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2008 DIGILAW 331 (JK)

National Insurance Co. Ltd. v. Ab. Majid Bhat

2008-09-03

MANSOOR AHMAD MIR

body2008
1. This appeal is directed against the award/judgment dated 6th of November, 2006 passed by Motor Accident Claims Tribunal, Srinagar, in claim petition titled Abdul Majid Bhat and others Vs. Abdul Rashid Dar and others, whereby and whereunder compensation to the tune of Rs. 13,95,000/- came to be granted in favour of the claimants and appellant-insurer came to be saddled with the liability. 2. Claimants have averred in claim petition that Manzoor Ahmad Bhat, son of claimants 1 and 5, husband of claimant No.2 and father of claimants 3 and 4 became the victim of a vehicular accident which was caused by driver, namely, Shahnawaz Ahmad Bhat while driving taxi bearing registration No.JK01A/4216 on 10th of August, l999 at Sangam, National Highway Srinagar. Claimants have claimed compensation of Rs. 20 lacs as per the break-up given in the claim petition. 3. Insurer-appellant filed written statement but respondents 1, 2 and 4 were set exparte. Following issues came to be framed: "1. Whether on 10-08-1999 respondent No. 2 Shahnawaz Ahmad Bhat was driving vehicle (Taxi) No.JK01A/4216 rashly and negligently at Sangum National High Way as a result of which one Mohd. Amin bhat was hit by the same and lost his life? O.P.P 2. In case issue No. 1 is proved in affirmative, to what amount of compensation the petitioners are entitled to, from whom and in what proportion? O.P.P 3. Whether the driver of the offending vehicle was not holding a valid driving licence and as such the Insurance Company cannot be saddled with the liability? O.P.R 3. 4. Relief." 4. Claimants examined Mohammad Maqbool Bhat, Gulzar Ahmad Bhat, Sayar Ahmad Lone and statement of Mst. Shakeela- claimant was also recorded. Appellant-insurer examined Mushtaq Shoda, Assistant Manager as its witness and also examined Shahnawaz Ahmad Bhat-driver. Issue No. 1: 5. All the witnesses of the claimants have deposed that driver, namely, Shahnawaz Ahmad Bhat, has driven the vehicle (taxi) bearing registration No.JK01A/4216 rashly and negligently at Sangam National Highway and hit the deceased Mohammad Amin Bhat who sustained injuries and succumbed to the injuries in SKIMS on 10th of August, 1999. There is no evidence in rebuttal, thus the claimants have proved issue No. 1 and the finding returned by the Tribunal is accordingly upheld. I deem it proper to return finding on issue No.3 before deciding issue No.2. Issue No.3: 6. There is no evidence in rebuttal, thus the claimants have proved issue No. 1 and the finding returned by the Tribunal is accordingly upheld. I deem it proper to return finding on issue No.3 before deciding issue No.2. Issue No.3: 6. The respondent No.3 had to discharge the onus but it failed to do so for the following reasons: The witnesses examined by the appellant-insurer nowhere indicate or prove that driver was not having valid licence. However, the learned counsel for the appellant argued that driver was examined by the insurer and he was asked to produce driving licence but he failed to do so. The driver was examined by the insurer-appellant and was cross examined by the claimants. Appellant-insurer has not made any request before the tribunal for deferring his statement in order to compel him to produce the driving licence. Thus, insurer-appellant has waived the right. However, record of criminal file titled State Vs. Shahnawaz Ahmad Bhat was called for perusal, it indicates that Driving licence came to be seized by Investigating Officer alongwith all other documents. All the documents came to be released except Driving Licence. 7. Insurer-appellant has not led any evidence to prove that driver was not having effective driving licence. Not to speak of proving that driving licence was not effective, it has failed to prove that owner/ insured has committed any willful breach in order to avoid its liability. In the given circumstances, appellant-insurer has failed to prove issue No.3. Accordingly, the finding returned by the tribunal is legally correct, needs no interference. Issue No. 2: 8. There is ample evidence on the file led by the claimants that deceased was businessman and was dealing with the carpets and was earning Rs. 10,000/- to Rs. 15,000/- per month. However, the tribunal has taken his average income as Rs. 12000/- per month and rightly so. The Tribunal has fallen in error while deducting personal expenses of the deceased and while assessing the loss dependency and compensation. One third of the income as pocket expenses of the deceased was to be deducted meaning thereby that claimants have lost source of dependency to the tune of Rs. 8000/- per month. It is beaten law of the land that multiplier method is the best method for assessing just compensation. One third of the income as pocket expenses of the deceased was to be deducted meaning thereby that claimants have lost source of dependency to the tune of Rs. 8000/- per month. It is beaten law of the land that multiplier method is the best method for assessing just compensation. Claimants have pleaded that age of the deceased was 30 years at the time of accident but medical report discloses the age of the deceased as 35 years. Keeping in view the age of the widow and the medical report, I hold that the age of the deceased was 35 years at the time of accident. 9. The Apex court in case titled United India Insurance Co. Ltd. Vs. Patricia Jean Mahajan, AIR 2002 SC 2607 has held that when the amount of multiplicand is on higher side, the multiplier be reduced and a lower multiplier be applied. Thus, the just and proper multiplier applicable in the instant ease is 13. Viewed thus, the claimants are entitled to Rs. 8000 x 12 x 13 = Rs, 12,48,000/-. The claimants are also entitled to Rs. 2000/-, Rs. 5000/- & Rs. 2500/- on account of funeral expenses, loss of consortium and loss of estate respectively. The rate of interest awarded by the tribunal is upheld. 10. Accordingly, the appeal is disposed of and the impugned award/ judgment is modified to the extent indicated above and claimants are held entitled to Rs. 12,57,500/- with 6% interest from the date of filing of the claim petition. Registry to send down the record along with a copy of this judgment.