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2012 DIGILAW 104 (JK)

National Insurance Co. Ltd. v. Nisha Mangotra & Ors.

2012-03-14

MANSOOR AHMAD MIR

body2012
By the medium of this Civil First Miscellaneous Appeal the appellant-insurer has invoked the jurisdiction of this Court in terms of Section 173 of Motor Vehicles Act, 1988 (for short Act) and has questioned the award dated 03.02.2006 passed by Motor Accidents Claims Tribunal, Jammu in File No.355/Claim, titled as Nisha Magotra & others vs Jagdish Raj & anr, (for short, impugned award), whereby an award of Rs.37,64,832/- along with interest @ 7.5% came to be awarded in favour of claimants and against the appellant-insurer from the date of filing of the claim petition till its realization, on the grounds taken in the memo of appeal. It is necessary to give flashback of the case, the womb of which has given birth to the instant appeal. Claimants-respondents 1 to 3 filed a claim petition before the Motor Accidents Claims Tribunal, Jammu, in terms of the mandate of Section 166 of the Act, claiming compensation to the tune of Rs.66,00,000/- as per the break-ups given in para-21 of the claim petition. It is averred in the claim petition that the deceased, namely, Ravinder Kumar Magotra died on 09.06.2003 in a tragic motor vehicular accident, which took place near Kalibari (Kathua) when he was traveling in Bus No.PB-11-N-9528 from Jammu to Kathua, which was hit by the offending Bus No.DL-01-PA-4673 coming from opposite direction towards Jammu. The respondents-claimants being wife and daughters respectively of the deceased were totally dependant upon him, who was their sole bread earner and have lost the source of dependency. The appellant-insurer appeared and contested the claim petition on the grounds taken in the memo of reply. Jagdish Raj-respondent no.5 herein, owner of the offending vehicle has chosen to remain absent and, accordingly, exparte proceedings were drawn against him. The following issues came to be framed. 1. Whether the accident took place on 09.06.2002 at Kali Bari, Kathua due to rash and negligent driving of the offending vehicle No.DL-01-PA-4673 by its driver in which deceased namely Shri Ravinder Kumar Magotra has died? OPP 2. If issue no.1 is proved in affirmative, whether the petitioners are entitled to compensation. If so, to what amount and from whom? OPP 3. Whether driver of the offending vehicle at the time of accident was not holding a valid driving license? OPR-2. 4. Whether the claim petition is bad for mis-joinder and non- joinder of necessary parties. If so, who are necessary parties? If so, to what amount and from whom? OPP 3. Whether driver of the offending vehicle at the time of accident was not holding a valid driving license? OPR-2. 4. Whether the claim petition is bad for mis-joinder and non- joinder of necessary parties. If so, who are necessary parties? OPR-2 5. Relief? O.P. Parties The respondents-claimants were directed to lead evidence and they examined PWs Joginder Kumar and Raju Sharma as their witnesses. Claimant- respondent no.1 also appeared in the witness box in support of their claim. Appellant-insurer examined one Radesh Kumar as its witness. Witnesses examined by the claimants have deposed that deceased Ravinder Kumar was a District Judge, who became the victim of a tragic vehicular accident, which was caused by the rash and negligent driving of the driver of offending Video Coach Bus. The said evidence has remained unrebuted and Tribunal has rightly decided issue no.1 in favour of claimants and against the appellant-insurer as well as owner Jagdish Raj. Issue no.2 All the witnesses have deposed that deceased was a District Judge, his grass salary at the time of death was Rs.20,660/- and net salary was Rs.17613/- per month. He at the time of accident was 46 years of age. It is beaten law of the land that multiplier method is the best method for assessing just and appropriate compensation. The Tribunal has applied multiplier 13, which in my view is just and appropriate multiplier. The Tribunal while taking into consideration the revised pay has held that claimants have lost the source of dependency to tune tune of Rs.23922/- per month after making deductions as personal expenses. The Tribunal could have taken judicial note of the pay revision which was made in terms of Shetty Commission and of the fact that the District Judges at the entry level are having basic salary at Rs.51550-63070, District Judges in selection grade Rs.57700- 70290 and District Judges in time scale are having basic salary 70290-76450. However, the claimants have not questioned the same, so I deem it appropriate to hold that the claimants have lost the source of dependency to the tune of Rs.23922/- per month and multiplier 13 is just and appropriate. Thus the claimants are entitled to Rs.37,31,832/- (23922 W 12 W 13). Thus issue no.2 came to be rightly decided in favour of claimants. Appellant-insurer has failed to discharge onus. Thus the claimants are entitled to Rs.37,31,832/- (23922 W 12 W 13). Thus issue no.2 came to be rightly decided in favour of claimants. Appellant-insurer has failed to discharge onus. Accordingly issues 3 & 4 came to be rightly decided in favour of claimants and against appellant-insurer. Further, the Tribunal has rightly awarded interest @ 7.5% from the date of filing of the claim petition till its realization. Having glance of the above discussion, the impugned award merits to be upheld and appeal merits to be dismissed along with costs. It is so ordered.