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2016 DIGILAW 674 (JK)

National Insurance Co. Ltd. v. Girdhari Lal

2016-12-28

R.SUDHAKAR

body2016
JUDGMENT : R. SUDHAKAR, J. 1. This appeal is of the year 2006. It is a case of fatal accident. The accident in this case happened on 01.10.2002 when a bus coming from Akhnoor going to Tripay hit Manmohan Kumar aged 34 years, who was walking on road. He was seriously injured and was shifted to Government Medical College and Hospital at Jammu where he expired on 03.10.2002. On his death, parents, wife-Lado devi and four minor children are the claimants. 2. The bus was driven by Darshan Lal. According to the claimant it was owned by Mohan Lai C/o. Malhotra Finance, Bus stand Jammu. This is evident from the copy of the Insurance Policy. 3. The income of the deceased was taken at Rs. 6,000/- and after deducting 1/3rd towards the personal expenses and by adopting 16 multiplier following compensation was granted: Loss of dependency Rs.7,68,000/- (400 x 12 x 16) For shocks and agony Rs.25,000/- For love and affection Rs.25,000/- For consortium to widow Rs.15,000/- Funeral expenses Rs.5,000/- Total Rs.8,38,000/- Along with interest @ 6% per annum. 4. Heard counsel for the parties as also Mohan Lai respondent No. 9 present in person who has produced his ID-Card. 5. In appeal it is pleaded by the Insurance Company that the driving license of the driver of the offending vehicle was invalid. It is further pleaded that the quantum of compensation has to be reduced. 6. Perusal of the award reveals that before the Tribunal, the so called owner and driver were set ex-parte. In the appeal however, one person appeared as respondent No. 9. His counsel states that he is not the real owner and it is a case of mistaken identity. The Police, however, recovered the address from the registration certificate of the vehicle involved in the accident and provided the same to the claimants. Consequently, respondent No. 9 was added as party. 7. Counsel appearing for respondent No. 9 states that the Crime Branch, Police are investigating the matter on the basis of a complaint given by 9th respondent who has stated that he has never applied for such a Policy and that the offending vehicle does not belong to him. The counsel for 9th respondent sought for further time to call out records. This apparently is to wriggle out of the situation. The counsel for 9th respondent sought for further time to call out records. This apparently is to wriggle out of the situation. However, no record has been placed on record before the Tribunal or this Court to show that such a compliant has been lodged by 9th respondent. 8. Taking note of the plight of the claimants, counsel for the claimants pleads for early disposal of the appeal. After going through the record of proceedings, the evidence on the record, this Court is not inclined to adjourn the matter any further. The appeal can be disposed of on the basis of the records available. (i) On the no liability issue raised by the appellant pleading that the driver of the offending vehicle though insured was not holding a valid and effective driving license, in Issue number 3, the Tribunal held that no witness was examined by the Insurance Company to prove this issue. Hence on this issue, it is decided in favour of petitioners and against the Insurance Company holding it liable to indemnify the owner with whom the Insurance Company has admitted the contract of Insurance. Even in the appeal no documentary or oral evidence has been referred to. Therefore, the plea of no liability fails. (ii) On the quantum of compensation, the Tribunal has taken the income of the deceased at Rs. 4000/- and added 50% to it for future prospectus and fixed the income at Rs. 6000/-. After deducting 1/3rd towards the personal expenses and by adopting 16 multiplier, the award granted by the Tribunal is as above. 9. In appeal the learned counsel pleaded that deceased was not a regularly employed person and, therefore, in terms of paragraph No. 24 of the decision rendered by Hon'ble Supreme Sarla Verma & Ors. v. Delhi Transport Corporation & Anr. reported in 2009 (3) Supreme 487 , addition of 50% to the salary will not be proper. This plea is accepted and the loss of dependency has to be accordingly reduced. The learned counsel pleaded that the multiplier should be less but that is not tenable because in terms of paragraph 42 of the aforesaid judgment, multiplier of 16 is applicable. That has been rightly applied by the Tribunal. 10. This plea is accepted and the loss of dependency has to be accordingly reduced. The learned counsel pleaded that the multiplier should be less but that is not tenable because in terms of paragraph 42 of the aforesaid judgment, multiplier of 16 is applicable. That has been rightly applied by the Tribunal. 10. Learned counsel for the claimants, however, pleaded that meager amount has been granted for loss of consortium to the widow and for loss of love and affection to the minor children. He also pleads that interest @ 6% is also on lower side. He pleaded that the quantum should not be reduced. 11. In the present case the addition of future prospects is not justified. The actual income alone has to be taken due to nature of employment of the deceased who was employed as driver by Tara Transport Service Narwal Jammu for driving a bus. The multiplier 16 is correct and the deduction should be 1/4th. In this case meager amount is granted for loss of consortium, loss of love and affection to the other dependents. The compensation for funeral expenses is less. No amount is awarded for transporting the dead person. 12. Considering all these pleas raised by the appellant-Insurance Company as also the counsel for the claimants, the award of the Tribunal is hereby modified. The income of the deceased is fixed at Rs. 6000/- and after deducting 1/4th towards the personal expenses instead of 1/3rd as held by the Tribunal, by adopting 16 multiplier the modified compensation is as under: S. No. Heading Award granted by t ribunal Modified award 1. Loss of dependency Rs.7,68,000/- (400 x 12 x 16) Rs.5,76,000/- (3000 x 12 x 16) 2. Loss of consortium Rs.15,000/- Rs.40,000/- 3. Funeral expenses Rs.5,000/- Rs.10,000/- 4. For transport charges Nil Rs.5000/- 5. For love and affection to the four minor children Rs.25,000/- Rs.1,60,000/- (Rs.40,000/- each) Total Rs.8,38,000/- Rs.7,91,000/- (Rupees Seven Lac ninety one thousand only) The interest @ 6% per annum is confirmed. 13. The award passed by the Tribunal is modified and reduced as above. The appellant is entitled to seek refund of the excess after settling the claimants. The appeal is partly allowed as above.