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2018 DIGILAW 654 (JK)

Oriental Insurance Co. Ltd. v. Shinder Massi

2018-08-27

SANJEEV KUMAR

body2018
JUDGMENT : Sanjeev Kumar, J. 1. This appeal of Oriental Insurance Company is directed against the award dated 22.12.2015 passed by the Motor Accident claims Tribunal, Jammu (hereinafter referred to as "the Tribunal") in Claim No. 495 titled Shinder Massi and Anr. v. Oriental Insurance Co. Ltd. and Ors. The impugned order has been assailed by the appellant primarily on two grounds:- (i) That the driver of the offending vehicle was not holding a valid driving licence on the date of accident and, therefore, the insurance company is not liable to indemnify the insured owner.(ii) That quantum of compensation fixed by the tribunal is exorbitant and, therefore, not sustainable. 2. Briefly stated, the facts as gatherable from the award impugned are that the deceased namely Ashu, aged 23, while riding motorcycle No. PB06K-0632 as pillion rider was hit by a Truck bearing No. JK02C-6874 driven, rashly and negligently by its driver on 23.04.2012 at about 4.45 p.m. near Nowgram Chowk, Bishnah. As a result of the accident, the deceased Ashu suffered fatal injuries. The parents of the deceased Ashu namely Shinder Massi and Swarni Devi (hereinafter referred to as "the Claimants") filed a claim petition under Section 166 of the Motor Vehicles Act, 1988 before the Tribunal claiming compensation of Rs. 19 lakhs. The owner and driver were arrayed as party respondents. The appellant-insurance company was also arrayed as respondent being the insurer of the offending vehicle. The claim petition was contested by the appellant-insurance company on all available grounds. On the basis of the pleadings of the parties, the Tribunal framed following issues for determination:- (i) Whether an accident took place on 23.04.2012 at about 4.45 p.m. near Nowgram Chowk, Bishnah by rash and negligent, driving of the vehicle bearing registration No. JK02C-6874 by its driver as a result of which deceased Ashu received fatal injuries?OPP. (ii) If issue No. 1 is proved in affirmative whether petitioners are entitled to compensation; if so to what amount and from whom? OPP. (iii) Whether the offending vehicle was being driven at the time of the accident in violation of terms and conditions of policy of insurance and respondent insurance company is not liable?OPR-1. (iv) Relief. O.P. Parties. 3. The Tribunal, on the basis of the evidence on record, held issue No. 1 proved in favour of the Claimants. OPP. (iii) Whether the offending vehicle was being driven at the time of the accident in violation of terms and conditions of policy of insurance and respondent insurance company is not liable?OPR-1. (iv) Relief. O.P. Parties. 3. The Tribunal, on the basis of the evidence on record, held issue No. 1 proved in favour of the Claimants. It was proved that the accident had taken place on 23.04.2012 near Nowgram Chowk Bishnah at about 4.45 p.m. due to rash and negligent driving of the offending vehicle by its driver. Issue No. 3 was also held proved against the appellant-insurance company. It was asserted by the appellant-insurance company that the offending vehicle, on the date of accident, was being driven by the driver who was not holding a valid driving licence. 4. On facts, the Tribunal found that the appellant-insurance company had not led sufficient evidence to discharge its onus. On issue No. 2, the Tribunal, on the basis of the evidence, found that the deceased at the time of accident was 23 years old and was undergoing computer training. It was also found that she was earning Rs. 6,000/- per month by doing tuition work. Applying the law laid down in Rajesh and Ors. v. Rajbir Singh and Ors, (2013) 9 SCC 54 and also in the case of Sarla Verma and Ors. v. Delhi Transport Corporation and Anr., 2009 (3) SCC 487, the Tribunal awarded compensation in the following manner:- 1. Loss of Dependency Rs.9,72,000/- 2. Funeral Expenses Rs.25,000/- 3. Loss of Estate Rs.5,000/- 4. Loss of Love and affection to parents Rs.1,00,000/- 5. Total Rs.11,02,000/- (Eleven lacs and two thousand only) 5. Having heard learned counsel for the appellant as well as the learned counsel for respondent No. 3, I am of the view that the award passed by the Tribunal deserves to be modified, in that, the amount awarded on different heads is exorbitant and not in consonance with the law declared by the Supreme Court in the case of 2018 (1) JKJ 25 [SC] National Insurance Co. Ltd. v. Pranay Sethi and Ors. : AIR 2017 SC 5157 . 6. I have carefully gone through the evidence on record and find that there is no convincing evidence led by the claimants to prove the income of the deceased except for making oral assertion that she was doing some tuition work and was earning Rs. Ltd. v. Pranay Sethi and Ors. : AIR 2017 SC 5157 . 6. I have carefully gone through the evidence on record and find that there is no convincing evidence led by the claimants to prove the income of the deceased except for making oral assertion that she was doing some tuition work and was earning Rs. 6,000/- per month. In the face of such weak evidence on record, the Tribunal was not justified to accept the income of Rs. 6,000/- as gospel truth. 7. Keeping in view the facts and circumstances of the case and the fact that the deceased was 23 years old and was undergoing computer training, she could be expected to have been earning at least Rs. 4,000/- per month. This is the monthly income of the deceased that needs to be taken into consideration for working out the loss of dependency of the claimants. Since the deceased was self employed and, therefore, as per the guidelines laid down in Pranay Sethi's case (supra), there should have been increase of 40% on account of future prospects. This would take the loss of dependency to Rs. 5,600/-. Since the deceased was unmarried and, therefore, there should be deduction of 50% from the assessed income of the deceased. Going by the age of the deceased, multiplier of 18 would be applicable. Accordingly, the loss of dependency would be worked out as under:- (i) Monthly income of the deceased Rs. 4,000/-. (ii) Adding 40% on account of future prospects, total monthly income to be taken into consideration is Rs. 5,600/- (40% of Rs. 4000 + Rs. 4000). (iii) Deducting 50% on account of personal expenses of the deceased, the net loss of monthly dependency would come to Rs. 2,800/-. (iv) Net loss of annual dependency would be Rs. 33,600/-. 8. By applying the multiplier of 18, the loss of dependency would come to Rs. 2800 x 12 x 18 = Rs. 6,04,800/-. The amount on account of funeral expenses and loss of estate also needs to be re-fixed in view of the law laid down in Pranay Sethi's case (supra). 9. Accordingly, the compensation that would be payable to the claimants shall be as under:- (i) Loss of Dependency Rs.6,04,800/- (ii) Funeral Expenses Rs.15,000/- (iii) Loss of Estate Rs.15,000/- Total Rs.6,34,800/- 10. The appeal is, accordingly, partially allowed and the award passed is modified to the aforesaid extent. 11. 9. Accordingly, the compensation that would be payable to the claimants shall be as under:- (i) Loss of Dependency Rs.6,04,800/- (ii) Funeral Expenses Rs.15,000/- (iii) Loss of Estate Rs.15,000/- Total Rs.6,34,800/- 10. The appeal is, accordingly, partially allowed and the award passed is modified to the aforesaid extent. 11. Disposed of.