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2013 DIGILAW 425 (JK)

Oriental Insurance Co. Ltd. v. Chanchla Devi

2013-07-26

Mansoor Ahmad Mir

body2013
1. This Civil 1st Miscellaneous Appeal is directed against the judgment and award dated 21.07.2011 passed by the Motor Accidents Claims Tribunal, Jammu, in File no. 270/Claim, titled as, `Chanchla Devi & ors. v. Oriental Insurance Co. Ltd. & anr., whereby and whereunder an award of Rs.4,84,700/- along with interest @ 7.5% p.a. came to be awarded in favour of the claimants-respondent nos. 1 to 3 and against the appellant herein from the date of filing of the claim petition till its realization, on the grounds taken in the memo of appeal (for short, impugned award). 2. Learned counsel for the appellant has argued that respondent nos. 1 to 3 though filed a Claim Petition before the Motor Accidents Claims Tribunal, Jammu, but it should have been before the Authority under the Workmen's Compensation Act, 1923 (for short, the Act). 3. The argument though is attractive but is devoid of force for the following reasons. 4. Section 167 of the Motor Vehicles Act, 1988 (for short, MV Act), clearly provides an option to the claimant either to invoke the jurisdiction of the Motor Accidents Claims Tribunal or the Authority under the Act. 5. It is apt to reproduce Section 167 of the MV Act, which reads as under- "167. Option regarding claims for compensation in certain cases. - Notwithstanding anything contained in the Workmen's Compensation Act, 1923 ( 8 of 1923) where the death of, or bodily injury to, any person gives rise to a claim for compensation Act, 1923, the person entitled to compensation may without prejudice to the provisions of Chapter X claim such compensation under either of those Acts but not under both." 6. Admittedly, the deceased was a driver by profession and claimants-respondent nos. 1 to 3 have rightly exercised the option. My this view is fortified by the judgment of this court in State of J&K and other v. Mst. Jali and others, reported as 2007 (1) SLJ 171 : 2007 (1) JKJ HC-510. 7. The Apex Court in case titled National Insurance Company Ltd. v. Mastan & anr., AIR 2006 SC 577 has laid down the same law. 8. Appellant has not raised the dispute vis-a-vis findings returned on issue nos. 1 & 3. The only dispute raised is vis-a-vis issue nos. 2 & 4, as discussed above. 9. The Tribunal after examining the pleadings of the parties has framed the following issues:- "1. 8. Appellant has not raised the dispute vis-a-vis findings returned on issue nos. 1 & 3. The only dispute raised is vis-a-vis issue nos. 2 & 4, as discussed above. 9. The Tribunal after examining the pleadings of the parties has framed the following issues:- "1. whether an accident occurred on 09.02.2008 by rash and negligent driving of offending vehicle No. JKU-5495 in the hands of erring driver as a result of which deceased Romesh Chander suffered 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 licence; without route permit and fitness certificate: if so what is its effect ? OPR-1 4. whether petitioners were ought to have file claim before the Commissioner, Workmen's Compensation Act: if so how? OPR-1. 5. Relief ?" 10. Findings returned on issue nos. 1 & 3 are not in dispute as discussed hereinabove and are accordingly upheld. Issue no.4 : 11. As discussed hereinabove, it is the choice of the claimants to file a claim petition either before the Motor Accidents Claims Tribunal or before the Commissioner under the Workmen's Compensation Act. 12. The findings recorded by the Tribunal are legal one and are, accordingly, upheld. 13. Thus issue no.4 is also decided in favour of the claimants and against the insurer-appellant. Issue no.2 : 14. The Tribunal has assessed the income of the deceased at Rs.3000/- per month and has also held that he was receiving Rs.300/- for food etc. and accordingly it was held that deceased was earning Rs. 3300/- per month. After deducting 1/3rd out of the income towards personal expenses of the deceased, the Tribunal held that the claimants-respondent nos. 1 to 3 have lost source of dependency to the tune of Rs.2200/-per month, i.e., Rs. 26,400/- annually. 15. Admittedly, the age of the deceased was 29 years at the time of death. Learned Tribunal after keeping in view the age of the deceased as well as age of claimants, has rightly applied multiplier 18 as per the Schedule appended to the Motor Vehicles Act. 16. The Tribunal has also rightly awarded Rs.2000, Rs.5000/- and Rs.2500/- under the heads funeral expenses, loss of consortium and loss of estate respectively. 17. Learned Tribunal after keeping in view the age of the deceased as well as age of claimants, has rightly applied multiplier 18 as per the Schedule appended to the Motor Vehicles Act. 16. The Tribunal has also rightly awarded Rs.2000, Rs.5000/- and Rs.2500/- under the heads funeral expenses, loss of consortium and loss of estate respectively. 17. Having said so, the Tribunal has awarded just and proper compensation in favour of the claimants-respondent nos. 1 to 3, the same cannot be said to be excessive in any way. 18. The impugned award needs no interference and appeal merits to be dismissed. 19. Dismissed as such.