National Insurance Company Limited vs Mehtaba And Another

Impugned in this Appeal is Award dated 9th November 2017, passed by Motor Accident Claims Tribunal Anantnag (for short “Tribunalâ€) on a

Claim Petition bearing no.126 titled Mst Mehtaba v. Mohammad Afzal Sheikh and another, saddling appellant Insurance Company with the liability to

pay compensation of Rs.4,56,700/-, along with 6% interest per annum from the date of filing of claim petition till amount was deposited before the

Tribunal, in favour of claimant/respondent no.1 to 7, on the grounds enumerated therein.

Heard and considered.

Mr J. A. Kawoosa, learned counsel appearing for appellant Insurance Company, has stated that claimant/respondent no.1 was not entitled to any

compensation as accident took place due to rash and negligent driving of deceased. He further states that deceased is son of owner of offending

vehicle (respondent no.2) and claimant is wife of respondent no.2 and in claim petition, it was mentioned that deceased was a mechanic and working

with Honda company; thus, deceased was not a paid driver and therefore, claim petition was to be dismissed. It is also averred that deceased cannot

be held to be third party as he being son of owner, was driving vehicle himself. These submissions of learned counsel for appellant Insurance

Company are misconceived and baseless. Perusal of file reveals that on claim petition of respondent no.1, appellant Insurance Company filed its

written statement/ objections, which was followed by framing of following Issues:

Whether on 6th of December, 2013 deceased Khursheed Ahmed Sheikh son of Mohammed Afzal resident of Gopalpora, Anantnag, while driving

Maruti Car bearing chassis no.2885664, engine no.4665440 met with an accident at Sarnal with the result deceased suffered serious injuries and

succumbed to his injuries? OPP

Whether the accident in which the deceased lost his life, was caused because of the negligence of the deceased, if so, what will be its effect on the

claim petition? OPR-2

Whether because of father and son relationship between the deceased and injured, the claim is not maintainable against respondent no.2? OPR2

In case issue no.1 is decided in affirmative and issue no.2&3 in negative, whether petitioner is entitled for compensation, if so, to what extent and

from whom? OPP

Relief

Upon framing aforesaid Issues, claimant/respondent no.1 appeared as witness. Appellant Insurance Company did not choose to led evidence in

support of its stand.

Appellant Insurance Company before the Tribunal did not deny or dispute the accident, resulting in death of claimant’s son, or lodgement of FIR

in this regard by police, thus, Issue no.1 decided in favour of claimant. It is not impertinent to mention here that insurance policy, in the present case on

its bare perusal would reveal that it covers both owner and driver of vehicle. Thus, it is the Insurance Company, which is liable to pay compensation.

Another submission of Mr J. A. Kawoosa, learned counsel for appellant is that even if Insurance Company is liable to pay compensation, yet

compensation awarded by Tribunal is excessive, arbitrary and unjust. Income of deceased taken as Rs.40,000/- per annum by the Tribunal, according

to learned counsel for appellant, is on very higher side. Multiplier is also said to have been wrongly applied. These submissions of learned counsel for

appellant are misconceived, baseless and specious. The Tribunal has been very conservative in taking Rs.40,000/- as annual income of deceased.

In the above milieu, it is germane to add that there cannot be actual compensation for anguish of heart or for mental tribulations. The

quintessentiality lies in the pragmatic computation of the loss sustained which has to be in the realm of realistic approximation. Therefore, Section 168

of the Motor Vehicles Act, 1988 stipulates that there should be grant of “just compensationâ€. Thus, it becomes a challenge for a court of law to

determine “just compensation†which is neither a bonanza nor a windfall, and simultaneously, should not be a pittance. [Vide: K. Suresh v. New

India Assurance Co. Ltd. (2012) 12 SCC 274].

In the backdrop of averments made in Appeal and submissions made by learned counsel for appellant, it may be pertinent to mention here that it has

been emphasised over and over again that “just compensation†should include all elements that would go to place the victim in as near a position

as she or he was in, before occurrence of accident. Whilst no amount of money or other material compensation can erase trauma, pain and suffering

that a victim undergoes after a serious accident, (or replace loss of a loved one), monetary compensation is the manner known to law, by which

society assures some measure of restitution to those who survive, and the victims who have to face their lives.

The Supreme Court in Syed Sadiq v. Divisional Manager, United India Insurance Co. Ltd., (2014) 2 SCC 735, while taking note of earlier decision

in Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company, (2011) 13 SCC 236, reckoned monthly income of a vegetable vendor,

who met with a road accident in the year 2008, at the age of 24 years, notionally as Rs.6,500/-. In the said decision, the Supreme Court held that a

labourer in an unorganized sector doing his own business could not be expected to produce documents to prove his monthly income. Therefore, there

was no reason for Tribunal and the High Court to ask for evidence to prove his monthly income. Going by the state of economy, prevailing at that time

and rising prices in agricultural products, the Supreme Court accepted his case that a vegetable vendor was reasonably capable of earning 6,500/- per

month.

A Constitution Bench of the Supreme Court in National Insurance Company Ltd v. Pranay Sethi, (2017) 16 SCC 680, has held that Section 168 of

Motor Vehicles Act, 1988, deals with concept of ‘just compensation’ and same has to be determined on foundation of fairness, reasonableness

and equitability on acceptable legal standard because such determination can never be in arithmetical exactitude. It can never be perfect. The aim is to

achieve an acceptable degree of proximity to arithmetical precision on the basis of materials brought on record in an individual case. The conception of

‘just compensation’ has to be viewed through the prism of fairness, reasonableness and non-violation of the principle of equitability. In a case of

death, the legal heirs of the claimants cannot expect a windfall. Simultaneously, the compensation granted cannot be an apology for compensation. It

cannot be a pittance. Though the discretion vested in the Tribunal is quite wide, yet it is obligatory on the part of the Tribunal to be guided by the

expression, i.e., just compensation.

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 above cited case, accident had taken place in the year of

2004. In the present case, the accident has taken place in the year 2012.

After taking into account the law discussed herein before, let me advert to case in hand. The Tribunal, in the present case, has not given “just

compensationâ€. Thus, the annual income of deceased taken by Tribunal as Rs.40,000/- is liable to be corrected and it shall be calculated and taken as

Rs.72,000/- (i.e. Rs.6000/- per month). Thereafter 40% future prospects is to be added thereto, which totals it to Rs.1,00,800/- (Rs.72,000 +

Rs.28,800/-).

The Tribunal has rightly applied the multiplier. However, compensation on other accounts has been given by Tribunal conservatively. It is germane

to mention here that the Supreme Court in the case of Sarla Verma v. Delhi Transport Corporation, (2009) 6 SCC 121 has laid down the principles

governing determination of quantum of compensation in the case of death in a motor accident. The Supreme Court held that compensation awarded

did not become ‘just compensation’ merely because the Tribunal considered it to be just. Just compensation was adequate compensation, which

was fair and equitable, on the facts and circumstances of the case, to make good the loss suffered as a result of the wrong, as far as money could do

so, by applying well settled principles relating to award of compensation. It was not intended to be a bonanza, largesse or source of profit. To have

uniformity and consistency, Tribunals should determine compensation in cases of death, by following well settled steps, namely, ascertaining

multiplicand (annual contribution to the family), multiplier and calculation of loss of dependency by multiplying the multiplicand by such multiplier.

Learned counsel for appellant Insurance Company has averred and rightly so that the Tribunal has wrongly applied deduction of 1/3rd on account

of personal expenses. Half of income was to be deducted as deceased was a bachelor. To this extent Award requires to be set-aside and modified.

Again, reference in this regard is made to Sarla Verma and Pranay Sethi (supra). Thus, from Rs.1,00,800/- calculated as annual income of deceased,

half (1/2) is to be subtracted for personal and living expenses of deceased, which comes out as Rs.50,400/- (Rs.1,00,800 â€" Rs.50,400). In that view

of matter total compensation payable to claimants on account of loss of dependency comes to Rs.50,400 x 17 = Rs.8,56,800/-.

Again, it is important to mention here that the Tribunal has been very conservative in awarding paltry amount of Rs.2000/- on account of Funeral

Expenses and Rs.2500/- on account of Loss of Estate. To this extent the Award is also modified. There shall be Rs.15,000/- on account of Loss of

Estate; Rs.40,000/- on account of Loss of Consortium; and Rs.15,000/- on account of Loss of Funeral Expenses. Support in this regard is had from

law laid down by the Supreme Court in Pranay Sethi (supra) and judgement dated 7th September 2020 in Civil Appeal no.3093 of 2020, titled The

New India Assurance Company Limited v. Smt. Somwati and others.

For the foregoing reasons, the impugned Award is modified as under:

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

B. Funeral expenses = Rs. 15,000.00

C. Loss of consortium = Rs. 40,000.00

D. Loss of estate = Rs. 15,000.00

Total compensation = Rs.9,26,800.00

Claimants/respondents 1&2 are entitled to compensation of Rs.9,26,800/- along with interest @ 6% per annum from the date of institution of claim

petition till its final realisation.

Appellant Insurance Company is directed to pay the aforesaid amount of Rs.9,26,800/- along with interest @ 6% per annum from the date of

institution of claim petition till its final realisation. Amount, if any, received by claimant/respondent no.1 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.