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2008 DIGILAW 133 (JK)

United India Insurance Co. Ltd. v. Barkat Bibi

2008-04-11

MANSOOR AHMAD MIR

body2008
The vehicular accident gave birth to nine claim petitions, came to be filed before the learned Motor Accident Claims Tribunal, Jammu (hereinafter for short referred to as `Tribunal) and came to be allowed vide judgment and award dated 14.01.2006 (hereinafter for short referred to as `impugned award). 2. The Insurer-appellant has challenged the impugned award by the medium of the appeals in hand, so far it governs the Claim Petition No.442 titled as Barkat Bibi and others Vs. Karan Singh and others and Claim Petition No.443 titled as Saleema Bibi and others Vs. Karan Singh and others. Brief facts of the case. 3. The claimants-respondents 1 to 4 in CIMA No.132/2006 and claimants-respondents 1 to 9 in CIMA No. 134/2006 have averred in their claim petitions that the driver, namely, Karan Singh was driving the offending vehicle (Truck) bearing registration No.JK02J/9415 rashly and negligently on 5th July, 2000 near Barnai Kanda and hit Mohd Arshad, Manzoor Hussain, Mohd Ashraf, Abdul Nabi, Joginder Kumar, Mohammad Sadiq, Mohammad Irshad who sustained grievous injuries and two injured, namely, Mohd Shafi and Mohd Alam succumbed to the injuries. 4. Barkat Bibi and others are the legal representatives/dependents of deceased Mohd Shafi whereas Saleema Bibi and others are the legal representatives/dependents of deceased Mohd Alam. 5. The claimants-Barkat Bibi and others have averred in the claim petition that Mohd Shafi was of 40 years of age at the time of accident and was having Dairy Form, selling fodder and rearing buffaloes thereby was earning Rs.24/25 thousands per month and they were dependents upon him. They have lost the source of dependency and claimed compensation to the tune of Rs.38,10,000/- as averred in the claim petition. 6. The claimants-Saleema Bibi and others have pleaded that deceased Mohd Alam was of 38 years of age at the time of accident. He was a Contractor by profession and was having milk dairy and he was earning Rs.25000/- per month. They have lost the source of dependency and have no source of income and claimed compensation to the tune of Rs.33,20,000/-. 7. The driver, owner and insurer-appellant resisted the claim petition on various grounds. The following issues came to be framed: "1. He was a Contractor by profession and was having milk dairy and he was earning Rs.25000/- per month. They have lost the source of dependency and have no source of income and claimed compensation to the tune of Rs.33,20,000/-. 7. The driver, owner and insurer-appellant resisted the claim petition on various grounds. The following issues came to be framed: "1. Whether an accident took place on 05.07.2000 near Barnai due to rash and negligent driving of the offending vehicle No.JK02J/9415 by respondent No. 1 in which petitioners Mohd Arshad, Manzoor Hussain, Abdul Nabi, Mohd Arshad, Joginder Kumar, Mohd Sadiq, Mohd Irshad sustained grevious injuries and the deceased Mohd Shafi and Mohd Alam sustained fatal injuries ? OPP. 2. If issue No.1 is proved in affirmative to how much amount of compensation the petitioners are entitled to in these claim petitions. ? OPP 3. Whether the offending vehicle was being driven by the respondent No.1 without valid driving licence? OPR-3 4. Whether the offending vehicle was being driven by the respondent No.1 without route permit and fitness certificate ? OPR-3. 5. Relief. O.P. Parties." The claimants besides themselves examined the witnesses in support of their cases/claims. The driver, owner and insurer-appellant have not led any evidence in rebuttal. Thus, the evidence of all the claimants remained un-rebutted. 8. The appellant-insurer has invoked the jurisdiction of the learned Tribunal in terms of Section 170 of the Motor Vehicles Act (hereinafter for short referred to as `Act) for grant of permission to contest the claim petition on all the grounds as available to the owner (insured) and driver and came to be granted by the learned Tribunal vide order dated 10th June, 2002. But despite seeking permission the insurer-appellant has not led any evidence in rebuttal. 9. Mr. R.P.Jamwal, learned counsel for the insurer-appellant argued that the compensation awarded is excessive and confined his arguments only to that extent. He has not questioned the impugned award so far it relates to the saddling the insurer-appellant with liability and rightly so, far the reasons that the insurer-appellant has not discharged the onus in terms of the mandate of Section 149 of the Act. 10. The insurer-appellant has averred in the objections that the driver was not having the valid licence and the vehicle was being driven without route permit and fitness certificate. After noticing the objections of the insurer-appellant, the issue Nos. 10. The insurer-appellant has averred in the objections that the driver was not having the valid licence and the vehicle was being driven without route permit and fitness certificate. After noticing the objections of the insurer-appellant, the issue Nos. 3 and 4 came to be framed and onus was on it but it has not led any evidence and thereby has failed to discharge the onus. Thus, the finding returned by the learned Tribunal on issue Nos. 3 and 4 merits to be upheld and needs no interference. 11. If Insurer-appellant would have discharged the onus and proved issues 3 and 4, even then it could not have been absolved from its liability for the simple reasons that it has to plead and prove that the owner has committed willful breach in terms of the mandate of Section 147 read with Section 149 of the Act. And it has also to plead and prove that the owner was conscious about the breach. Thus, in the given circumstances, the learned Tribunal has rightly saddled the insurer-appellant with liability. 12. There is nothing on the file in rebuttal to the evidence led by the claimants. I have gone through the record and I am of the considered view that the claimants have proved by leading oral as well as documentary evidence that the driver, namely, Karan Singh has driven the offending vehicle (Truck) bearing registration No.JK02J/9415 rashly and negligently on 5th July, 2000 near Barnai Kanda and caused accident. The nine persons including the deceased sustained injuries and deceased Mohd Shafi and Mohd Alam succumbed to the injuries. Thus, the finding returned on issue No.1 is also upheld. 13. The sole and core question involved in these appeals is whether the compensation came to be rightly awarded. It is beaten law of the land that the Insurer cannot question the quantum of compensation but it has sought permission as discussed above and is within its right to question the same. 14. Admittedly, the age of the deceased Mohd Shafi and Mohd Alam was 40 and 38 years respectively. The learned Tribunal vide impugned award dated 14.01.2006 assessed and held the income of Mohd Shafi and Mohd Alam as Rs.4500/- per month each. Learned counsel for the Insurer-appellant urged that without any proof, the income of the deceased was assessed as Rs.4500/- per month each at relevant point of time. The learned Tribunal vide impugned award dated 14.01.2006 assessed and held the income of Mohd Shafi and Mohd Alam as Rs.4500/- per month each. Learned counsel for the Insurer-appellant urged that without any proof, the income of the deceased was assessed as Rs.4500/- per month each at relevant point of time. On questioning, he stated that while assessing guess work, the income of the deceased could be assessed at Rs.4000/- per month . Mr. Saini, learned counsel for the claimants stated that he has no objection if income of the deceased is taken as Rs.4000/- per month each instead of Rs.4500/- per month each. 15. I have gone through the record, there was no definite evidence on income of the deceased. But while exercising the guess work, it can safely be held that the deceased would have been at least labourer(s) and could have earned rupees not less than Rs.4000/- per month. Thus, I deem it proper to hold that while exercising the guess work, the income of the deceased would have been at Rs.4000/- per month. 16. Learned counsel for the appellant also argued that the quantum of compensation differs in both cases in terms of the impugned award despite the fact that the income of the deceased was taken Rs.4500/- each. While elaborating the argument, he stated that multiplier method be applied for assessing the compensation. Mr. Saini, learned counsel for the claimants stated that he has no objection to the said proposition. It is beaten law of the land that multiplier method is a best method for assessing the compensation. In the given circumstances, I deem it proper to apply the multiplier method for assessing the compensation. CIMA No.132/2006 United India Insurance Co.Ltd. Vs. Barkat Bibi and others. 17. The income of the deceased assessed hereinabove is Rs.4000/- per month. 1/3rd of the income is to be deducted as pocket expenses of the deceased, thus, the claimants have lost source of dependency to the tune of Rs.2700/- per month. 18. The age of deceased as pleaded and proved is 40 years and is also not disputed. Keeping in view the age of deceased, claimants and the 2nd Schedule appended to Motor Vehicles Act, 1988, the multiplier of 15 would be just and proper multiplier applicable to the instant case. 19. 18. The age of deceased as pleaded and proved is 40 years and is also not disputed. Keeping in view the age of deceased, claimants and the 2nd Schedule appended to Motor Vehicles Act, 1988, the multiplier of 15 would be just and proper multiplier applicable to the instant case. 19. Thus, the claimants are entitled to Rs.2700/-x 12 x15 = Rs.4,86,000/- and also entitled to Rs.2,000/-, Rs.2500/- and Rs.5000/- under the heads-Funeral expenses, loss of estate and loss of consortium respectively. In total, the claimants are entitled to Rs.4,95,500/- with interest at the rate of 6% per annum from the date of claim petition till its final realization. CIMA No.134/2006 United India Insurance Co.Ltd. Vs. Saleema Bibi and others. 20. The income of the deceased assessed hereinabove is Rs.4000/- per month. 1/3rd of the income is to be deducted as pocket expenses of the deceased , thus, the claimants have lost source of dependency to the tune of Rs.2700/- per month. 21. The age of deceased as pleaded and proved is 38 years and is also not disputed. Keeping in view the age of deceased, claimants and the 2nd Schedule appended to Motor Vehicles Act, 1988, the multiplier of 16 would be just and proper multiplier applicable to the instant case. Thus, the claimants are entitled to Rs.2700/-x 12 x16 = Rs.5,18,000/- and also entitled to Rs.2,000/-, Rs.2500/- and Rs.5000/- under the heads-Funeral expenses, loss of estate and loss of consortium respectively. In total, the claimants are entitled to Rs.5,27,500/- with interest at the rate of 6% per annum from the date of claim petition till its final realization. 22. In view of the above, the impugned award dated 14.01.2006 is modified as indicated above and the appeals are, accordingly, allowed. Send down the record along with copy of the order.