hand due to which she developed an inferiority complex and she used to wear full sleeves blouse or Kameej/ Kurta to hide the marks from the friends and relatives/public even in hot weather. The petitioner could not put her right hand straight and could not drive a car. It was stated that due to the injuries on her forehead and right eye there was a permanent mark on the forehead of the petitioner. The doctors had put stitches on her forehead upto the right eye and the mark of massive stitches was visible from the naked eye and the petitioner avoided to take part/attend any family functions and had been forced to cut off from the society which caused great mental pain and agony to the petitioner. The petitioner stated that due to the injuries she was advised to avoid forward bending, low/long sitting, weight lifting and bumpy ride. Due to the injuries her Suit No. 138/14, 139/14, 141/14 & 151/14 Page No. 70 of 116 vision was also affected and her dental had also shaken. Due to the injuries she also remained under the treatment of neurosurgeon, dental and eye specialist. Prior to the accident she was very active and doing all her household jobs herself but at present she was dependent upon the servant which caused great mental pain and agony to her besides financial loss. The MLC of the petitioner is on record which shows the injuries sustained by the petitioner and as per the same the nature of injuries was opined to be grievous. The documents placed on record show that the petitioner had sustained fracture both bone right forearm with fracture orbit wall with fracture nasal bone with minimal SAH. The documents also show that she remained admitted in hospital from 15.8.2009 to 21.8.2009. Thus the injuries were grievous in nature. The petitioner had also got disability due to the accident and the disability certificate is on record as per which the petitioner had partial restriction of forearm mobility which was resulting in 5% permanent physical impairment in relation to her right upper limb and the disability was not likely to improve. Thus the petitioner had suffered permanent physical impairment. Looking at the nature of injuries and extent of treatment and that the accident pertains to the year 2009, the petitioner is awarded Rs.50,000/ (Rs.Fifty Thousand only) for pain and suffering.
51. The petitioner was 58 years of age at the time of the accident and it was so stated in the claim petition. The documents on record show that the date of birth of the petitioner is 18.4.1951. As such she would have been more than 58 Suit No. 138/14, 139/14, 141/14 & 151/14 Page No. 71 of 116 years old on the date of the accident i.e. 14.8.2009. Notice can be taken of the fact that on account of the injuries sustained by her the petitioner may not have been able to perform her day to day duties towards her family and on account of the injuries suffered by her the petitioner may not have been able to enjoy the amenities of life. In the circumstances the petitioner is awarded a sum of Rs.25,000/ (Rs.Twenty Five Thousand only) for loss of amenities of life. The petitioner cannot however be held to be entitled to any amount towards loss of expectation of life. The petitioner is awarded a sum of Rs. 15,000/ towards the disability.
CONVEYANCE AND SPECIAL DIET
52. The petitioner had deposed that she and her daughter in law were shifted to Delhi at Max Super Speciality Hospital, Saket, New Delhi on 15.08.2009 in separate Ambulance and she had spent a sum of Rs.60,000/ at that time. She stated that due to the injuries she was advised to avoid forward bending, low/long sitting, weight lifting and bumpy ride. As such she had to take taxi instead of auto for attending the hospital or going to her office/other places, which was more expensive causing further financial loss to her. The monthly expenditure for conveyance had also increased and she had spent a sum of Rs.1 lac on conveyance. She stated that she could not put her right hand straight and could not drive a car and she had to travel in a taxi or auto which caused further financial burden on the petitioner as going in own car Suit No. 138/14, 139/14, 141/14 & 151/14 Page No. 72 of 116 instead of taxi was much cheaper. She stated that she was a Member of Automobiles Association of India and had a Santro Car No.DL3CAT1060. She also stated that she had to spend a sum of Rs.3,000/ extra per month on transportation. However the petitioner has not placed on record any document to show the expenditure on conveyance. During crossexamination by the learned counsel for the respondent No.3 PW2 stated that she resided in Munirka. She had not placed any documents on record to show conveyance charges of Rs.1 lac volunteered she was undergoing treatment as an outdoor patient. PW2 stated that she was unable to drive at present due to the injuries sustained in the accident and had to engage a taxi for commuting and as such she was now incurring more expenses on travel than before when she could drive. She stated that she had to go to the doctors for various ailments often, for family functions, market etc. Thus PW2 stated that she had not placed any documents on record to show conveyance charges of Rs.1 lac volunteered she was undergoing treatment as an outdoor patient. Although the petitioner has not filed any document on record in order to prove the expenditure on conveyance however, notice can be taken of the fact that after the accident the petitioner was taken to Hospital in Himachal Pradesh and thereafter to PGI, Chandigarh and then she was shifted to Delhi at Max Super Speciality Hospital and that after discharge from hospital she might have hired the services of private conveyance as she would not have been able to drive of her own or to use public conveyance. In the circumstances a sum of Rs. 25,000/ (Rs.Twenty Five Thousand only) would be just and proper towards Suit No. 138/14, 139/14, 141/14 & 151/14 Page No. 73 of 116 conveyance charges.
53. The petitioner in para 26 of her affidavit Ex.PW2/A had stated that due to the injuries she had to take special diet which further caused a financial loss to her and she had spent a sum of Rs.1,00,000/ thus far on special diet. Although the petitioner has not proved that she was advised special diet but looking at the nature of injuries sustained by the petitioner notice can be taken of the fact that the petitioner might have taken diet rich in protein, vitamins and minerals for speedier recovery. In the circumstances the petitioner is awarded a sum of Rs.5,000/ (Rs.Five Thousand only) for special diet.
54. The petitioner had deposed that she had employed an attendant/nurse to look after her as her husband had also died in the accident and no female member was there to look after her. She had employed the attendant for one year @ Rs.7,000/ per month and spent a sum of Rs.84,000/. She was unable to do the house hold jobs as such she had to employ a full time maid servant which caused an additional financial burden to her and she had been paying a sum of Rs.6,000/ to the full time maid servant and had spent more than Rs. 2.5 lacs thus far on the said account. During crossexamination by the learned counsel for the respondent No.3 PW2 stated that she had not placed on record any document to show that she had to engage an attendant and maid servant or that she had to pay Rs.7000/ p.m to the attendant and Rs.6000/ p.m to the maid. Thus PW2 stated that she had not placed on record any Suit No. 138/14, 139/14, 141/14 & 151/14 Page No. 74 of 116 document to show that she had to engage an attendant and maid servant or that she had to pay Rs.7000/ p.m to the attendant and Rs.6000/ p.m to the maid. Although the petitioner has not produced any evidence to show that she incurred any expenses towards attendant charges, however looking to the nature of injuries the petitioner would have incurred some expenditure on attendant charges and a sum of Rs.9,000/ is awarded towards attendant charges.
LOSS OF INCOME
55. It is the case of the petitioner that the time of the accident she was aged about 58 years and was having good health and good physique and was working as PS to Director General, Bureau of Indian Standards, 9 Bahadur Shah Zafar Marg, New Delhi and was earning a sum of Rs.37,420/ per month. It was contended that due to the injuries sustained in the accident the petitioner could not attend her office and was advised bed rest from 15.08.2009 to 15.11.2009 which caused great mental pain, agony and torture to the petitioner as she never remained on leave for such a long period. Due to the injuries sustained in the accident, the petitioner could not work from her right hand and was unable to carry/ lift any article from her right hand. It was submitted that even at the time of continuous writing the petitioner started having pain in her hand. As such there was permanent disability to the petitioner which caused great mental torture, pain and agony. The petitioner Suit No. 138/14, 139/14, 141/14 & 151/14 Page No. 75 of 116 could not work as efficiently as she was working prior to the accident which caused great disappointment in general life. The petitioner in paras 14, 17, 18, 19 and 25 of her affidavit Ex.PW2/A had deposed to that effect. She stated that she had done her B. A. Degree Course from Delhi University in the year 1972 and also Post Graduate Diploma in Personnel Management and Industrial Relations. She stated that on 30.04.2011 she had retired from her service on superannuation and due to the injuries in her hand she could not do the house hold work. She stated that she was always active in her whole life and had vast experience of management and was interested to work in private sector after retirement so that she could maintain her standard of living but due to the injuries sustained in the accident she was unable to get the job which caused great mental pain and agony to her. She stated that she could have got a job of salary ranging between Rs.40,000/ to Rs.50,000/ per month but all her hopes had been smashed due to the injuries sustained in the accident and she was totally dependent upon the meager amount of her pension. Certificate of the hospital advising bed rest to PW2 is Ex.PW2/33, BA degree of PW2 is Ex.PW2/34, certificate of completion of Management Course is Ex.PW2/35, salary certificate of PW2 is Ex.PW2/36, identity card of PW2 is Ex.PW2/37, ITR is Ex.PW2/38 and office memorandum is Ex.PW2/39.
56. During crossexamination by the learned counsel for the respondent No. 3 PW2 stated that due to the accident she had to take without pay leave for three months. Again said the leaves were adjusted later on at the time of Suit No. 138/14, 139/14, 141/14 & 151/14 Page No. 76 of 116 retirement from the leaves which could be encashed. She stated that the maximum number of leaves for which they could take encashment was 180 days and after adjustment on account of the accident she got encashment only for 150 days. She did not have any document in the said regard. She stated that she did not lose out on any promotional opportunities on account of the accident. She admitted that after retirement she was receiving her pension as per her entitlement. She stated that she was receiving full pension as per rules. She stated that she had received pension of Rs.16,000/ approximately for the previous month. She stated that her last drawn salary was Rs.37,000/ approximately. She stated that she was working as a Private Secretary. She had done graduation from DU and then PIMR Diploma and computer courses. Thus PW2 stated that she did not lose out on any promotional opportunities on account of the accident. She admitted that after retirement she was receiving her pension as per her entitlement. She stated that her last drawn salary was Rs.37,000/approximately. The pay slip of the petitioner for the month of November, 2009 has been placed on record (though the accident had taken place in August, 2009). As per the same the total payment received by the petitioner was Rs.37,420/ including HRA of Rs.6,762/ and travelling allowance of Rs.2,032/.
57. It is the case of the petitioner that she had to remain on leave for 3 months on account of injuries sustained in the accident. Certificate of the hospital advising bed rest to PW2 is Ex.PW2/33 and as per the same she was Suit No. 138/14, 139/14, 141/14 & 151/14 Page No. 77 of 116 advised rest w.e.f. 15.8.2009 to 15.11.2009. During crossexamination PW2 had stated that due to the accident she had to take without pay leave for three months though she again said the leaves were adjusted later on at the time of retirement from the leaves which could be encashed. She stated that the maximum number of leaves for which they could take encashment was 180 days and after adjustment on account of the accident she got encashment only for 150 days though she did not have any document in the said regard. It cannot be disputed that the petitioner had remained on leave on account of the injuries sustained in the accident and she would be entitled to some amount towards the leaves availed by her. Considering the facts and circumstances of the case the petitioner is held entitled to an amount of Rs.60,000/ consolidated on account of loss of income.
58. It is the case of the petitioner that she had sustained 5% permanent physical impairment in relation to her right upper limb. In Raj Kumar v Ajay Kumar & Anr.,(2011)1 SCC 343, the Hon'ble Supreme Court has held that :
"4..........The object of awarding damages is to make good the loss suffered as a result of wrong done as far as money can do so, in a fair, reasonable and equitable manner. The court or tribunal has to assess the damages objectively and exclude from consideration any speculation or fancy, though some conjecture with reference to the nature of disability and its consequences, is inevitable. A person is not only to be compensated for physical injury, but also for the loss which he suffered as a result of such injury. This means that he is to be compensated for his inability to enjoy those normal Suit No. 138/14, 139/14, 141/14 & 151/14 Page No. 78 of 116 amenities which he would have enjoyed but for the injuries, and his inability to earn as much as he used to earn or could have earned. Thus Tribunal has to assess whether the petitioners suffered loss of future earning on account of permanent disability."
"6.Disability refers to any restriction or lack of ability to perform an activity in the manner considered normal for a human being. Permanent disability refers to the residuary incapacity or loss of use of some part of the body, found existing at the end of the period of treatment and recuperation, after achieving the maximum bodily improvement or recovery which is likely to remain for the remainder life of the injured. Temporary disability refers to the incapacity or loss of use of some part of the body on account of the injury, which will cease to exist at the end of the period of treatment and recuperation. Permanent disability can be either partial or total. Partial permanent disability refers to a person's inability to perform all the duties and bodily functions that he could perform before the accident, though he is able to perform some of them and is still able to engage in some gainful activity. Total permanent disability refers to a person's inability to perform any avocation or employment related activities as a result of the accident. The permanent disabilities that may arise from motor accidents injuries, are of a much wider range when compared to the physical disabilities which are enumerated in the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 ('Disabilities Act' for short). But if any of the disabilities enumerated in section 2(i) of the Disabilities Act are the result of injuries sustained in a motor accident, they can be permanent disabilities for the purpose of claiming compensation''.
Suit No. 138/14, 139/14, 141/14 & 151/14 Page No. 79 of 116 "8.......What requires to be assessed by the Tribunal is the effect of the permanently disability on the earning capacity of the injured; and after assessing the loss of earning capacity in terms of a percentage of the income, it has to be quantified in terms of money, to arrive at the future loss of earnings (by applying the standard multiplier method used to determine loss of dependency)."
Thus it has been held that what requires to be assessed by the Tribunal is the effect of the permanent disability on the earning capacity of the injured i.e. the functional disability and after assessing the loss of earning capacity in terms of percentage of the income, it has to be quantified in terms of money, to arrive at the future loss of earnings.
59. The petitioner in support of her case had examined PW4 who deposed that the petitioner Lakhender Jyoti Sharma was examined by him on 15.08.09 on the date when she was admitted in the hospital. She had been brought from the hospital at Chandigarh. She remained admitted under the care of the hospital till 21.08.09 and the treatment record is Ex.PW1/1 (colly) including the discharge summary. He stated that at present she was not undergoing any treatment under his care. During crossexamination by the learned counsel for the respondent No.3 PW4 admitted that at the time of discharge the patient Lakhender Jyoti Sharma was in good condition. He stated that till she remained under his care no disability could be opined about. Thus PW4 had stated that till the petitioner remained under his care no disability could be opined about though subsequently the disability certificate has been received Suit No. 138/14, 139/14, 141/14 & 151/14 Page No. 80 of 116 as per which the petitioner had partial restriction of forearm mobility which was resulting in 5% permanent physical impairment in relation to her right upper limb and the disability was not likely to improve. However no doctor was examined who could state about the effect of the said disability on the working capacity of the petitioner. It is pertinent that even as per the case of the petitioner she continued to work at the same post till her superannuation in April, 2011 and there is nothing to show that there was any decrease in her salary on account of the disability. In fact during crossexamination PW2 stated that she did not lose out on any promotional opportunities on account of the accident and that after retirement she was receiving her pension as per her entitlement and that she was receiving full pension as per rules. The fact remains that the petitioner continued working on the same post even after the accident and she did not suffer any loss of salary.
60. The petitioner had contended that she had vast experience of management and was interested to work in private sector after retirement so that she could maintain her standard of living but due to the injuries sustained in the accident she was unable to get the job which caused great mental pain and agony to her and that she could have got a job of salary ranging between Rs.40,000/ to Rs.50,000/ per month but all her hopes had been smashed due to the injuries sustained in the accident and she was totally dependent upon the meager amount of her pension. However there is nothing to show that the petitioner could not get any job subsequently on account of the injuries Suit No. 138/14, 139/14, 141/14 & 151/14 Page No. 81 of 116 sustained in the accident. The petitioner had sustained permanent physical impairment of 5% in relation to right upper limb. However it is clear that the same did not have any material effect on the working capacity of the petitioner and as such it cannot be said that the petitioner had suffered any functional disability and thereby any loss of income on this account. The total compensation is assessed as under:
Medicines and Medical treatment Rs.1,32,000/ Pain and suffering Rs.50,000/ Loss of Amenities of life Rs.25,000/ Towards disability Rs.15,000/ Conveyance Rs.25,000/ Special Diet Rs.5,000/ Attendant charges Rs.9,000/ Loss of Income Rs.60,000/ TOTAL Rs.3,21,000/ Thus the total compensation would be Rs.3,21,000/. COMPENSATION IN SUIT No.141/14
61. In T.O. Anthony v. Karvarnan & Ors., (2008) 3 SCC 748, it was held as under:
"6. 'Composite negligence' refers to the negligence on the part of two or more persons. Where a person is injured as a result Suit No. 138/14, 139/14, 141/14 & 151/14 Page No. 82 of 116 of negligence on the part of two or more wrongdoers, it is said that the person was injured on account of the composite negligence of those wrongdoers. In such a case, each wrongdoer is jointly and severally liable to the injured for payment of the entire damages and the injured person has the choice of proceeding against all or any of them. In such a case, the injured need not establish the extent of responsibility of each wrongdoer separately, nor is it necessary for the court to determine the extent of liability of each wrongdoer separately. On the other hand where a person suffers injury, partly due to the negligence on the part of another person or persons, and partly as a result of his own negligence, then the negligence of the part of the injured which contributed to the accident is referred to as his contributory negligence. Where the injured is guilty of some negligence, his claim for damages is not defeated merely by reason of the negligence on his part but the damages recoverable by him in respect of the injuries stands reduced in proportion to his contributory negligence."
In the instant case as well though the deceased is found to have contributed to the negligence the claim for compensation by the petitioners cannot be defeated merely by reason of the negligence on part of the deceased but the compensation recoverable by the petitioners would stand reduced in proportion to the contributory negligence of the deceased.
62. The petitioners are the legal representatives of the deceased being the wife and mother of the deceased Shri Vikas Sharma. As observed above, it is the case of the petitioners themselves that Smt. Lakhender Jyoti Sharma was working as PS to Director General, Bureau of Indian Standards, 9 Bahadur Suit No. 138/14, 139/14, 141/14 & 151/14 Page No. 83 of 116 Shah Zafar Marg, New Delhi and was earning a sum of Rs.37,420/ per month. As such she had her own independent source of income and she cannot be regarded as dependent on the deceased. As regards the petitioner No.1 Smt. Shivani Sharma who is the wife of the deceased, it is the case of the petitioners themselves that Smt. Shivani Sharma was running an NGO and was also running a consultancy firm under the name of "Access Ability" in partnership with her husband and was earning a sum of Rs.40,000/ per month from the business. However the ITR of Smt. Shivani Sharma has been placed on record for the assessment year 20092010 dated 31.3.2010 and as per the same the gross total income of the petitioner No.1 was Rs.2,54,090/. However a perusal of the detailed statement shows that the income of the petitioner No.1 from business head was shown as only Rs.33,910/ and the remaining income was from interest. As such though the petitioner No.1 had some source of income she would be regarded as dependent on the deceased. Thus only the petitioner No.1 Smt. Shivani Sharma would be regarded as dependent on the deceased.
63. It is the case of the petitioners that at the time of the accident the deceased was aged about 33 years and was having a good health and physique. It was contended that the deceased was an NRI and highly qualified and his qualifications were stated. His various achievements were also stated. It was averred that the deceased was granted Permanent Residency status due to which he could live either in UK for an indefinite period or leave UK for Suit No. 138/14, 139/14, 141/14 & 151/14 Page No. 84 of 116 an indefinite period or come back to UK as per his own wish. It was contended that the deceased was working in U.K. from 2002 till September, 2007. Details of his employment were stated. It was stated that he joined "Royal Berkshire and Battle Hospital NHS Trust", London Road, Reading, RG1 5AN, England, U.K. as a Senior I (band7) Occupational Therapist and was getting the salary of 33,744/ pounds Rs.23,62,080/ approximately @ Rs.70/ per pound and he worked there till 22.09.2007. In October, 2007 the deceased came back to India from U.K. only to bring professionalism into the disability sector and started consultancy and training on accessibility solutions which were relevant for making building structure of any kind able and friendly to disabled persons in partnership under the name and style of M/s Access Ability. The deceased also designed the unique web such as www.free2wheel.co.in a Delhi travel guide for disabled persons and www.employability.co.in a job portal for people with disabilities. It was stated that the deceased was earning about Rs. 1,25,000/ per month from the said profession. However he applied for a job in U.K. and was having an employment offer to join in U.K. at a monthly salary of 35,980 pounds (35,980 x Rs.70/ = 25,18,600/) i.e. more than the amount what he was getting earlier but due to the unfortunate accident the deceased could not join and the petitioners suffered a great financial loss. It was contended that the deceased was hard working, having excellent communication skills and was a very popular team member and was awarded 'Helen Keller Award'. A number of 'Articles' had also been written for the work done by the deceased in leading newspapers. It was stated that the deceased Suit No. 138/14, 139/14, 141/14 & 151/14 Page No. 85 of 116 married the petitioner No.1 on 13.04.2009 and was planning to relocate to UK and settle there along with his family and the petitioners also wanted to settle there. But due to the unfortunate accident all the hopes of the petitioners had been smashed which caused great mental pain, torture and agony to the petitioners. It was averred that the petitioner No.1 was already disabled and the deceased was helping her in all the day to day and other matters and was a very loving and caring husband. He used to give all care and help to the petitioner No.1 in all the financial matters. It was alleged that due to the sudden death, the petitioner No.1 suffered huge loss of love and affection, future prospects, lifelong good companion which every woman wished to have in her life, loss of enjoyment in life, loss of caring etc. besides financial loss and she lost her husband at an age when she required the company of her husband to share the day to day responsibilities. It was stated that due to the sudden death the petitioners were at the mercy of their relatives and friends.
64. PW3 in paras 22 to 50 of her affidavit Ex.PW3/A had deposed to that effect. She stated that the deceased Shri Vikas Sharma besides teaching was also having clinical experience. In August 2007 the deceased resigned from the job in U. K. to come back to India for future prospect and to live with his family and also to get married. His employer while relieving him vide certificate/letter dated 20.08.2007 had stated that the deceased was still required and his employment was secure and ongoing. She stated that the deceased was not satisfied with the consultancy and training on accessibility Suit No. 138/14, 139/14, 141/14 & 151/14 Page No. 86 of 116 and was therefore planning to return to UK in September/October 2009 as he was having permanent residency status and was in the process of applying for a job at the hospital where he was working previously for which he had an open offer to return. The deceased on 10.08.2009 had also sent a mail through Facebook to his brother Shri Vishal from Delhi who was at that time in U.K. about his planning to visit UK around 10th September, 2009. She stated that with the loss of her husband she lost all hopes of fulfilling the human need of motherhood. Educational qualification certificates of the deceased are Ex.PW3/8/1 to Ex.PW3/8/10, copy of certificate dated 11.9.2002 issued by the Chief Commissioner for Persons with Disabilities is Ex.PW3/9, certificate issued by school is Ex.PW3/10, letter dated 2.8.2002 is Ex.PW3/11, copy of passports is Ex.PW3/12, experience certificate is Ex.PW3/13, salary slips are Ex.PW3/14 (colly), work permit is Ex.PW3/15, PR certificate is Ex.PW3/16, letter dated 23.6.2004 is Ex.PW3/17, letter dated 9.7.2004 is Ex.PW3/18, letter dated 9.6.2005 is Ex.PW3/19, letter dated 24.11.2005 is Ex.PW3/20, salary slips and tax deduction certificates are Ex.PW3/21 (colly), copies of letters issued by the employer of the deceased are Ex.PW3/22 (colly), copy of print out of facebook is Ex.PW3/23, certificates issued in respect of courses attended by the deceased are Ex.PW3/24/1 to Ex.PW3/24/10, copies of newspaper cuttings are Mark C (colly), appreciation letter dated 1.1.2007 issued by the Ministry is Ex.PW3/25, certificates regarding the courses attended are Ex.PW3/26 and 27, certificates issued by the concerned offices are Ex.PW3/28/1 to Ex.PW3/28/3 and registration certificate to practice as Suit No. 138/14, 139/14, 141/14 & 151/14 Page No. 87 of 116 Occupational Therapist in UK is Ex.PW3/29 (colly).
65. PW3 was crossexamined on her marriage to the deceased Vikas Sharma and in fact it was sought to be contended on behalf of the insurance company that a valid marriage had not taken place between the petitioner No.1 and the deceased. During crossexamination by the learned counsel for the respondent No.3 PW3 stated that she had a love cum arranged marriage. She met her husband for the first time in 1998. When she first met her husband he was working as an Occupational Therapist at Indian Spinal Injury Center. She got married to Vikas in 2009 4 months prior to the accident. She had obtained marriage certificate from Arya Samaj, copy of the same is Ex.PW3/30. She had not got the marriage registered. She stated that after the marriage they were residing at Vasant Kunj in her house. She stated that Vikas was 7 years younger to her. She denied the suggestion that she was never married with Vikas. Thus PW3 stated that she had a love cum arranged marriage and she met her husband for the first time in 1998. She got married to Vikas in 2009 4 months prior to the accident and marriage certificate from Arya Samaj has also been placed on record as Ex.PW3/30 though she had not got the marriage registered. She stated that after the marriage they were residing at Vasant Kunj in her house. Even otherwise it is seen that even at the time of the accident the petitioner No.1 was going with the deceased and the parents of the deceased to Manali. Further the petitions bearing No.138/14 and No. 141/14 have been filed jointly by the petitioner No.1 and her mother in law and Suit No. 138/14, 139/14, 141/14 & 151/14 Page No. 88 of 116 in the former even the brother in law was joined as a petitioner. As such there is no reason to doubt that the petitioner No.1 was married to the deceased.
66. During further crossexamination by the learned counsel for the respondent No.3 PW3 stated that Vikas was residing in India since 2007. Vikas had obtained permanent residency from England but he could be out of England for a period of 2 years and he had come to India in order to set up his business and to get married and he was due to return before the expiry of two years as he was unable to set up his business in India because there was no scope for the same. She denied the suggestion that Vikas was not doing anything in India at the time of the accident volunteered he was trying to set up his business in India. She stated that the bank account details of Vikas had not been filed. She could produce the same. She stated that Vikas had a bank account in India. She could produce the details of the same volunteered the same were available in the Succession Certificate issued in her favour. She denied the suggestion that Vikas was not employed with the persons from whom she had she had filed the income documents in respect of Vikas. She denied the suggestion that the income documents were forged and fabricated. She stated that her husband used to run the house hold. She denied the suggestion that Vikas was not giving any amount towards supporting her or that she was bearing her expenses on her own or that she did not suffer any financial loss on account of the death of Vikas or that she had filed a false and exaggerated claim. Thus PW3 stated that Vikas was residing in India since Suit No. 138/14, 139/14, 141/14 & 151/14 Page No. 89 of 116 2007. Vikas had obtained permanent residency from England but he could be out of England for a period of 2 years and he had come to India in order to set up his business and to get married and he was due to return before the expiry of two years as he was unable to set up his business in India because there was no scope for the same. She volunteered that the deceased was trying to set up his business in India. There is nothing to dispute that the deceased had obtained permanent residency from England, however as per the case of the petitioners themselves, the deceased had resigned from his job in England and come to India and as stated by PW3, he had come to India in order to set up his business and to get married. It is pertinent that PW3 stated that the deceased was unable to set up his business in India because there was no scope for the same. It was then contended on behalf of the petitioners that the deceased was due to return to UK and he had a standing open offer from his previous company. However there is nothing to show that the deceased had formally again joined the said job or even to show that he had already booked his tickets to return to UK.
67. It was stated that the deceased was earning about Rs.1,25,000/ from his profession in India. However no document has been placed on record to show the income of the deceased in India. PW3 had stated that the bank account details of Vikas had not been filed and she could produce the same. She stated that Vikas had a bank account in India and she could produce the details of the same volunteered the same were available in the Succession Suit No. 138/14, 139/14, 141/14 & 151/14 Page No. 90 of 116 Certificate issued in her favour. She stated that her husband used to run the house hold. The petitioners had placed on record copy of the succession certificate issued in favour of the petitioners in respect of the bank account of the deceased. Further copy of statement of account of the bank account of the deceased was placed on record but the same does not show any substantial deposits during his stay in India. As such there is nothing to show how much amount the deceased was earning in India. The petitioners had sought to place reliance on the income of the deceased in UK before coming to India and that he had applied for a job in U.K. and was having an employment offer to join in U.K. at a monthly salary of 35,980 pounds (35,980 x Rs.70/ = 25,18,600/) i.e. more than the amount what he was getting earlier. However there is nothing to substantiate the same. Moreover the salary as stated is not the monthly salary but would be the yearly salary as is evident from the various pay slips and tax documents placed on record and as per the document in respect of May, 2007, the total pay and allowances of the deceased were 3116.24 pounds and after deductions the amount payable was only 1802.35 pounds. However the said amount cannot be the basis for determining the income of the deceased in India at the time of the accident in August, 2009, at the same time, the income of the deceased cannot be computed on the basis of minimum wages for a graduate prevalent at the time of the accident, considering the qualifications and past record of the deceased. Considering the facts and circumstances of the case, the income of the deceased is taken as Rs.6,00,000/ p.a. Suit No. 138/14, 139/14, 141/14 & 151/14 Page No. 91 of 116
68. It is the case of the petitioners that the deceased was 33 years of age at the time of the accident and it was so stated in the claim petition and PW1 had also deposed to that effect. Copy of the passport of the deceased is on record as per which the date of birth of the deceased was 11.5.1976. As such the deceased would have been more than 33 years old on the date of the accident i.e. 14.8.2009. As per the judgment of the Hon'ble Supreme Court in Sarla Verma and others v. Delhi Transport Corporation and others 2009 ACJ 1298 (SC) case the multiplier of 16 applies for calculating the loss of income where the age of the deceased is 31 to 35 years.
69. As observed above the dependent on the deceased was only his wife. As per the judgment of the Hon'ble Supreme Court in Sarla Verma's case as the number of dependent was 1 there would be 1/3rd deduction towards personal and living expenses of the deceased. Regarding the future prospects, there is nothing specific on record to show the future prospects of the deceased or even to show that he had a permanent job. As such the actual income at the time of death without any addition to income for future prospects would be taken and the petitioners would not be entitled to any addition of the income towards future prospects.
Accordingly the loss of dependency as per the annual income i.e. Rs. 6,00,000/ is calculated as under :
Suit No. 138/14, 139/14, 141/14 & 151/14 Page No. 92 of 116 Rs.6,00,000/ - Rs.2,00,000/ (i.e. 1/3rd towards personal expenses) = Rs.
4,00,000/ X 16 (multiplier) = Rs.64,00,000/. Since the negligence of the deceased has been apportioned as 50%, the petitioners would be entitled to 50% of Rs.64,00,000/ i.e. Rs.32,00,000/.
70. The petitioners are also entitled to compensation for loss of love and affection, loss of consortium, loss of estate and funeral expenses. PW3 had stated that during the period the deceased was in the hospital, the petitioners had spent a sum of Rs.2,00,000/ on medicine, conveyance etc. She stated that after the death, the petitioners had spent a sum of Rs.1,00,000/ on bringing back the body at Delhi, funeral and last rites ceremonies of the deceased. The medical expenses bills were placed on record as Ex.PW3/7 (colly) for an amount of Rs.86,900/. Considering the other expenses that the petitioners might have incurred, they would be entitled to an amount of Rs. 1,00,000/ towards medical expenses and incidental expenses. There is however nothing to show the expenses on bringing back the body at Delhi and on funeral and last rites ceremonies.
The total compensation is determined as under:
Loss of dependency : Rs.32,00,000/
Love and affection : Rs.1,00,000/
Loss of Consortium : Rs.1,00,000/
Medical & incidental expenses : Rs. 1,00,000/
Loss of Estate : Rs.10,000/
Suit No. 138/14, 139/14, 141/14 & 151/14 Page No. 93 of 116
Funeral expenses : Rs.50,000/
Total : Rs.35,60,000/
Thus the total compensation would be Rs.35,60,000/.
COMPENSATION IN SUIT No.151/14 MEDICINES AND MEDICAL TREATMENT
71. The case of the petitioner Smt. Shivani Sharma is that due to the accident on 14.8.2009 she sustained compound fracture supracondylar fracture right femur with metacarpal fracture left 3rd and 4th in a quadriplegic, injuries in her left hand and right leg and other injuries all over the body. After the accident the petitioner was transferred to nearby PGI Hospital, Chandigarh and thereafter the petitioner was shifted to Delhi at Max Super Speciality Hospital, Saket, New Delhi on 15.08.2009. An operation of ORIF with locking plate fixation right distal femur was done on 15.08.2009 in the Max Hospital. The petitioner remained admitted in Max Hospital from 15.08.2009 to 22.08.2009. It was stated that after discharge from the hospital the petitioner remained as an outdoor patient and was going to the hospitals regularly for regular checkup as advised by the doctors at the time of discharge. The petitioner had thus far spent a sum of Rs.4,00,000/on medicine, conveyance, special diet and was still incurring on the same heads as the petitioner was Suit No. 138/14, 139/14, 141/14 & 151/14 Page No. 94 of 116 still under treatment as she was having physiotherapy. It was averred that the petitioner sustained injuries in her hand which further made the petitioner more disabled. The left hand of the petitioner was not functioning and she had to work only with her right hand. She was unable to write or catch hold of any articles/ goods from her left hand which caused great mental pain, agony to the petitioner. It was stated that the right leg of the petitioner was also fractured in the accident and due to the injuries in her right leg the petitioner was unable to shift from the wheelchair into a car, bed, toilet or elsewhere and required servants for the same. It was contended that due to the injuries in the accident the petitioner was unable to work hard as she was working prior to the accident and she was not in a position to get any more scholarship or award.
72. The petitioner in paras 4 to 8, 12, 13 and 17 of her affidavit Ex.PW3/A had deposed to that effect. She stated that as there was no one to look after her and her husband, mother in law and father in law also sustained injuries in the accident she was shifted to PGI, Chandigarh and then to Delhi at Max Super Speciality Hospital, Saket, New Delhi on 15.08.2009 in an Ambulance. She had spent a sum of Rs.50,000/ at that time. She stated that immediately on arrival two surgeries were undertaken on her, one surgery of ORIF with locking plate fixation right distal femur and second surgery to fix the metacarpals in the left hand. The two surgeries were done on 15.08.2009 in the Max Hospital. She stated that earlier she was operating computer with her Suit No. 138/14, 139/14, 141/14 & 151/14 Page No. 95 of 116 two fingers but now due to injuries in her hand she was unable to operate the computer which caused great mental pain, agony to her. She stated that her right leg was also fractured in the unfortunate accident. She stated that plate fixation had been undertaken in her right leg and the same may require replacement or removal any time and she would have to incur a huge amount for the same which would cause great financial burden, mental pain and agony to the petitioner. Discharge summary of PW3 is Ex.PW3/1 and medical bills are Ex.PW3/2. The MLC of the petitioner is on record which shows the nature of injuries sustained by the petitioner and as per the same the nature of one injury i.e. in the knee was opined to be grievous. The documents placed on record show that the petitioner had sustained compound comminuted supracondylar fracture right femur with metacarpal fracture left 3 rd and 4th in a quadriplegic patient. The documents also show that she remained admitted in hospital from 15.8.2009 to 22.8.2009. Thus the injuries were grievous in nature.
73. Regarding the question of disability, it is not in dispute that the petitioner, at the time of the accident on 14.8.2009 was already 100% disabled. She was examined by the Disability Board and as per the report dated 29.10.2014 the fracture of right femur had not united. It was stated that "the patient is a known case of traumatic spinal cord injury with fracture C6/C7 along with quadriplegia for which she was issued a permanent physical impairment certificate of 100%. Patient is giving a history of RTA following which she had Suit No. 138/14, 139/14, 141/14 & 151/14 Page No. 96 of 116 injury to her right lower limb and left upper limb. The XRays also showed the parts affected as mentioned. Since the disability cannot be given exceeding 100%, the effect of trauma which occurred later cannot be added." During crossexamination by the learned counsel for the respondent No.3 PW3 stated that her disability was prior to the accident on account of the accident which had taken place in 1992. She admitted that she had remained disabled from 1992 to 2009. She stated that she was 22 years old in 1992. Thus PW3 stated that her disability was prior to the accident on account of the accident which had taken place in 1992. She admitted that she had remained disabled from 1992 to 2009.
74. The petitioner in support of her case had examined PW1 who had brought the medical record as well as bills in respect of her treatment which are Ex.PW1/A (colly). The original treatment record of patient Shivani Sharma is Ex.PW1/2 (colly) and the hospital bills of Shivani Sharma are Ex.PW1/4. During crossexamination by the learned counsel for the insurance company PW1 stated that he was working in the hospital since the year 2009. He joined the hospital as Medical Record Technician. He had no personal knowledge of the case. He admitted that the records filed by him were not prepared in his presence. He could not say whether all the doctors who were signatory on the documents filed by him on record were still working with the hospital or not volunteered some of the doctors may still be working. He stated that the payments in respect of the bills which had been filed on record, were not made Suit No. 138/14, 139/14, 141/14 & 151/14 Page No. 97 of 116 in his presence. He could not tell the mode of payment of the bills filed on record. He denied the suggestion that the documents filed by him were forged and fabricated documents. Thus PW1 had no personal knowledge of the case. He admitted that the records filed by him were not prepared in his presence. He stated that the payments in respect of the bills which had been filed on record, were not made in his presence and he could not tell the mode of payment of the bills filed on record. However there is nothing to dispute the record produced by him. It cannot be disputed that the petitioner had sustained injuries in the accident and underwent treatment for the same. The petitioner had stated that she had spent more than Rs.4,00,000/ on medicine, conveyance, special diet and was still incurring on the same heads as she was still under treatment as she was having physiotherapy. The petitioner has placed on record original bills for an amount of Rs.1,94,360/. Looking to the nature of the injuries the petitioner is held entitled to the amount of the bills. The petitioner would have incurred some expenses on the treatment even subsequently. Accordingly an amount of Rs.2,00,000/ is awarded towards medical treatment and expenses including the amount of the bills. PAIN AND SUFFERING AND LOSS OF AMENITIES OF LIFE
75. The case of the petitioner Smt. Shivani Sharma is that due to the accident on 14.8.2009 she sustained compound fracture supracondylar fracture right femur with metacarpal fracture left 3rd and 4th in a quadriplegic, Suit No. 138/14, 139/14, 141/14 & 151/14 Page No. 98 of 116 injuries in her left hand and right leg and other injuries all over the body. After the accident the petitioner was transferred to nearby PGI Hospital, Chandigarh and thereafter the petitioner was shifted to Delhi at Max Super Speciality Hospital, Saket, New Delhi on 15.08.2009. An operation of ORIF with locking plate fixation right distal femur was done on 15.08.2009 in the Max Hospital. The petitioner remained admitted in Max Hospital from 15.08.2009 to 22.08.2009. It was stated that after discharge from the hospital the petitioner remained as an outdoor patient and was going to the hospitals regularly for regular checkup as advised by the doctors at the time of discharge. It was stated that the petitioner was still under treatment as she was having physiotherapy. It was averred that the petitioner sustained injuries in her hand which further made the petitioner more disabled. The left hand of the petitioner was not functioning and she had to work only with her right hand. She was unable to write or catch hold of any articles/ goods from her left hand which caused great mental pain, agony to the petitioner. It was stated that the right leg of the petitioner was also fractured in the accident and due to the injuries in her right leg the petitioner was unable to shift from the wheelchair into a car, bed, toilet or elsewhere and required servants for the same. It was contended that due to the injuries in the accident the petitioner was unable to work hard as she was working prior to the accident and she was not in a position to get any more scholarship or award. The petitioner stated that earlier she was operating computer with her two fingers but now due to injuries in her hand she was unable to operate the computer which caused great mental pain, Suit No. 138/14, 139/14, 141/14 & 151/14 Page No. 99 of 116 agony to her. She stated that her right leg was also fractured in the unfortunate accident. She stated that plate fixation had been undertaken in her right leg and the same may require replacement or removal any time and she would have to incur a huge amount for the same which would cause great financial burden, mental pain and agony to the petitioner. The MLC of the petitioner is on record which shows the nature of injuries sustained by the petitioner and as per the same the nature of one injury i.e. in the knee was opined to be grievous. The documents placed on record show that the petitioner had sustained compound comminuted supracondylar fracture right femur with metacarpal fracture left 3rd and 4th in a quadriplegic patient. The documents also show that she remained admitted in hospital from 15.8.2009 to 22.8.2009. Thus the injuries were grievous in nature. Regarding the question of disability, at the time of the accident on 14.8.2009 the petitioner was already 100% disabled. She was examined by the Disability Board and as per the report dated 29.10.2014 the fracture of right femur had not united and she had injury to her right lower limb and left upper limb. Looking at the nature of injuries and extent of treatment and that the accident pertains to the year 2009, the petitioner is awarded Rs.50,000/ (Rs.Fifty Thousand only) for pain and suffering.
76. The petitioner was 38 years of age at the time of the accident and it was so stated in the claim petition. During crossexamination by the learned counsel for the insurance company PW3 stated that she was 22 years old in Suit No. 138/14, 139/14, 141/14 & 151/14 Page No. 100 of 116 1992. She had not placed on record any birth certificate volunteered she had school certificates. She could produce the school certificates. However no school certificates were proved on record. The documents on record show that the date of birth of the petitioner is 23.12.1969. As such she would have been more than 39 years old on the date of the accident i.e. 14.8.2009. Notice can be taken of the fact that on account of the injuries sustained by her the petitioner may not have been able to perform her day to day duties towards her family and on account of the injuries suffered by her the petitioner may not have been able to enjoy the amenities of life. In the circumstances the petitioner is awarded a sum of Rs.30,000/ (Rs.Thirty Thousand only) for loss of amenities of life. The petitioner cannot however be held to be entitled to any amount towards loss of expectation of life. She would be entitled to an amount of Rs. 25,000/ towards her left hand becoming dysfunctional i.e. further disfigurement.
CONVEYANCE AND SPECIAL DIET
77. The petitioner had deposed that after the accident the petitioner was transferred to nearby PGI Hospital, Chandigarh and thereafter the petitioner was shifted to Delhi at Max Super Speciality Hospital, Saket, New Delhi on 15.08.2009. She stated that she had thus far spent a sum of Rs. 4,00,000/on medicine, conveyance, special diet and was still incurring on the same heads as the petitioner was still under treatment as she was having Suit No. 138/14, 139/14, 141/14 & 151/14 Page No. 101 of 116 physiotherapy. Although the petitioner has not filed any document on record in order to prove the expenditure on conveyance however, notice can be taken of the fact that after the accident the petitioner was taken to Hospital in Himachal Pradesh and thereafter to PGI, Chandigarh and then she was shifted to Delhi at Max Super Speciality Hospital and that after discharge from hospital she might have hired the services of private conveyance as she would not have been able to use public conveyance. In the circumstances a sum of Rs. 20,000/ (Rs.Twenty Thousand only) would be just and proper towards conveyance charges.
78. The petitioner in para 8 of her affidavit Ex.PW3/A had stated that she had thus far spent a sum of Rs.4,00,000/on medicine, conveyance, special diet and was still incurring on the same heads as the petitioner was still under treatment as she was having physiotherapy. Although the petitioner has not proved that she was advised special diet but looking at the nature of injuries sustained by the petitioner notice can be taken of the fact that the petitioner might have taken diet rich in protein, vitamins and minerals for speedier recovery. In the circumstances the petitioner is awarded a sum of Rs.5,000/ (Rs.Five Thousand only) for special diet.
79. The petitioner in para 13 of her affidavit Ex.PW3/A had deposed that her right leg was also fractured in the unfortunate accident. She stated that due to the injuries in her right leg she was unable to shift from the wheelchair Suit No. 138/14, 139/14, 141/14 & 151/14 Page No. 102 of 116 into a car, bed, toilet or elsewhere. She state that she constantly required servants who could help her in shifting from the wheelchair to other places. She stated that after the loss of her husband there was no one to look after her and she was totally dependent on her relatives to support her financially and otherwise. Although the petitioner has not produced any evidence to show that she incurred any expenses towards attendant charges, however looking to the nature of injuries the petitioner would have incurred some expenditure on attendant charges and a sum of Rs.9,000/ is awarded towards attendant charges.
LOSS OF INCOME
80. It is the case of the petitioner that at the time of the accident she was aged about 38 years and was running an NGO and was also running a consultancy firm under the name of "Access Ability" in partnership with her husband and was earning a sum of Rs.40,000/ per month from the business. It was alleged that due to the trauma and mental agony of the accident and the death of her husband and business partner the petitioner had to dissolve the partnership and wind up the business, hence she was suffering financial loss and mode for future earning. The qualifications of the petitioner were stated. She had also received various awards and was granted educational scholarship from Tata and Snowdon U. K. Scholarship from 20042006. It was contended that due to the injuries in the accident the petitioner was unable to Suit No. 138/14, 139/14, 141/14 & 151/14 Page No. 103 of 116 work hard as she was working prior to the accident and she was not in a position to get any more scholarship or award. The petitioner in paras 9, 10 and 14 to 18 of her affidavit had deposed to that effect. She stated that at the time of the accident she was aged about 38 years and was running an NGO and doing the consultancy in relation to promoting accessibility in built environments for persons with disabilities and was earning a sum of Rs. 40,000/ per month from the said profession. Due to the trauma and mental agony of the accident and the death of her husband she could not run her NGO and undertake consultancy, hence she was suffering financial loss and mode of future earning. She stated that at present she was solely dependent upon her parents and relatives. ITR of PW3 is Ex.PW3/3, educational certificates of PW3 are Ex.PW3/4/1 to Ex.PW3/4/4, copies of award certificates are Ex.PW3/5/1 to Ex.PW3/5/4 and copies of newspapers containing articles about the contribution of PW3 are Ex.PW3/6 (colly).
81. During crossexamination by the learned counsel for the respondent No. 3 PW3 stated that she did not remember since when she was paying the Income Tax volunteered she had been paying Income Tax for 56 years prior to the accident. She could produce the ITRs. She admitted that she was running the NGO in her disabled condition. She stated that her condition had deteriorated subsequent to the accident in question and a rod had been put in her right leg and her left hand was not in a working condition so she was not in a position to run an NGO now. She denied the suggestion that she did not Suit No. 138/14, 139/14, 141/14 & 151/14 Page No. 104 of 116 require her hand and leg to be in working condition even prior to the accident in question to run the NGO or that the same position existed at present. She denied the suggestion that her condition did not deteriorate on account of the accident. She denied the suggestion that she was still in a position to work and run the NGO. She had not placed on record any document to show that she was working with an NGO volunteered she was a consultant for several NGOs and she could produce documents in respect of payments which she received from NGOs. It is pertinent that PW3 stated that she had not placed on record any document to show that she was working with an NGO and volunteered that she was a consultant for several NGOs and she could produce documents in respect of payments which she received from NGOs. However no such documents were produced and there is nothing to show that she was running an NGO or working as consultant for several NGOs or to show the amount that she was earning. PW3 stated that she did not remember since when she was paying the Income Tax volunteered she had been paying Income Tax for 56 years prior to the accident. The petitioner had placed on record a copy of her ITR for the assessment year 20092010 as per which her gross total income was Rs.2,54,090/. However as observed above the income under business head was only Rs.33,910/ and the remaining income was from interest and there is nothing to show that she was earning Rs.40,000/ per month.
82. The petitioner has not produced any document to show that she remained on bed rest for any particular period and there is nothing to show Suit No. 138/14, 139/14, 141/14 & 151/14 Page No. 105 of 116 that she was advised bed rest for any particular period or that on account of the injuries sustained in the accident she was unable to do her work or to show the period for which she was not able to work. In the absence of any advice of doctor notice can be taken of the fact that on account of the injuries sustained in the accident, the petitioner may not have been able to perform her avocation for some period. Considering the facts and circumstances of the case the petitioner is held entitled to an amount of Rs.30,000/ consolidated on account of loss of income.
83. The petitioner had contended that she had sustained further permanent disability on account of the accident on 14.8.2009. The petitioner in support of her case had examined PW4 who deposed that the petitioner Shivani Sharma was examined by him on 15.08.09 on the date when she was admitted in the hospital. She had been brought from the hospital at Chandigarh. She remained admitted under the care of the hospital till 22.08.09 and the treatment record is Ex.PW1/2 (colly) including the discharge summary. He stated that at present she was not undergoing any treatment under his care. During crossexamination by the learned counsel for the respondent No.3 PW4 stated that Shivani Sharma was suffering from paralysis of the four limbs called Tetraplegia also called quadriplegia. In Tetraplegia in case of Shivani Sharma she had been very well rehabilitated, meaning thereby that she had regained some amount of strength and power in her upper limbs which were functional, that is, she could function to some extent and that was very Suit No. 138/14, 139/14, 141/14 & 151/14 Page No. 106 of 116 important functional power that she had. He stated that after the injury in the accident the left hand had ceased to function. Prior to the accident Shivani had been under treatment from him volunteered since she was paralyzed she was prone to medical illnesses for which they had been regularly treating her since 199899. Prior to the accident the petitioner Shivani Sharma could use the thumb and the first two fingers of both her hands but after the accident her left hand had become totally dysfunctional and she had to rely upon only the thumb and two fingers of the right hand. The said development was a new development after the present accident and could not be called a continuation or aggravation of her previous condition. He admitted that Shivani was still under his treatment. He stated that in his opinion there was no possibility of any improvement in her condition. He lastly met her about a year ago.
84. PW4 thus stated that Shivani Sharma was suffering from paralysis of the four limbs called Tetraplegia also called quadriplegia in which she had been very well rehabilitated, meaning thereby that she had regained some amount of strength and power in her upper limbs which were functional, that is, she could function to some extent and that was very important functional power that she had. It is pertinent that PW4 stated that after the injury in the accident the left hand had ceased to function. He stated that prior to the accident the petitioner Shivani Sharma could use the thumb and the first two fingers of both her hands but after the accident her left hand had become totally dysfunctional and she had to rely upon only the thumb and two fingers Suit No. 138/14, 139/14, 141/14 & 151/14 Page No. 107 of 116 of the right hand which was a new development after the present accident and could not be called a continuation or aggravation of her previous condition. He stated that in his opinion there was no possibility of any improvement in her condition. As such PW4 had also stated about deterioration in the condition of the petitioner in that after the accident on 14.8.2009 the left hand of the petitioner had become totally dysfunctional. However there is nothing to show that the same would affect the type of work the petitioner had stated that she was doing namely running an NGO or consultancy for NGOs though there is no document to show the same. During crossexamination PW3 admitted that she was running the NGO in her disabled condition though she stated that her condition had deteriorated subsequent to the accident in question and a rod had been put in her right leg and her left hand was not in a working condition so she was not in a position to run an NGO at present. However there is nothing to show that her working capacity had been further affected on account of the injuries sustained in the accident. It may be mentioned that the learned counsel for the petitioner had placed on record the copy of the judgment dated 29.5.1998 passed in relation to her earlier accident in 1992 and as per the same the petitioner had been awarded Rs.6,00,000/ for future loss of income. As per the report of the Disability Board dated 29.10.2014 the fracture of right femur had not united. It was stated that "the patient is a known case of traumatic spinal cord injury with fracture C6/C7 along with quadriplegia for which she was issued a permanent physical impairment certificate of 100%. Patient is giving a history of RTA following which she had injury to her Suit No. 138/14, 139/14, 141/14 & 151/14 Page No. 108 of 116 right lower limb and left upper limb. The XRays also showed the parts affected as mentioned. Since the disability cannot be given exceeding 100%, the effect of trauma which occurred later cannot be added." However it is clear that the further disability, if any, did not have any material effect on the working capacity of the petitioner and as such it cannot be said that the petitioner had suffered any functional disability and thereby any loss of income on this account.
The total compensation is assessed as under:
Medicines and Medical treatment Rs.2,00,000/ Pain and suffering Rs.50,000/ Loss of Amenities of life Rs.30,000/ Towards disfugurement Rs. 25,000/ Conveyance Rs.20,000/ Special Diet Rs.5,000/ Attendant charges Rs.9,000/ Loss of Income Rs.30,000/ TOTAL Rs.3,69,000/ Thus the total compensation would be Rs.3,69,000/. RELIEF
85. The petitioners in suit No.138/14 are awarded a sum of Rs.8,10,000/ (Rs.Eight Lacs Ten Thousand only), the petitioner Smt. Lakhender Jyoti Sharma in suit No.139/14 is awarded a sum of Rs.3,21,000/ (Rs.Three Suit No. 138/14, 139/14, 141/14 & 151/14 Page No. 109 of 116 Lacs Twenty One Thousand only), the petitioners in suit No.141/14 are awarded a sum of Rs.35,60,000/ (Rs.Thirty Five Lacs Sixty Thousand only) and the petitioner Smt. Shivani Sharma in suit No.151/14 is awarded a sum of Rs.3,69,000/ (Rs.Three Lacs Sixty Nine Thousand only) with interest at the rate of 7.5% per annum from the date of filing the claim petitions till its realization, including, interim award, if any already passed in favour of the petitioners and against the respondents. The petitioner No.1 Smt. Lakhender Jyoti Sharma in suit No.138/14 would be entitled to 40% share in the awarded amount and the petitioners No.2 and 3 Shri Vishal Sharma and Smt. Shivani Sharma would be entitled to 30% share each in the awarded amount. 50% of the share of all the petitioners be released to them and 50% of the share of the petitioners be kept in FDR for a period of 3 years. 50% of the awarded amount in suit No.139/14 and suit No.151/14 be released to the petitioner Smt. Lakhender Jyoti Sharma and Smt. Shivani Sharma respectively and 50% of the awarded amount be kept in FDR for a period of 2 years. The respondent No.3 is directed to deposit the amount directly by way of crossed cheque in the bank account of the petitioners in UCO Bank, Patiala House Court, New Delhi within 30 days of the passing of the award, failing which the respondent No.3 shall be liable to pay further interest @ 12% per annum for the period of delay.
86. As regards suit No.141/14 the petitioner No.2 Smt. Lakhender Jyoti Sharma would be entitled to 20% share in the awarded amount and the Suit No. 138/14, 139/14, 141/14 & 151/14 Page No. 110 of 116 petitioner No.1 Smt. Shivani Sharma would be entitled to 80% share in the awarded amount. For safeguarding the compensation amount from being frittered away by the claimants, directions have been given by Hon'ble Supreme Court for preserving the award amount in the case of Jai Prakash Vs. National Insurance Co. Ltd. and Others (2010) 2 Supreme Court Cases 607. In view of the directions contained in the above judgment the award amount is to be disbursed as follows:
a) 50% of the share of the petitioner No.2 be released to her by transferring it into her savings account in UCO Bank, Patiala House Court and the remaining 50% be kept in FDR for a period of 2 years. 10% of the share of the petitioner No.1 be released to her by transferring it into her savings account and the remaining amount out of her share be kept in FDRs in UCO Bank, Patiala House Court, New Delhi in the following manner:
1. Fixed deposit in respect of 10% for a period of one year.
2. Fixed deposit in respect of 10% for a period of two years.
3. Fixed deposit in respect of 10% for a period of three years.
4. Fixed deposit in respect of 10% for a period of four years.
5. Fixed deposit in respect of 10% for a period of five years.
6. Fixed deposit in respect of 10% for a period of six years.
7. Fixed deposit in respect of 10% for a period of seven years.
8. Fixed deposit in respect of 10% for a period of eight years.
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9. Fixed deposit in respect of 10% for a period of nine years.
b)The respondent No.3 is directed to deposit the amount directly by way of crossed cheque in terms of the above order in UCO Bank, Patiala House Court, New Delhi in the name of UCO Bank, Patiala House Court, New Delhi A/c Smt. Shivani Sharma and Smt. Lakhender Jyoti Sharma within 30 days of the passing of the award.
c) Cheque be deposited within thirty days herefrom under intimation to the petitioners. In case of default, the respondent No.3 shall be liable to pay further interest @ 12% per annum for the period of delay.
d) On the deposit of the award amount, the Branch Manager of UCO Bank, Patiala House Court, New Delhi is directed to prepare Fixed Deposit Receipts as ordered above and the balance amount be released.
e) The interest on the fixed deposits shall be paid monthly by automatic credit of interest in the savings account of the petitioner No.1.
f) The withdrawal from the aforesaid account shall be permitted to the petitioner No.1 after due verification and the bank shall issue photo identity card to the petitioner No.1 to facilitate her identity.
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g) No cheque book shall be issued to the petitioner No.1 without the permission of the court.
h) The original fixed deposit receipts shall be retained by the bank in safe custody. However, the original pass book shall be given to the petitioner No.1 along with the photocopy of the fixed deposit receipts. Upon the expiry of period of FDR the bank shall automatically credit the maturity amount in the saving account of the beneficiary.
i) The original fixed deposit receipts shall be handed over to the petitioner No.1 on the expiry of the period of the fixed deposit receipts.
j) No loan, advance, or withdrawal shall be allowed on the said FDRs without the permission of the court.
k) On the request of the petitioners, the bank shall transfer the saving account to any other branch/bank, according to the convenience of the petitioners.
l) The petitioners shall furnish all the relevant documents for opening of the saving bank account and Fixed Deposit to Senior Manager of UCO Bank, Patiala House Court, New Delhi.
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87. The petitioners in all the four petitions shall file two sets of photographs along with their specimen signatures, out of which one set to be sent to the Nodal Officer, UCO Bank, Patiala House Court, New Delhi along with copy of the award by Nazir and the second set be retained to the court for further reference. The photographs be stamped and sent to the bank. The petitioners shall also file the proof of residence and furnish the details of the bank account with the Nazir within a week. The petitioners shall file their complete address as well as address of their counsel for sending the notice of deposit of the award amount.
APPORTIONMENT OF LIABILITY:
88. The respondent No.1 is the driver, the respondent No.2 is the owner and the respondent No.3 is the insurer of the offending vehicle. Thus the respondents No.1, 2 and 3 are held jointly and severally liable. The respondent No.3 had produced R3W1 in the witness box who stated that the office issued the insurance policy to the insured namely Ramanpreet Singh in respect of the vehicle PB11AM9305. Copy of the policy/ cover note is Ex.R3W1/1. He stated that on the instruction of the office, the counsel of the company issued notice under Order 12 Rule 8 CPC to the owner of the offending vehicle. Copy of the legal notice and postal receipts are Ex.R3W1/2 (colly). He was not cross examined on behalf of the respondent No.1. During crossexamination by the learned counsel for the petitioners R3W1 admitted that Ex.R3W1/1 was a Suit No. 138/14, 139/14, 141/14 & 151/14 Page No. 114 of 116 computerized copy. He stated that the original was with the insured (owner Ramanpreet Singh) and the policy was taken by the insured through the issuing office. Thus the respondent No.3 had admitted the insurance policy. There is no evidence on behalf of the respondent No.3 to show that there was any violation of the rules and terms of policy by the respondents No.1 and 2. Hence, the respondent No.3 being the insurance company in respect of the offending vehicle is liable to pay the compensation on behalf of the respondents No.1 and 2. The respondent No.3 being the insurer is directed to deposit the award amount in UCO Bank, Patiala House Court, New Delhi within 30 days of the passing of the award with interest at the rate of 7.5% from the date of filing of the claim petitions till its realization failing which it is liable to pay interest at the rate of 12% per annum for the period of delay.
89. Nazir to report in case the cheques are not deposited within 30 days of the passing of the award/judgment. Nazir is directed to note the particulars of the award amount in the register today itself. The petitioners shall also file the proof of residence and furnish the details of the bank account with the Nazir within a week. The respondent No.3 shall deposit the award amount along with interest upto the date of notice of deposit to the claimants with a copy to their counsel and the compliance report shall be filed in the court along with proof of deposit of award amount, the notice of deposit and the calculation of interest on 20.8.2015.
Suit No. 138/14, 139/14, 141/14 & 151/14 Page No. 115 of 116 An attested copy of the award be given to the parties (free of cost) and a copy be also sent to the Nodal Officer, UCO Bank, Patiala House. File be consigned to Record Room.
Announced in open court
on this 21st day of May, 2015 (GEETANJLI GOEL)
PO: MACT2
New Delhi
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