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2020 DIGILAW 263 (JK)

Mohd Sharief v. National Insurance Co.

2020-06-23

SANJEEV KUMAR

body2020
JUDGMENT Mohd Sharief and his wife Mst. Zanib Begum ( hereinafter for short ‘ the claimants’) are seeking enhancement of compensation awarded by the Motor Accident Claims Tribunal, Ramban ( hereinafter ‘ the Tribunal’ for short) vide its award dated 08.11.2008 passed in File No. 11/C in case titled as Mohd Sharief and anr v. Branch Manager, National Insurance Company and others. It may be noted that the Tribual has passed the award of Rs. 2,05,000/- along with interest at the rate of 7.5% from the date of filing of the claim petition till its payment. The claimants seek its enhancement to Rs. 7 lacs with interest at the rate of 12% per annum. 2. Before analyzing the arguments of learned counsel for the claimants urged in support of grounds of challenge taken in this appeal, it would be worthwhile to give few background facts. 3. On 15.03.2004 the deceased Mudassar Ahmad, aged 17 years, son of the claimants was travelling in Matador No. JKU/1134 ( hereinafter ‘ the offending vehicle’ for short) which was being driven by its driver-cum-owner Shri Balbir Singh. The Matador was going from Ukhral to Ramban when it met with an accident at Village Batroo, in which the deceased Mudassar Ahmad sustained serious injuries to which he later succumbed. The claimants, being parents of the deceased, filed the claim petition claiming compensation of Rs. 10 lacs. The claim petition was contested by all respondents. On the pleadings of the parties the Tribunal framed the following issues:- 1. Whether vehicle No. 1134/JKU (Matador) was being driven rashly and negligently by driver Balbir Singh ( now dead) on 15.03.2004 at Makarkote Ukhral road and due to his rash driving accident occurred and deceased Mudassar Ahmad died in the accident? OPP2. Whether the vehicle was being driven in violation of terms and conditions of the Route Permit/RC/FC.? OPR 2. Whether deceased Balbir Singh driver of vehicle No. 1134/JKU was not holding valid driving license at the time of accident on 15.03.2004? OPR 3. In case issue No. 2 and 3 are not proved in affirmative, what is the extent of compensation to which the petitioners are entitled and from whom? OPP 4. Relief. 4. As is apparent, the onus to prove issue Nos. 1, 4 and 5 was placed on the claimants whereas the respondent-Insurer was put the onus to prove issue Nos. 2 and 3. OPP 4. Relief. 4. As is apparent, the onus to prove issue Nos. 1, 4 and 5 was placed on the claimants whereas the respondent-Insurer was put the onus to prove issue Nos. 2 and 3. The claimant Mohd Sharief appeared before the Tribunal as his own witness and also examined one witness, namely, Mohd Sharief. The respondents, including the Insurer, however, led no evidence in rebuttal. In the light of the evidence recorded, the Tribunal held issue Nos. 1, 4 and 5 proved in favour of the claimants and against the Insurer. Issue Nos. 2 and 3 were, however, held not proved by the Insurer and, therefore, decided against it. On the conspectus of evidence led by the claimants and in the light of the legal principles laid down by Hon’ble the Supreme Court, the Tribunal granted the compensation to the claimants in the following manner:- 1. Loss of dependency Rs. 200000.00 2. Loss of Estate Rs. 2500.00 3. Funeral expense Rs. 2500.00 5. The claimants are aggrieved of the compensation awarded and seek the enhanced compensation of ¹ 7 lacs, inter-alia on the following grounds:- 1. That the Tribunal has not correctly appreciated the legal position i.e. assessment of compensation in case of death of a minor child. Relying upon the judgment passed by the Hon’ble Supreme Court in case of Lata Wadhwa and others v. State of Bihar and others, 2001 (8) SCC 197 , it is contended that for the death of the child between the age group of 10-15 years, a sum of Rs. 4.10 Lac was held to be fair and just compensation. 2. That the Tribunal failed to appreciate evidence on record which had sufficiently proved that the deceased, apart from being a student, was also doing tailoring work and was earning Rs. 5000 per month. 6. Heard earned counsel for the parties perused the record. 7. The law with regard to payment of compensation in the case of death of minor having no source of income is not free from ambiguity. The Courts have dealt with the issue from time to time in the light of facts and circumstances of each case. In the some of the judgments, the compensation has been computed by reference to the Second Schedule of the Motor Vehicles Act, 1988. The Courts have dealt with the issue from time to time in the light of facts and circumstances of each case. In the some of the judgments, the compensation has been computed by reference to the Second Schedule of the Motor Vehicles Act, 1988. In the earlier judgments, the notional income of the deceased in such like matters was taken to be Rs. 15,000/- per annum and the compensation was computed by deduction to the extent of 1/3rd and applying the multiplier given in the Second Schedule. Since, the Second Schedule was added to the Motor Vehicles Act in the year 1994 and no amendment as mandated by Section 163A was made by the Government to bring it in conformity with the rising price index, as such, in such cases, particularly the cases in and around the year 2004, such income was taken to be Rs. 30,000/- per annum. 8. In the instant case, the accident has occurred in the year 2004 and, therefore, it would be appropriate to take the notional income of the deceased as Rs. 30,000/- per annum. This is so because the claimants have not been able to prove the income of the deceased by leading any cogent evidence. It was claimed by the claimants that the deceased, besides being a student, was doing the tailoring work but the aforesaid fact is not substantiated by any cogent or convincing evidence. It has not come on record that in which class the deceased was studying at the relevant point of time and also where he was doing the tailoring work. In these circumstances, it would be safe to take the notional income of the deceased as ¹ 30,000/- per annum. Going by the stipulation of the Second Schedule of the Motor Vehicles Act, there has to be deduction of 1/3rd of the income. In the result, the loss of dependency would come to ¹ 20,000/- per annum. In the age group of 15-18 years, the multiplier to be used as per Sarla Verma v. Delhi Transport Corporation, 2009 (6) SCC 121 , is 18. Computed thus the loss of dependency would be as follows:- Rs. 20,000 x 18 = Rs. 3,60,000/- 9. In the result, the loss of dependency would come to ¹ 20,000/- per annum. In the age group of 15-18 years, the multiplier to be used as per Sarla Verma v. Delhi Transport Corporation, 2009 (6) SCC 121 , is 18. Computed thus the loss of dependency would be as follows:- Rs. 20,000 x 18 = Rs. 3,60,000/- 9. Apart from aforesaid sum, the claimants would be entitled to the following sums under the conventional heads on the analogy of the judgment of the Hon’ble the Supreme Court in the case of National Insurance Company Limited Vs. Pranay Sethi, 2017 (16) SCC 680 :- 1. Loss of estate Rs. 40,000/- 2. Loss of consortium Rs. 15,000/- 3. Funeral expenses Rs. 15,000/- Thus, the total compensation payable to the claimant would come to Rs. 4,30,000/- . In the given facts and circumstances of the case and also on the basis of evidence that has come on record, this Court is of the opinion that the compensation of Rs. 4,30,000/- would be just and fair compensation in the instant case. 10. The appeal of the appellant is thus allowed and the appellants are held entitled to compensation of Rs. 4,30,000/- along with interest at the rate of 7.5% per annum from the date of filing of the claim petition till its payment by the Insurer. The interim compensation of Rs. 50,000/- received by the claimants shall be adjusted in the award amount. 11. Insurer to deposit the shortfall with the Registry of this Court within six weeks and the same, on its deposit, be released in favour of the claimants in equal shares on their proper identification and verification.