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2012 DIGILAW 680 (JK)

New India Assurance Co. Ltd. v. Pholi Devi & ors.

2012-10-18

MANSOOR AHMAD MIR

body2012
1. Both the appeals are directed against the judgment and award dated 26.04.2008 passed by the Motor Accidents Claims Tribunal, Jammu, in File No.544/Claim, titled as Pholi Devi & others vs The New India Assurance Co. Ltd. & others, whereby an award of Rs.6,46,936/- along with 7.5% interest came to be awarded in favour of claimants and against the insurer-insurance company from the date of filing of the claim petition till its realization (for short, impugned award), on the grounds taken in the memo of appeals. 2. In order to return a finding, it is necessary to give brief resume of the case, the womb of which has given birth to the present appeals. 3. It is averred in the claim petition that the deceased, namely, Ramesh Singh was a Conductor by profession with respondent no.2 in the claim petition, i.e., M/S Nitco Roadways Pvt. Ltd. On 09.04.2004 he was heading towards Ludhiana from Chitradurga (Karnataka) in a Truck, bearing registration No.HR38J-6568. It was being driven by respondent no.3 in the claim petition, namely, Pawan Singh, rashly and negligently and when it reached at National Highway Road No.4, near URL Check Post, Chitradurga, Karnataka, the offending vehicle lost its control and hit another vehicle coming from other side, as a result of which the deceased Ramesh Singh suffered fatal injuries. He was shifted to District Hospital, Chitradurga, where he expired on 10.04.2004. 4. Claimants, Phooli Devi & others being victims of the vehicular accident invoked the jurisdiction of Motor Accidents Claims Tribunal, Jammu by the medium of Claim Petition, titled as, Phooli Devi & others vs The New India Assurance Co. Ltd., File No.544/claim, for grant of compensation to the tune of Rs.50.30 lacs as per the break-ups given in the claim petition. 5. Owner-insured as well as driver of the offending vehicle, i.e., respondents 2 & 3 in the claim petition, did not contest the claim petition and were set exparte. Insurer, appellant in CIMA No.153/2008, contested the claim petition by the medium of written statement. 6. The following issues came to be framed: “1. Whether an accident occurred on 09.04.2004 at NDW 1A road – 4 near URL Check Post Chitradurga (Karnataka) by a rash and negligent driving of offending vehicle No.HR38J-6568 in the hands of erring driver in which deceased Armesh Singh alias Ramesh Singh sustained fatal injuries? OPP 2. 6. The following issues came to be framed: “1. Whether an accident occurred on 09.04.2004 at NDW 1A road – 4 near URL Check Post Chitradurga (Karnataka) by a rash and negligent driving of offending vehicle No.HR38J-6568 in the hands of erring driver in which deceased Armesh Singh alias Ramesh Singh sustained fatal injuries? OPP 2. If issue No.1 is proved in affirmative, whether petitioners are entitled to the compensation, if so, to what amount and from whom? OPP 3. Whether driver of offending vehicle at the time of accident was not holding valid and effective driving license and drove the vehicle in contravention of terms and conditions of the insurance policy, RC, Route Permit and fitness etc.? OPR-1 4. Whether claim petition is bad for non-joinder of necessary parties, if so which are the necessary parties? OPR-1 5. Relief. OP Parties” 7. Claimants were directed to lead evidence and they examined PWs Angrez Singh and Jaswant Singh, besides Pholi Devi, one of the claimants, also appeared in the witness box, in support of their case. 8. Insurer despite availing opportunity failed to lead any evidence in rebuttal, thus evidence led by the claimants have remained unrebutted. 9. The insurer has not questioned the findings returned by the Tribunal on Issue nos.1, 3 and 4. However, it has questioned the findings recorded on issue no.2 to the extent of quantum of compensation. 10. I have gone through the evidence recorded by the Tribunal and the documents on the file. I am of the considered view that there is sufficient evidence on the file to hold that driver of the offending vehicle, namely, Pawan Singh while driving the vehicle rashly and negligently caused accident, as a result of which the deceased Ramesh Singh, who was a conductor with the said vehicle, sustained injuries and succumbed to injuries. Insurer has failed to lead any evidence to prove that driver of the offending vehicle was not holding valid and effective driving licence at the time of accident or had committed any breach in terms of the mandate of Motor Vehicles Act read with any other law applicable. 11. Insurer has also failed to prove that the claim petition was suffering from mis-joinder or non-joinder of parties. In the given circumstances findings returned on issues 1, 3 & 4 are upheld. 12. 11. Insurer has also failed to prove that the claim petition was suffering from mis-joinder or non-joinder of parties. In the given circumstances findings returned on issues 1, 3 & 4 are upheld. 12. Now the question arises for consideration is: whether the compensation awarded is just and proper. The answer is yes for the following reasons. 13. Claimants have pleaded that the deceased being the Conductor was earning rupees ten thousand per month, besides he was also getting trip money and that was not less than rupees eight thousand per month. The Tribunal after making guess work held that the monthly income of the deceased was not less than rupees five thousand per month and after deducting one third as his personal income, held that the claimants have lost source of dependency to the tune of Rs.3333/- per month. The Tribunal taking the age of the deceased as 26 years at the time of accident, as per the claim petition and the postmortem report, has rightly applied multiplier 16 while assessing the loss of income of claimants at the rate of Rs.39,996/- per annum. Learned Tribunal accordingly awarded an amount of Rs.6,39,936/- in favour of claimants under the head loss of dependency, Rs5000/- under the head loss of consortium to widow and Rs.2000/- under the head funeral expenses. Thus, in total, the learned Tribunal has awarded a sum of Rs.6,46,936/- along with 7.5% interest in favour of claimants from the date of filing of the claim petition till its realization. By no stretch of imagination it can be said and held that the amount of compensation awarded is not just and appropriate. 14. Having glance of the above discussion, the impugned award merits to be upheld and appeals merit to be dismissed. Accordingly, the impugned award is upheld and both the appeals are dismissed.