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2003 DIGILAW 81 (JK)

National Insurance Co. Ltd. v. Gh. Mohd. Wani

2003-04-10

HAKIM IMTIYAZ HUSSAIN, S.N.JHA

body2003
Per Imtiyaz Hussain. J 1. This Letters Patent Appeal (LPA No. 1557 03) is directed against the judgment passed on 30-8-2003 by Learned Single Judge in CIA No. 101 of 2002 titled National Insurance Company v. Ghulam Mohammad Wani and others. 2. Shorn of unnecessary details, the facts relevant for the disposal of this appeal are that on 4.11.1999 one Sheeraz Ahmed Wani (herein after referred to as the deceased) was walking on the road near village Tukroo, Pulwama when a Matador bearing registration No. JK 13-1624, which was being driven by respondent Abdul Rashid Sofi rashly and negligently hit him as a result of which he received fatal injuries and succumbed to the same. 3. A claim petition under Motor Vehicles Act came to be filed by the parents of the deceased before Presiding Officer MACT (District Judge) Pulwama. The Tribunal framed as many as four issues in the case which were as under- 1. Whether on 04.11.1999 respondent No. 1, driver of offending vehicle No. JK 13/1624 was driving his vehicle in rash and negligent manner and at a very high speed and in the result knocked down deceased Sheeraz Ahmed Wani near Tukroo who was on correct side of road and caused his death on spot? OPP 2. In case issue no. 1 is proved in affirmative, for how much of compensation petitioners are entitled to and from whom such compensation is recoverable? OPP 3. Whether at the time of occurrence respondent No. 1 was in possession of valid driving license? OPR-1 4. Relief. On conclusion of the enquiry the Tribunal decided the issues in favour of the petitioners and awarded compensation of Rs. 4,00, -to them on account of death of the deceased. The Tribunal also granted 6% simple interest p.a from the date of filing of the petition till final till final realization and directed the National Insurance Company to make the payment within a period of two months. The Tribunal while arriving at this conclusion found that the age of the deceased, at the time of the accident was 22 years and his monthly income was Rs. 3,000/-. Out of this income 1/3rd was deducted as his personal expenses and an amount of Rs. 200/- was taken to be his dependency. The Tribunal while arriving at this conclusion found that the age of the deceased, at the time of the accident was 22 years and his monthly income was Rs. 3,000/-. Out of this income 1/3rd was deducted as his personal expenses and an amount of Rs. 200/- was taken to be his dependency. Age of the father of the deceased Gh.Mohd Wani was found to be 56 years and that of his mother Mst Muneera 47 years. The Tribunal applying multiplier of 15 found Rs.3,60,000 as the due amount to which were added Rs. 10,000/- as funeral expenses, Rs. 10,000/- on account of loss of love and affection and Rs. 20,000- on account of expectation of life. The Tribunal in this behalf observed as under:- " Keeping this in mind and the guidelines given in schedule II to Section 163 (A) M.V. Act the multiplier of fifteen can easily be applied in this case,therefore 15x2000x12=Rs.3,60,000/-. Besides this amount the petitioners are entitled to Rs. 10,000/- as funeral expenses, Rs. 10,000/ - on account of loss of love and affection and Rs. 20,000/-on account of expectation of life. The total amount to which the petitioners are entitled to as compensation comes to Rs. 04.00 lacs (Rupees four lacs) and accordingly the petitioners are held entitled to a compensation of rupess four lacs. This amount is to be paid by Res.No.3 National Insurance Company because they have admitted that the offending vehicle was under their Insurance Cover on the material date." 4. Aggrieved by the amount of compensation as fixed by the Tribunal, National Insurance Company filed an appeal before Single Bench of this Court which was heard and disposed of by the Ld. Single Judge on 30.8.2003. The Learned Judge upheld the amount of Rs. 3,60,000/- as the compensation for the fatal accident in question, as awarded by the Tribunal but found that there was no legal justification for awarding compensation of Rs. 10,000- and Rs. 20,000- under the head loss of love and affection and loss of expectation of life and inflated sum of Rs. 10,000-for funeral expenses. The Learned Judge, however, found that prescribed slab for funeral expenses was Rs. 2000/- only. The compensation amount was therefore, reduced from Rs. 4 lacs to Rs. 3,62,000/-. Learned Single Judge observed as under:- "Seen thus there is no legal justification for awarding compensation of Rs. 10,000-for funeral expenses. The Learned Judge, however, found that prescribed slab for funeral expenses was Rs. 2000/- only. The compensation amount was therefore, reduced from Rs. 4 lacs to Rs. 3,62,000/-. Learned Single Judge observed as under:- "Seen thus there is no legal justification for awarding compensation of Rs. 10,000/- and 20,000/- under the head loss of love and affection and loss of expectation of life and inflated sum of Rs. 10,000/- for funeral expenses the prescribed slab when for funeral expenses just Rs. 2000/-. The over all compensation is therefore, assessed as Rs. 3,62,000/-. The interest shall be paid as assessed and awarded by the Tribunal." 5. Another argument raised by the National Insurance Company before Ld. Single Judge was that the owner and driver of the vehicle are to be saddled with liability to pay the amount as the driver (respondent No. 1) is found by the Tribunal driving the offending vehicle on the material date without driving licence. Ld. Single Judge while rejecting this contention held that the invalidity of the driving licence cannot stand a bar to the claimants getting compensation from Insurance Company and the Company has right to recover the amount from the owner on account of breach of policy conditions of the vehicle being driven without a valid driving licence. Reliance was in this behalf placed on New India Insurance Company Shimla v. Kamla & Ora.(AIR 2001 SC 1419). 6. Not satisfied with the order of the learned Single Judge National Insurance Co. (hereinafter referred to as the appellant) has filed the present appeal again on the same grounds which had been raised before the Id. Single Judge, firstly that National Insurance Company was not liable to pay the compensation as the vehicle was being driven by the driver without a driving license, secondly that the compensation awarded was on higher side. 7, During arguments Id. Counsel for the appellant vehemently argued that the Tribunal as well as the Id. Single Judge has applied the multiplier of 15 in assessing the compensation while as 10 was the correct multiplier. In support he cited H.S. Ahmed Hussein .Irfan Ahmed & Anor. AIR 2002 SC 2483. According to the Id. 7, During arguments Id. Counsel for the appellant vehemently argued that the Tribunal as well as the Id. Single Judge has applied the multiplier of 15 in assessing the compensation while as 10 was the correct multiplier. In support he cited H.S. Ahmed Hussein .Irfan Ahmed & Anor. AIR 2002 SC 2483. According to the Id. Counsel while assessing the compensation due to a person who has died in an accident and left behind his parents only, the age of the parents and not of the victim is to be taken into consideration. Reference was also made to National Insurance Co. Ltd. v. Swaranlatalata Doss 1993 ACJ (II) 748. 8. Ld. Counsel for the respondents has not met the arguments of Id. Counsel for the appellants on merits but submitted that since the parents of the deceased have already taken the compensation amount it will not be just and proper to recover the same from them and that equity demands that the whole amount should now be allowed to remain with them as they might have already spent the same. Heard. Considered the matter. 9. Facts found established by the Tribunal and relied upon by the Ld. Single Judge like age of the deceased and his parents and earning capacity of the deceased, which form the basis to determine the compensation in accidental cases, are not in dispute. Ld. Counsel for the appellant has raised the only issue of correct multiplier, which is required to be applied in the facts and circumstances of the case. The Tribunal as well as the Ld. Single has applied a multiplier of 15 while as the counsel for the appellant, as said above contends that correct multiplier was of 10. 10. It is now well settled as has been held by the Apex Court in National Insurance Co. Ltd. v. MsSwaranlataDassl993(sup)(2)SCC 743 that appropriate method of assessment of compensation is the method of capitalization of net income choosing a multiplier appropriate to the age of deceased or the age of dependants whichever multiplier is lower. The selection of multiplier cannot always depend on the age of the deceased. While the dependants are the widow or children who are younger than the deceased, the multiplier can be as that of the age of the deceased but where the dependants are the parents, then the age of the younger of the parents will determine the multiplier. The selection of multiplier cannot always depend on the age of the deceased. While the dependants are the widow or children who are younger than the deceased, the multiplier can be as that of the age of the deceased but where the dependants are the parents, then the age of the younger of the parents will determine the multiplier. This view gets support from the principle applied by the Apex Court in Ahmed Hessian™s case (supra) where the Court took into consideration the age of the younger of the parents of the victims and applied the relevant multiplier to assess the compensation. Facts of the said case were almost similar to the present one. Two persons namely Rafiq and vazeer had died in a vehicular accident. Rafiqs age at the time of accident was 21 years and he left behind his parents, his father was of the age of 45 years while as the age of his mother was 40 years. Vazeer was of 22 years of age when the accident took place and like Rafiq he too left only his parents behind him out of whom father was 53 years and mother 45 years of age at the time of accident. The Tribunal by a common judgement found the income of the each of the victims to be Rs. 3000/- per month and awarded compensation to the tune of Rs. 3,49,000/- in favour of the parents of Rafiq and Rs. 3,13,000/- in favour of those of Vazeer together with the interest thereof at the rate of 6% p. a from the filing of the petition till realization. The matter went to the High Court where High Court found that the evidence in relation to income of the two victims was neither reliable nor satisfactory but found their income to be Rs. 18,000/- p.a. The High Court applied the multiplier of 13 and reduced the compensation awarded by the Tribunal to the Rs. 1,83,000/- in the case of Rafiq and Rs. 1,71,000/- in the case of Vazeer. The Supreme Court found that the High Court had taken the multiplier as 13 and 14 while is the proper multiplier was 15 & 16 respectively. 1,83,000/- in the case of Rafiq and Rs. 1,71,000/- in the case of Vazeer. The Supreme Court found that the High Court had taken the multiplier as 13 and 14 while is the proper multiplier was 15 & 16 respectively. the Apex Court in this regard observed:- "According to the II schedule, if the age is above 45 years but not exceeding 45 years, the multiplier applicable is 15 and if the age above 35 years but not exceeding 40 years the multiplier would be 16 but the High Court has taken multiplier as 13 &14 instead of 15 & 16 respectively. In the case of compensation of the parents of Vazeer, the multiplier 15 should have been adopted instead of 13 and the compensation should not have been reduced from 3,13,000/- to Rs. 1,71,000/- but the sum should have been reduced to Rs. 1,95,000/-. In the case of compensation the parents of Rafiq the correct multiplier should have been 16 and not 14 and the High Court was not justifying in reducing compensation fromRs. 3,49,000/- to Rs. 1,83,000/- which should have been reduced to Rs. 2,07,000/-. Thus, We hold the parents of Vazeer are entitled total compensation to the tune of Rs. 1,95,000/- and of Rafiq Rs. 2,07,000/-." 11 The Supreme Court thus took age of mothers, who were younger in age, in both the cases into consideration and applied the relevant multiplier as per schedule II. 12. In the present case out of the two parents mother namely Mst. Muneera is younger in age. Her age has been found to be 47 years. According to the II schedule if the age is above 45 years but not exceeding 50 years the multiplier would be 13.It is not known as to how multiplier of 15 has been applied in the present case as neither the Tribunal nor the Id. Single Judge have given reasons for the same. Multiplier of 15, as provided by schedule II, is to be applied where the age is above 40 years but not exceeding 45 years and neither the father nor the mother of the deceased in the present case fall within this range. 13. Applying the correct multiplier i.e 13 to the facts of the present case the compensation comes to Rs. 3,12,000/-. Thus both the Tribunal as well as the Id. 13. Applying the correct multiplier i.e 13 to the facts of the present case the compensation comes to Rs. 3,12,000/-. Thus both the Tribunal as well as the Id. Single Judge on applying the incorrect multiplier have not properly assessed the amount of compensation due to the parents of the deceased. 14. The second ground taken by the appellant in the memorandum of appeal regarding driving without a valid licence does not carry any substance. In view of the observations made by the Supreme Court in New India Insurance Company Shimla v. Kamla & Ora.(supra) we find that the Ld. Single Judge has rightly rejected it on the ground that the invalidity of the driving licence cannot stand a bar to the claimants getting compensation from Insurance Company. 15. In the result, we allow this appeal to the extent indicated and reduce the amount awarded from Rs. 3,60,000/- as ordered by the Id. Single Judge to Rs. 3,12,000/- and hold that parents of the deceased are entitled to total compensation to the tune of Rs. 3,12,000/- (plus 2000/- for funeral expenses as ordered by the Ld. Single Judge) only. Order regarding simple interest awarded by the Tribunal and upheld by the Id. Single Judge shall stand. Order accordingly.