N.I. Assurance Co. Ltd. vs Haji Mukhtiar Ahmed and Others

Hasnain Massodi, Judge

The Civil First Miscellaneous Appeal on hand is directed against the award made by Motor Accident Claims Tribunal, Reasi on 30th April,

2010, in claim petition titled ""New India Assurance Co. Ltd. v. Haji Mukhtiyar Ahmed and ors."" (27/Claim).

It appears that one Gulzara Begum, while traveling in a Truck bearing Registration No. JK02M-3664 was seriously injured, when the Truck

met with an accident at Sula Bridge, Reasi. The accident is attributed to rash and negligent driving of its driver -- owner Shri Piara Singh --

respondent No. 6 herein.

The award made by the Tribunal is primarily questioned on the ground that the deceased Gulzara Begum was a gratuitous passenger in a goods

vehicle and that the appellant-Insurance Company was not liable to pay any compensation to the dependents of Mst. Gulzara Begum, who

breathed her last in a local hospital due to injuries sustained in the accident and to indemnify the owner of the offending vehicle.

It is next urged that the compensation has been assessed unmindful of the settled legal position and is more than what ought to have been

awarded by the Tribunal. The Tribunal is said to have committed error while assessing loss of dependency and unauthorizedly awarded

compensation on account of future expenses. The Tribunal, it is pleaded, was not to award compensation on account of contortion as well as loss

of love and affection.

I have gone through the record and have heard learned counsel for the parties.

Learned counsel for the appellant, insists that in view of the admission in the claim petition on part of the respondents/claimants that the

deceased at the time of accident was traveling in a goods vehicle, it was for the respondents/claimants to plead and prove how they not

withstanding such admission, were entitled to recover compensation from the appellant. It is argued that the appellant was not under an obligation

to plead that it was not liable to pay the compensation and that mere failure on part of the appellant to make a specific plea in this regard, would

not entitle the respondents/claimants to claim and recover compensation from the appellant.

The ground that the deceased was a gratuitous passenger and the appellant was not liable to indemnify the owner is untenable and of no help to

the appellant, for the simple reason that the appellant, in this regard, has not made a specific plea in its objections filed before the Tribunal nor has

adduced any evidence to prove that it was not so liable. Whenever vehicular accident involving a vehicle insured with the insurance agency claims a

life or results in injury to any person, the dependents of the deceased or the person injured, as the case may be, have a right to maintain the claim

petition. The claimant(s) is/are not required to foresee the defence likely to be set up by the Insurance Company to escape liability and in advance

plead in the claim petition that such defence was not available to the insurance company. In case, insurance company proposes to escape liability

on any ground available to it, it is for the insurance company to specifically plead such ground and thereafter, prove whatever is pleaded. In case,

the insurance company fails to specifically plead the defence available it, it cannot bank on inferences that it expects the Tribunal to draw from the

averments made in the claim petition. In the present case, mere admission on part of the respondents/claimants that the deceased at the time of

accident was traveling in a goods vehicle would not by itself help the appellant to wriggle out of its responsibility under the insurance contract.

Since, the respondents/claimants notwithstanding their admission that the deceased was traveling in a goods vehicle have claimed compensation for

the appellant -- Insurance Company, it is to be presumed that the respondents/claimants plead that notwithstanding the aforesaid fact, they had a

right to claim and the insurance company was under an obligation to pay compensation to them.

This apart, the respondents/claimants have established by convincing evidence that the offending vehicle was carrying household goods and

dairy products (Ghee) of the deceased at the time of accident. The respondents/claimants case before the Tribunal was that they are nomads and

during summer, move with their live stock to the higher reaches of Patnitop area and on the date of accident, they were returning with their bag and

baggage to their native place. The charge sheet emanating from case FIR No. 180/07 u/s 279/337 RPC relating to the occurrence registered at

local Police Station also substantiates that the offending vehicle was carrying the household items of the deceased at the time of accident. The

appellant is, thus, liable to indemnify the owner of the offending vehicle in terms of Section 147, Motor Vehicles Act, 1988 and has been rightly

held so by the Tribunal.

However, there is substance in the appellant's case that the Tribunal while assessing the compensation has either because of error in making

calculations or mis-appreciations of law awarded compensation on the higher side. The Tribunal while awarding Rs. 50,000/- on account of loss of

consortium has also awarded a further amount of Rs. 50,000/- on account of love and affection. Once, an amount of Rs. 50,000/- was awarded

to the husband of the deceased-respondent No. 1 on account of loss of consortium, there was no occasion to award a further amount of Rs.

50,000/- on account of loss of love and affection. Even the compensation assessed on account of loss of consortium is on higher side and much

more than what is suggested in 2nd Schedule to the Motor Vehicles Act. It is well settled that the amount assessed on account of loss of

dependency includes within its fold, the compensation that may be awarded on account of loss of love and affection and other such factors. The

compensation payable on such count is to be taken to have been internalized in the amount of compensation assessed on account of loss of

dependency. Again the Tribunal has assessed and awarded an amount of Rs. 50,000/- for the loss on account of future expenses. In case of death,

in a vehicular accident, no such amount can be awarded to take care of future expenses. The compensation assessed on said count is not to be

confused with the compensation awarded on account of funeral expenses. In the present case, an amount of Rs. 20,000/- has been separately

awarded on account of ""burial and post burial expenses"".

So viewed, a compensation awarded on account of future expenses and loss of love and affection has been erroneously awarded and is to be

subtracted from the award amount. The amount awarded on account of loss of consortium also deserves to be slashed down from Rs. 50,000/- to

Rs. 20,000/- . This apart, the Tribunal has fallen in an error while calculating the loss of dependency. Even if, the formula applied by the Tribunal is

taken to be correct, the loss of dependency works out to be Rs. 5,04,000/- and Rs. 5,37,600/- worked out by the Tribunal.

For the reasons discussed above, the award is modified as under;

The appellant-Insurance company shall pay an amount of Rs. 5,54,000/- to the respondents/claimants as compensation on account of death of

Mst. Gulzara Begum, wife of respondent No. 1 and mother of other respondents/claimants along with interest @ 7.5% per annum from the date of

filing of claim petition till realization of the award amount.

The appeal is disposed of accordingly.