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2008 DIGILAW 498 (JK)

National Insurance Co. Ltd. v. Zeba

2008-12-18

Mansoor Ahmad Mir

body2008
1. This appeal is directed against the judgment and award dated 8-8-2006 passed by Motor Accidents Claims Tribunal, Srinagar in claim petition titled Mst. Zeba and others Vs. Ravlob Zang Angchok and others, allowing the claim petition and an amount of Rs. 11,88,000/- with 9% interest from the date of the claim petiton till its final realization came to be granted in favour of the respondents 1 to 6 and against the insurer appellant, insured owner of the vehicle and driver (respondents 7 and 8). 2. The brief facts of the case are that the victims of the vehicular accident respondents 1 to 6 filed a claim petition before the Motor Accidents Claims Tribunal, Srinagar, for grant of compensation to the tune of Rs. 31,16,000/- on the ground that their bread earner namely Abdul Razak Thokar, deceased, became victim of vehicular accident on 8-2-2000 at about 4.30 p.m. near Nurla Nundray Furkay Thung National Highway, which was caused by respondent No. 8 namely Tsering Tashi, driver while driving the offending vehicle, Minibus bearing Registration No. 2833/JK01-A rashly and negligently. The deceased was traveling in the said vehicle as a passenger. The respondent No. 8 was driving the offending vehicle rashly and negligently as a result of which, it fell into a deep Nallah, which resulted in the death of deceased on spot. The deceased was a Government employee and was working as Assistant Sub-Inspector in Police Telecommunication department, Kashmir Range and was receiving Rs. 9359/- as pay per month. 3. The respondents have filed written statement. Whereas respondents 7 and 8 denied any accident having taken place, the appellant expressed ignorance about the accident, but admitted that the offending vehicle was insured with them. On the pleadings of the parties, following issues came to be framed: 1. Whether on 8-2-2000, respondent No. 2 Charung Lushi was plying Minibus No. 2833/JK01A rashly and negligently as a result of which, near Nurla Mundray Furkay Thung Highway, he lost control of the same and it fell into deep gorge which caused the death of Abdul Razak Thakur, ASI who was traveling in the said vehicle? OPP. 2. In case issue No. 1 is proved affirmative, to what amount of compensation, the petitioners are entitled to, from whom and in what proportion? OPP. 3. OPP. 2. In case issue No. 1 is proved affirmative, to what amount of compensation, the petitioners are entitled to, from whom and in what proportion? OPP. 3. Whether the driver of the offending vehicle was not holding a valid driving license and as such the Insurance Company can not be saddled with the liability? OPR3. 4. Claimants-respondents 1 to 6 examined Abdul Rahman Dar, Abdul Hamid Thakur, Abdul Samad and Chamba Samastan S.I, SHO Police Station Nobria Investigating Officer as witnesses in support of their claim. Respondents 1 and 2 after filing their written statement have chosen to remain absent and were set exparte vide order dated 10-3-2003. The Insurer appellant examined one witness namely Mushtaq Ahmad, Assistant of the Company and have also examined one Shri Jawahir Lal, Junior Assistant DTO Mansa through commission. 5. The witnesses examined by the claimants have in one voice deposed that deceased Abdul Razak Thakur who was working as ASI in Police Telecommunication department, was traveling in the offending vehicle and lost his life due to the accident which was caused by the driver respondent No. 8 while driving the offending vehicle rashly and negligently and the vehicle fell into a deep nallah near Nurla Mundray Furkay Thung Highway and deceased succumbed to the injuries on spot. The deceased was 42 years of age at the time of accident and was drawing Rs. 9,359/- as monthly salary. The Last pay Certificate Exp-W on the file.. The evidence of the petitioners have remained un-rebutted on all counts. 6. The witness examined by Insurer appellant has proved that the license of the driver respondent No. 8 was fake. 7. The claimants have proved by leading cogent evidence that the driver respondent No. 8 has driven the offending vehicle Minibus rashly and negligently near Nurla Mundray Furkay Thung Highway and lost control of the said vehicle, as a result of which it fell into a deep nallah and caused death of one passenger namely Abdul Razak Thakur, ASI on spot. The insurer, driver and the owner have not led any evidence in rebuttal. In the given circumstances, the finding returned by the learned Tribunal merits to be upheld. Accordingly issue No. 1 is decided in favour of the respondents 1 to 6 and against the insurer appellant and respondents 7 and 8 insured owner and driver. 8. The insurer, driver and the owner have not led any evidence in rebuttal. In the given circumstances, the finding returned by the learned Tribunal merits to be upheld. Accordingly issue No. 1 is decided in favour of the respondents 1 to 6 and against the insurer appellant and respondents 7 and 8 insured owner and driver. 8. Admittedly the deceased was a Government employee and was working as ASI in Police Telecommunication Department at the time of death. Expw-1 is the last pay certificate which is conclusive proof of the fact that deceased was drawing Rs. 9,359/- as his salary per month. The claimants have lost source of dependency and came to be deprived of love and affection. By guess work, it can be held that deceased would have been spending 1/3rd of his personal expenses and rest 2/3rd on claimants and dependents. Thus the claimants respondents 1 to 6 have lost source of dependency to the tune of Rs.6,240/- per month. 9. It is beaten law of the land that multiplier is the best method for assessing compensation. So I deem it proper to adopt the same method of multiplier. Keeping in view the schedule appended to the Motor Vehicles Act, 14 is just multiplier applicable in the instant case. The learned Tribunal has fallen in error while holding that the claimants have lost dependency to the tune of Rs.6500/- per month and has also wrongly applied multiplier 15. The Tribunal has also wrongly granted Rs. 15000/- and Rs.3000/- under the head consortium and funeral expenses and the rate of interest also came to be granted at the higher side. Accordingly the award passed by the learned Tribunal is modified and the claimants are entitled to an amount of Rs. 6240 x 12 x 14= Rs. 10,48,320/- + Rs. 2500/- + Rs. 2000 and Rs. 3000/- under the heads loss of consortium, funeral expenses and love and affection respectively (Total Rs. 10/55,820/-). Issue No. 2 is accordingly decided in favour of the claimants 1 to 6 and against respondents 7 and 8. Issue no. 3. 10. The appellant had to discharge the onus and have examined two witnesses. They have stated that the driving license shown and mentioned in the claim petition has not been issued from their office and is fake. Issue No. 2 is accordingly decided in favour of the claimants 1 to 6 and against respondents 7 and 8. Issue no. 3. 10. The appellant had to discharge the onus and have examined two witnesses. They have stated that the driving license shown and mentioned in the claim petition has not been issued from their office and is fake. Accordingly, the Tribunal directed the Insurer Company to pay compensation with a right of recovery, after the appellant Insurer is able to prove willful default` of the owner insured. Keeping in view the facts and circumstances of the case and the judgments of the apex court reported in 2008 Supreme Today VII 89 National Insurance Company Ltd. Vs. Vidhyadhar Maharwala and ors. and the judgment reported in Supreme Today VII page 343 titled United India Insurance Co. Ltd. Vs. Prakash Kumar Arora & ors. the insurer has a right of recovery. It was for the owner to prove that he has not committed any default. He has chosen to remain absent before the Tribunal. Thus the Insurer cannot be asked to prove the willful default of the owner before recovering amount from the owner. 11. Keeping in view the aim and object of granting compensation to the victims of the vehicular accident, the insurer has to pay the amount with a right to recover the same. The insurer is granted right to recover the amount from the owner/insured. The appellant is accordingly saddled with liability with right of recovery. The insurer has a right of recovery as indicated above. 12. For the foregoing reasons, the appeal is allowed and the impugned award is accordingly modified to the extent indicated hereinabove.