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2021 DIGILAW 72 (JK)

United India Insurance Co. Ltd. v. Zahoora Rehman

2021-03-10

RAJNESH OSWAL

body2021
JUDGMENT : 1. Through the medium of the present Appeal the appellant-Insurance Company has thrown challenge to the Award dated 26.08.2019 passed by the Motor Accident Claims Tribunal, Srinagar in the Claim Petition titled Zahoora Rehman & Ors. Vs. United India Insurance Co., on the following two grounds only:- 2. (i) The learned Tribunal while determining the compensation has not considered the fact that the legal heirs of the deceased were entitled to full salary for a period of seven years and it was obligatory on the part of the learned Tribunal to consider this fact. (ii) The grant of interest by the Tribunal @ 7.5% per annum is not in accordance with the law and on account of delay in the trial committed by the respondents. 3. Perusal of the record reveals that the claimants-respondents 1 to 3 herein had filed the petition for grant of compensation on account of the death of Shri Abdul Rehman Ahanger S/o Ghulam Ahmad Ahanger R/o Babapora, Zoonimar, Srinagar, who met with road accident on 29.03.2013 at the age of 46 years. It was pleaded that the deceased was Government employee working as Junior Mechanic in PWD R&B, Right River Circle Road Division, Srinagar, drawing the salary of Rs.23,500/- per month and was contributing the major portion of the salary towards his family. The claimants-respondents 1 to 3 have claimed compensation of Rs.78.00 lacs before the learned Tribunal. The appellant here-in-Insurance Company filed the response to the said petition, wherein the appellant denied their liability and also submitted that the claimants have placed nothing on record to determine the factum of employment of the deceased in the department (supra) and also no certificate with regard to the salary of the deceased has been placed on record to substantiate that the deceased was getting the salary of Rs.23,500/- per month. 4. On the basis of the pleadings of the parties, the following issues were framed by the learned Tribunal:- 1. Whether on 29.03.2013 deceased Abdul Rehman Ahanger while moving on his cycle on correct side of the road at Ali Jan Road, Soura, Srinagar was hit by the offending vehicle bearing Registration No. JK01D-3171 being driven by its driver i.e. respondent No. 2 in rash and negligent manner, as a result of which deceased got seriously injured and succumbed to his injuries? OPP 2. OPP 2. Whether the respondent No. 2 was not having valid and effective driving license to ply the vehicle and insured (respondent No. 3) knowing that he (respondent No. 2) was not having valid and effective D/L employed him as driver for plying the offending vehicle without route permit and thereby committed breach of policy conditions, if so, what would be its effect on the claim petition? OPR-1 3. In case issue No. 1 is proved in affirmative then whether petitioners are entitled to compensation under Motor Vehicles Act, if so, to what extent and from whom? OPP 5. The claimants-respondent 1 to 3 herein examined respondent No. 1 and also Noor Mohammad Ahanger, Javeed Ahmad Ahanger and Sajad Rasool Dar (Junior Assistant, R&B) as witnesses in support of their claim, however, the appellants herein did not lead any evidence. After the conclusion of the evidence and hearing the parties, learned Tribunal awarded the compensation of Rs.33,14,304/- minus interim compensation @ 7.5% per annum. 6. Learned counsel for the appellants reiterated the grounds already narrated in the appeal and has relied upon the judgment of the Co-ordinate Bench of this Court in CMAM No. 116/2017, National Insurance Co. Ltd. Vs. Nasima Begum & Ors. decided on 20.03.2019. 7. Per contra learned counsel for the respondents has relied upon the judgment of Apex Court reported in AIR 2018 SC 5034 , Sebastiani Lakra & Ors. Vs. National Insurance Company Ltd. & Anr. 8. Heard learned counsel for the parties. 9. The first ground raised by the appellants in the present memo of appeal is that the learned Tribunal was under obligation to consider the fact that the claimants-respondents 1 to 3 herein were entitled to the full salary of the deceased for a period of seven years. In order to appreciate this contention, the pleadings of the appellants are also required to be looked into. 10. On a mere perusal of the pleadings, it has come to fore that the stand taken by the appellant-Insurance Company was that the claimants have not placed anything on record to depict the employment of the deceased in the PWD R&B department. 10. On a mere perusal of the pleadings, it has come to fore that the stand taken by the appellant-Insurance Company was that the claimants have not placed anything on record to depict the employment of the deceased in the PWD R&B department. It is also no-where pleaded that the deceased was entitled to full salary for a period of seven years; also there is nothing on record to show that the said issue was raised before the learned Tribunal though it has been stated in the memo of appeal that during the course of the arguments it was submitted that the deceased was the Government employee and was having more than 14 years of service left for getting superannuated and in the face of the existing service regulations/norms his family would be entitled to full salary for a period of seven years. 11. The perusal of the statement of PW-Sajad Rasool Dar would reveal that he had proved that the net salary of the deceased was Rs.23,405/- per month and also that the date of birth of the deceased was 01.09.1967. In the cross-examination he had stated that one of the family members of the deceased has been given compassionate appointment in terms of SRO 43 and that they are also receiving the family pension. 12. This Court is of the opinion that whenever any objection has to be raised for denying the compensation to the claimants, the same must be raised before the Tribunal provided the said plea is available to the respondents at the time of filing of their response to the claim petition. The appellants cannot surprise the claimants by raising the plea for the first time in appeal when the said plea was available to them during the trial of the claim petition. As has already been discussed above, the appellant has no-where taken the said plea before the Tribunal, as such, the appellant cannot raise the said plea before this Court in appeal. 13. Otherwise also Rule 20(bbb) of Section B pertaining to Family pension provides as under : "Notwithstanding anything contained in sub-clause (bb) above, where a Government servant dies while in service after having rendered not less than 7 years continuous service, the rate of family pension admissible to the beneficiary of the deceased shall be equal to the pay last drawn by the deceased officer before his death. Pension at the enhanced rates equal to the last pay shall be payable for a period of 7 years from the date following the date of death of the Government servant or for period up to the date on which the deceased Government servant would have attained the age of superannuation whichever is earlier." 14. Thereafter vide SRO 94, dated 15.04.2009 following was provided by virtue of clause 8. "Provided that in respect of a Government servant who may die while in service on or after 1.7.2009 after having rendered not less than seven years continuous service, the family pension on enhanced rates equal to 50% of the last pay drawn shall be payable to the family of the Government servant from the date of death of the Government servant for a period of ten years without any upper age limit. Thereafter, the family pension shall be payable at the ordinary rates." 15. Thus, the bare perusal of above mentioned rules reveal that the rule providing for the grant of family pension equivalent to the last pay drawn by the deceased employee for a period of 7 years has been replaced by SRO 94, that provides that a Government servant who may die while in service on or after 1.7.2009 after having rendered not less than seven years continuous service, the family pension on enhanced rates equal to 50% of the last pay drawn shall be payable to the family of the Government servant from the date of death of the Government servant for a period of ten years without any upper age limit. Thus both the rules provide for the payment of family pension in the event of death of deceased employee and this is not contingent upon the death of the employee in motor accident alone but on other causes/reasons as well. 16. The Hon'ble Apex Court in Sebastiani Lakra v. National Insurance Co. Ltd., reported in (2019) 17 SCC 465 has held as under : "12. The law is well settled that deductions cannot be allowed from the amount of compensation either on account of insurance, or on account of pensionary benefits or gratuity or grant of employment to a kin of the deceased. The main reason is that all these amounts are earned by the deceased on account of contractual relations entered into by him with others. The main reason is that all these amounts are earned by the deceased on account of contractual relations entered into by him with others. It cannot be said that these amounts accrued to the dependants or the legal heirs of the deceased on account of his death in a motor vehicle accident. The claimants/dependants are entitled to "just compensation" under the Motor Vehicles Act as a result of the death of the deceased in a motor vehicle accident. Therefore, the natural corollary is that the advantage which accrues to the estate of the deceased or to his dependants as a result of some contract or act which the deceased performed in his lifetime cannot be said to be the outcome or result of the death of the deceased even though these amounts may go into the hands of the dependants only after his death." 17. Similar view has been taken by the co-ordinate bench of this Court in "National Insurance Co. v. Purna Devi & Ors." reported in 2020 (4) JKJ 188 [HC] in which it has been held as under : "21. The legal position as enunciated in the aforesaid Judgment, to put it precisely, is that the pecuniary advantage, to be deducted from the loss of income while assessing the compensation claimed under the Motor Vehicles Act must be from a source which correlates to the injury or death arising out of a motor vehicle accident. The pecuniary advantage which is payable or derivable on account of death of an employee in harness whether or not such death is result of motor vehicle accident is not to be deducted from the loss of income. This principle has been followed by the Hon'ble Supreme Court in its later judgments and also by this Court consistently." 18. So there is no force in the contention raised by the appellant and, as such, the same deserves to be rejected. 19. The next contention raised by the appellant is with regard to the reduction of the interest ordered to be paid by the appellant. This court does not find interest payable by the appellant @ 7.5% per annum either excessive or contrary to law, as such, the said contention is also rejected. 20. In view of what has been discussed above, appeal is found to be without any merit, as such, is dismissed.