FAO No.1008 of 2005 -1- IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH FAO No.1008 of 2005 Date of Decision. 27.10.2010 United India Insurance Company Limited, Sector 17, Chandigarh through its Assistant Manager ......Appellant Versus Master Rohit Sharma s/o late Shri Ramesh Sharma ....Respondent 2. FAO No.1009 of 2005 United India Insurance Company Limited, Sector 17, Chandigarh through its Assistant Manager ......Appellant Versus Smt. Seema Sharma w/o late Shri Ramesh Sharma ....Respondent 3. FAO No.1010 of 2005 United India Insurance Company Limited, Sector 17, Chandigarh through its Assistant Manager ......Appellant Versus Smt. Seema Sharma w/o late Shri Ramesh Sharma and others ....Respondents 4. FAO No.1011 of 2005 United India Insurance Company Limited, Sector 17, Chandigarh through its Assistant Manager ......Appellant Versus Smt. Seema Sharma w/o late Shri Ramesh Sharma ....Respondent Present: Mr. Vinod Gupta, Advocate for the appellant. Mr. M.S. Lobana, Advocate for the respondents. 5. FAO No.1508 of 2005 Master Rohit Sharma s/o late Shri Ramesh Sharma ..Appellant Versus United India Insurance Company Limited, Branch Office Udit Nagar, Rourkela, 760004, District Sundergarh (Orissa) ....Respondent FAO No.1008 of 2005 -2- 6. FAO No.1509 of 2005 Mrs. Seema Sharma widow of late Ramesh Sharma r/o 1-A, 246-247, Neelam Bata Road, Faridabad (Haryana) ..Appellant Versus United India Insurance Company Limited, Branch Office Udit Nagar, Rourkela, 760004, District Sundergarh (Orissa) ....Respondent 7. FAO No.1510 of 2005 Mrs. Seema Sharma widow of late Ramesh Sharma r/o 1-A, 246-247, Neelam Bata Road, Faridabad (Haryana) and another ..Appellants Versus United India Insurance Company Limited, Branch Office Udit Nagar, Rourkela, 760004, District Sundergarh (Orissa) ....Respondent 8. FAO No.1511 of 2005 Smt. Seema Sharma widow of late Ramesh Sharma r/o 1-A, 246-247, Neelam Bata Road, Faridabad (Haryana) ..Appellant Versus United India Insurance Company Limited, Branch Office Udit Nagar, Rourkela, 760004, District Sundergarh (Orissa) ....Respondent Present: Mr. M.S. Lobana, Advocate for the appellant. Mr. Vinod Gupta, Advocate for the respondent. CORAM:HON'BLE MR. JUSTICE K. KANNAN 1. Whether Reporters of local papers may be allowed to see the judgment ? 2. To be referred to the Reporters or not ? 3. Whether the judgment should be reported in the Digest? -.- K. KANNAN J. 1. This batch of 8 cases arise out of 4 different claim petitions filed by two sets of individuals. The claimant Seema Sharma made a FAO No.1008 of 2005 -3- claim for her injuries in one petition, another claim along with her son as a representative of the deceased husband and in yet another petition claiming as a representative of her minor child Anurag Sharma who died in the accident. Yet another claim was at the instance of Mohit Sharma, who apart from filing a petition along with his mother for death of his father had filed his own petition for claiming compensation for injury suffered in the accident. The insurance company is challenging the award in other four independent appeals. The cases can be paired thus, in respect of the claim by Mohit Sharma for injuries, the cases are covered in FAO No.1008 and 1508 of 2005. For her own injuries, it is subject of dispute in FAO Nos.1009 and 1511 of 2005. For the death of the husband and father respectively of Seema Sharma and Mohit Sharma, the cases are dealt with in FAO No.1010 and 1509 of 2005. The amount assessed by the Tribunal for injury to Rohit Sharma was Rs.2,54,036/-, for death of the husband at Rs.4,32,000/-, for injuries of Seema Sharma at Rs.55,000/- and for the death of minor son at Rs.1,00,000/-. 2. The accident is said to have taken place at the time when the maruti car which was driven by one of the relatives of the claimants dashed against a stationary truck. The claimants urged that the accident had taken place only by the rash and negligent driving of the driver of the vehicle in which they were travelling. The claims were made on the basis that they were passengers of the insured's vehicle and the claim against the insurance company was on the basis of a comprehensive cover to the owner satisfying the claim arising out of death or bodily injury of persons being carried in such vehicle. FAO No.1008 of 2005 -4- Ritu Sharma was the owner of the vehicle and she was also a traveller in the vehicle, who had died. The claim had been made only against the insurance company, the owner having died. The plea had been taken by the insurance company that the owner and driver of the truck against which the maruti car struck ought to have been also added as a party and the non-impleadment would vitiate the award. It was also further contended that the representatives of the deceased owner had also not been made as party and a petition filed only against the insurance company was not maintainable. 3. As regards the maintainability of the petition itself, it is not a major obstacle for the claimant, for, as per Section 155 of the Motor Vehicles Act, on the death of the insured, the claim would survive against the insurer, notwithstanding the operation of Section 306 of the Indian Succession Act. The claim against the insurer in the case of death of the insured is perfectly tenable. The non-impleadment of the owner and insurer of the truck, which was involved in the accident is also irrelevant as far as the claimants were concerned. It was a case of composite negligence and it shall be the liberty of the claimants to file the case against any one of the joint tort feasors. This is even admitted fact that the driver of the stationary vehicle could not have been in any way negligent in parking the vehicle in the place where it was. On the other hand, the case was filed on the express averments that the accident had taken place on account of the negligent driving of the driver of the maruti car in which they were travelling. There was, therefore, no need at all to impleaded the other vehicle's owner and insurer as party. There was no attempt made even by the insurer FAO No.1008 of 2005 -5- to show at the trial that the truck driver was in any way responsible for the accident. The Tribunal also considered the case law relating to it to state that as far as the claimants were concerned, they were not pleading any contributory negligence and in a composite negligent situation the institution of case against the owner of one of the vehicles and the insurer was perfectly maintainable. 4. There was also yet another contention, which has been taken in the grounds of appeal by the insurer, namely, that the maruti car could carry only 3+1 passengers but the vehicle had been overloaded. The claim has arisen only at the instance of two persons, which falls within the limit. Even otherwise, unless it was shown that the accident itself was on account of overloading, it cannot avail to the insurer to plead exclusion of liability. The Tribunal had also referred to case law on the subject and found that the liability of the insurance company was clearly made out by the fact that there was a valid comprehensive cover to make possible the claim at the instance of passengers in the vehicle. All the cases stand for consideration only with regard to the assessment of compensation made by the Tribunal. 5. As regards the claim arising in FAO No.1008 and 1508 of 2005, the claim is for compensation for injuries sustained by Mohit Sharma to whom the compensation of Rs.2,54,036/- had been assessed. As per the evidence, Mohit Sharma was a boy aged 11 and he had suffered multiple injuries as a result of which he had suffered 45% permanent disability on the left of upper and lower limb. Bills had been produced for treatment at Vidyasagar Institute of Mental Health and Neurosciences for purchase of medicines and hospital treatment at FAO No.1008 of 2005 -6- Batra Hospital and later at Appollo Hospital. The Tribunal had rejected all the documentary evidence for the reason that the original bills had not been produced and even without the examination of authorized representatives of these hospitals, the mere production of photostat copies could not be acted upon. The Tribunal merely took the medical bills P9 to P181, which were original bills for purchase of medicines and provided for the compensation to the tune of Rs.84,036/- as recoverable. Although the Tribunal was not off the mark when it said that the original documents ought to have been produced here, here there was evidence for the fact that the claimant Mohit Sharma was undergoing large spells of hospitalization and treatment at Vidyasagar Institute of Mental Health and Neurosciences, New Delhi and evidence was that her husband was having his own factory running. It is not as if the original bills could have been submitted to an employer to claim any reimbursement. These documents ought to have been accepted in evidence by the only fact that long spells of hospitalization and treatment was spoken to by the respective doctors themselves. There was no need to look for any other evidence than the statement of the claimant on behalf of her minor son. I would, therefore, allow the claim for medical bills which were produced as Mark A to Mark G at Rs.4,58,234/- The Tribunal had granted Rs.80,000/- for permanent disability assessed at 40%. The issue of disability is examined in the context of claims like loss of amenities of life, shortening of life span etc. and loss of earning capacity. Towards consultation charges, the Tribunal had awarded Rs.20,000/-, which also I shall retain. For pain and suffering, the FAO No.1008 of 2005 -7- Tribunal has awarded Rs.50,000/-. The boy had undergone treatment for fairly long spells and the respective doctors who were attending on him have also been examined in this case. PW-1, Dr. Sharad Kumar Maheshwari had testified that he was called at Batra Hospital to assist the hospital for treatment and operation of Mohit Sharma on one occasion and later again in May or June. He had again attended the boy to assist the surgeons at the Appollo Hospital for laser treatment of trachea and still later he attended on him on 19.09.1999, 23.12.1999 and 15.06.2000 when he carried bronchoscopy for evaluation of post-operative treatment. PW-5, Dr. Alok Gupta, Neuro- surgeon of Vimhans Hospital, New Delhi spoke with reference to admission of the boy at the hospital and treatment as an inpatient from 27.06.1998 to 07.10.1998 for head injury suffered by him. It was in evidence that during the period of hospitalization tracheotomy had been done by Dr. Ajit Man Singh. PW-6. Dr. J. Maheshwari, Orthopaedic Surgeon gave evidence that he had treated the child for head injury and operation was done by him on 4.8.1999. He had given evidence and spoke about the discharge summary Ex.P13 that it could not be stated that whether he would be able to completely recover from his illness. There was also evidence to the effect that he was treated as an outdoor patient for six months for physiotherapy. PW-5, Dr. Alok Gupta also gave evidence to state that the injuries suffered by him were very serious and the treatment was also done for brain stem injury. Some of the descriptions of the treatment are reproduced as under:- FAO No.1008 of 2005 -8- 1. Ear Nose Throat & Eye Hospital Operation/treatment East Krishnanagar, Delhi Discharge Summary dated 05.07.1999 relating to Master Rohit Sharma. 2. Ear Nose Throat & Eye Hospital Operation/treatment East Krishnanagar, Delhi Discharge Summary dated 17.07.1999 relatingto Master Rohit Sharma. 3. Ear Nose Throat & Eye Hospital Operation/treatment East Krishnanagar, Delhi Discharge Summary dated 19.09.1999 relating to Master Rohit Sharma. 4. Ear Nose Throat & Eye Hospital Operation/treatment East Krishnanagar, Delhi Discharge Summary dated 23.12.1999 relating to Master Rohit Sharma. 5. Ear Nose Throat & Eye Hospital Operation/treatment East Krishnanagar, Delhi Discharge Summary dated 15.06.2000 relating to Master Rohit Sharma. 6. Delhi Institute of Trauma and Operation/treatment Orthopaedics, Sant Parmanand Hospital, Civil Lines, Delhi Discharge Summary dated 05.08.1999. 6. I am convinced that the injuries suffered by the Mohit Sharma were very serious. He had six months long hospitalization and he was required to be treated as an outpatient for six months. He must have suffered enormous pain and suffering during the entire period of hospitalization and must have lost whole of year at school. The discharge summary issued for the boy on 05.08.1999 by the Delhi Institute of Trauma and Orothopaedics records the state of the boy having a head injury 14 months earlier for which he has developed FAO No.1008 of 2005 -9- spasticity of all four limbs which has gradually decreased with time. He was said to be walking at present with an equinus gait. He was said to have bilateral equinus deformity of the ankle joints which were not correctible. For such extensive injuries and for continuous treatment over two years, I would accord to him a compensation of Rs.2.5 lacs against Rs.50,000/- assessed by the Tribunal. The Tribunal has awarded Rs.20,000/- towards special diet, which I will raise by another Rs.30,000/- to make it Rs.50,000/-. The Tribunal has not assessed the compensation for the serious impairment that the accident has caused by a defective gait which would seriously impair all the amenities of his life during his youth. For loss of amenities of life, I will add Rs.50,000/-. I would add another Rs.50,000/- for shortening of his life span by the serious head injuries and orthopaedic deformity that he has sustained. The assessment of disability at 40% has been spoken to by the doctor and even the discharge summary issued by the Department of Neurosurgery at Vidya Sagar Institute of Mental Health and Neuro Sciences and the Delhi Institute of Trauma and Orothopaedics states that he should require constant physiotherapy. The doctors have also noticed that there are constant secretions from his throat. There must have been all the serious disabilities which could have impaired his earning capacity in future. It is in evidence that the boy was still undergoing physiotherapy and on that account spent Rs.170/- per day. I would provide for another Rs.25,000/- towards physiotherapy charges. Since the mother herself was seriously injured, it was brought out in evidence that the grand parents were rendering enormous gratuitous help. It was estimated that the value FAO No.1008 of 2005 -10- of their gratuitous service would be not less than Rs.3,000/- per month. It was also contended that there has been an attendant on him and they have been spending Rs.100/- per day. I would provide for attendant charges at Rs.25,000/-. The claimant has suffered a 40% permanent disability, which I would estimate in at least 35% of loss of earning capacity. Having regard to the status of the family and the evidence that he was a very bright student and the difficulty that he must have gone through for continuation of his studies. If he had not the injuries, he should have got a decent job getting at least Rs.5,000/- per month as salary. I would, therefore, take the loss of earning power to be at least Rs.2,50,000/-. 7. In all, the total amount that will become payable would be Rs.11,78,234/-. The amount in excess over what has already been granted by the Tribunal shall bear interest @6% from the date of the petition till the date of payment. The appeals in FAO No.1008 and 1508 of 2005 are disposed of as above. 8. The claim in FAO Nos.1009 and 1511 of 2005 addresses the issue of injury suffered by Smt. Seema Sharma. The Tribunal has granted Rs.55,000/- that includes Rs.30,000/- for pain and suffering and for special diet and Rs.10,000/- for consultation charges. The Tribunal has completely rejected out of reckoning the medical bills produced from the Vidyasagar Institute of Mental Health and Neurosciences to the tune of Rs.1,00,635/- and bills produced from Holy Family Hospital to the tune of Rs.42,873/- and bills for Rs.800/-, Rs.1200/-, Rs.500/- and Rs.125/- issued by Imaging & Diagnostic Centre, Noida. All the bills have been rejected for want to proof. I FAO No.1008 of 2005 -11- would provide to the claimant the entire expenses for the very same reasons which I have found in favour of the connected case for Rohit Sharma. All the bills total to Rs.1,46,133/-. I would allow for the entire sum. The Tribunal has awarded special diet Rs.15,000/- which I will retain. The Tribunal has provided for consultation charges at Rs.10,000/-, which I shall also retain. The Tribunal has not provided anything for disability resulting from the injuries and the difficulties which she has expressed in carrying out her daily household chores. She has claimed that she has undergone physiotherapy incurring an expenditure of Rs.175/- per day. She has undertaken treatment at General Hospital Rourkela and undergone surgery at Vidyasagar Institute of Mental Health and Neurosciences, New Delhi, Holy Family Hospital at New Delhi and that still she was undergoing treatment. I will provide for an additional sum of Rs.25,000/- towards her transport expenses. I will provide for an additional amount of Rs.25,000/- for loss of amenities and loss of expectancy of life and shortening of her life span arising out of the very serious injury, which she has suffered. In all, the total amount payable would be Rs.2,21,133/- which I will round off to Rs.2,21,500/-. The amount in excess of what has already been awarded by the Tribunal shall bear interest @6% from the date of the petition till the date of payment. The appeals in FAO No.1009 and 1511 are disposed of as above. 9. As regards the claim for compensation for the death of the husband of the claimant, which is the subject of challenge in FAO Nos.1010 and 1510 of 2005, the Tribunal has granted a compensation of Rs.4,32,000/-. This has been determined taking into account the FAO No.1008 of 2005 -12- evidence of PW-8, the chartered accountant, who had testified that since the year 1993, he had been dealing with the income tax returns of the deceased Ramesh Sharma, who was the sole proprietor of Ramesh Engineers. The copies of tax assessments had been produced as Mark A-1 to Mark A-4. The evidence of his wife was that he was running business for over 15 years and used to earn Rs.8,000/- to Rs.9,000/- per month as profit. The income tax returns show that the profit that he was getting was ranging between Rs.63,000/- to Rs.70,000/- and the Tribunal, therefore, took the average monthly income to be not less than Rs.5400/-. The Tribunal took the contribution to the family at Rs.3600/- and took the annual contribution to Rs.43,200/-. Taking note of the fact that he was aged 36 years, the Tribunal adopted a multiplier of 10. Indeed, I would take the average monthly income to be Rs.6,000/-, provide for 1/3rd deduction for his own expense and take the contribution to the family at Rs.4,000/- per month. The annual dependency, I will assess at Rs.48,000/- and adopt a multiplier of 16. The total loss of dependence would come to Rs.7,68,000/-. I would add Rs.5,000/- towards of loss of consortium to the wife and another Rs.5,000/- towards loss of love and affection to the son and provide for the expense for loss to estate at Rs.5,000/- and Rs.2500/- for funeral expenses. In all the total amount that will become payable would be Rs.7,85,500/-. The amount in excess of what has already been awarded by the Tribunal shall bear interest @6% from the date of the petition till the date of payment. 10. Since the accident had taken place about more than 12 years, now I will provide for withdrawal of 75% of the amount and FAO No.1008 of 2005 -13- direct the retention of 25% that represents the share of both the widow and the child in bank deposits in five equal moieties, the first moiety for a period of one year, the second for a period of two years and so on upto five years for the last moiety. The amounts will become payable on the maturity of the respective deposits. 11. FAO Nos.1010 and 1510 of 2005 are disposed of as above. 12. As far as the claim by the mother for death of her child Anurag Sharma, who was aged about 7 years, which is subject matter of appeal in FAO No.1011 and 1509 of 2005, the Tribunal has awarded an overall compensation of Rs.1,00,000/-. Having regard to the fact that the family is an educated family where father himself was an education person and the boy could have also been brought up to a good status, I would provide for an additional amount of Rs.1,00,000/-, which will bear interest @6% from the date of the petition till the date of payment. 13. The appeals in FAO No.1010 and 1509 are disposed of as above. (K. KANNAN) JUDGE October 27, 2010 Pankaj*