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2015 DIGILAW 726 (HP)

Oriental Insurance Company Ltd. v. Ambi Chand

2015-06-19

MANSOOR AHMAD MIR

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Judgment Mansoor Ahmad Mir, J. The appellant/insurer has invoked the jurisdiction of this Court in terms of Section 173 of the Motor Vehicles Act, (for short, the Act), challenging the award, dated 7th March, 2008, passed by Motor Accident Claims Tribunal-II, Mandi, (for short, the Tribunal), in Claim Petition No.51/2006, titled Ambi Chand and others vs. Kamla Devi and others, whereby compensation to the tune of Rs.5,23,000/-, with interest at the rate of 7.5% per annum, from the date of filing of the Claim Petition till realization, was awarded in favour of the claimants, and the insurer/appellant was saddled with the liability, (for short, the impugned award). 2. The claimants, the owner/insured and the driver have not questioned the impugned award on any count, thus, the same has attained finality so far as it relates to them. 3. Only the insurer has questioned the impugned award on two grounds - firstly, that the driver of the offending vehicle was not having a valid and effective driving licence at the time of accident and secondly, that the amount awarded is excessive. 4. Mr. Ashwani K. Sharma, learned counsel for the appellant/insurer, vehemently argued that the Tribunal has fallen in error in deducting 1/3rd amount, from the total income of the deceased, as his personal expenses. He submitted that the deceased, namely, Duni Chand was a bachelor and 50% ought to have been deducted from his income towards his personal expenses. 5. The argument advanced by the learned counsel for the appellant is correct and the Tribunal has fallen in error in deducting 1/3rd amount from the total income of the deceased, towards his personal expenses. The Apex Court in Sarla Verma (Smt.) and others vs. Delhi Transport Corporation and another, (2009) 6 SCC 121 , which decision was also upheld by the larger Bench of the Apex Court in Reshma Kumari and others vs. Madan Mohan and another, 2013 AIR (SCW) 3120, has also held that in such cases, while determining compensation under the head ‘loss of source of dependency’, 50% has to be deducted towards personal expenses of the deceased. 6. The claimants have pleaded in the Claim Petition that the deceased, at the time of his death, was earning Rs.4,000/- per month by working as a salesman. It was also pleaded that the deceased was also earning Rs.11,000/- from agricultural sources. 6. The claimants have pleaded in the Claim Petition that the deceased, at the time of his death, was earning Rs.4,000/- per month by working as a salesman. It was also pleaded that the deceased was also earning Rs.11,000/- from agricultural sources. However, the claimants have not been able to prove the agricultural income of the deceased. 7. The Tribunal, after scanning the evidence, rightly came to the conclusion that the monthly income of the deceased was Rs.4,000/-. Thus, applying the ratio laid down by the Apex Court in Sarla Verma’s case (supra), it can safely be held that the claimants have lost source of dependency to the tune of Rs.2,000/- per month. 8. Keeping in view the fact that the deceased was 22 years of age at the time of accident, read with the latest decision of the Apex Court in Munna Lal Jain and another vs. Vipin Kumar Sharma and others, JT 2015(5) SC 1, multiplier of 15 is to be applied, which has been rightly applied by the Tribunal. 9. In view of the above discussion, the claimants are held entitled to compensation to the tune of Rs.3,60,000/- (Rs.2,000/- x 12 x 15), with interest as awarded by the Tribunal. 10. Coming to other argument of the learned counsel for the appellant, apparently, the driver of the offending vehicle was having a valid and effective driving licence at the time of accident. In order to seek exoneration, it was for the insurer to prove that the owner had committed willful breach, in which it has miserably failed. The Tribunal has rightly made discussion while determining issues No.4 and 5 and has rightly saddled the insurer with the liability. Accordingly, the argument advanced by the learned counsel for the appellant is repelled, being devoid of any force. 11. Having glance of the above discussion, the appeal is partly allowed and the impugned award is modified, as indicated above. The amount be released in favour of the claimants strictly in terms of the impugned award and the excess amount, if any, deposited by the insurer, be released in its favour through payee’s account cheque.