Research › Search › Judgment

J&K High Court · body

2016 DIGILAW 615 (JK)

Bajaj Allianz General Insurance Co. Ltd. v. Shahzada

2016-11-28

R.SUDHAKAR

body2016
JUDGMENT : R. Sudhakar, J. 1. The Appeal is of the year 2010. The Appellant Insurance Company has filed the instant appeal challenging the award dated 19-10-2009 passed by Motor Accident Claims Tribunal, Pulwama. 2. It is a case of fatal accident. 3. On the fateful date i.e. 26-08-2006, the deceased, namely-Mohammad Altaf Dar, a Baker by profession who was running a Bakery Shop at Rainawari, Srinagar, was returning from his shop and was riding on a Scooter as a Pillion-Rider. Upon reaching Kegham crossing, the said Scooter was hit by a Tipper-Lorry driven by Mukhtar Ahmad Bhat, owned by Javaid Ahmad Dar and insured with the Appellant-Insurance Company. 4. On the death of the deceased-Mohammad Altaf Dar, his widow-Mst. Shahzada, minor daughter-Munaza Altaf, father-Mohammad Ibrahim Dar, mother-Saleema Bano, unmarried sister-Fareeda Akhter and unmarried brother-Mubarak Ahmed Dar, filed the claim petition claiming a sum of nearly Rs. 7,00,000/- as compensation. 5. The owner as well as the driver of the Tipper-Lorry, though served, remained absent in the proceedings before the Learned Tribunal and did not file their objections, and, subsequently, were set in ex-parte by the learned Tribunal. However, in this Appeal, they have filed Cross Objections and have appeared through counsel. 6. Today when the matter is taken up, none appears for Respondent No. 7-Driver of the offending vehicle and Respondent No. 8-Owner of the offending vehicle. 7. The Insurance Company resisted the claim petition primarily contending that the Driver of the Tipper-Lorry did not have a valid driving license and, thereby, there was a breach of condition of policy of insurance, as such, the Insurance Company is not liable to indemnify the claimants. 8. The Learned Tribunal accepted the plea of the Insurance Company in part and held that the driver of the offending vehicle, Tipper-Lorry, did not have a valid driving licence and therefore, the liability is on the owner of the offending vehicle. However, the learned Tribunal directed the Appellant-Insurance Company to pay and recover the sum of compensation from the owner of the offending vehicle. 9. However, the learned Tribunal directed the Appellant-Insurance Company to pay and recover the sum of compensation from the owner of the offending vehicle. 9. In the Cross Objections filed by the Owner and Driver of the offending Vehicle before this Court, they have pleaded that they should be exonerated on the ground that the learned Tribunal, without considering the material on record and without appreciating the evidence on record, has given the Appellant-Insurance Company right of recovery of awarded amount of compensation from them. 10. On the quantum of compensation, the deceased Mohammad Altaf Dar, Baker by profession, it is stated was earning Rs. 10,000/- per month. It is further stated that due to his dint of hard work, the deceased was supporting a big family and was running a good bakery shop. Based on the oral evidence and supported by documentary proof on record, the learned Tribunal fixed the income of the deceased at Rs. 7,000/- rejecting the insurance company's plea that he was earning only Rs. 3,500/-. After deducting 1/3 of the said income as contribution towards his personal expenses, the contribution towards the family was fixed as Rs. 4,700/- and after applying the relevant multiplier (i.e. in view of the age of the deceased) of 17, the learned Tribunal granted a sum of Rs. 9,58,800/- as loss of dependency. The total award was worked out as under: S.No. Item Amount 1. Loss of dependency: Rs.9,58,800/- (Rs.4,700 X 12 X 17 2. Consortium Rs.20,000/- 3. Funeral Expenses Rs.15,000/- 4. Mental Pain and Agony Rs.10,000/- Total c ompensation Rs.10,03,800/- 11. In all, the learned Tribunal awarded a sum of Rs. 10,03,000/- as compensation with 6% interest per annum from the date of order till the final realization of the entire award. 12. According to the Appellant Insurance Company, the compensation, as awarded by the learned Tribunal, is excessive which this Court is not inclined to accept for the reason that the future prospects of the deceased have not been considered. The deceased-Mohammad Altaf Dar, died of a young age of 25 years. Meagre amount has been awarded for loss of consortium. No amount has been granted for loss of love and affection to his minor daughter, aged parents and unmarried sister and brother. Assuming there is a marginal excess it can be adjusted on the above heads. The interest granted is also 6% which is far less. Meagre amount has been awarded for loss of consortium. No amount has been granted for loss of love and affection to his minor daughter, aged parents and unmarried sister and brother. Assuming there is a marginal excess it can be adjusted on the above heads. The interest granted is also 6% which is far less. There is no justification to interfere with the quantum of compensation awarded by the learned Tribunal. 13. In view of the above, the instant appeal is dismissed. The Appellant Insurance Company is directed to deposit the entire amount of compensation along with interest payable awarded by the learned Tribunal within a period of eight weeks from the date of receipt of copy of this order and on deposit, the same shall be withdrawn by the claimants under rules. 14. The recovery rights ordered by the learned Tribunal shall stand confirmed. The finding of the learned Tribunal on breach of Condition of Policy holding that the driver did not hold proper licence is based on evidence and the finding of the learned Tribunal is not controverted by tangible evidence. The plea is prefunctionary and baseless. Hence, the said plea raised in Cross Objections is rejected. Accordingly, the Cross objections also stand dismissed.