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2008 DIGILAW 142 (JK)

New India Assurance Co. Ltd. v. Fayaz Ahmad

2008-04-24

MANSOOR AHMAD MIR

body2008
1. Appeals titled above are directed against the judgment and award dated 28th of September, 2006 passed by Presiding Officer, Motor Accident Claims Tribunal, Srinagar, whereby and whereunder twenty claim petitions filed under Section 166 of Motor Vehicle Act, for short the Act, by the victims of vehicular accident (claimants) came to be allowed and appellant--insurer came to be saddled with the liability. 2. It is necessary to notice the brief facts of the case herein; The victims of vehicular accident--claimants filed twenty claim petitions for grant of compensation on the grounds that offending vehicle (passenger-bus) bearing No.5258-JKC was being driven by its driver, Fayaz Ahmad, rashly and negligently on 3rd of November, 2001 on Srinagar--Bandipora Road at Saderkote Payeen and caused accident, twenty persons traveling in the said offending vehicle sustained injuries and succumbed to the injuries whereas 45 suffered injuries. Respondents filed reply/objections and following issues came to be framed: "1. Whether-on 03.11.2001 Fayaz Ahmad was plying passenger Bus JKC 5258 so rashly and negligently that at Suderkot while negotiating a curve he lost control of the vehicle as a result of which it fell into a deep gorge due to which some passengers lost their lives and petitioner alongwith others sustained severe bodily injuries, which rendered him/ her permanently disabled? (OPP) 2. Whether Mohammad Abdullah has already sold the offending vehicle to one Ab. Majid Dar (respondent) so he is not in any way to be saddled with any kind of liability? (OPR-2) 3. Whether due to non-joinder of necessary parties, the claim petition is not maintainable? (OPR-2) 4. Whether driver of the offending vehicle was not holding a valid driving license on the date of occurrence and as such the insurance company cannot be saddled with the liability? (OPR-3) 5. Whether the insured has also committed breach of other policy stipulations, as a result of which the insurer is not bound to indemnify the insured? (OPR-3) 6. Whether the vehicle was not insured with the respondent-insurance company at the time of accident and as such the insurance company cannot be held liable to indemnify the insured and to compensate the petitioner? (OPR-3) 7. Whether this tribunal has no jurisdiction to try and decide the present claim petition? (OPR-3). 8. In case issue No.1 is proved in affirmative to what amount of compensation the petitioner is entitled to and from whom? (OPP) 9. Relief." 3. (OPR-3) 7. Whether this tribunal has no jurisdiction to try and decide the present claim petition? (OPR-3). 8. In case issue No.1 is proved in affirmative to what amount of compensation the petitioner is entitled to and from whom? (OPP) 9. Relief." 3. I have gone through the claim petitions and the impugned award. There is no dispute about driving licence and the fact that the accident was outcome of rash and negligent driving of the offending vehicle by its driver, Fayaz Ahmad. Rather all these points are admitted. However, I have gone through the record of the tribunal, there is cogent evidence that driver, Fayaz Ahmad, has driven the offending vehicle rashly and negligently and caused the accident. 4. The insurer has neither proved that the owner has committed any willful breach nor that breach was the cause of accident. There is not an iota of evidence suggesting the fact that the owner has committed any breach which would absolve the insurer of the liability. Thus, tribunal has rightly saddled the insurer with liability. 5. The insurer--appellant has not led any evidence in order to prove issue Nos.2 to 7. The appellant has failed to discharge the onus. Not to speak of proof, learned counsel for the appellant has not advanced arguments on the said issues. 6. The question is whether just compensation came to be awarded? I am conscious that insurer cannot challenge the quantum but the question is whether multiplier has been rightly applied. It is the duty of the court to see whether multiplier has been rightly applied while keeping in view the age of the deceased and it is also the duty of the Court to see that public money is not being fritted away in any way. The awarding or enhancing the compensation should not be as a boon in disguise or booty. It is also to be seen that whether arithmetical calculation has been correctly made. 7. So I deem it proper to dwell on this point in all the appeals and cross appeals one by one. CIMA No.31/2007; 8. Deceased, Abdul Majid Baba, was working as Junior Assistant in the Education Department and was drawing Rs.5,855/-as per EXPW-I as pay. It is also to be seen that whether arithmetical calculation has been correctly made. 7. So I deem it proper to dwell on this point in all the appeals and cross appeals one by one. CIMA No.31/2007; 8. Deceased, Abdul Majid Baba, was working as Junior Assistant in the Education Department and was drawing Rs.5,855/-as per EXPW-I as pay. Keeping in view the ratio laid down by the Apex Court in various judgments read with the schedule appended to Motor Vehicles Act, the loss of dependency came to be rightly assessed at Rs.5000/- per month and the tribunal has rightly applied multiplier of 15. However, the tribunal has fallen in error by awarding Rs.15000/-, Rs.10,000/- and Rs.3000/- under the heads; loss of consortium, loss of love and affection and funeral expenses respectively. While as the claimants are only entitled to Rs.5000/- under the head loss of consortium and Rs.2000/- under the head funeral expenses and Rs.2500/- under the head loss of estate. CIMA No.42/2007; 9. Dr. Manzoor Ahmad Halwai, Associate Professor, Bone and Joint Hospital, Barzulla Srinagar, has proved the certificate PW/-1 issued by him 11.07.2002. He has deposed that claimant is physically handicapped due to stiffness of the left knee joint and is permanently disabled and is having 30% permanent disability and there are no chances of recovery. 10. There is cogent and unrebutted evidence on the file that she was earning Rs.5000/- per month and has spent 3/5 lacs on her treatment. 11. Rs.1.50 lakhs came to be awarded under the head permanent disability, Rs.50,000/- on account of pain and shock, Rs.50,000/- on account of loss of amenities of life and Rs.25,000/- on account of medical expenses. 12. I have gone through the record available on the file and I am of the considered view that tribunal has rightly assessed the compensation and just compensation has been granted in favour of the claimant. 13. Claimant has not preferred any cross appeal. Thus, appeal is dismissed. CIMA No.27/2007: 14. Deceased was minor of 14 years age. The deceased would have become an earning hand after 18 years of age and would have contracted marriage. It is but natural that he would have spend one third for his wife and children, one third for his parents and one third for his personal expenses. Thus, appeal is dismissed. CIMA No.27/2007: 14. Deceased was minor of 14 years age. The deceased would have become an earning hand after 18 years of age and would have contracted marriage. It is but natural that he would have spend one third for his wife and children, one third for his parents and one third for his personal expenses. Keeping in view the age of the deceased and Apex Court judgments and also the schedule appended to Motor Vehicles Act, the tribunal has rightly awarded the compensation. However, the funeral expenses awarded at Rs.3000/- by the tribunal is reduced to Rs.2000/-. The award is modified as indicated above. CIMA No.28/2007; 15. Deceased, Mohammad Ramzan Ganaie, was working as Carpet weaver. Keeping in view the facts and circumstances of the case, the loss of dependency came to be rightly assessed at Rs.4000/- per month. But the tribunal has fallen in error while applying multiplier 18 in the instant case. The appropriate multiplier applicable in the instant case is 17. The tribunal has also fallen in error by awarding Rs.15000/-, Rs. 15,000/- and Rs.30007-under the heads; loss of consortium, loss of love and affection and funeral expenses respectively, while as the claimants are only entitled to Rs.5000/- under the head loss of consortium and Rs.2000/- under the head funeral expenses and Rs.2500/- under the head loss of estate. In total the claimants are entitled to Rs.4000 x 12 x 17=816000+5000+2000+2500=8255007-The award is modified as indicated above. CIMA No.29/2007: 16. Deceased, Mst. Mukhti, was working as Artist in the trade of Embroidery. As per the record the age of the deceased at the time of her death was 50 years. The loss of dependency came to be rightly assessed at Rs.3000/- per month. But the tribunal has fallen in error while applying multiplier 13 in the instant case. The appropriate multiplier applicable in the instant case was 11. The tribunal has also fallen in error by awarding Rs.15000/-, and Rs.3000/- under the heads; loss of love and affection and funeral expenses respectively, while as the claimants are only entitled to Rs.5000/- under the head loss of consortium and Rs.2000/- under the head funeral expenses and Rs.2500/- under the head loss of estate. In total the claimants are entitled to Rs.3000 x 12 x 11=3,96,000+3000+2000=403500/- The award is modified as indicated above. CIMA No.43/2007; 17. Deceased, Habibullah Najar, was working as Carpenter. In total the claimants are entitled to Rs.3000 x 12 x 11=3,96,000+3000+2000=403500/- The award is modified as indicated above. CIMA No.43/2007; 17. Deceased, Habibullah Najar, was working as Carpenter. The loss of dependency came to be rightly assessed at Rs.4000/- per month and the tribunal has rightly applied multiplier of 11. However, the tribunal has fallen in error by awarding Rs.15000/-, and Rs.3000/- under the heads; loss of love and affection and funeral expenses respectively. While as the claimants are only entitled to Rs.2000/- under the head funeral expenses and Rs.2500/-under the head loss of estate. In total the claimants are entitled to Rs.4000 x 12 x 11=5,28,000+2000+2500=5,32,500/- The award is modified as indicated above. CIMA No.30/2007: 18. Deceased, Ghulam Mohi-ud-Din Lone, was working as Constable in J&K Armed Police and was drawing Rs.6465/- as salary. The Apex court in a case, entitled United India Insurance Co. Ltd., Vs. Patricia Jean Mahajan, AIR 2002 SC 2607 has held that when the amount of multiplicant is high, the multiplier be reduced and a lower/ lesser multiplier may be applied. Thus, I am of the considered view that multiplier came to be rightly applied as 15 and loss of dependency has also been rightly assessed at Rs.7000/-. However, the tribunal has fallen in error by awarding Rs.15000/-, Rs. 10,000/- and Rs.3000/- under the heads; loss of consortium, loss of love and affection and funeral expenses respectively. While as the claimants are only entitled to Rs.5000/-under the head loss of consortium and Rs.2000/- under the head funeral expenses and claimants are not entitled to any amount under the head loss of love and affection. However, the claimants are entitled to Rs.2500/- under the head loss of estate. In total the claimants are entitled to Rs.7000xl2xl5=Rs.l2,60,000 + Rs.5000 -Rs.2000+Rs.2500=Rs. 12,69,500/- The award is modified as indicated above. CIMA No.32/2007; 19. Deceased, Mohammad Ramzan Ganai, was working as Teacher in the Education Department and was drawing Rs.88327-as per EXPW-I as pay. The Apex court in a case, entitled United India Insurance Co. Ltd., Vs. Patricia Jean Mahajan, AIR 2002 SC 2607 has held that when the amount of multiplicand is high, the multiplier be reduced and a lower/ lesser multiplier may be applied. Thus, the multiplier 8 came to be rightly applied and loss of dependency also came to be rightly assessed at Rs. 10,000/-. Ltd., Vs. Patricia Jean Mahajan, AIR 2002 SC 2607 has held that when the amount of multiplicand is high, the multiplier be reduced and a lower/ lesser multiplier may be applied. Thus, the multiplier 8 came to be rightly applied and loss of dependency also came to be rightly assessed at Rs. 10,000/-. The tribunal has fallen in error by awarding Rs.15000/-, Rs.25,000/- and Rs.3000/- under the heads; loss of consortium, loss of love and affection and funeral expenses respectively. While as the claimants are only entitled to Rs.5000/- under the head loss of consortium and Rs.2000/- under the head funeral expenses and Rs.2500/- under the head loss of estate. In total the claimants are entitled to Rs.lOOOOxl2x8=Rs.9,60,000+5000+2000+2500=Rs.9,69,5000/-. The award is modified as indicated above. CIMA No.33/2007: 20. Deceased, Mohammad Dilawar Lone, was working as Teacher in the Education Department and was drawing Rs.7433/-as per EXPW-I as pay. The Apex court in a case, entitled United India Insurance Co. Ltd., Vs. Patricia Jean Mahajan, AIR 2002 SC 2607 has held that when the amount of multiplicand is high, the multiplier be reduced and a lower/ lesser multiplier may be applied. Thus, the loss of dependency came to be rightly assessed at Rs.8,000/- and the tribunal has rightly applied multiplier 12 in the instant case. The tribunal has fallen in error by awarding Rs.15000/-, Rs.25,000/- and Rs.3000/- under the heads; loss of consortium, loss of love and affection and funeral expenses respectively. While as the claimants are only entitled to Rs.5000/-under the head loss of consortium and Rs.2000/- under the head funeral expenses and Rs.2500/- under the head loss of estate. The claimants are not entitled to any compensation under the head loss of love and affection. In total the claimants are entitled to Rs.8000xl2xl2=Rs.ll,52,000+5000+2000+2500=Rs.l1,61,5000. The award is modified as indicated above. CIMA No.34/2007: 21. Deceased, Ashiq Hussain Shah, was working as Constable in J&K Armed Police was drawing Rs.8592/- as per EXPW-I as pay. The Apex court in a case, entitled United India Insurance Co. Ltd., Vs. Patricia Jean Mahajan, AIR 2002 SC 2607 has held that when the amount of multiplicand is high, the multiplier be reduced and a lower/ lesser multiplier may be applied. Thus, the loss of dependency came to be rightly assessed at Rs. 10,000/- and the multiplier 11 has also been rightly applied. Ltd., Vs. Patricia Jean Mahajan, AIR 2002 SC 2607 has held that when the amount of multiplicand is high, the multiplier be reduced and a lower/ lesser multiplier may be applied. Thus, the loss of dependency came to be rightly assessed at Rs. 10,000/- and the multiplier 11 has also been rightly applied. The tribunal has fallen in error by awarding Rs.15000/-, Rs.25,000/- and Rs.3000/- under the heads; loss of consortium, loss of love and affection and funeral expenses respectively. While as the claimants are only entitled to Rs.5000/- under the head loss of consortium and Rs.2000/- under the head funeral expenses and Rs.2500/- under the head loss of estate. The claimants are not entitled to any compensation under the head loss of love and affection. In total the claimants are entitled to Rs.1OOOOxl2xll=Rs.l3,20,000+5000+2000+2500=Rs.l3,29,500/- The award is modified as indicated above. CIMA No.35/2007: 22. Deceased, Abdul Kabir Lone, was working as Line Man in the Telecom Department and was drawing Rs.69447- as per P-I as pay. In the claim petition the age of the deceased has been shown 48 years while as on the basis of post mortem report the age of the deceased was 55 years. The Accounts Officer, BSNL has given the date of birth of the deceased as 02.03.1960. Thus was 41 years of age at the time of accident. In the given circumstances the tribunal has fallen in error by applying multiplier of 15 while as the appropriate multiplier applicable in the instant case is 13. The Apex court in a case, entitled United India Insurance Co. Ltd., Vs. Patricia Jean Mahajan, AIR 2002 SC 2607 has held that when the amount of multiplicand is high, the multiplier be reduced and a lower/ lesser multiplier may be applied. Thus, the loss of dependency came to be rightly assessed at Rs.7,000/- but the multiplier applicable was 13 instead of 15, as stated above. The tribunal has fallen in error by awarding Rs.15000/-, Rs.5,000/- and Rs.3000/- under the heads; loss of consortium, loss of love and affection and funeral expenses respectively. While as the claimants are only entitled to Rs.5000/- under the head loss of consortium and Rs.2000/- under the head funeral expenses and Rs.2500/- under the head loss of estate. The claimants are not entitled to any compensation under the head loss of love and affection. In total the claimants are entitled to Rs.7000xl2xl3= Rs. While as the claimants are only entitled to Rs.5000/- under the head loss of consortium and Rs.2000/- under the head funeral expenses and Rs.2500/- under the head loss of estate. The claimants are not entitled to any compensation under the head loss of love and affection. In total the claimants are entitled to Rs.7000xl2xl3= Rs. 1092000+5000+2000 +2500=11,01,500/- The award is modified as indicated above. CIMA No.36/2007; 23. Deceased, Ghulam Mohi-ud-Din Lone, was working as Live Stock Assistant in SKAUST and was drawing Rs.11650/- as per P-1, as pay. Keeping in view the ratio laid down by the Apex Court in various judgments read with the schedule appended to Motor Vehicles Act, the loss of dependency came to be rightly assessed at Rs.45,000/- and the multiplier of 11 has also been rightly applied. The tribunal has fallen in error by awarding Rs.15000/-, Rs.25,000/- and Rs.3000/- under the heads; loss of consortium, loss of love and affection and funeral expenses respectively. While as the claimants are only entitled to Rs.5000/- under the head loss of consortium and Rs.2000/- under the head funeral expenses and Rs.2500/- under the head loss of estate. The claimants are not entitled to any compensation under the head loss of love and affection. In total the claimants are entitled to Rs.4500xl2xl l=Rs.5,94,000+5000+2000+ 2500=Rs.6,03,500/-. The award is modified as indicated above. CIMA No.37/2007; 24. Deceased, Mst. Zoona, was house wife. Keeping in view the ratio laid down by the Apex Court in various judgments read with the schedule appended to Motor Vehicles Act, the loss of dependency came to be rightly assessed at Rs.2,000/- and the multiplier of 7 has also been rightly applied. The tribunal has wrongly awarded an amount of Rs.3000/- towards the funeral expenses while as the claimants are entitled to Rs.2000/- only under the head funeral expenses. The claimants are also held entitled to Rs.2500/- under the head loss of estate. In total the claimants are entitled to 2000x12x7=Rs.l,68,000 + 2000 + 2500=Rs. 1,72,500/- The award is modified as indicated above. CIMA No.38/2007; 25. Deceased, Mst. Zareefa, was house wife. Keeping in view the ratio laid down by the Apex Court in various judgments read with the schedule appended to Motor Vehicles Act, the loss of dependency came to be rightly assessed at Rs.4,000/- and the multiplier of 17 has also been rightly applied. The tribunal has fallen in error by awarding Rs.15000/-, Rs. Deceased, Mst. Zareefa, was house wife. Keeping in view the ratio laid down by the Apex Court in various judgments read with the schedule appended to Motor Vehicles Act, the loss of dependency came to be rightly assessed at Rs.4,000/- and the multiplier of 17 has also been rightly applied. The tribunal has fallen in error by awarding Rs.15000/-, Rs. 15,000/- and Rs.3000/-under the heads; loss of consortium, loss of love and affection and funeral expenses respectively. While as the claimants are only entitled to Rs.5000/- under the head loss of consortium and Rs.2000/- under the head funeral expenses and to Rs.2500/- under the head loss of estate. The claimants are not entitled to any compensation under the head loss of love and affection. In total the claimants are entitled to Rs.4000 x l2 x l7=Rs.8,16,000 + 5000 + 2000 + 2500=Rs.8,25,500/-. The award is modified as indicated above. CIMA No.39/2007; 26. Deceased, Mst. Fazi, was house wife. Keeping in view the ratio laid down by the Apex Court in various judgments read with the schedule appended to Motor Vehicles Act, the loss of dependency came to be rightly assessed at Rs.3,000/- and the multiplier of 16 has also been rightly applied. The tribunal has fallen in error by awarding Rs.15000/-, Rs.25,000/- and Rs.3000/-under the heads; loss of consortium, loss of love and affection and funeral expenses respectively. While as the claimants are only entitled to Rs.5000/- under the head loss of consortium and Rs.2000/- under the head funeral expenses and Rs.2500/- under the head loss of estate. The claimants are not entitled to any compensation under the head loss of love and affection. In total the claimants are entitled to Rs.3000xl2xl6=Rs.5,76,000 + 5000 + 2000 + 2500=Rs.5,85,5000/-. The award is modified as indicated above. CIMA No.40/2007; 27. Deceased, Mst. Khatija, was house wife and her age has been rightly taken as 55. Keeping in view the ratio laid down by the Apex Court in various judgments read with the schedule appended to Motor Vehicles Act, the loss of dependency came to be rightly assessed at Rs.3,000/- and the multiplier of 11 has also been rightly applied. The tribunal has fallen in error by awarding Rs.15000/-, Rs.15,000/- and Rs.3000/- under the heads; loss of consortium, loss of love and affection and funeral expenses respectively. The tribunal has fallen in error by awarding Rs.15000/-, Rs.15,000/- and Rs.3000/- under the heads; loss of consortium, loss of love and affection and funeral expenses respectively. While as the claimants are only entitled to Rs.5000/- under the head loss of consortium and Rs.2000/- under the head funeral expenses and Rs.2500/- under the head loss of estate. The claimants are not entitled to any compensation under the head loss of love and affection. In total the claimants are entitled to Rs.3,000 x l2 x 11= Rs.3,96,000 + 5000 + 2000 + 2500=4,05,500/-. The award is modified as indicated above. CIMA No.41/2007; 28. Deceased, Mst. Jana, was house wife. Keeping in view the ratio laid down by the Apex Court in various judgments read with the schedule appended to Motor Vehicles Act, the loss of dependency came to be rightly assessed at Rs.3,000/- and the multiplier of 8 has also been rightly applied. The tribunal has fallen in error by awarding Rs.10,000/-, and Rs.3000/- under the heads; loss of love and affection and funeral expenses respectively. While as the claimants are only entitled to Rs.2000/- under the head funeral expenses and to Rs.2500/- under the head loss of estate. The claimants are not entitled to any compensation under the head loss of love and affection. In total the claimants are entitled to Rs.3000xl2x8=Rs.2,88,000 + 2000 + 2500=Rs.2,92,500/-. The award is modified as indicated above. CIMA No.44/2007; 29. Deceased, Javed Ahmad Khan, was minor of 11 years age. The deceased would have become an earning hand after 18 years of age and would have to contract marriage. It is but natural that he would have been spending one third for his wife and children, one third for his parents and one third for his personal expenses. Keeping in view the age of the deceased and Apex Court judgments and also the schedule appended to Motor Vehicles Act, the tribunal has rightly awarded the compensation. However, the funeral expenses awarded at Rs.3000/- by the tribunal is reduced to Rs.2000/- and claimants are also held entitled to Rs.2500/- under the head loss of estate. The award is modified as indicated above. CIMA No.45/2007; 30. Deceased, Tasleema, was minor of 7/8 years age. The deceased would have become an earning hand after 18 years of age and would have contracted marriage. The award is modified as indicated above. CIMA No.45/2007; 30. Deceased, Tasleema, was minor of 7/8 years age. The deceased would have become an earning hand after 18 years of age and would have contracted marriage. Keeping in view the age of the deceased and Apex Court judgments and also the schedule appended to Motor Vehicles Act, the tribunal has rightly awarded the compensation. However, the funeral expenses awarded at Rs.3000/- by the tribunal is reduced to Rs.2000/- and the claimants are also held entitled to Rs.2500/- under the head loss of estate. Award is modified as indicated above. CIMA No.46/2007; 31. Deceased, Afreen, was minor of 6 years age. The deceased would have become an earning hand after 18 years of age and would have to contract marriage. Keeping in view the age of the deceased and Apex Court judgments and also the schedule appended to Motor Vehicles Act, the tribunal has rightly awarded the compensation. However, the funeral expenses awarded at Rs.3000/- by the tribunal is reduced to Rs.2000/- and claimants are also held entitled to Rs.2500/- under the head loss of estate. Award is modified as indicated above. No ground for enhancing the compensation is made out. Accordingly, all the cross appeals are dismissed. Interest at the rate of 6% from the date of institution of claim petition(s). In view of the above, all the appeals are disposed of as indicated above and cross appeals are dismissed. Registry to place copy of this judgment on each appeal file. Send down the record along with a copy of this judgment.