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2014 DIGILAW 112 (RAJ)

National Insurance Company Ltd. v. Sayyed Najma

2014-01-08

ARUN BHANSALI

body2014
JUDGMENT 1. - At the request of learned counsel for the parties, both the appeals are finally heard. 2. These appeals are directed against the judgment and award dated 31.07.2013 passed by Motor Accident Claims Tribunal (First), Jodhpur ('the Tribunal'), whereby, for the death of one Sayyed Istiyak Ahmed, the Tribunal has awarded a sum of Rs. 5,57,088/- as compensation along-with interest @ 8.5% per annum from the date of filing application for compensation ('the application') i.e. 10.06.2009. 3. While the Insurer is aggrieved against the liability imposed on itself, the claimants have sought enhancement of compensation. 4. The facts in brief may be noticed thus: on 30.01.2009 at about 7.30 PM one Sayyed Istiyak Ahmed was walking on the road along-with his fellow teacher Poonam Kumar, when a Hyundai Accent Car bearing Registration No.HR-18-9432, which was being driven by one Mehrudeen collided with him resulting in grievous injuries, to which he later succumbed. 5. The application for compensation was filed by the claimants, who are wife and son of the deceased, inter alia, with the averments that the deceased was aged 50 years and was a Teacher of English language with Subhash Public School, Sindhari, Barmer and his monthly salary was Rs. 6,000/- and claimed compensation of Rs. 64,95,000/-. 6. A reply to the application was filed by the owner and driver of the vehicle, whereby, the averments contained in the application were denied and it was claimed that the vehicle was insured with the Insurance Company. The Insurance Company also filed its reply, admitted insurance of the vehicle for the period 14.09.2008 to 13.09.2009 and took a plea that as driver was not in possession of valid and effective driving licence, the application was liable to rejected qua the appellant. 7. The Tribunal framed two issues, on behalf of the claimants, three witnesses were examined and seven documents were exhibited. On behalf of the Insurance Company Virendra Mathur and Mehrudeen were examined and documents (Exhibit - A/1 to A/4) were exhibited. 8. After hearing the parties, the Tribunal came to the conclusion that the accident occurred on account of rash and negligent driving by the driver Mehrudeen. 9. On behalf of the Insurance Company Virendra Mathur and Mehrudeen were examined and documents (Exhibit - A/1 to A/4) were exhibited. 8. After hearing the parties, the Tribunal came to the conclusion that the accident occurred on account of rash and negligent driving by the driver Mehrudeen. 9. While considering the issue as to whether the driver was in possession of valid and effective driving licence, the Tribunal noticed that though the Insurance Company has produced Report (Exhibit - A/2) from RTO, Baliya indicating that the driving licence (Exhibit - 6) was fake, as the driver defendant No.1 Mehrudeen had produced his original licence as Exhibit - A/1 and denied existence of Exhibit - 6, the Tribunal held that the driver was in possession of valid and effective driving licence and, therefore, the Insurance Company was liable to make payment of compensation. 10. While assessing the quantum of compensation, the Tribunal assessed the age of deceased at 55 years; applied 15% as future prospects and on finding that there was no reliable evidence regarding the income of the deceased assessed the same at Rs. 5,000/- per month; applied multiplier of 11 after deducting ⅓ as his personal expenses and awarded a sum of Rs. 4,07,088/- towards loss of income; Rs. 1,00,000/- towards loss of consortium; Rs. 25,000/- towards funeral expenses and in all awarded a sum of Rs. 5,57,088/- along-with interest as indicated hereinbefore. 11. It is submitted by learned counsel for the Insurance Company that from a perusal of Exhibit - 6 along-with verification report (Exhibit - A/2), it is apparent that the driving licence possessed by driver Mehrudeen was fake and, therefore, the Tribunal fell in error in holding the Insurance Company liable for making payment of compensation. It was submitted that the appeal preferred by the claimants has no substance as the compensation awarded by the Tribunal is just and reasonable in the facts and circumstances of the case. 12. Per contra, learned counsel for the claimants submitted that the driver himself appeared in the witness-box as NAW - 1 and exhibited his original licence, which is available on record as Exhibit - A/1, which clearly authorizes him to drive the said vehicle and it cannot be said that the driver was not in possession of valid and effective driving licence. Therefore, the Tribunal was justified in holding the Insurance Company liable for making payment of compensation. Therefore, the Tribunal was justified in holding the Insurance Company liable for making payment of compensation. It was further submitted that from the documentary and oral evidence available on record, it was proved that salary of the deceased was Rs. 6,000/- per month and, therefore, the Tribunal was not justified in assessing the salary of the deceased at Rs. 5,000/- only and, therefore, the award impugned, deserves to be modified and the compensation as awarded by the Tribunal deserves to be enhanced. 13. I have considered the rival submissions and perused the judgment and award impugned along-with record of the case. 14. From the bare perusal of the record, it is apparent that the driving licence (Exhibit - 6), which was exhibited by the claimants was merely part of the Police record and was admittedly a photocopy. However, when NAW - 1 Mehrudeen, driver himself appeared in the witness-box, he exhibited his original driving licence (Exhibit - A/1), the said driving licence was issued in his name on 06.01.1989 and entitled him to inter alia, drive 'light motor vehicle' and was effective on the date of accident. When the said NAW - 1 driver appeared in the witness-box, he was cross-examined on the validity of Exhibit - 6 and Exhibit - A/1 to which he categorically stated that the document Exhibit - 6 does not belong to him and his original licence was Exhibit - A/1. In view of the fact that the document (Exhibit - 6) was merely a photocopy and the document (Exhibit - A/1) is original, which is available on record of the Tribunal, the said document (Exhibit - A/1), which pertains to the said Mehrudeen cannot be discarded. The said licence entitled him to drive 'light motor vehicle' and 'transport vehicle' on the date of accident. Consequently, the finding recorded by the Tribunal that the driver was in possession of valid and effective driving licence does not call for any interference and the same is upheld. 15. So far as the assessment of income of the deceased Sayyed Istiyak Ahmed is concerned, it was specific case of the claimants in their application that he was working as Teacher with Subhash Public School, Sindhari, Barmer and his monthly salary was Rs. 15. So far as the assessment of income of the deceased Sayyed Istiyak Ahmed is concerned, it was specific case of the claimants in their application that he was working as Teacher with Subhash Public School, Sindhari, Barmer and his monthly salary was Rs. 6,000/-, to support the said contentions, the claimants produced the document (Exhibit - 9), which is an office order dated 01.07.2008 issued by the Secretary, Subhash Education and Health Society, Sindhari, Barmer, which appears to be operating the Subhash Pubic School, which is an English Medium School indicating that the deceased was appointed as a Teacher with a monthly salary of Rs. 6,000/- per month. Besides the said document, one Balaram, who is Manager of the School appeared as witness and deposed that the deceased was getting Rs. 6,000/- per month as salary and in cross-examination indicated that the School was a Private School, whose Principal was Rajendra Singh Charan, who was getting Rs. 7,000/- per month; there were six Teachers and the salary was paid by the Society and he was Manager of the Society. The Tribunal while considering the evidence regarding the income observed that there was no documentary evidence and that only oral statement with regard to salary was available on record, is apparently incorrect as the document (Exhibit - 9) clearly indicates the income of the deceased at Rs. 6,000/- per month. There appears to be no reason to disbelieve the said document in the light of oral evidence of Balaram and the claimant Sayyed Najama and the fact that the deceased was a Teacher of English Language. 16. As such the income of the deceased is assessed at Rs. 6,000/- per month and while maintaining the rest of the parameters regarding multiplier, percentage of future prospects and deduction for personal expenses; the compensation for loss of income is enhanced to 6,07,200/- from Rs. 4,07,088/-. The rest of the compensation awarded by the Tribunal does not call for any interference. 17. Consequently, the appeal filed by the appellant - Insurance Company is dismissed and the appeal filed by the claimants is partly allowed. The award passed by the Tribunal dated 31.07.2013 is modified to the extent that instead of Rs. 5,57,088 as compensation, the claimants would be entitled to a sum of Rs. 7,57,200/- as compensation along-with interest @ 8.5% per annum from the date of filing application i.e. 10.06.2009. 18. The award passed by the Tribunal dated 31.07.2013 is modified to the extent that instead of Rs. 5,57,088 as compensation, the claimants would be entitled to a sum of Rs. 7,57,200/- as compensation along-with interest @ 8.5% per annum from the date of filing application i.e. 10.06.2009. 18. The amount of enhanced compensation be paid by the Insurance Company within a period of two months. 19. No costs.Appeal dismissed. *******