National Insurance Company Limited vs Aisha Begum And Others

Impugned in this Appeal is Award dated 27th December 2016, passed by Motor Accident Claims Tribunal, Srinagar (for short “Tribunalâ€), on a

Claim Petition, bearing File no.217, titled Aisha Begum and others v. National Insurance Company and others, on grounds mentioned therein.

A claim petition, as is discernible from perusal of file, was filed by respondents 1 to 4 before the Tribunal, averring therein that on 9th July 2009, one

Mohammad Saleem Mir son of Late Ghulam Mohammad Mir resident of Tengpora, Byepass, Batamalloo, Srinagar (“deceased†for short) was

walking on sideway of road at Batamalloo, when a speedy vehicle bearing Registration no.JKD-5141, driven by respondent no.7, hit him, resulting in

grievous injuries, to which he subsequently succumbed. Appellant Insurance Company appeared and filed written statement in opposition to claim

petition before the Tribunal.

The Tribunal, in view of pleadings of parties, framed following issues for adjudication:

1) Whether on 07.09.2009, one Mohd. Saleem Mir aged 25 years walking on the side of road was knocked down by vehicle no.JK01D-5141, being

driven by respondent driver rashly and negligently causing thereby fatal injuries to the said Mohd. Saleem Mir, who was rushed to SKIMS Soura and

despite many surgeries succumbed to the injuries on the same date? OPP

2) Whether the respondent insured had engaged the respondent driver knowingly with invalid/ineffective DL and other vehicular documents which

fundamentally contributed to the cause of accident, if yes, the respondent insured committed breach of insurance contract, is not to be indemnified by

the respondent insurer? OPR-1

3) In case the issue no.1 is proved in affirmative, to what amount of compensation the petitioners are entitled to, from whom and in what proportion?

OPP

4) Relief?

Both parties produced and examined witnesses in support of their respective stand.

Heard and considered.

Learned senior counsel appearing for appellant Insurance Company has stated that offending vehicle on the date of accident was being plied

without route permit. The said submission of learned senior counsel is baseless. Appellant Insurance Company produced two witnesses, namely, Javid

Ahmad Naik, Senior Assistant RTO Kashmir and Owaiz Nazir, Legal Assistant NIC, before the Tribunal. The statement of witness (Javid Ahmad

Naik, Senior Assistant, RTO, Kashmir) is relevant and answers submission of learned senior counsel for appellant. The said witness deposed before

the Tribunal that route permit, bearing no.625/CMB/ WA, was issued on 30th April 1999 and that route permit was valid and renewed from 7th May

2008 to 29th April and thereafter the route permit was in operation up to 29th April 2010. The Tribunal found that Insurance Company failed to point

out any breach of insurance policy. The Tribunal referred to Section 81(5) of the Motor Vehicles Act which provides that where a permit has been

renewed after expiry of the period, such renewal shall have effect from the date of such expiry irrespective of whether or not a temporary permit has

been granted under clause (d) of Section 87 of the Act and where a temporary permit has been granted, the fee paid in respect of such temporary

permit shall be refunded.

Learned senior counsel has also contended that compensation awarded by Tribunal is excessive as the Tribunal has wrongly taken Rs.4500/-as

monthly income of deceased, which was on higher side. Again, such a submission of senior counsel is unfounded and groundless. It is pertinent to

mention here that the Tribunal has been conservative in computing just Rs.4500/- as monthly income of deceased. The Supreme Court in Sunita Tokas

and another v. New India Insurance Co. Ltd and another, 2019 SCC Online SC 1045 : 2019 (11) SCALE 24, has enhanced monthly income of

deceased from Rs.7,500/- to Rs.12,000/-per month. In the case of Sunita Tokas (supra) accident had taken place in the year of 2004, while in the

present case, accident has taken place in the year 2009. So, monthly income of deceased, taking into account facts and circumstances of the present

case, is taken and fixed as Rs.6000/- per month.

Submission of learned senior counsel for appellant Insurance Company that the Tribunal has wrongly added 50% as future prospects, has sum and

substance in view of law laid down in Sarla Verma v. Delhi Transport Corporation, 2009 (6) SCC 121, and reiterated in National Insurance Company

Ltd v. Pranay Sethi and others, AIR 2017 SC 5157. Therefore, impugned Award qua future prospects is set-aside and modified by giving only 40%

addition as future prospects. Thus, monthly income of deceased, taken herein above, as Rs.6000/- shall be added by 40% future prospects i.e.,

Rs.2400/-, which comes to Rs.8400/-. This amount of Rs.8400/- is deducted by 50% on account of personal expenses, which comes out to Rs.4200/-.

In such situation, annual loss comes to Rs.4200 x 12 = Rs.50,400/-. Multiplier of 17 shall be applied. By this total Loss of Dependency comes to

Rs.50,400 x 17 = Rs.8,56,800/-

Insofar as submission of learned senior counsel for appellant that compensation on account of Funeral Expenses is on higher side, is concerned, the

compensation on that account need to be interfered with in view of law laid down in Pranay Sethi (supra). Thus, Funeral Expenses is reduced from

Rs.25,000/- to Rs.15000/-. However, in view of law laid down in Pranay Sethi (surpa), claimants are entitled to Loss of Consortium in the amount of

Rs.40,000/-. To this extent impugned Award is also modified.

Multiplier, according to learned senior counsel, has also not been applied according to the law laid down by the Supreme Court. This submission is

misconceived, baseless and hollow. It is worth to be seen that the Tribunal has applied multiplier of 17 and the same need not be interfered with in

view of law laid down in Sarla Verma (supra) and Pranay Sethi and others (supra). It is made clear here that the Supreme Court in the case of Sunita

Tokas (supra) has, after discussing various judgements on the subject, held that multiplier be applied according to the age of deceased (bachelor).

For the reasons discussed above, the Appeal is partly allowed in the following manner:

A. Loss of dependency = Rs.8,56,800.00

B. Funeral expenses = Rs. 15,000.00

C. Loss of Consortium = Rs. 40,000.00

Total compensation = Rs.9,11,800.00

Claimants/respondents 1 to 4 are entitled to compensation of Rs.9,11,800/- along with interest @ 6% per annum from the date of institution of

claim petition till its final realisation.

Appellant Insurance Company is, accordingly, directed to pay to claimants/respondents 1 to 4, the aforesaid amount of Rs.9,11,800/- along with

interest @ 6% per annum from the date of institution of claim petition till its final realisation. Amount, if any, received by claimants/respondents 1 to 4

shall be deducted from the amount as awarded finally.

Disposed of in terms of above.

Record of the Tribunal, if summoned/received, be sent down along with copy of this judgement.