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2020 DIGILAW 567 (JK)

United India Insurance Company Limited v. Ghulam Mohammad Parray

2020-11-04

VINOD CHATTERJI KOUL

body2020
Judgment Vinod Chatterji Koul, J.—United India Insurance Company Limited – appellant herein, is aggrieved of and seeks setting-aside of Award dated 17th March 2015, passed by Motor Accident Claims Tribunal (court of Principal District Judge) Baramulla (for short “Tribunal”), on a Claim Petition no.18 titled Gh. Mohammad Parray and another v. Abdul Hameed Shah and others, saddling appellant Insurance Company with liability to indemnify insured and pay compensation of Rs.6.00 Lakh inclusive of interim relief with simple interest @ 6% per annum from the date of institution of claim till final realization to claimants – respondents 1&2 herein, on the grounds mentioned in Appeal on hand. 2. Heard and considered. 3. According to learned counsel for appellant, learned Tribunal erred in saying that deceased was killed in a road accident caused by offending vehicle bearing Registration no.JK05-3422, when it was being driven by its driver rashly and negligently, as death of deceased caused in firing incident which had taken place at the place of occurrence because of the reason that locals of the area including deceased had gathered on spot to receive bodies of victims who had been got killed in a militant related activity. When the bodies reached to village, people started shouting slogans and pelting stones on police personnel who in self-defence opened fire in which deceased got killed and police authorities had recorded the happening of incident under FIR no.47/2001, and by documentary evidence as well it is established beyond any doubt that accident did not took place by negligence of driver and therefore finding returned by the Tribunal on the issue is not in accordance with evidence. Next submission of learned counsel for appellant is that both driver and owner of offending vehicle did not contest claim petition and absented themselves from the proceedings and there was no occasion for appellant to call for vehicular documents as nobody was available before the Tribunal from whom such documents could have been demanded for verification. And in absence of vehicular documents, the Tribunal should have drawn adverse inference against driver and owner of offending vehicle. And in absence of vehicular documents, the Tribunal should have drawn adverse inference against driver and owner of offending vehicle. After saying this, it is also stated by learned counsel for appellant as is also mentioned in Appeal on hand that even if appellant Insurance Company is held liable to pay award amount, but Tribunal seems to have erred in law and in fact of the case in awarding compensation of Rs.6.00 lakhs in favour of claimants that too with interest @ 9% per annum from the date of institution of claim petition till final realization. It is also contended that it is an admitted fact that deceased was a bachelor and virtually had been not doing any work on regular basis and the Tribunal has taken income of deceased as Rs.45000/- per annum and thereafter deduced Rs.15,000/- therefrom as one third of the said amount, towards the personal expenses of deceased and remaining amount of Rs.30,000/- per annum has been considered by the Tribunal towards the loss of dependency for respondents 1&2 for working out compensation by applying a multiplier of 18 against the age of deceased and after working out compensation against aforesaid multiplicand of Rs.30,000/- by applying multiplier of 18 thereto, the amount worked out at Rs.5,40,000/-, to which a further amount of Rs.20,000 on account of funeral charges, Rs.5,000/- as medical expenses, Rs. 20,000/- towards love and affection and Rs.5000/- for attendant, thereby making total amount of compensation at Rs.6.00 Lakhs. The compensation seems to have been worked out by the Tribunal erroneously on higher side. Firstly, there was no evidence available with the Tribunal to fix the income of deceased at Rs.45,000/- per annum, which is only notional and on higher side as deceased has not been doing any regular work. Secondly, the Tribunal has erred in law in making a deduction of one third from the said amount towards personal expenses of deceased when, under established law, deduction should have been 50% towards his personal expenses as he was bachelor at the time of his death. Multiplier adopted by the Tribunal is also on higher side as it has been wrongly adopted by Tribunal against the age of claimants 1&2, being parents of deceased, and only dependents of deceased. Multiplier adopted by the Tribunal is also on higher side as it has been wrongly adopted by Tribunal against the age of claimants 1&2, being parents of deceased, and only dependents of deceased. The Tribunal is also stated to have erred in awarding 9% interest on award amount instead of 6% as adopted by the Supreme Court as also by this Court. 4. Taking into account grounds raised in the Appeal and submissions made by learned counsel for appellant Insurance Company, I have gone through the record of the Tribunal. 5. Respondents 1&2 filed a claim petition before the Tribunal, claiming that death of their son, namely, Mushtaq Ahmad Parray was caused by rash and negligent driving of the driver of offending vehicle. According to claimants, monthly income of deceased was Rs.15,000/- per month. 6. Appellant Insurance Company submitted written statement, in which it admitted that interests of owner of offending vehicle was covered under policy of insurance, issued by it. Appellant also averred in its written statement that driver of offending vehicle was not holding a valid driving licence. 7. The Tribunal, upon perusal of pleadings of parties, vide order dated 28th July 2007, settled following issues for trial: 1. Whether on 1.07.2001 the deceased was travelling in Matador, bearing Registration no.JK05-3422 driven by respondent no.2 rashly and negligently and the vehicle overturned at Khushipora Rafiabad and critically injured the deceased who succumbed due to these injuries on 6.8.2001? OPP 2. Whether the deceased was 20 years of age and was earning Rs.15000/- per month? OPP 3. Whether the offending vehicle was insured on the date of incident? OPP 4. Whether the accident is outcome of a scuffle between general public and police connecting FIR no.47/2001 P/S Panzla, hence Insurance company is not liable to pay? OPD 5. Whether the offending vehicle was having valid documents at relevant time? OPD 6. Whether the driver was holding valid driving licence at the relevant time? OPD 7. Relief. 8. Claimants/respondents 1&2 produced two witnesses: one police officer; and another a doctor before the Tribunal. Claimants also produced documentary evidence, viz. copy of FIR, challan and medical certificate, besides original copy of death certificate and driving licence of driver of offending vehicle. Appellant produced one witness: Administrative Officer of Insurance Company. OPD 7. Relief. 8. Claimants/respondents 1&2 produced two witnesses: one police officer; and another a doctor before the Tribunal. Claimants also produced documentary evidence, viz. copy of FIR, challan and medical certificate, besides original copy of death certificate and driving licence of driver of offending vehicle. Appellant produced one witness: Administrative Officer of Insurance Company. Police Officer, produced by claimants before the Tribunal, stated that the vehicle (matador) that met with accident, resulted in injuries to many persons, including Mushtaq Ahmad Parray son of claimants/respondents 1&2, who succumbed to injuries in hospital. He has also deposed that he was present on the spot of occurrence and accident took place as a result of negligence of driver. 9. It is pertinent to mention here that plain reading of police report and Challan would unequivocally divulge that deceased, Musthaq Ahmad Parray, got seriously injured due to rash and negligent driving of offending vehicle. In such circumstances, contention of learned counsel for appellant that death of deceased, Musthaq Ahmad Parray, did not cause by accident, is devoid of any substance and against the police FIR, police report and police Challan. In that view of matter, the Tribunal has rightly decided Issues1&4 in favour of claimants. 10. As regards age and earning of deceased, Issue no.2 was framed by the Tribunal. It took age of deceased as 25 years. Perusal of impugned Award reveals that as per death certificate, age of deceased was shown as 26 years; injury form had shown 20 years and medical certificate issued by Bone and Joint Hospital had shown age of deceased as 25 years. The Tribunal has admitted that there was contradictory evidence qua age of deceased and it took age of deceased as 25 years instead of 26 years. There is, thus, substance in submission of learned counsel for appellant that the Tribunal has wrongly taken age of deceased as 25 years. Having said that, impugned Award is liable to be set-aside and modified to the extent of age of deceased shown by Tribunal as 25 years. The age of deceased, therefore, shall be taken as 26 years for assessment of compensation. 11. As regards income of deceased, claimants had projected before the Tribunal that deceased had income of Rs.15000/- per month but they had not shown any source of income therefor. The age of deceased, therefore, shall be taken as 26 years for assessment of compensation. 11. As regards income of deceased, claimants had projected before the Tribunal that deceased had income of Rs.15000/- per month but they had not shown any source of income therefor. Here, the Tribunal has been conservative while assessing compensation; it has taken Rs.45,000/- per annum as income of deceased. Appellant Insurance Company cannot be dissatisfied vis-à-vis income of deceased taken as Rs.45,000/- per annum by the Tribunal. However, appellant Insurance company is aggrieved of multiplier applied by the Tribunal. As observed and held above, multiplier of 18 will not apply in the present case; multiplier of 17 will apply in the present case. To that extent as well impugned Award is set-aside and modified. 12. Insofar as Issues 5&6 are concerned; those need not be interfered with. The Tribunal has, while deciding Issues 5&6, referred to and relied upon Section 160 of the Motor Vehicles Act, which provides duty to furnish particulars of vehicle involved in accident. Section 160 unequivocally envisages that if insurer require particulars of a vehicle involved in an accident, it is required to approach Registering Authority or the Officer-in-charge of a police station for that matter and make payment of prescribed fee for procuring such information. As is stipulated in Section 160 of Motor Vehicles Act, if a claim is made in respect of any motor vehicle against insurer (in the present case Appellant Insurance Company), it is required to approach registering authority or officer incharge of police station and make payment of prescribed fee for obtaining any information with respect to the vehicle involved as also the person who was using the vehicle at the time of accident or was injured by it. Appellant insurance company cannot resort to any lame excuses in discharging its duty as is enshrined in Section 160 of Motor Vehicles Act. 13. Insofar as interest part is concerned, there is sum and substance in submission of learned counsel for appellant. The Tribunal has wrongly applied 9% interest. There shall be interest of 6% per annum from the date of institution of the claim till final realisation. To that extent impugned Award is also set-aside and modified. 14. For the foregoing reasons, the Appeal is party allowed. The Tribunal has wrongly applied 9% interest. There shall be interest of 6% per annum from the date of institution of the claim till final realisation. To that extent impugned Award is also set-aside and modified. 14. For the foregoing reasons, the Appeal is party allowed. As a corollary thereof, the income and age of the deceased, as discussed herein above, is fixed as 26 years. By applying multiplier of 17 to the multiplicand of Rs.30,000/-, the total loss of income is worked out as Rs.5,10,000.00. The said amount of Rs.5,10,000/- is awarded as compensation in favour of claimants/respondents 1&2. Compensation on other “heads”, awarded by the Tribunal shall remain unchanged. Thus, the total compensation is worked as 5.70 Lakhs (Rs.5,10,000.00 + Rs.20,000.00 + Rs.5,000.00 + Rs.10,000.00 + Rs.20,000.00 + Rs.5,000). Respondents are awarded a total sum of Rs.5.70 Lakhs inclusive of interim relief, with simple interest at the rate of 6% per annum from the date of institution of claim till final realisation. 15. Let amount deposited be released in favour of claimants/respondents 1&2, preferably through payee’s account cheque. The award amount, over and above, deposited amount, be deposited within four weeks, whereafter it shall be released in favour of claimants/respondents 1&2. 16. Disposed of. 17. Record of the Tribunal be sent down along with copy of this judgment.