New India Assurance Co. Ltd. v. Gurdeep Singh & Ors.
2011-03-10
MANSOOR AHMAD MIR
body2011
DigiLaw.ai
1. Appellant has questioned the judgment and award dated 30.07.2009, hereinafter referred to as impugned award, passed by Motor Accident Claims Tribunal, Srinagar, in the claim petition titled as Mst. Yasmeen Banoo and others v. Gurdeep Singh and others, on the grounds taken in the memo of appeal. 2. Heard learned counsel for the parties. 3. The challenge in the impugned appeal is only to the extent of quantum of compensation as argued by learned counsel for the appellant and averred in the memo of appeal. However, it is necessary to give brief resume of the facts of the case, the womb of which has given birth to the present appeal. 4. Deceased-Farooq Ahmad Mir, traveling on his scooter on 04.02.2006 on the correct side of the road was hit by a Tempo Traveler bearing registration No. JK02P/4959 which was driven by respondent No. 1 rashly and negligently, sustained grievous injuries and succumbed to injuries in SMHS Hospital, Srinagar. FIR No. 16/2006 came to be registered in P/S Ram Munshi Bagh under Sections 279 and 304-A of RPC. Respondents 3 to 5, wife and minor children of the deceased filed a claim petition for grant of compensation. Appellant resisted the claim petition and following issues came to be framed:- "1. Whether on 04.02.2006 a tempo traveler bearing No. JK02P/4959 belonging to respondent No. 2 while being driven by respondent No. 1 from Dalgate towards Sonwar at a very high speed rashly and negligently with the result that he lost control over the vehicle and hit and dashed the deceased Farooq Ahmad Mir while riding his scooter at a normal speed with the result that he sustained fatal injuries and died in SMHS whereas the scooter was also damaged? OPP. 2. In case the issue No. 1 is proved in affirmative whether the petitioners as the legal heirs of the deceased are entitled to compensation and if so to what extent and from whom? OPP 3. Relief." 5. Claimants, respondents 3 to 5, examined Bashir Ahmad Dar, Tariq Ahmad Sofi, Irshad Ahmad Sofi, Air.sh Arif and Mohammad Altaf Kawoosa as their witnesses and Mst. Yasmeena Banoo-widow also appeared in the witness box. They have placed on file Photostat copies of challan, FIR, salary certificate and death certificate on the file. 6. Appellant-insurer has not led any evidence despite availing sufficient opportunities.
Yasmeena Banoo-widow also appeared in the witness box. They have placed on file Photostat copies of challan, FIR, salary certificate and death certificate on the file. 6. Appellant-insurer has not led any evidence despite availing sufficient opportunities. Driver and owner-respondents 1 and 2 were set exparte and have not contested the claim petition. 7. Motion laid by appellant-insurer in terms of Section 170 of Motor Vehicles Act, for permitting it to defend the claim petition on all counts-came to be dismissed as withdrawn vide order dated 6th of March, 2009. 8. Learned counsel for the appellant heatedly argued that the compensation awarded is not the just compensation but is exorbitant one and is on higher side. Virtually he has not questioned the impugned award on other issues. However, I deem it proper to return finding on all issues. Issue No. 1: 9. All the witnesses have deposed that driver, namely, Gurdeep Singh, has driven the offending vehicle Temp Traveler rashly and negligently and hit Farooq Ahmad Mir, who was on his way on his scooter on the fateful day sustained injuries and succumbed to injuries. Driver and owner-respondents 1 and 2 were set exparte and even the insurer-appellant has not led any evidence in rebuttal. Thus, evidence adduced by the claimants-respondents 3 to 5 has remained unrebutted. 10. In the given circumstances, the finding returned by the tribunal on issue No. 1 needs no interference and is upheld. Issue No. 2: 11. Claimants 3 to 5 have proved by leading oral as well as documentary evidence that deceased was working as Senior Binder in J&K State Road Transport Corporation, Srinagar, and was drawing salary at the rate of Rs.7733/- per month. The salary slip stands proved and exhibited. 12. Claimants have also proved that deceased was an Artist. He was working in so many TV Serials, Dramas and was earning a sum of Rs.20,000/- to Rs.23000/-from the said source. PWs Aiash Arif, Shabir Mujahid-Dy. Director, Doordarshan, Mandi House, New Delhi and Mohammad Altaf Kawoosa, haved proved the said factum. 13. Claimants have proved that deceased was earning Rs.2000/- per serial/programme. The certificate EXPHA is the proof to that extent. 14. As discussed above, the evidence led by the claimants has remained unrebutted.
PWs Aiash Arif, Shabir Mujahid-Dy. Director, Doordarshan, Mandi House, New Delhi and Mohammad Altaf Kawoosa, haved proved the said factum. 13. Claimants have proved that deceased was earning Rs.2000/- per serial/programme. The certificate EXPHA is the proof to that extent. 14. As discussed above, the evidence led by the claimants has remained unrebutted. The Tribunal has rightly made the assessment and came to the conclusion that deceased would have been earning not less than Rs.8000/- per month from TV serials, dramas and rightly came to the conclusion that minimum income of the deceased was Rs.15000/- per month and held that claimants have lost source of dependency to the tune of Rs.10,000/- after deducting one third. But it appears that tribunal has lost sight of the Apex Court judgment titled United India Insurance Co. Ltd. v. Patricia Jean Mahajan, AIR 2002 SC 2607 . In the said judgment, Apex Court has laid down the principle that when the amount of multiplicand is on higher side the multiplier applicable in terms of schedule appended to the Motor Vehicles Act, is to be reduced by 2 or 3. Admittedly, deceased was 45 years of age and as per the schedule appended to the Motor Vehicles Act, multiplier 15 was applicable but in view of the ratio laid down in the Apex Court judgment, it was to be reduced at least by 2.Thus, multiplier 13 was to be applied but tribunal has fallen in error while applying multiplier 15. Tribunal has wrongly awarded Rs.50,000/-, Rs.50,000/-, Rs.20,000/- and Rs.5000/- under the heads loss of consortium, loss of love and affection, loss of estate and funeral expenses. In terms of the schedule appended to the Motor Vehicles Act, claimants are entitled to Rs.5,000/-, Rs.2500/- and Rs.2000/- under the heads loss of consortium, loss of estate and funeral expenses. Thus claimants are entitled to Rs. 10,000 x 12 x 13 +5000 + 2500 +2000= Rs.15,69,500. 15. The tribunal has also fallen in error while awarding interest. The interest as per the recent judgment of the Apex Court and this Court, is to be awarded at the rate of 6%. 16. Thus, it is hereby held that claimants are entitled to Rs.15,69,500/- with 6% interest from the date of claim petition till its final realization. 17. Award is accordingly modified and appeal disposed of along with all connected CMPs.