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2011 DIGILAW 5 (JK)

National Insurance Co. Ltd. v. Rajni Devi & Ors.

2011-01-01

HASNAIN MASSODI

body2011
1. On 19th February, 2003 a passenger vehicle bearing registration No. JK 02K-8825 met with an accident at Pouni Chak due to rash and negligent driving of its Driver Shri Ranbir Singh - respondent no. 5 herein. The accident resulted on spot death of Ram Dayal Baghat travelling in the vehicle. Smt. Rajni Devi widow of the deceased and his parents filed a claim petition registered as file no. 509/claim before the Motor claims Tribunal, Jammu. The petitioners before the Tribunal claimed an amount of Rs. 16.75 lakh from the respondent Insurance Company with which the offending vehicle was insured and arrayed as respondent no. 3 in the claim pe tition. The Tribunal after the parties were afforded an opportunity to adduce evidence in support of their respective stands awarded an amount of Rs. 7,78,000/- as compensation in favour of the petitioner. The respondent Insurance Company was directed to satisfy the award and was burdened with interest @ of 7.5 per cent per annum on the awarded amount from the date of filing of the petition till the realization of the award amount. The Tribunal further directed that out of the total award amount Rs. One lakh be given to the widow of the deceased respondent no. 1 and rest of the amount be paid to the petitioners 2 and 3- the parents of the deceased. The respondent Insurar.ee Company was granted right to recover the award amount from the owner of offending vehicle. 2. The Tribunal order dated 30.06.2008 as reviewed vide order dated 26. 07. 2008, is questioned in the two Civil First Miscellaneous Appeals registered as CIMA 256/2008 and CIMA 179/2008. CIMA No. 256/2008 has been filed by the respon­dent Insurance Company. The award made by the Tribunal is questioned on the grounds that the conclusions drawn are not based on the evidence brought on the file. The Tribunal is said to have not insisted on definite proof as regards the income of deceased and relied on mere statement of respondent no. 1. The Tribunal, it is pleaded, ignored to take into account the income tax payable by the deceased and to deduct the income tax payable from the income assessed. The Tribunal/the appellant pleads has arbitrarily applied multiplier of 16 while assessing the com­pensation payable to respondents 1 to 3- claimants before the Tribunal. 3. 1. The Tribunal, it is pleaded, ignored to take into account the income tax payable by the deceased and to deduct the income tax payable from the income assessed. The Tribunal/the appellant pleads has arbitrarily applied multiplier of 16 while assessing the com­pensation payable to respondents 1 to 3- claimants before the Tribunal. 3. Civil First Miscellaneous Appeal 179/2008 is filed by Smt. Rajni Devi widow of the deceased. The appellant's case is that the Tribunal has arbitrarily taken into account Rs. 6000/- per month as income of the deceased, ignoring the evidence brought on the file regarding this aspect of the case. It is insisted that the appellant successfully proved before the Tribunal that the monthly income of the deceased was more than Rs. 8000/- and the deceased was 26 years of age at the time of fatal accident. The awarded amount is said to be on the lower side and not "just compensation" within the meaning of Section 168 Motor Vehicles Act. The appel­lant is also aggrieved of the apportionment of the award amount amongst respon­dent no. 1 to 3/claimants before the Tribunal. 4. I have gone through the memoranda of appeals (CIMA no. 256/2008 and CIMA no. 179/2008) and have heard learned counsel for the parties. CIMA 256/2008 5. The Challenge to the award in CIMA 256/2008 is restricted to the quantum of compensation awarded by the Tribunal. The appellant's case is that there was no material before the Tribunal, to conclude that the deceased had income of Rs. 6000/- per month and that the conclusion arrived at was not based on any material on the file. The appellant also oppose the multiplier of 16 applied to work out just compensation. 6. The ground urged to assail the award is devoid of any substance. The respondent no. 1- widow of the deceased stated before the Tribunal that the deceased was running a Grocery Shop in his village and claimed his income to have been Rs. 8000/- per month. The respondent no. 2 father of the deceased has stated that the business run by the deceased would generate of Rs. 8000 to 9000/- per month for the deceased and his family. 7. The respondent no. 2 mother of the deceased has supported the statement made by respondents 1 and 2. 8000/- per month. The respondent no. 2 father of the deceased has stated that the business run by the deceased would generate of Rs. 8000 to 9000/- per month for the deceased and his family. 7. The respondent no. 2 mother of the deceased has supported the statement made by respondents 1 and 2. The appellant has not adduced any evidence to rebut the evidence of respondents 1 to 3 as regards the income of the deceased. The Tribunal having regard to the evidence available on the file and taking into account all relevant factors has rightly held the income of the deceased to have been Rs. 6000/- per month. The Tribunal to work out the income of the deceased appears to have taken into account the nature of the business run by the deceased, the place where the business was run and likely income such a business would generate. The Tribunal, alive that the respondents 1 to 3 may have exaggerated as the income of the deceased, as is usually done in such cases has taken Rs. 6000/- as income per month of the deceased as against the Rs. 8000/-claimed by the widow of the deceased. The exercise done by the Tribunal to work out the monthly income of the deceased is strictly in accordance with law. The Tribunal in a case like present one where no documentary evidence is adduced to help the Tribunal to determine exact income of the deceased is to be given some freedom to resort to guess work against the backdrop of the material on the file. The monthly income of the deceased taken into account by the Tribunal cannot be said to be arbitrary and not sustainable on record. The deceased was of 26 years of age at the time of fatal accident. The multiplier applicable in terms of schedule II to Motor Vehicles Act was 18. The Tribunal as against the applicable multiplier of 18 has applied multiplier of 16 and worked out loss of dependency as Rs. 7,68,000/-, after deducting 1/3 of the income on account of personnel expenses. Looking at from any angle there appears to be no arbitrariness on part of the Tribunal in assessing just compensation in terms of Section 168 Motor Vehicles Act. The Tribunal has allowed Rs. 5000/-on account of loss of consortium to the widow of the deceased- respondent no. 7,68,000/-, after deducting 1/3 of the income on account of personnel expenses. Looking at from any angle there appears to be no arbitrariness on part of the Tribunal in assessing just compensation in terms of Section 168 Motor Vehicles Act. The Tribunal has allowed Rs. 5000/-on account of loss of consortium to the widow of the deceased- respondent no. 1 herein and funeral expenses of Rs. 5000/-. There is no reason to find fault with the computation of compensation by the Tribunal. CIMA No. 179/2008 8. The appellant in CIMA 179/2008 for the reasons discussed cannot be heard saying that the compensation assessed by the Tribunal was on the lower side. The Tribunal as a matter of fact has assessed the compensation objectively having regard to the evidence brought on the file. There is, however, merit in the plea that the Tribunal after assessing the compensation has not apportioned the amount awarded in favour of the respondents 1 to 3 in accordance with law. The Tribunal out of Rs. 7.78 lakh has directed payment of Rs. 1 lakh to the respondent no. 1 -widow of the deceased and rest of amount Rs. 6,78,000/- to be sharec equally by the parents of the respondents. It is well settled that the compensation awarded under Section 166 Motor Vehicles Act is not to be apportioned amongst the depen­dents of victim of a vehicular accident in accordance with the inheritance of law, but according to the extent of dependency of the dependents. The Tribunal when confronted with the situation like one emerging from the facts of the present case has to embark on an exercise to find out extent of loss of dependency in case of each of the dependents. In the present case the respondent no. 1 widow of the deceased-appellant in CIMA 179/2008 lost her husband at the age of 22 years. The parents of the deceased were of the age of 45/48 years at the time of fatal accident. The dependency of the appellant, taking into account her age, if not more is equivalent to that of the parents of the deceased. The Tribunal by awarding a mere 12 per cent of the award amount in favour of the appellant has given a go by to the settled principles that must govern exercise of discretion in such a case. 9. The Tribunal by awarding a mere 12 per cent of the award amount in favour of the appellant has given a go by to the settled principles that must govern exercise of discretion in such a case. 9. To meet the ends of justice the award of MACT Jammu dated 30.06.2008 to the extent of apportionment of the award amount amongst the dependents of the deceased needs to be modified. For the reasons discussed, CIMA 256/2008 is dismissed and CIMA 179/2008 is allowed and the award modified as under: The appellant Insurance Company shall pay an amount of Rs. 7,73,000/-as compensation to the claimants 1 to 3 with interest @ 7.5 per cent per annum on the award amount from the date of the award till final realisation. The award amount shall be apportioned equally in favour of the respon­dents/claimants 1 to 3. The claimant no.1 accordingly shall get Rs. 2,57,667'/- from the awarded amount with interest at the aforestated rate and also an amount of Rs. 5000/- on account of loss of consortium. The respondents 2 and 3 shall get Rs. 2,57,667/- with interest as stated. The amount apportioned in favour of the appellant/claimant no. 1 over and above the amount of Rs. One lack awarded shall be paid out of the amount kept under fixed deposit with the Bank.