Research › Search › Judgment

J&K High Court · body

2012 DIGILAW 633 (JK)

National Insurance Co. Ltd. v. Zahoora Begum & Ors.

2012-10-04

MANSOOR AHMAD MIR

body2012
1. This CIMA is directed against the judgment and award dated 15.01.2008 passed by the Motor Accident Claims Tribunal, Ramban in a Claim Petition titled as Zahoora Begum and others v. National Insurance Co. Ltd. and others, whereby an award of Rs. 10, 29, 500/- along with interest @ 9% p.a. pendentelite and 6% future interest came to be awarded in favour of the claimants-respondents 1 to 5 from the date of order till its realization (for short, impugned award). Brief facts: 2. On 15.10.2004, Tanker bearing registration No. JK02B-6141 (hereinafter i called as 'offending vehicle') which was being driven by one Ganesh Kumar rashly and negligently, hit the Scooter bearing registration No. JK01-4285, which was coming from opposite side at Gund Adikote on National Highway, as a result of which one Mohd Sharief s/o Ahmedullah Bohru r/o Karichichal, Chamalwas (hereinafter called deceased) sustained grievous injuries and later on he succumbed to the injuries. 3. FIR no. 181/2004 for the commission of offences under Sections 279/304-A/337 Ranbir Panel Code (For short, RFC) came to be registered at Police Station, Banihal. The claimants-respondents 1 to 5 being victims of the vehicular accident, filed a Claim Petition before the Motor Accident Claims Tribunal, Ramban on 15.01.2005 for grant of compensation to the tune of Rs. 25,00,000/- along with interest @12% per annum, as per the break-ups given in the claim petition. 4. The respondents were put to notice. Respondents 1 and 2 filed their written statement, whereas respondent no.3 despite service did not appear and was proceeded exparte. 5. Out of the pleadings of the parties, following issues were framed:- "1. Whether on 15.10.2004 the respondent no 3 while driving Tanker No. JK02B-6141 from Jammu towards Srinagar in a rash and negligent manner when reached near Gund Adalkoot, NHW hit the Scooter No. JK01-4285 which was coming from the opposite direction as a result whereof the Scooterist namely Mohd Sharief succumbed to the injuries on the spot? OPP 2. In case the issue no.1 is proved in affirmative whether the petitioners are entitled to any compensation, of so from whom and to what extent? OPP 3 Whether the offending vehicle is validly insured with respondent no. 1? OPP 4. Whether the respondent no.3 was driving the offending vehicle at the time of accident in contravention of the terms and conditions of the insurance policy? OPR1 5. Relief ?" 6. OPP 3 Whether the offending vehicle is validly insured with respondent no. 1? OPP 4. Whether the respondent no.3 was driving the offending vehicle at the time of accident in contravention of the terms and conditions of the insurance policy? OPR1 5. Relief ?" 6. Claimant Zahoora Begum (respondent no.1 herein) examined herself along with, PW-1 Bashir Ahmed, PW-2 Abdul Qayoom and PW-3 Mushtaq Ahmed and also placed on record documents. 7. Appellant-insurer has not led any evidence in rebuttal, thus evidence led by the claimants have remained un-rebutted. Learned counsel for the appellant has not questioned the findings returned by the Tribunal on issues 1, 2 3 and 4. However, after scanning the evidence of the claimants-respondents, which has remained un-rebutted, it is proved that the accident was caused due to the rash and negligently driving of the driver of offending vehicle. The documents do disclose that the offending vehicle was insured with the appellant-insurer, which fact is also admitted by the appellant in the written statement. Neither owner nor insured has committed any breach in terms of Section 147 read with Section 149 of Motor Vehicles Act. Accordingly, findings returned by the Tribunal on issues 1, 2,3 and 4, are upheld. 8. Mr. Gupta learned counsel for the appellant-insurer argued that the compensation granted by the Tribunal is on higher side. 9. The moot question for consideration is: whether Insurer can question the award on the quantum? 10. I have gone through the judgment and am of the considered view that the Tribunal has wrongly applied the multiplier in the present case. Keeping in view the age of the deceased read with the age of claimants, in my view, multiplier 14 would be just and appropriate. 11. The claimants have stated in the claim petition that the deceased was earning Rs. 10,000/- per month, in support whereof they have also placed on record some documents to substantiate their stand. All the witnesses examined by the claimants have also deposed that the deceased was earning between Rs. 10,000 to 12000 per month. There was no evidence in rebuttal, however, as per general view, the income of a person working as a Mechanic in some Workshop cannot be said to be more than Rs. 7500/- per month. Thus, the learned Tribunal has rightly taken the monthly income of the deceased at Rs. 7500/-. 10,000 to 12000 per month. There was no evidence in rebuttal, however, as per general view, the income of a person working as a Mechanic in some Workshop cannot be said to be more than Rs. 7500/- per month. Thus, the learned Tribunal has rightly taken the monthly income of the deceased at Rs. 7500/-. Learned Tribunal has rightly held that after deducting 1/3rd for his personal expenses, an amount of Rs. 5000/- per month can be treated as monthly economic loss to the claimants and annual loss would be Rs. 60.000/-. However, the Tribunal has fallen in an error in applying multiplier 17 while keeping in view the age of the deceased and the claimants. Accordingly, multiplier 14 is applied and it is held that claimants, thus, have lost source of dependency to the tune of Rs. 8,40,000/- (5000 x 12 x 14). The claimants are entitled to Rs. 5000/- as loss of 'consortium', Rs. 2000/- on account of 'funeral expenses' and Rs. 2500/- on account of 'loss of estate'. Thus, in total, claimants are entitled of Rs. 8,49,500/- (8,40,000+ 5000+ 2000+ 2500) along with interest @ 9% p.a. pendentelite and 6% future from the date of award till its realization. 12. The amount of compensation is directed to be released in favour of the claimants after proper identification and verification strictly in terms of the impugned award. The court fee shall be the first charge. Excess amount, if any, be released in favour of the Insurance Company through "Account Payees Cheque". Accordingly, award is modified to the extent as indicated above. 13. However, at this stage, learned counsel for the claimants-respondents 1 to 5 stated at the Bar that in terms of order dated 28.04.2008 passed by this Court, an amount of Rs. 6.00 lacs was deposited by the appellant before the executing court and the same stands released in favour of the claimants-respondents 1 to 5 in terms of the award by the said court, and prays that rest of the amount may be directed to be released in favour of the claimants through MACT, Ramban within the time frame. Accordingly, appellant-insurer is directed to deposit the rest of the amount before the executing court within three months, to be disbursed to respondents/beneficiaries in terms of the impugned award. 14. Disposed of as above along with connected CMA.