Research › Search › Judgment

J&K High Court · body

2013 DIGILAW 633 (JK)

National Insurance Co. Ltd. v. Tsering Norbu

2013-11-04

Mansoor Ahmad Mir

body2013
1. Taking note of the absence of respondents 2 and 3, they are set exparte. 2. This appeal calls in question Judgment and Award dated 31st May, 2012, for short as `impugned Award' passed by Motor Accidents Claims Tribunal, Leh, for short as `Tribunal' in a claim petition titled Tsering Norbu v. National Insurance Company, Leh and others. BRIEF FACTS 3. Claimant-respondent 1 had filed a claim petition before the Tribunal, being the victim of vehicular accident for awarding compensation, in his favour, on the ground that because of the rash and negligent driving of respondent no. 2, driver of the offending vehicle (Bus) bearing registration No. JK01-7696, on 10.10.2009, one Tsewarg Dolma died. The deceased was 28 years of age, at the time of accident. She was earning Rs. 30,000/- per month from knitting work. The claimant, respondent was dependent upon the deceased and he is not in a position to make his both ends meet in these hard days. The compensation, to the tune of Rs. 70,00000/- (Seventy lacs), as per the breaks up given in paragraph 12 of the claim petition, was sought for. 4. Respondents in the claim petition appeared and contested the claim petition. The court after considering material on record framed following issues for determination:- 1. "Whether the deceased Tsewang Dolma R/o Nimoo, Leh aged 28 years died on 10.10.2009 at village Basgo district Leh due to rash and negligent driving of the offending vehicle bearing registration No. JK01-7696 plied by the driver of the vehicle Skarma Tundup? OPP 2. If issue No. 1 is proved in affirmative, what is quantum of compensation to which the petitioners are entitled to and from whom? OPP 3. Whether the driver of the offending vehicle was having valid and effective driving license on the material date of occurrence? OPD-1 4. Relief." 5. Claimant, after being asked to lead evidence, has examined four witnesses and also appeared in the witness box as his own witness. Appellant-insurer, on its part, examined the Mr. Shameem Ahmad, Senior Assistant ARTO, Office Leh who has said deposed that fitness certificate of the offending was valid only till 27th May, 2009. 6. All the witnesses examined by the respondent/ claimant have stated that deceased namely Tsewang Dolma, had died because of the rash and negligent driving of the offending vehicle (Bus) which was being driven by its driver, respondent no.2. 6. All the witnesses examined by the respondent/ claimant have stated that deceased namely Tsewang Dolma, had died because of the rash and negligent driving of the offending vehicle (Bus) which was being driven by its driver, respondent no.2. She, being a shopkeeper and by doing a knitting work, was earning Rs. 40,000/- per month. ISSUE WISE FINDING: ISSUE No. 1: 7. It is proved by the evidence on record that accident was caused because of the rash and negligent driving of driver, respondent no. 2, and it resulted in the death of deceased Tsewang Dolma. Thus issue No. 1 came to be rightly decided in favour of the claimant, respondent. Accordingly the finding returned on issue no. 1 is upheld. Issue No. 2 8. Claimant, respondent no. 1 has proved by leading evidence that deceased was earning Rs. 4500/- per month. Tribunal after making some deductions and after applying the principle as laid down in Sarla Bano's case, held that claimant, respondent, has lost source of income to the tune of Rs. 46.800/- annually. Tribunal after adding 30% on account of future prospects has reached to such a conclusion. 9. The Tribunal after taking into consideration the age of the deceased and that of the claimant has applied multiplier 17 which is on higher side and it is held that multiplier 16 was just and appropriate multiplier applicable in the circumstances of the case read with the schedule appended with the Motor Vehicles Act. Issue No. 3 10. Learned counsel for appellant/ insurer argued that the driver of the offending vehicle was not having the valid licence on the date of accident. The witness produced, in support of such contention, before the Tribunal has not lend any support to the appellant but has only deposed that fitness certificate was not valid. The ground of invalid fitness certificate cannot absolve the appellant/ insurance co. to pay the compensation. Hon'ble Apex Court in case titled `Swarn Singh' has held that it is for the insurer to prove by leading cogent evidence that insured/ owner has committed any willful default. There is no evidence to show that insured/ owner has committed any willful default, thus the finding returned on issue no. 3 is maintained. 11. The Tribunal while passing the impugned judgment and Award has fallen in error while holding claimant/ respondent entitled for Rs. There is no evidence to show that insured/ owner has committed any willful default, thus the finding returned on issue no. 3 is maintained. 11. The Tribunal while passing the impugned judgment and Award has fallen in error while holding claimant/ respondent entitled for Rs. 10,000/- and 12,500/- on account of funeral expenses and loss of consortium respectively. Therefore, the claimant/ respondents are held entitled to Rs. 2000/- and Rs. 2500/- on the said two counts. 12. Claimants/ respondents are therefore, held entitled to the amount of Rs. 46800x16 = 748800+ 2000+2500 = 753300 with interest as awarded by the Tribunal. 13. While going through the judgment and Award it appears that deceased has left behind two children and a husband who are stated to be 14 and 10 years of age. Thus compensation is payable to all the claimants in equal shares. Share of the children shall be kept in a fixed deposit till they attain the age of majority. The amount of compensation be released in favour of the claimants in terms of this order and the impugned award. 14. The appeal, therefore, is disposed of with the above modification. 15. Send down the record along with the copy of the judgment.