National Insurance Co. Ltd. vs Meenu Jain and Others

Mohammad Yaqoob Mir, J.—By medium of Civil 1st Appeal, the award passed by the Motor Accidents Claims Tribunal Jammu in File

No.308/Claim titled Meenu Jain and ors v. National Insurance Co. Ltd is sought to be set aside.

The factual matrix is that Dr. Balbir Singh Pawar died in a road accident when he was travelling in a Maruti Car bearing No.JK02AP-6006

from Udhampur to Jammu while reaching to Kore Jagir Nagrota at about 1.30 AM due to rash and negligent driving accident occurred in which he

suffered critical injuries and later on succumbed to those injuries. The deceased Doctor is survived by Widow and minor son and daughter who

had filed the petition seeking compensation amounting to Rs.90,00,000/- (Ninety Lakh only). On the basis of the respective pleadings of the

parties, the following three issues have been framed:

(i) Whether an accident occurred on 21.07.2011 at Kore Jagir, Nagrota National Highway by rash and negligent driving of offending vehicle

No.JK02AP-6006 by its driver respondent No.2 as a result of which deceased Balbir Singh Pawar received fatal injuries? OPP

(ii) If issue No.1 is proved in affirmative, whether petitioners are entitled to compensation? If so, to what amount and from whom? OPP

(iii) Whether driver of offending vehicle at the time of accident was not holding a valid and effective driving license and whether there was violation

of terms and conditions of policy of insurance? If so, to what effect OPR-1

Learned Tribunal has returned the findings in favour of the claimants and finally has awarded compensation to the tune of Rs.58,13,000/- (fifty

eight lakh thirteen thousand only) with interest @ 7.5 per cent per annum from the date of filing of the claim petition till its realisation. Out of

awarded amount, Rs.15,00,000/- (fifteen lakhs only) have been ordered to be paid to the widow whereas the balance amount has been ordered

to be shared equally by claimant Nos.2&3 (son and daughter). The amount has been ordered to be kept in fixed deposit till the claimants 2 & 3

attained majority.

The Insurer (appellant) has challenged the award by medium of this appeal projecting therein that the evidence has not been properly

appreciated, there was no eye witness to prove the death of the deceased, negligence of the driver of the offending vehicle was not established, the

widow respondent No.1 was earning which fact was ignored, while passing order, applicable law has not been followed, the interest awarded

should not have been awarded because the delay in disposal of the claim was attributable to the conduct of the claimants. The Tribunal has

exceeded its jurisdiction while passing the order impugned.

First contention that the evidence has not been properly appreciated and then there was no eye witness to prove negligence of the driver or

death of the deceased is totally misplaced. Learned Tribunal has with utmost care while recording finding on issue No.1 appreciated the statement

of the witness to the occurrence Mr. Hitesh Gupta who had given eye account of the occurrence though he has not been cited as an eye-witness to

the case which had been registered vis-a-vis occurrence by the P/S concerned. That cannot be a ground for discarding his statement, more

particularly, when on conclusion of the investigation of the case registered as FIR No.173/2011 P/S Nagrota for commission of offence punishable

under Section 279/304-A RPC, after investigation culminated in filing the final report (challan) against the driver of the offending vehicle (Maruti

Car No.6006-JK02AP) and for commission of offence of negligent driving and causing death of Dr. Balbir Singh. Ld. Tribunal has specifically

referred to the said criminal case as well as its final report so as to show that the statement of Hitesh Gupta witness is corroborated. Nothing in

opposition by way of any oral or documentary evidence has been brought on record which would give rise for impeaching the credibility of the

witness or the actual occurrence in which Dr. Balbir Singh suffered injuries and died. The finding recorded by the learned Tribunal on issue No.1 is

quote apposite. No fault is found with the same.

While recording finding on issue No.3 which pertains to the position of the driver holding a valid and effective driving license, learned Tribunal

has recorded that onus was to be discharged by the Insurance Company (respondent No.1 therein) but the appellant insurance company has not

produced any oral or documentary evidence. When it is so, the appellant cannot claim that the evidence has not been properly appreciated when

he has failed to produce the same in order to discharge the onus as was required. So the issue has been rightly decided against the insurance

company.

Issue No.2 deals with entitlement of compensation. The contention of the learned counsel for the appellant that the widow is a doctor and her

monthly income is Rs.50,000/- (Fifty thousand only). Same position has been taken note of. Ld. Tribunal while appreciating the evidence and

recording finding on issue No.2 has categorically observed that the widow was a doctor. Thus deceased has left behind only two dependent family

members as such has applied the principle laid down by the Hon'ble Apex court in the judgment rendered in the case of Sarla Verma and ors. v.

Delhi Transport Corporation and anr. 2009(6) SCC 121. In the said judgment, the principle has been evolved to the effect that when

deceased was within the age of 40-45 years, 30 per cent of the actual salary to actual income of the deceased towards future prospect shall be

added. Ld. Tribunal has followed the same. In addition thereto has also while taking note of the position of two dependent family members, one-

third of the income of the deceased has been deducted towards personal and living expenses of the deceased.

The deceased was 46 years old. Multiplier applicable to such age group is 13 but for arriving at just compensation, multiplier as has been

applied is 11.

The total income of the petitioner on the basis of the evidence produced, more particularly on the basis of records produced by PW Vinod

Kumar Senior Assistant B.M.O, Chenani where the deceased doctor was working has been worked out as Rs.50,587/-( fifty thousand five

hundred eighty seven only) per month to which 30 per cent has been added as such the monthly income has been worked out as to around

Rs.65,763/- (sixty five thousand seven hundred sixty three only) and the annual loss of dependency has been worked out as Rs.5,26,104/- (five

lakh twenty six thousand one hundred four only). By the multiplier of 11, the loss of dependency has been worked out as Rs.57,88,000/- (fifty

seven lakh eighty eight thousand only). Funeral Expenses Rs.5,000/-. Loss of Estate Rs.10,000/- and loss of consortium to widow Rs.10,000/-. In

Total Rs.58,13,000/- has been worked out as compensation payable to the claimants. The amount of Rs.10,000/- awarded on account of loss of

estate is impermissible because the total dependency value is taken into consideration under loss of dependency, the said amount of Rs.10,000/-

has to be ignored.

It is now trite that award of compensation shall neither be pittance nor shall be a wind-fall. It is true that the loss by death cannot be measured

by money. Love and affection of the deceased towards his wife and children is of a value which cannot be measured. Compensation awardable

has to be just, for which various factors such as age, capacity to earn, love and affection are taken into consideration collectively i.e. how just

multiplier is applied and income after deduction of the amount which deceased would have spend on his own living is excluded.

Learned Tribunal while awarding just compensation has also carefully taken note of the position as was projected to the effect that the

deceased had a private clinic at Jammu where he would earn Rs.25,000/- per month. By repelling the same has observed that the deceased was

posted at Chenani. How he could be expected to work in a clinic at Jammu to earn. The claim of earning Rs.25,000/- per month from the private

clinic has been disallowed.

The finding recorded by the ld. Tribunal are in keeping with the proper appreciation of the evidence and law. The income of the deceased

doctor has been properly analysed, assessed and then taken into account on the basis of just principle and more particularly on the principles laid

down in the Sarla Verma Judgment (supra).

In the final analysis after careful perusal of the records, appreciation of evidence and the submissions made by the counsel for the parties, the

finding recorded by Tribunal and thereafter award passed does not call for any interference except for deducting Rs.10,000/- granted on account

of loss of estate. The interest as granted @ 7.5 per cent per annum is slashed to 6 per cent per annum from the date of filing of claim petition till its

final realisation. As a result whereof, the total amount of compensation shall be Rs.58,03,000/- (fifty eight lack and three thousand only). The

amount of compensation shall be shared by the claimants and released less by the amount already released, in accordance with the terms of the

award impugned passed by the learned Tribunal. However it is made clear that in view of modification of the award to the extent of ignoring

Rs.10,000/- on loss of estate and the interest @ 6 per cent per annum instead of 7.5 per cent per annum. The total amount of compensation shall

be worked out and thereafter excess amount, if any, same shall be released in favour of the appellant (insurance company).

Appeal succeeds and the award shall stand modified to the extent indicated above. The record of the tribunal along with copy of this judgment

be sent to the Tribunal forthwith.