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2019 DIGILAW 180 (JK)

Oriental Insurance Company Ltd. v. Mohd. Munir

2019-04-01

SINDHU SHARMA

body2019
JUDGMENT : Sindhu Sharma, J. 1. These appeals are by the Insurance Company, as well as claimants, against the award dated 22.02.2007 made by the learned Motor Accidents Claims Tribunal, Jammu. The accident involving the death of Mst. Tripta Devi took place on 02.06.1999 at Godar Khalsa Kali Dhar, Tehsil Reasi. The deceased Tripta Devi being a pillion rider was travelling with her husband on a Scooter No. 3112-JK02F. It is alleged that Bus No. JK02D-9235 coming from the opposite direction hit the Scooter due to which she fell down alongwith her husband and died of the injuries sustained in the accident. 2. The husband and their two children filed a petition before the learned Motor Accidents Claims Tribunal, Jammu on 02.11.1999 claiming Rs. 8.10 lacs as compensation under different heads. The allegations against the Bus driver was that the accident took place because he failed to control the vehicle while taking a curve near Kali Dhar. The claim petition was registered by the owner, driver as well as Insurer/appellant denying the allegations of involvement in the accident. However, they also pleaded that the husband of the deceased was solely responsible for the accident, for which, the challan was present under Sections 277, 337, 304-A RPC in the Court at Reasi. In the grounds of appeal, it is stated that there being no negligence against the driver of the Bus, the Owner is liable, therefore, the Insurer is not liable to indemnify. 3. The quantum of award is challenged on the ground that the deceased was not earning Rs. 3,000/- per month as claimed but she was getting paid a monthly pay of Rs. 2700/- only and multiplier of 14 is also alleged to have been wrongly applied. The appellant has questioned the award of Rs. 15,000/- for pain & sufferings and Rs. 10,000/- for loss of love & affection. It is not denied by the appellant that although the challan under Section 304-A RPC & others was produced by the police against Raj Kumar, husband of the deceased, in the Court at Reasi which was dismissed by a judgment dated 24.01.2002 by the learned Sub-Judge, Judicial Magistrate, Reasi as all the witnesses produced stated that the accident took place because of the negligence of the Bus driver. Copy of the judgment acquitting the petitioner-Raj Kumar has also been produced by the claimants. Copy of the judgment acquitting the petitioner-Raj Kumar has also been produced by the claimants. Some copies of the statements of the witnesses have also been produced which reveal that the witnesses did not support the prosecution case. 4. Be that as it may, the tribunal had framed the following issues:- (i) Whether the accident involving death of deceased Tripta Devi, occurred due to the negligence of the drivel of offending Vehicle No. JK02D-9235 on 02.06.1999? OPP (ii) In case Issue No. 1 is proved what compensation the claimants are entitled to? OPP (iii) Relief. OPP 5. The learned Tribunal relying on the statements of Raj Kumar, Birbal Sharma, Rajesh Kak and concluded Issue No. 1 in favour of the petitioner holding that the accident involving the death of Tripta Devi and injuries to her husband took place because of negligence of the driver of the offending vehicle. 6. Regarding quantum of compensation, the Tribunal awarded Rs. 3,36,000/- as loss of future income, Rs. 15,000/- for pain and sufferings, Rs. 10,000/- for loss of consortium and love & affection of children and Rs. 2,000/- for funeral expenses. 7. Mr. Vishnu Gupta, learned counsel appearing on behalf of the Appellant/Insurance Company, has not been able to displace the finding of the learned Tribunal regarding negligence of the driver of the bus, that is, the offending vehicle. 8. Since the offending vehicle was coming from the opposite direction, it is a case of collusion, in which it could be argued that the accident was a result of contributory negligence but that not being the plea, and there is no evidence to prove the negligence of the Scooter rider on the contrary. There is definite evidence of PW Birbal Sharma that the bus driver was driving the bus very fast in order to overtake another vehicle and he suddenly lost control while taking a turn and hit the scooterist, he is an eyewitness, who has been examined by the prosecution and has made a same statement in the Court. 9. He has been cross-examined at length but stood his ground that it was the bus driver who was responsible for the accident claiming the life of his wife. Similar statement has been made by PW Paras Ram, so finding of the Tribunal on Issue No. 1 cannot be interfered and the same is confirmed. 10. 9. He has been cross-examined at length but stood his ground that it was the bus driver who was responsible for the accident claiming the life of his wife. Similar statement has been made by PW Paras Ram, so finding of the Tribunal on Issue No. 1 cannot be interfered and the same is confirmed. 10. Regarding the compensation, it is in the statement of PW Rakesh Kak that deceased was her employee and she was being paid monthly salary of Rs. 3,000/-, her statement has not been challenged. 11. The loss of future income has been calculated by using multiplier of 14 instead of 16 because assuming that she had completed 35 years even in case of the age being 36 to 40 the multiplier should be 16 as per Sarla Verma's case. 12. Since the law is that compensation should be just as per Section 168 of the Motor Vehicles Act, the compensation just and equitable because she was not only working for Rs. 3000/- but has been rendering house job also and looking after the children, this aspect has been ignored by the learned Tribunal. 13. Thus the monthly income of the deceased was Rs. 3000/-, 40% addition of future prospects is added, therefore, her income would be Rs. 4200/-, one third, deducted for her personal expenses would make it Rs. 2800/-. So annual dependency would be Rs. 33,600/- and multiplier of 16 would make Rs. 33,600 x 16 = Rs. 5,37,600/-. In terms of the judgment of the Hon'ble Apex Court in 2018 (1) JKJ 25 [SC] National Insurance Co. Ltd. v. Pranay Sethi & Ors., 2017 ACJ page 2700' the claimants are also entitled to Rs. 40,000/- as loss of consortium, Rs. 15,000/- as funeral expenses and Rs. 15,000/- as loss of estate, thus, the claimants are entitled to compensation of Rs. 6,07,600/- with 6% interest from the date of filing the claim petition. 14. Award of the Motor Accidents Claims Tribunal, Jammu stands modified as stated above. Accordingly, this appeal as well as cross appeal are disposed of in the above terms.