Gull Mohammad Sheikh vs Shabir Ahmad Rather And Others

This Appeal is preferred by the appellant for modification of Award (order/judgment) dated 06.03.2015, passed by Motor Accident Claims Tribunal, Anantnag (for brevity "Tribunal") on a claim petition (MACT Claim No. 37 of 205), titled Gull Mohammad Sheikh Vs. Shabir Ahmad Rather and others, whereby total award of compensation of Rs.2,88,000/- along with simple interest @ 6% per annum, from the date of institution of claim petition till its realization, has been given and enhancement of quantum of compensation is sought.

A claim petition was filed by appellant before the Tribunal on 16.09.2005, stating therein that on 29.04.2004, he was plying the vehicle bearing Registration No.JK01C-9054 and was going from Srinagar towards Jammu. On reaching Hernawas, NHW, the vehicle was hit by offending vehicle bearing Registration No. JK01B- 2746, as being driven by its driver, i.e., respondent no.1, rashly and negligently, as a result of which, the appellant sustained multiple injuries on various parts of his body and rendered disabled. The offending vehicle was insured with respondent no.3 - Insurance Company.

Respondent no.3 resisted the claim before the Tribunal on the ground that the offending vehicle insured with it, at the time of accident was being driven, in contravene of the policy of insurance.

The Tribunal, upon perusal of pleadings of parties, settled following Issues for adjudication:

Whether on 29.04.2004, the petitioner was plying the vehicle bearing registration No. JK01C-9054 and was going from Srinagar toward Jammu. On reaching Hernawas NHW, the vehicle of the petitioner was hit by the offending vehicle bearing registration No. JK01B-2746 coming from Jammu towards Srinagar driven by respondent No. 1 rashly and negligently, as a result of which the petitioner sustained multiple injuries on various parts of his body and rendered disabled? OPP

If issue No. 1 is proved in affirmative, whether the petitioner is entitled to compensation, if so, to what extent and from whom? OPP

Whether the respondent No.1 who was driving the vehicle of respondent No. 2 was not holding valid and effective driving licence at the time of accident, as such company cannot be saddled with the liability? OPR3

Relief? O.P (Parties)

Claimant produced and examined five witnesses before the Tribunal; besides claimant/appellant. Respondent no. 3-Insurance Company has failed to examine any witness(s) in its defence. Instead of giving a separate resume of the statements of witnesses and it is proposed to refer the same as and when relevant while deciding the issues.

By impugned Award, the Tribunal found claimant/appellant entitled to receive compensation of Rs.2,88,000/- along with 6% interest per annum.

Heard and considered.

Learned counsel for appellant- Gull Mohammad Sheikh, has stated that impugned award has been passed by the Tribunal in a hot haste manner, without application of mind inasmuch as the appellant has not been given reasonable opportunity of being heard. He also submits that the appellant at the time of accident was of the age of 39 years and was driver by profession and earning Rs.6000/- per month, but the court below while passing the impugned award has taken the monthly income of appellant as Rs.1500/- on notional basis instead of Rs.6000/-. It is contended that appellant produced the evidence before the Tribunal and proved his monthly income as Rs.6000/- but despite of that the Tribunal has taken monthly income of the appellant as Rs.1500/-. The Tribunal is said to have wrongly applied the multiplier of 11 when the Tribunal ought to have applied the multiplier of 15. According to learned counsel, disablement of the appellant to the extent of 40% has been proved before the Tribunal during the evidence. The Tribunal is stated to have passed the same award in favour of appellant which was passed in ex parte in 2011.

Taking into consideration submissions made by learned counsel for appellant, I deem it appropriate to go through the record on the file including impugned Award and earlier ex parte Award dated 5.2.2011, particularly Issue no.2, by virtue of which the Tribunal has assessed and computed the amount of compensation, to which appellant was found entitled to. It is true that in terms of ex parte Award dated 5.2.2011, the Tribunal had given compensation in the amount of Rs.2,88,000/- along with interest @ 6% in favour of appellant. And even after setting-aside the ex parte Award.

Perusal of file reveals that while passing Order dated 28.9.2013, the execution application filed by present appellant for seeking execution of ex parte Award dated 5.2.2011 was also consigned to record as it was thought apt not to decide the said execution application at that material point of time owing to the fact that the ex parte Award dated 5.2.2011, was set-aside by the Tribunal consequent upon arraying Insurance Company as party respondent in claim petition, which had not been arrayed by appellant in his claim petition. The Tribunal, after considering the respective stand of parties, has by impugned judgement found appellant/claimant entitled to same amount of compensation as was given and granted by it in terms of its earlier Award dated 5.2.2011.

Perusal of Award dated 5.2.2011 qua computation of compensation, reveals that multiplier of "16" has been rightly applied by the Tribunal. The Tribunal has taken Rs.1500/- as monthly income of appellant/ claimant, which also need not be interfered with. The Tribunal on the basis of evidence adduced by appellant/claimant has rightly calculated and taken Rs.1500/- as monthly income for awarding compensation in the amount of Rs.2,88,000/-. There is nothing on record to show or suggest that the Tribunal has erred in passing the impugned Award, which, therefore, need not be interfered with.

For the reasons discussed above, Appeal on hand is dismissed.

Copy be sent down.