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2013 DIGILAW 509 (JK)

Ab. Gani v. Naveen Gupta

2013-09-04

Mansoor Ahmad Mir

body2013
1. This Civil 1st Miscellaneous Appeal is directed against the judgment and award dated 20.04.2004 passed by the Motor Accidents Claims Tribunal, Doda, in File No. 5/Claim, titled as, Abdul Gani v. Naveen Gupta & anr., whereby an amount of Rs. 3,09,900/- along with interest @ 9% from the date of filing of the claim petition till its realization came to be awarded in favour of claimants including the appellant and against the Insurance Company, respondent no. 2 herein (for short, impugned award), on the grounds taken in the memo of appeal. 2. The dispute in this appeal relates to adequacy of compensation only. 3. Insurance Company as well as owner of the offending vehicle has not questioned the impugned award on any count, therefore, the same has attained finality in so far as it relates to them. 4. The facts in brief are that on the fateful day of 29.09.1998 at about 11:30 AM the deceased was travelling in the offending vehicle bearing registration No. JKD-9062 and was coming to Doda from Ganica. As per the averments made in the claim petition as well as the version of the witnesses, the offending vehicle was being driven rashly and negligently and when it reached at Check Post on Doda-Dessa Road, the driver of the offending vehicle lost control over the same, as a result of which it fell into a ditch. The deceased sustained multiple injuries, he was taken to hospital, where he succumbed to the injuries, leaving behind his wife, a minor son, two minor daughters and parents. The deceased was 28 years of age at the time of accident. 5. Claimants being the victims of vehicular accident filed a claim petition before the Motor Accidents Claims Tribunal, Doda, claiming compensation. As per the averments made in the claim petition, the deceased was a Shopkeeper by profession and was earning Rs. 5000/- per month. It is worthwhile to mention here that during the pendency of claim petition, the wife of deceased, namely, Boban Begum also died. 6. Respondents were put to notice. Both the respondents appeared and filed separate objections resisting the claim petition. 7. Out of the pleadings of the parties, the following issues came to be framed. "1. Whether the claim petition has not been filed by a competent person? If so, what is its effect on the petition? OPR 2. 6. Respondents were put to notice. Both the respondents appeared and filed separate objections resisting the claim petition. 7. Out of the pleadings of the parties, the following issues came to be framed. "1. Whether the claim petition has not been filed by a competent person? If so, what is its effect on the petition? OPR 2. Whether the petition is bad for misjoinder of necessary parties? OPR 3. Whether the insured has violated the terms and conditions of the policy as the vehicle insured was a private care but was used for carrying passengers? OPR 4. Whether the driver of the offending vehicle was not holding a valid driving license at the time of accident? If so, what is its effect on the petition? OPR 5. In case the petition survives after deciding the issues 1 to 4, whether on 29.09.1998 deceased Noor Din died as a result of vehicular accident caused due to the rash and negligent driving of the driver of the vehicle bearing registration No. JKD-9062 at Dessa Road? OPP 6. In case Issue No. 4 is proved in affirmative, to what amount of compensation petitioner/dependant is entitled to and from whom? OPP 7. Relief." 8. In order to prove their case, claimants examined PWs Farida Begum and Dalip Singh, besides claimant Abdul Gani (father of deceased) also appeared in the witness box. 9. Issue no. 5 PW Farida Begum deposed that she was also travelling in the vehicle in which deceased Noor Din was travelling. She further deposed that the accident took place due to the rash and negligent driving of the driver of offending vehicle, as a result of which deceased died in the hospital. 10. PW Dalip Singh deposed that he too was travelling in the offending vehicle in which deceased was travelling and the accident took place due to the rash and negligent driving of the driver of offending vehicle. 11. Respondents did not lead any evidence in rebuttal, therefore, the evidence led by the claimants remained unrebutted. 12. Otherwise too, there is sufficient oral as well as documentary evidence on the file to the effect that the accident was the result of rash and negligent driving of the driver of offending vehicle. The offending vehicle was insured with respondent no. 2 herein. Accordingly, issue no.5 rightly came to be decided in favour of claimants and against the respondents. 13. The offending vehicle was insured with respondent no. 2 herein. Accordingly, issue no.5 rightly came to be decided in favour of claimants and against the respondents. 13. Issues 1 to 4 The onus of issues 1 to 4 was on respondents. Since they failed to discharge the onus, the learned Tribunal has rightly decided these issues in favour of claimants and against the respondents. 14. Issue no. 6 The deceased was 28 years of age at the time of accident. PW Abdul Gani, father of deceased, while appearing in the witness box deposed that the monthly income of the deceased was Rs. 5000/-. 15. However, the learned Tribunal while following the law laid down by the Apex Court in 2001 AIR SCW 3086 and 1996 ACC 592 SC took the monthly income of the deceased at Rs. 3000/- per month and after deducting Rs. 900/- towards his personal expenses, held that the claimants have lost source of dependency to the tune of Rs. 2100/- per month, which in my considered view is just and proper. 16. The learned Tribunal has fallen in error while applying multiplier 12 taking the age of the deceased between 25-30 years. As per the averments made in the claim petition, the age of the deceased was 28 years at the time of accident and as per the record the age of claimants at the time of filing of the claim petition was 6 years (minor son), 4 years (minor daughter), 6 months (minor daughter), 70 years (father) and 60 years (mother). In terms of the Schedule appended with the Motor Vehicles Act, 1988, multiplier 18 is applicable. However, applying the thumb rule while taking into account the uncertainties of life and in view of the judgment of Apex Court in Sarla Verma's case ( AIR 2009 SC 3104 ), multiplier 16 appears to be just and appropriate. Thus, the claimants have lost source of dependency to the tune of Rs. 4,32,000/- (2100 x 12 x 16). Further, the amount of Rs. 2500/- and Rs. 5000/- awarded by the learned Tribunal under the heads funeral expenses and love and affection respectively is just and appropriate, cannot be said to be meager in any way, thus needs no interference. However, the interest awarded by the learned Tribunal @ 9% appears to be on higher side. Accordingly, I deem it proper to reduce the same to 7.5%. 17. However, the interest awarded by the learned Tribunal @ 9% appears to be on higher side. Accordingly, I deem it proper to reduce the same to 7.5%. 17. Therefore, taking into consideration the facts and circumstances of the case coupled with the evidence placed on record, the claimants are held entitled to a total compensation of Rs. 4,39,500/- (4,32,000 + 2500 + 5000) with 7.5% interest from the date of filing of the claim petition till its realization. 18. Viewed thus, the appeal is allowed. Claimants are held entitled to a compensation of Rs. 4,39,500/- with 7.5% interest from the date of filing of the claim petition till its realization. Accordingly, the insurer, respondent no. 2 herein, to deposit the amount in the Registry within a period of six weeks from today, thereafter the same shall be released in favour of claimants strictly in terms of the conditions as contained in the impugned award after proper verification and identification. 19. Impugned award is, accordingly, modified and appeal stands disposed of along with all connected CMAs, if any. 20. Send down the record forthwith.