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2016 DIGILAW 567 (JK)

United Insurance Co. v. Yasmeena

2016-10-26

R.SUDHAKAR

body2016
JUDGMENT : R. Sudhakar, J. 1. Appeal by Insurance Company against the award dated 07.06.2014 passed in claim Petition No. 160/claim passed by Motor Accidents Claims Tribunal, Anantnag. The fatal accident occurred on 01.04.2010 when the deceased 48 years old Khurshid Ahmad Gilkar, Junior Agriculture Assistant in the Department of Agriculture was travelling in a Maruti car. When he reached Ganderpora, Safakadal, Srinagar, he was hit by a Mini Bus bearing Registration No. JK01-D/0146 driven by Shakeel Ahmad Bhat Respondent No. 6 owned Mohd. Amin Raina insured. The deceased was initially taken to SMHS Hospital, Srinagar, wherefrom he was referred to SKIMS, Soura, Srinagar. He succumbed to injuries and died on 02.04.2010. The accident was allegedly caused due to rash and negligent driving of the driver of the offending vehicle. FIR No. 43/2010 was registered against the driver at Police Station, Safakadal. 2. The deceased had left behind his widow Mst. Yasmeena, three daughters (minor) and one son who are claimants in the present case. 3. The fact that death of the deceased was caused due to the rash and negligent driving of the driver of the offending vehicle was proved by oral and documentary evidence. The issue was therefore, decided in favour of the claimants and against the respondents. 4. The driver and the owner of the offending vehicle initially appeared and thereafter they did not appear and were set ex-parte. 5. Based on the evidence, statements of the eye witnesses, the driver of the offending Vehicle was held negligent and the cause of the accident. Tribunal has held Insurance Company liable to pay the compensation as the offending vehicle was validly insured with appellant. 6. After recording the evidences and based on the records details of the pay which the deceased was drawing at the time of fatal accident, Tribunal fixed the monthly income at Rs. 27849/-. Considering age of the deceased, multiplier of 13 was applied. 7. On the findings of the Tribunal regarding negligence, there appears to be no serious issue which merits consideration. The appellant pleads that the deceased was also responsible for the accident but that has not been proved by any evidence. Hence rejected. 8. 27849/-. Considering age of the deceased, multiplier of 13 was applied. 7. On the findings of the Tribunal regarding negligence, there appears to be no serious issue which merits consideration. The appellant pleads that the deceased was also responsible for the accident but that has not been proved by any evidence. Hence rejected. 8. The appellant is primarily aggrieved by the award passed by the Tribunal on the count that the appellant had deposited expenses for summoning Respondent No. 6 driver of the Offending Vehicle, for examining him as witness which would have helped the appellant to prove that the deceased himself was also negligent and contributed to the accident. The learned Tribunal has not summoned the said witness. Such a plea cannot be taken into account when the Driver and the owner of the offending vehicle have been set ex-parte due to their continued absence. No purpose will be served by summoning the persons who are not interested in the proceedings. This plea is also rejected. 9. Since there is no valid evidence worth considering to prove negligence of the deceased in the fatal accident, the Insurance Company cannot be exonerated from its liability to pay compensation to the claimants. 10. It was proved by evidence that the deceased was 48 years of age working in the Agriculture department as Jr. Agriculture Assistant having monthly income of Rs. 27,849/-. Since the age of the deceased was 48 years, multiplier of 13 was applied. The total pecuniary loss due to the death of the deceased was fixed as Rs. 27849 x 13 x 12 = Rs. 43,44,444/-. Keeping in mind the number of dependant, 1/4th of the total income was deducted towards the personal expenses of the deceased which comes to Rs. 10,86,111/-. The balance was taken as loss to dependents. 11. Since the deceased is of 48 years of age, the multiplier of 13 was applied in terms of the Judgment of Apex Court Sarla Verma & Ors. v. Delhi Transport Corporation & Anr. Reported as, 2009 (3) Supreme 487 . 12. In this view of the matter, the claimants were awarded the following compensation with interest at 6% per annum:- (i) Loss of dependency : Rs. 32,58,333/- (ii) Loss of Estate : Rs. 10,000/- (iii) Transportation of dead body : Rs. 10,000/- (iv) Loss of consortium : Rs. 10,000/- (v) Funeral expenses: Rs. 10,000/- Total 32,98,333/- 13. 12. In this view of the matter, the claimants were awarded the following compensation with interest at 6% per annum:- (i) Loss of dependency : Rs. 32,58,333/- (ii) Loss of Estate : Rs. 10,000/- (iii) Transportation of dead body : Rs. 10,000/- (iv) Loss of consortium : Rs. 10,000/- (v) Funeral expenses: Rs. 10,000/- Total 32,98,333/- 13. The appellants have taken a plea that the deceased was a government employee and he will have certain benefits like pension which will flow to the dependants. The Hon'ble Apex Court has clearly held that pensionary benefits cannot be deducted while computing the compensation. Therefore, this plea of the appellants is rejected. 14. The admitted salary of the deceased is Rs. 27849/- per month. The Tribunal in this case has not taken future prospects of the deceased into consideration. Meagre amount has been granted for consortium. No amount is granted to the three minor daughters and one son on the death of father for loss of love and affection. Hence on any count award cannot be held to be excessive. There is no merit in this appeal. The appeal is dismissed. 15. The claimants can withdraw the amount of compensation as per the award of the Tribunal. Appellants are directed to deposit the amount if not already deposited with interest. Registry to return the record.