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2022 DIGILAW 61 (JK)

National Insurance Co. Ltd. v. Bodh Raj

2022-02-22

PUNEET GUPTA

body2022
JUDGMENT : 1. The Motor Accident Claims Tribunal, Jammu awarded compensation to the tune of Rs.23,48,500/- in favour of the claimants as per Award dated 25.02.2016. The interest @ 7.5% per annum from the date of filing of the petition till realization of the amount was also awarded in favour of the claimants. 2. The appellant-Insurance Company has challenged the award on the ground that the same is non-speaking one, the income of the deceased has not been proved by producing the original record and the salary certificate is doubtful and consequently, enhancement of income by 50% is equally bad. It is further submitted in the appeal that the mode of accident has not been disclosed anywhere in the award. 3. The respondents-claimants have appeared through counsel and contested the appeal. 4. The record of the Tribunal is also before the court. 5. Mr. Baldev Singh, the learned counsel appearing on behalf of the Insurance Company has argued that the award is passed in a haste as the same is non-speaking one. The Tribunal while passing the award has not taken into consideration the defence taken by the Insurance Company in the claim petition. Infact the basic issue which gives rise to the claim petition is if the accident in question has taken place due to the rash and negligent act of the driver and this aspect of the matter has not altogether been dealt with by the Tribunal. Reiterating the averments contained in the appeal, it is further argued that the Tribunal has not taken into consideration the fact that the income certificate placed on record allegedly of the deceased has not been proved convincingly in evidence and further it is nowhere mentioned in the claim petition that the respondents-parents were dependent upon the deceased. The father of the deceased is government servant and therefore there was no dependency factor qua the father of the deceased. The Tribunal has also wrongly awarded the compensation to the tune of Rs.1 lac on account of love and affection in favour of the parents. The learned counsel has also cited judgments in support of his arguments which shall be referred to at the appropriate stage of the discussion. 6. The learned counsel appearing on behalf of the respondents-claimants has argued that the appellant-Insurance Company has not produced any evidence to rebut the claim of the claimants before the Tribunal. The learned counsel has also cited judgments in support of his arguments which shall be referred to at the appropriate stage of the discussion. 6. The learned counsel appearing on behalf of the respondents-claimants has argued that the appellant-Insurance Company has not produced any evidence to rebut the claim of the claimants before the Tribunal. The certificate of income filed by the claimants was on the file of the Tribunal which was duly taken care of while deciding the claim petition. The entitlement of the parents of the victim is very much evident from the record of the Tribunal. 7. The first issue pertains to the accident allegedly caused by the driver of the vehicle in question. The Tribunal while deciding the said issue has held on the basis of the statement of PW-2 and the investigation report of FIR No. 134/2013 registered with Police Station, Jajjar Kotli. The Tribunal also took note of the fact that the respondents did not produce any evidence in rebuttal to this issue. The court is in agreement with the argument of learned counsel for the appellant that the Tribunal while giving its finding on the issue has decided the same in a summary manner. The Tribunal ought to have discussed the issue in detail before give its finding on the same. The perusal of the file shows that the claimants filed the affidavit of Ashwani Kumar as a piece of evidence and he was also cross-examined by the respondents. In his affidavit, the witness has specifically stated that the death of Rakesh Kumar was due to the negligence of the erring driver of the Truck who while rashly and negligently driving the vehicle came on wrong side and even did not blow horn and caused the accident as a result of which Rakesh Kumar died on spot. When confronted with the affidavit, the witness has not been asked any question on the aspect of the manner in which the accident took place. When confronted with the affidavit, the witness has not been asked any question on the aspect of the manner in which the accident took place. The court keeping in view the certified copies of documents placed on record that is copy of FIR and copy of challan, wherein the driver of the vehicle has been challaned for commission of offence under Section 279/304-A RPC, read with the evidence of Ashwani Kumar who also figures as eye witness in the list of witnesses, finds no reason not to hold that the accident was caused by the rash and negligent driving of the vehicle in question which resulted into the death of Rakesh Kumar alias Sonu Verma. Irrespective of the manner in which the Tribunal dealt with the issue, this court has taken into consideration all aspects of the matter on the issue and has recorded its findings. 8. The issue No.2 framed in the case pertains to entitlement, if any, of the claimants in the claim petition. The main argument raised by the counsel for the appellant is that the very basis on which the Tribunal has awarded compensation to the claimants is illegal and cannot sustain in the eyes of law. The income certificate on which the Tribunal has relied upon while deciding the claim petition is not proved is the contention of the counsel for the appellant and, therefore, the income assessed on the said basis cannot sustain in the eyes of law. The learned counsel for the appellant has cited 2007(3) Supreme 136 in support of his contention that the salary has not been proved by the claimants before the Tribunal. 9. The learned counsel for the respondents-claimants has submitted that the salary certificate has been placed on record which is issued by the employer and the same stands proved in the evidence. 10. The certificate issued on behalf of M/s Yuvika Enterprises is on the file. The signatory to the certificate is the proprietor and has appeared as a witness before the Tribunal. The certificate issued is of 10th December, 2013 that is after the death of the deceased. Except this document, there is no other document which speaks of the deceased being employed with the said MK/s Yuvika enterprises. The signatory to the certificate is the proprietor and has appeared as a witness before the Tribunal. The certificate issued is of 10th December, 2013 that is after the death of the deceased. Except this document, there is no other document which speaks of the deceased being employed with the said MK/s Yuvika enterprises. However, it may be mentioned that the alleged signatory of the document Sunny Verma S/o Darshan Lal has filed his affidavit as a piece of evidence and also appeared for cross-examination before the Tribunal. In affidavit he has deposed that the deceased was working with his firm and was being paid salary of Rs.14,500/- per month. The original last pay drawn certificate is enclosed with the petition. During cross-examination the witness has deposed that the victim was employed by him. He possesses the record of the employment of the deceased but has not brought with him. On the aspect of the certificate issued by the witness he has been cross-examined only to the extent mentioned above. It is pertinent to point out that the witness has stated in cross-examination that he possesses the record of the employment of the deceased on the basis of which he has issued the certificate of salary. It is nowhere suggested that the witness has falsely issued the certificate. It has also not come during the cross-examination that the witness was even asked to produce the same but he refused to do so or made any excuses for not producing the record of the employment of the deceased. Merely because the certificate has not been exhibited does not mean that the Tribunal cannot take into consideration the certificate produced by the witness in a claim petition. Merely because the certificate has not been exhibited does not mean that the same cannot be said to have not been proved in a petition of this nature. The court can conveniently rely upon the judgment of the Apex court reported in 2019(2) SCC186 on the aspect under discussion. There cannot be any dispute by what has been held in the authority cited of 2007 (supra) by the counsel for the appellant, however, the court finds that the same is not applicable in the facts of the case. 11. There cannot be any dispute by what has been held in the authority cited of 2007 (supra) by the counsel for the appellant, however, the court finds that the same is not applicable in the facts of the case. 11. The Court finds no reason to disbelieve the certificate issued by the witness Sunny Verma and not to rely upon for the same if the claimants are otherwise to be held entitled for compensation. 12. Taking aspect of compensation for consideration the court has considered different heads under which the compensation has been awarded by the Tribunal. The court is of the view that the same requires re-visitation and correction by this court. The deceased was unmarried at the time of his death. Keeping in view the dependency factor in the present case on the strength of family member, 50% of the income of Rs. 14,500/- p.m. of the deceased shall be deducted on account of personal expenses which comes to Rs.7,250/-. The Tribunal has also held so. 13. The Tribunal has calculated 50% increase to future income which is not sustainable as per judgment of Pranay Sethi’s case reported in AIR 2017 (SC) 5157 . As the deceased was of 28 years of age, was in private job and had fixed income therefore, an addition of 40% instead of 50%, as held by the Tribunal, is to be taken which comes to Rs.2,900/- thus making total of Rs.10,150/-. 14. The deceased was of 28 years of age at the time of death. Applying the MULIPLIER of 17 it comes to Rs.10,150/- x 12x17 = Rs.20,70,600/-. 15. The Tribunal has granted amount for funeral expenses and loss of estate at to the tune of Rs.25,000/- and Rs. 5000/- respectively. No interference is required on the same. 16. The compensation awarded on account of love and affection in favour of the parents to the tune of Rs.1 lac by the Tribunal is contested by the counsel for the appellant. The learned counsel for the claimants could not rebut the argument of the appellant in this regard. The court finds substance in the argument of the counsel for the appellant. The claimants are held not entitled to Rs.1 lac for love and affection though held so by the Tribunal. 17. The learned counsel for the claimants could not rebut the argument of the appellant in this regard. The court finds substance in the argument of the counsel for the appellant. The claimants are held not entitled to Rs.1 lac for love and affection though held so by the Tribunal. 17. Last but not the least, the argument raised by the counsel for the appellant is that the father of the victim is government servant and is not dependent upon the deceased and, therefore, not entitled to any compensation. However, no such averment is contained in the objections filed to the claim petition nor is any evidence led by the Insurance Company on this aspect of the matter. The plea requires rejection and is, accordingly, rejected. 18. Thus, the total amount to which the claimants are held entitled to comes to Rs.21,00,600/- which is rounded to Rs.21,01,000/-. The interest awarded by the Tribunal @ 7.5% per annum also does not require any interference. The appeal is accepted to the extent mentioned above. Any amount received earlier by the claimants shall stand deducted from the amount awarded by this court. The amount due shall be released, if any deposited with the Registry of this court, in favour of the claimants in proportion as awarded by the Tribunal on the filing of the application by them. 19. Disposed of.