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2016 DIGILAW 516 (JK)

National Insurance Co. v. Waheed-Un-Nisa

2016-10-06

RAMALINGAM SUDHAKAR

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JUDGMENT : Ramalingam Sudhakar, J. These appeals are of the year 2012. 2. The National Insurance Company limited has filed four appeals arising out of a single road traffic accident challenging the award dated 6-1-2012 passed by the Motor Accident Claims Tribunal, Jammu. 3. It is a case of fatal accident. On 24-9-2008, at about 7.30 p.m. deceased-Imitiaz Bano, Rashid Ahmed and P.K. Bhat were travelling in a Tempo Traveller No. JK02AG/3379, when it reached near Khanpur Nagrota, another Matador bearing No. JK02W/5523, which was driven by its driver-respondent No.3 in a rash and negligent manner, hit the vehicle and the deceased received fatal injuries leading to their death. The claimants who happen to be dependents/heirs of deceased filed four claim petitions which were taken up together and came to be disposed of by the Tribunal on 6-1-2012 by way of common award. 4. The finding of the negligence on the part of the driver of the offending vehicle is not disputed. The appellant-Company disputes its liability on the plea that at the time of accident the driver of the offending vehicle was not holding a valid and effective driving license. The Insurance Company in the proceedings before the Tribunal raised a specific plea in this behalf and deposited the Diet Expenses for summoning some witnesses and officer from Licensing Authority concerned, to prove their objection that the driver of the offending vehicle was not holding a valid driving license at the time of accident. The Tribunal without giving the appellant-Company an opportunity closed the evidence and proceeded to pass the award. 5. Learned counsel for the appellant-Insurance Company fairly stated that quantum of compensation is not in dispute. It is clearly stated that claimants can withdraw the award so deposited with interest, on the plea that the Court may remand the matter for re-enquiry, insofar as the plea for "pay and recover" is concerned. It is pleaded by appellant that under no circumstances the claimants will be asked to refund the amount. The same is recorded. 6. It is clearly stated that claimants can withdraw the award so deposited with interest, on the plea that the Court may remand the matter for re-enquiry, insofar as the plea for "pay and recover" is concerned. It is pleaded by appellant that under no circumstances the claimants will be asked to refund the amount. The same is recorded. 6. In view of the above, on the accepted plea, the Court is inclined to proceed with the issue as to whether the Tribunal was justified in closing the evidence without giving the appellant-Insurance Company an opportunity to rebut the owner" s plea and plead that the liability should be fixed on the owner of the vehicle with rider that the Insurance Company should be allowed to pay the claimants and recover the same from the owner of the vehicle, on account of driver not holding a valid driving license. The request for summoning the witness was turned down by the Tribunal without any just and reasonable cause. The said plea is justified. The matter requires re-consideration. 7. In this view of the matter, the appeal is allowed by way of remand to the limited extent as follows:- i. The award in favour of the claimants is confirmed. They are entitled to withdraw the same and they will not be liable to refund the same in any circumstances. ii. Appellant-Insurance Company will be entitled to examine the witness before the Tribunal on the short issue as to whether the driver of the offending vehicle had a valid driving license or not and, if they are successful in proving that the driver did not hold a valid driving license, the appellant-Insurance Company is entitled to raise the plea of pay and recover. 8. The appeals are allowed as above and the case is remanded back to the file of Presiding Officer-MACT Jammu. The claimants are free to withdraw the entire amount and interest. 9. Registry to place a copy of the order on each appeal. Cross Appeal (C) 11/2012 (in CIMA No.152/2012) 10. The instant Cross Appeal has been filed by the appellants - claimants Waheed-Un-Nisa and others, seeking enhancement of the award dated 6-1-2012. 11. Appellants-claimants are the children of deceased Imtiaz Bano who died in an accident which took place in the year 2008, as stated above in CIMA No.152/2012. 12. Cross Appeal (C) 11/2012 (in CIMA No.152/2012) 10. The instant Cross Appeal has been filed by the appellants - claimants Waheed-Un-Nisa and others, seeking enhancement of the award dated 6-1-2012. 11. Appellants-claimants are the children of deceased Imtiaz Bano who died in an accident which took place in the year 2008, as stated above in CIMA No.152/2012. 12. Learned counsel for the appellants-claimants submits that Tribunal erred in fixing the monthly salary of the deceased at Rs.7498/- as the appellants have led evidence before the Tribunal that 6th Pay Commission came into force w.e.f 1st January, 2006 vide SRO No. 93 dated 15.4.2009, i.e., when the deceased was alive, therefore, while fixing the monthly salary of the deceased-Imtiaz Bano, 6th Pay Commission should have been taken into consideration by the Tribunal. 13. The Deceased - Imtiaz Bano at the time of accident was 36 years old and was a Government employee. As per the salary certificate - Ex.PW-PS, the Tribunal fixed the monthly salary of the deceased at Rs.7498/-. The said salary certificate was proved by the In-charge Principal Higher Secondary School Dharmari. In view of the judgment of the Hon'ble Supreme Court in case of Sarla Verma and Ors. v. Delhi Corporation and another, reported in (2009) 6 SCC 121 : AIR 2009 SC 3104 the Tribunal added 50% of salary towards future prospects. Accordingly, Tribunal fixed the total monthly income of the deceased at Rs.11,244/-. Then after deducting th towards personal expenses of the decease, the Tribunal fixed the total loss of dependency to appellants-claimants at Rs. 8433/- per month. The Tribunal as per the principles laid down by Hon'ble Supreme Court in Sarla Verma’s case (supra) and applied multiplier of 15, however on account of uncertainties of life and in order to arive at the figure of 'just compensation' reduced the multiplier to 14, and calculated the loss of pecuniary benefits to the dependents of the deceased at Rs. 14,16,774/- (8433x12x14) = Rs.14,16,744/- rounded off to Rs.14,17,000/- For funeral expenses Rs.5000/- was granted and Rs.10,000/- was granted on account of loss of estate. Claimant-Altaf Hussain, the husband of the deceased-Imtiaz Bano who had also filed a separate claim petition (File No. 606/C) before the Tribunal was granted 10,000/- as compensation on account of loss of consortium. 14,16,774/- (8433x12x14) = Rs.14,16,744/- rounded off to Rs.14,17,000/- For funeral expenses Rs.5000/- was granted and Rs.10,000/- was granted on account of loss of estate. Claimant-Altaf Hussain, the husband of the deceased-Imtiaz Bano who had also filed a separate claim petition (File No. 606/C) before the Tribunal was granted 10,000/- as compensation on account of loss of consortium. In all Rs.14,42,000/- was awarded to the Claimants with interest at the rate of 7.5% per annum from the date of filing of claim petition till its final realization. 14. The income fixed by the Tribunal is justified, as the same has been fixed on the basis of salary certificate, which was proved by In-charge Principal Higher Secondary School Dharmari. The deduction of th towards personal expenses and multiplier adopted is in consonance with the decision rendered by the Hon'ble Apex Court in case Sarla Verma case ( AIR 2009 SC 3104 ) (supra). 15. So far as the plea of the appellants that while fixing the monthly salary of the deceased-Imtiaz Bano, 6th Pay Commission should have been taken into consideration is concerned, the Tribunal while again relying upon the judgment of Sarla Verma case has correctly held that the revised pay scale cannot be made the basis for calculation of compensation as the revised pay has not accrued as on that date. Therefore, the plea of the appellants that the pay scale in terms of 6th Pay Commission should be taken into account for the purposes of calculating the income and compensation is not proper. In any event the Tribunal has taken into consideration the future prospects and, therefore, the claimants can have no grievance. The future prospect is akin to revision of pay scale. 16. In this case meager amount has been granted towards funeral expenses, the claimants will be entitled to Rs.7,500/- towards funeral expenses. Further no amount has been granted for love and affection to the children. As such, the appellants will be entitled to Rs.15,000/- each for loss of love and affection on the death of the mother. 17. The award of the Tribunal is modified and the appellants-claimants are entitled to the following enhanced compensation. S. No. Head Award of the Tribunal Modified award 1. For loss of dependency Rs.14,17,000/- Rs.14,17,000/- 2. Funeral expensed Rs.5,000/- Rs.7500/- 3. For loss of estate Rs.10,000/- Rs.10,000/- 4. For loss of consortium to petitioner Altaf Hussain Rs.10,000/- Rs.10,000/- 5. 17. The award of the Tribunal is modified and the appellants-claimants are entitled to the following enhanced compensation. S. No. Head Award of the Tribunal Modified award 1. For loss of dependency Rs.14,17,000/- Rs.14,17,000/- 2. Funeral expensed Rs.5,000/- Rs.7500/- 3. For loss of estate Rs.10,000/- Rs.10,000/- 4. For loss of consortium to petitioner Altaf Hussain Rs.10,000/- Rs.10,000/- 5. For loss of love and affection to children Rs.15,000/- each Totalling Nil Rs.60,000/- 6. Total Rs.14,42,000/- Rs.15,04,500/- 18. The interest granted by the Tribunal at the rate of 7.5% per annum is confirmed. The cross appeal is allowed in the above terms enhancing the award of the Tribunal.