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2019 DIGILAW 344 (JK)

New India Assurance Co. Ltd. v. Khalida Begum

2019-07-19

DHIRAJ SINGH THAKUR

body2019
JUDGMENT : Dhiraj Singh Thakur, J. 1. This is a Civil 1st Miscellaneous Appeal under Section 173 of the Motor Vehicles Act preferred by the New India Assurance Co. Ltd. against the judgment and award dated 29.02.2012 passed by the Motor Accident Claims Tribunal (MACT), Kishtwar. The claimants-respondents are also dissatisfied with the judgment and award under appeal and, therefore, filed Cross Appeal No. 26/2012 in terms of Order XLI Rule 22 of Code of Civil Procedure. Briefly stated, the material facts are as under : 2. Claimants-respondents No. 1 to 5 filed a claim petition before the MACT, Kishtwar for grant of compensation on account of death of one Abdul Rehman Wani (deceased) who died in a road accident on 04.09.2008 near Pain Nallah Thathri, Doda while travelling in the offending vehicle bearing registration No. JK06-0760. The deceased was around 41 years of age at the time of his accident. It was averred that the deceased was a tailor master and was earning Rs. 8,000/- per month from the tailoring business which he spent for the welfare of family including children. Besides owner of the offending vehicle, the insurance Company was incorporated as a party in the proceedings. Claimants-respondents had prayed for compensation to the tune of Rs. 19,50,000/- from the appellant-insurance company on the ground averred in the claim petition. 3. Response was filed to the claim petition wherein various defences were taken by the insurance company. The following four issues were framed by the Tribunal: 1. Whether due to the rash and negligent driving of the vehicle bearing registration No. JK-06/760 by its driver, the vehicle met with an accident at Thathri-Pain Nallah en route from Kishtwar to Thathri, resulting in the death of (1) Imtiyaz Masood, (2) Koushalya Devi, (3) Mohd. Ismail, (4) Sheetal Kumar, (5) Abdul Rehman Wani, (6) Tara Devi, (7) Bashir Ahmed, (8) Shabir Ahmed, (9) Abrar Ahmed, (10) Sat Lal Sharma and (11) Rajesh Kumar while as (12) Abdul Sattar Butt, (13) Mushtaq Ahmed, (14) Dewan Chand and (15) Hasam Din were injured, all of whom were passengers in the offending vehicle? OPP. 2. Whether the offending vehicle, at the time of accident, was being driven in violation of terms and conditions of the Insurance Policy and was over loaded, if so, what is its effect? OPR-1 3. OPP. 2. Whether the offending vehicle, at the time of accident, was being driven in violation of terms and conditions of the Insurance Policy and was over loaded, if so, what is its effect? OPR-1 3. In case Issue No. 1 is proved in affirmative, whether the petitioners are entitled to compensation, if so, what shall be the quantum of compensation and by whom to be paid? OPP 4. Whether the driver of the offending vehicle was not holding a valid and effective driving license, at the time of accident, if so, what is its effect? OPR-1 4. Considering the evidence, on record, the Tribunal came to a conclusion that income of the deceased in the tailoring business was Rs. 5,000/- and following the principles of law laid down in the case of Sarla Verma and Ors. v. Delhi Transport Corporation and another reported in 2009 ACJ 1298 and considering the fact that number of dependants were between 4 to 6, deducted 1/4th i.e. Rs. 1250/- from the monthly income of the deceased on account of personal expenses. The annual loss of dependency, therefore, was calculated at Rs. 45,000/- (i.e. 3,750 X 12). A multiplier 15 was applied considering the age of the deceased and the total loss of dependency was arrived at Rs. 6,75,000/- (i.e. 45,000 X 15). The following was the amount determined on account of compensation under various heads : S. No. Nature/Head of compensation Award by the Tribunal 1 Compensation on account of total future loss of dependency Rs. 6,75,000/- 2. Compensation on account of loss of consortium to the widow (Petitioner. No.1) Rs.10,000/- 3. Compensation on account of funeral expenses Rs. 5,000/- 4. Compensation on account of funeral expenses Rs.5,000/- Total Rs.7,00,000/- Interest @ of 7% per annum was also allowed from the date of filing of the claim petition till the realization of the awarded amount. 5. Although number of grounds have been taken in the memo of appeal, yet learned counsel appearing for the appellant-insurance Company only challenged the award on the issue of multiplier. It was stated that the multiplier of 15 applied by the learned Tribunal was on the higher side and that the appropriate multiplier ought to have been applied is 14. 6. Mr. It was stated that the multiplier of 15 applied by the learned Tribunal was on the higher side and that the appropriate multiplier ought to have been applied is 14. 6. Mr. F.S. Butt, learned counsel appearing for the claimants-respondents, however, does not dispute this fact that the appropriate multiplier which in the facts and circumstances of the case, considering the evidence on record ought to have been applied is 14. Learned counsel, however, in reference to the Cross objections highlighted that the Tribunal had committed an error in ignoring the principles of law as laid down by the Apex Court in 2018 (1) JKJ 25 [SC] National Insurance Company Limited v. Pranay Sethi and others, reported in AIR 2017 Supreme Court 5157 wherein it was held that "if the deceased was self employed or earning a fixed salary, an addition of 40% is to be made as future prospects if the deceased was below the age of 40 years and 25% if the deceased was between the age of 40 to 50 years and 10% if the deceased was between the age of 50 to 60 years". 7. It was stated that not only had the Tribunal not made any addition on account of future prospects calculated @ 25% but the conclusion arrived at by the Tribunal in holding that the income of the deceased was only Rs. 5,000/- was perverse. It was urged that there was ample evidence on record that the deceased was earning Rs. 9,000/- to Rs. 10,000/- per month from his tailoring business which could not have been reduced drastically to Rs. 5,000/-. 8. A reference to the judgment of Pranay Sethi (Supra) does, in fact, make it clear that an addition had to be made on account of future prospects even in a case where the deceased was self employed or was earning a fixed salary. In the present case, the Tribunal has failed to follow the said principle while determining the compensation. 9. However, there is no force in the argument of the learned counsel for the respondents that the income of the deceased was more than Rs. 5,000/- as has been determined by the Tribunal. In the present case, the Tribunal has failed to follow the said principle while determining the compensation. 9. However, there is no force in the argument of the learned counsel for the respondents that the income of the deceased was more than Rs. 5,000/- as has been determined by the Tribunal. In fact, the Tribunal appears to have rightly come to a conclusion that there was no definite material on the basis of which, it could be said that the income of the deceased from tailoring business was more than Rs. 5,000/-. The Tribunal had noticed the fact that whereas in the claim petition, the claimants-respondents had averred that the deceased was earning Rs. 8,000/- per month from this tailoring business, yet in the depositions, the witnesses had made varying claims with regard to the said income. 10. Claimant No. 1, namely, Khalida Begum W/o. Abdul Rehman Wani (Deceased) had claimed that the deceased was earning Rs. 8,000/- to Rs. 10,000/- per month, whereas Zubair Ahmed Sheikh-PW-1 had claimed that the deceased was earning Rs. 10,000/- to Rs. 12,000 per month. Mehboob Ahmed-PW-2 had deposed that earning of the deceased was between Rs. 9,000/- to Rs. 10,000/- per month whereas Azad Hussain-PW-3 had claimed that the deceased was earning Rs. 8,000/- to Rs. 10,000/- per month from the tailoring business. 11. Considering the totality of the circumstances, the Tribunal followed the judgment of the Apex Court in New India Assurance Co. Ltd. v. Smt. Kalpana and Ors. reported in AIR 2007 SC 1243 , wherein it was held that "where there is absence of definite material about income of a victim the monthly income of such victim is to be fixed at Rs. 3,000 per month". The Tribunal, however, struck a balance and arrived at a figure of Rs. 5,000/-, which, in my opinion, does not suffer any illegality or perversity. 12. It was next contended that the Tribunal had failed to consider the ratio of the judgment in passed in Civil Appeal No. 9581 of 2018 titled 2018 (3) JKJ 169 [SC] Magma General Insurance Co. Ltd. v. Nanu Ram Alias Chuhru Ram and Ors. decided on 18.09.2018. According to the ratio of the aforementioned judgment, each of the dependants-claimants are required to be compensated for loss of consortium. Ltd. v. Nanu Ram Alias Chuhru Ram and Ors. decided on 18.09.2018. According to the ratio of the aforementioned judgment, each of the dependants-claimants are required to be compensated for loss of consortium. In the case of children who lost their parents, parental consortium is to be awarded and in a case where a parent has lost a minor child or unmarried son or daughter, the parents are entitled to be awarded loss of consortium under the head of Filial consortium. The apex Court had proceeded to award the father and the sister of the deceased an amount of Rs. 40,000/- each for loss of filial consortium in the aforementioned case. 13. In the present case, however, an amount of Rs. 10,000/- only was awarded to the widow claimant No. 1 as compensation on account of loss of consortium. 14. It needs to be highlighted that according to the apex Court judgment in Pranay Sethi's case (supra), the reasonable figures for compensation on conventional heads namely, loss of estate, loss of consortium and funeral expenses are to be fixed at Rs. 15,000, Rs. 40,000/- and Rs. 15,000/- respectively, which ratio requires to be followed in the present case as well. 15. In so far as monthly income as fixed by the Tribunal i.e. Rs. 5,000/- is concerned, there is possibility of additional income, so by increase of 25% of additional income, the total income of the deceased to be taken into consideration for calculation of compensation is Rs. 6,250/- (i.e. Rs. 5,000 x 25%) and the annual loss of income would come to Rs. 75,000/- (Rs. 6,250 x 12), by deducting 1/4th toward his personal expenses, the annual loss of dependency would come to Rs. 56,250 (i.e. 75,000-18,750) and by adopting the multiplier of 14, the total loss of dependency would come to Rs. 56,250 x 14 = Rs. 7,87,500/-. 16. Be that as it may, the award of the Tribunal is modified and the claimants-respondents are held entitled to compensation as under:- S. No. Nature/Head of compensation Modified Award 1. Compensation on account of total future loss of dependency Rs.7,87,500/- 2. Compensation on account of loss of consortium to the widow (Respondent No.1) Rs.40,000/- 3. Compensation on account of loss of consortium to the son (Respondent No. 2) Rs. 40,000/- 4. Compensation on account of loss of consortium to the daughter (Respondent No. 3) Rs. 40,000/- 5. Compensation on account of total future loss of dependency Rs.7,87,500/- 2. Compensation on account of loss of consortium to the widow (Respondent No.1) Rs.40,000/- 3. Compensation on account of loss of consortium to the son (Respondent No. 2) Rs. 40,000/- 4. Compensation on account of loss of consortium to the daughter (Respondent No. 3) Rs. 40,000/- 5. Compensation on account of loss of consortium to the daughter (Respondent No. 4 Rs.40,000/- 6. Compensation on account of loss of estate Rs. 15,000/- 7. Compensation on account of loss of estate Rs.15,000/- 8. Compensation on account of funeral expenses Rs.15,000/- Total Rs.10,17,500/- The aforementioned amount shall carry interest @ 7% from the date of filing of the petition till realization. 17. The award of the Tribunal shall stand modified to the aforementioned extent. An amount of Rs. 10,17,500/- shall be released less by the amount already released in favour of the claimants in accordance with the shares worked out by the Tribunal along with interest as may be accrued thereon. CCROS No. 26/2012 18. In view of the disposal of the main appeal, the cross appeal also stands disposed of.