Research › Search › Judgment

J&K High Court · body

2018 DIGILAW 777 (JK)

National Insurance Co. Ltd. v. Kulbir Singh

2018-10-04

SANJEEV KUMAR

body2018
JUDGMENT : 1. This is an appeal by the National Insurance Company Ltd., against the award dated 30.12.2017 passed by the Motor Accident Claims Tribunal, Kathua (hereinafter referred to as “the Tribunal”) in Claim Petition No.88/2015 titled Kulbir Singh alias Kulvir Singh v. Jasmeet Kumar and anr. 2. Briefly stated, the facts leading to the filing of this appeal are that on the fateful day of 20.09.2015 at about 11.45 p.m. when the claimant was roping the loaded goods in his Truck No.JK08D-2935 parked at Sawan Chak near Talab, Kathua, motorcycle bearing Registration No.JK08E-0621, which was being driven by respondent No.1 in a rash and negligent manner, while coming from the opposite side hit the claimant as a result whereof, he suffered multiple serious injuries. The injuries suffered by the claimant rendered him permanently disabled to the extent of 35%. The claimant claimed to have been working as driver and earning Rs.15,000/- per month. The claimant laid a claim of Rs.35.00 lakh under various heads before the Tribunal. The claimant also claimed that due to the permanent disablement suffered by him, he was unable to drive any type of vehicle, so his income had been reduced to zero. The appellant-Insurance Company resisted the claim lodged by the claimants by filing objections. On the basis of the pleadings of the parties, the Tribunal framed the following issues:- “1. Whether an accident occurred on 20.09.2015 at Sawan Chak, Kathua near Talab, Teshil and District Kathua, within the jurisdiction of Police Station, Kathua, by rash and negligent driving of vehicle bearing No.JK08E-0621 by its driver respondent No.1 resulting in injuries to petitioner Kulbir Singh alias Kulvir Singh ? OPP 2. If issue No.1 is proved in affirmative, whether the petitioner is entitled to compensation? If so, to what amount and from whom? OPP 3. Whether the respondent No.1, driver of the offending vehicle was not holding a valid and effective driving licence at the time of accident and whether there was any violation of terms and conditions of the policy of insurance? If so, to what effect? OPR-2 4. Relief. ?” 3. The parties were asked to produce their evidence. The claimant besides appearing as his own witness also examined Kuldeep Kumar, Dr. Ghanshyam Arora, Harbhajan Singh in support of his claim. On the other hand, the appellant-Insurance Company examined Madhu Sadotra and Sumit Kumar as its witnesses. 4. If so, to what effect? OPR-2 4. Relief. ?” 3. The parties were asked to produce their evidence. The claimant besides appearing as his own witness also examined Kuldeep Kumar, Dr. Ghanshyam Arora, Harbhajan Singh in support of his claim. On the other hand, the appellant-Insurance Company examined Madhu Sadotra and Sumit Kumar as its witnesses. 4. The Tribunal, after appreciating the evidence produced before it, held the claimant-Kulbir Singh entitled to the following relief:- S. No. Heads Compensation 1. Loss of future income Rs.5,73,300/- 2. Damages on account of pains and sufferings Rs.50,000/- 3. Loss of amenities Rs.30,000/- 4. Medical and Misc. Expenses Rs.78,000/- Total Rs.7,31,300/- 5. Aggrieved of the award of the Tribunal the appellant-Insurance Company has filed this appeal. Dissatisfied with the amount awarded by the Tribunal, the claimant too has filed Cross objections seeking enhancement of compensation. 6. Learned counsel for the appellant-Insurance Company assails the award impugned on the ground that the income of the claimant taken for calculation of the compensation is excessive and on higher side. He further submits that the Tribunal has applied the multiplier of 13 which, as per the Sarla Verma v. Delhi Transport Corporation and another; (2009) 6 SCC 121 , is prescribed for the age group of 46-50 years whereas as per the driving license of the claimant in which his date of birth is recorded as 01.03.1961, on the date of accident he was 54 years of age, so multiplier of 11 should have been applied. 7. Heard learned counsel for the parties and perused the record. 8. As per the oral evidence on record, the claimant was earning Rs.10,000/- to Rs.15,000/- per month but since there was no documentary proof regarding the exact income of the claimant, the Tribunal has taken the income of the claimant as per the Minimum Wages Act i.e. Rs.350/- per day in terms of SRO 460 dated 26.11.2017. Learned counsel for the appellant-Insurance Company disputes the income of the claimant taken as per the Minimum Wages Act and submits that the minimum wages of a skilled worker as per SRO 3 dated 04.01.2013, which was applicable on the date of accident i.e. 20.09.2015, was Rs.225/- per day, therefore, the Tribunal has wrongly taken the income of claimant as Rs.350/- per day. 9. 9. No doubt, it is true that the Tribunal for the purposes of calculating the monthly income of the injured/claimant has relied upon SRO 460 of 2017 but the fact remains that the minimum wages fixed by the government are always on the lower side than those which are actually paid in the market. I am, therefore, not inclined to accept the plea of the appellant-Insurance company that the minimum wages as per SRO 3 of 2013 should have been taken into consideration. The earning of a driver pegged at Rs.350/- per day cannot, by any stretch of reasoning, be called exorbitant or unrealistic. 10. Rs.78,000/- awarded by the Tribunal on account of medical and miscellaneous expenses is assailed by the Appellant-Insurance Company on the ground that the medical expenses could not have been awarded, as there was no documentary proof brought on record by the claimant. It is true that there is no documentary proof brought on record by the claimant to substantiate the aforesaid claim but the fact remains that the claimant has become disabled to the extent of 35% and remained hospitalized. The claimant, therefore, must have spent some amount on his treatment which fact cannot be denied. Taking into consideration the totality of circumstances, the amount of Rs.50,000/- would be just and reasonable for medical and other miscellaneous expenses. 11. It is next contended by the learned counsel for the Appellant-Insurance Company that the Tribunal has erroneously awarded interest on the future income. This contention of the appellant-Insurance Company has not been contested by the respondent-claimant. Otherwise also, legal position in this regard is well settled. Accordingly, the interest awarded by the Tribunal shall not be carried on the future income. The Tribunal has awarded 8% interest. The learned counsel for the appellant-Insurance contends that as per the judgments passed by the Supreme Court as also by this Court, the consistent view taken is that the award amount payable under the Motor Vehicles Act should carry a reasonable rate of interest i.e. 7.5%. Accordingly, the interest at the rate of 7.5% shall be payable on the amount of compensation. 12. The assessment of functional disability to the extent of 35% by the Tribunal has been disputed by either of the party. 13. Accordingly, the interest at the rate of 7.5% shall be payable on the amount of compensation. 12. The assessment of functional disability to the extent of 35% by the Tribunal has been disputed by either of the party. 13. In view of the above, taking the monthly income of the claimant as Rs.10,500/-, adopting the multiplier of 11, as has been prescribed in the case of Sarla Verma (supra) and taking the functional disability at 35%, the loss of future income would come to Rs.10,500 x 12 x 11 x 35% =4,85,100/-. Accordingly, the claimant is held entitled to compensation in the following manner:- S. No. Heads Amount 1. Loss of future income Rs.4,85,100/- 2. Damages on account of pains and sufferings Rs.50,000/- 3. Loss of amenities Rs.30,000/- 4. Medical and Misc. Expenses Rs.50,000/- Total Rs.6,15,100/- The aforesaid amount, except amount granted for loss of future income, shall carry interest @ 7.5%. 14. Accordingly, the appeal of the appellant-Insurance shall stand disposed of in the above terms and the Cross objections are dismissed.