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J&K High Court · body

2013 DIGILAW 21 (JK)

National Insurance Co. v. Kharak Singh & Ors.

2013-01-04

MANSOOR AHMAD MIR

body2013
1. The subject matter in both these appeals is award dated 31.10.2008 passed by the Motor Accidents Claims Tribunal, Jammu, in File No.789/Claim, titled as Kharak Singh & others vs Rajinder Singh & others, whereby an award of Rs.7,57,896/- along with interest @ 7.5% came to be awarded in favour of claimants, respondents 1 to 5 herein, 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 a 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, Tajinder Singh was working with his brother-in-law, who was a A-Class Contractor, and he was earning Rs.12,000/- per month. On 20.07.2004, the offending Truck, bearing No.JK02G-8940, which was being driven by respondent no.7, namely, Prem Chand, rashly and negligently, hit the Car, bearing registration No.JK02M-7265, in which deceased Tajinder Singh along with one Balwinder Singh was travelling, near Stadium Morh, Channi Himmat, Jammu, as a result of which both Tajinder Singh and Balwinder Singh sustained grievous injuries. They were taken to Government Medical College, Jammu, where Tajinder Singh succumbed to injuries. Claimants being the legal heirs and dependants on the deceased filed a claim petition before the learned Tribunal claiming compensation. 4. Appellant-Insurance Company as well as owner and driver of the offending vehicle contested the claim petition and following issues came to be framed: “1. Whether an accident took place on 20.7.2004 at Channi Himat, Jammu by rash and negligent driving of the offending vehicle No.JK02G-8940 in the hands of erring driver in which deceased Tajinder Singh received 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 violation of terms and conditions of insurance policy? OPR-3 3. Relief. O. P. Parties” 5. Claimants were directed to lead evidence. The witnesses examined were PWs Bhupinder Singh and Harjeet Singh, besides Kharak Singh, one of the claimants, also appeared in the witness box, in support of the case. 6. OPR-3 3. Relief. O. P. Parties” 5. Claimants were directed to lead evidence. The witnesses examined were PWs Bhupinder Singh and Harjeet Singh, besides Kharak Singh, one of the claimants, also appeared in the witness box, in support of the case. 6. Appellant-Insurance Company as well as owner and driver of the offending vehicle failed to adduce any evidence in rebuttal. 7. After going through the evidence recorded and the documents on the file, the learned Tribunal while holding the claimants to be entitled for compensation, awarded a sum of Rs.7,57,896/- in their favour with 7.5% interest from the date of filing of the claim petition till its realization. 8. Feeling aggrieved, the appellant-insurer has filed the instant appeal resisting the award only to the extent that the amount of compensation is excessive. Claimants too have also filed the cross-appeal on the ground that the amount awarded is meager one. 9. There is no dispute about issue no.1 and the only dispute is about the amount 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 the driver of the offending vehicle, namely, Prem Chand, caused the accident while driving the vehicle rashly and negligently, as a result of which deceased Tajinder Singh suffered serious injuries and succumbed to the same. 11. The Tribunal after examining the entire record and exercising guess work held that the monthly income of the deceased can be safely taken at Rs.7000/- 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.4666/- per month. The Tribunal taking the age of the deceased as 37 years at the time of accident, has rightly applied multiplier 13 while assessing the loss of income of claimants at the rate of Rs.55,992/- per annum. Learned Tribunal accordingly awarded an amount of Rs.7,27,896/- in favour of claimants under the head loss of dependency, Rs.15000/- under the head loss of consortium to widow and Rs.15,000/- under the head funeral expenses. Thus, in total, the learned Tribunal has awarded a sum of Rs.7,57,896/- along with 7.5% interest in favour of claimants from the date of filing of the claim petition till its realization. Thus, in total, the learned Tribunal has awarded a sum of Rs.7,57,896/- along with 7.5% interest in favour of claimants from the date of filing of the claim petition till its realization. The learned Tribunal has rightly assessed and awarded Rs.7,27,896/- under the head head loss of dependency, but has fallen in error in awarding Rs.15000/- each under the heads loss of consortium to widow and funeral expenses. The claimants are held entitled to Rs.5000/- under the head loss of consortium to widow and Rs.2000/- under the head funeral expenses as per the Schedule attached with the Motor Vehicles Act. In the given circumstances, the claimants are held entitled to a total compensation of Rs.7,34,896/- (Rs.7,27,896 + 5000 + 2000) with 7.5% interest from the date of filing of the claim petition till its realization. The impugned award is accordingly modified. The amount be released in favour of claimants, respondents 1 to 5 herein, after proper verification and identification, strictly in terms of the conditions as contained in the impugned award. Excess amount, if any, be released in favour of appellant-Insurance Company through Account Payees Cheque. CIMA No.114/2009 is, accordingly, allowed and disposed of along with connected CMA. Keeping in view the discussion made hereinabove, Cross Appeal No.24/2009 merits to be dismissed. Dismissed as such along with connected CMA.