Sarvat Kouchak vs National Insurance Company

Hakim Imtiyaz Hussain, J.—This judgment will dispose of two appeals directed against an award passed by the Motor Accident Claims

Tribunal, Pulwama (the Tribunal) in a claim petition File No. 28 Claim of 2000 titled Sarvat Kochak and Anr. v. Manzoor Ahmad Khandey and

Ors. on 19.11.2003.

The matter relates to a road accident which took place on 06.11.1999 near village Chersoo situated on Srinagar, Jammu National Highway.

One Dr. Arshad Mirza aged about 27 years was traveling alongwith his relatives to Anantnag in his own Maruti Car. When he reached near

Chersoo he met with an accident which took place due to the dashing of one truck bearing registration No. JK03-1915 with the said Maruti Car.

The truck was being driven by Manzoor Ahmad Khandey S/o Abdul Rehman Khandey R/o Khandeypora, Pulwama and it is alleged that he was

driving the vehicle at the time of accident rashly and negligently due to which the accident took place. Said Dr. Arshad Mirza alongwith other

passengers of the car got critically injured resulting in the instant death of Dr. Arshad Mirza.

Sarvat Kochak and Dr. Gh. Rasool Mirza who are the parents of deceased Dr. Arshad Mirza filed a claim petition before the Tribunal stating

therein that the deceased was of 27 years of age and had completed his MBBS degree including the house job and internship and that he was their

only son.

The Tribunal framed the following issues in the case:

Whether on 6.11.99 deceased Arshad was coming from Srinagar to Anantnag by Maruti Car No. DL/2C/2208 and was driving Maruti car on

its correct side of road and while reaching near village charsoo a truck No. JK03-191 which was driven by respondent No. 1 rashly and

negligently and in this process of high speed dashed Maruti Car resulting in massive accident in which the deceased and others were injured and

deceased succumbed to injuries on spot. The accident in result of rash and negligent and careless driving of respondent No. 1?OPP

In case issue No. 1 is proved in affirmative, to how much of compensation the petitioners are entitled to and from whom? OPP

Whether the respondent No. 1 was holding a valid D/L on the date of occurrence? OPR

Whether the deceased was holding D/L? OPR

Relief.

On conclusion of the proceedings the Tribunal found the parents of the deceased were entitled to a compensation of Rs. 7,20,000/- plus Rs.

15.000/- as funeral expenses (total Rs. 7,35,000). The Tribunal, however, found that at the time of accident the deceased was driving the vehicle

without a valid driving licence, as such he has contributed to the accident. His act was taken as contributory negligence in this behalf and said

amount was reduced by one third. The parents of the deceased were, therefore, found entitled to a compensation in toto to Rs. 4,95,000/-. The

Tribunal also directed that the compensation amount be paid within three months failing which interest @ 10% per annum shall also be payable till

the final payment is made.

Aggrieved by the said award/judgment both the parents of the deceased as well as the Insurance Company have filed separate appeals against

it. The parents of the deceased Sarwat Kochak and Dr. Gh. Rasool Mirza have filed CIMA No. 29/2004 on the ground that the compensation

fixed is inadequate as the Tribunal has not taken into account the earnings of the deceased as also no interest has been granted on the awarded

amount.

The Insurance Company has on the other hand filed appeal CIMA No. 74/2004 on the ground that the Tribunal has applied a wrong multiplier

and has granted higher rate of interest in default of payment of compensation amount which is not warranted by law.

We will first take the appeal filed by the legal heirs of the deceased.

CIMA 29/2004

Learned counsel for the appellants has vehemently argued that the deceased was the only son of the appellants and that he had completed his

MBBS degree and was a practicing doctor. According to the learned counsel the batch mates of the deceased are getting more that Rs. 10,000/-

per month and that there was a positive evidence on the Tribunal's record to show that the monthly income of the deceased too was Rs. 10,000/-

but the Tribunal has erred in taking the monthly income of the deceased as Rs. 5000/- only and calculating the amount of compensation on this

amount. The learned counsel has further stated that the Tribunal has not granted any interest on the amount awarded and has not given any cogent

reasons for the same.

So far the findings of the Tribunal on the amount of compensation is concerned I find that the Tribunal has dealt with this issue in detail. The

learned Tribunal has found that at the time of accident the deceased though had completed his studies including the house job and internship was

not employed and that there was no specific evidence on record about his income. The Tribunal has, in such circumstances, taken Rs. 5000/- as

the income of the deceased which in the facts and circumstances of the case appear to be just and proper.

Sometimes it becomes very difficult for the parties to adduce evidence on the income of the deceased. As has been observed by the Madras

High Court in Ramesh v. Rajammal 1998 AIHC 4476 almost in 70 to 80 percent of the accident cases, the claimants are not able to produce any

evidence with regard to the income of the deceased. Only in case of employed persons, we can expect the Salary Certificate or in some other

cases, if he is an Income Tax assessee, we can expect some evidence with regard to the income of the deceased. If a person who dies in accident

is a self-employed and not an assessee, in those cases, the Tribunal as well as this Court has to proceed to find out the income of the deceased on

the basis of the nature of the employment of the deceased. Thus, in such cases the Tribunal has to take into consideration all the relevant

circumstances like the age, physical condition and status of the deceased, his educational qualifications, profession and future prospectus. If exact

income of the deceased was such as no record of such income was there, the Tribunal can, on consideration of these facts do a guess work and

arrive at a just conclusion about the income of the deceased.

The tribunal has after fixing the amount of compensation due to the legal heirs of the deceased found that out of the amount one third was

deductible as at the time of the accident the deceased was himself negligent in driving the vehicle without having the valid driving licence. The

Tribunal reduced the compensation amount by one third and in this behalf observed as under:

Since the deceased has been himself negligent in driving the vehicle without having valid D/L, it can be designated as contributory negligence on his

behalf and keeping that aspect in view the compensation so fixed is hereby reduced by one third and remaining compensation payable by the

respondent-Insurance Company is therefore fixed as Rs. 4,80,000/- plus Rs. 15,000/- as funeral expenses in toto Rs. 4,95,000/- including the

interim relief which shall be payable within three months and if not paid the interest at the rate of 10% per annum shall be also payable till final

payment is made.

I find that the view taken by the Tribunal is not sustainable at all. Even if it is taken that the deceased was not driving the vehicle with a valid

driving licence, it in my view cannot disentitle the claimants to claim compensation not can the Tribunal reduce the amount of compensation on the

basis of contributory negligence.

In Gujarat State Road Transport Corporation v. Thakur Narotam Kalyanji 2000 AIHC 3117 Guj (DB) the Gujarat High Court held that merely

because the deceased driver of one of the vehicle had no driving license alone was not sufficient to burden him with contributory negligence. A

similar view was taken by Punjab and Haryana High Court in Mohinder Singh Sohal and Another Vs. Ramesh Kumar and Others, and it was held

that the contributory negligence was not to be presumed merely form the facts that the person driving the vehicle did not hold a driving license. On

the reasons given on the said authorities, I found myself inclined to follow the same.

Under these circumstances I find that the deduction of one third of the amount done by the Tribunal is not justified. The order to that extent is

set aside.

So far the grant of interest is concerned, in the present case the Tribunal has not granted any interest on the amount of compensation fixed by

it. On the other hand, it has directed payment of the compensation fixed by it. On the other hand, it has directed payment of the compensation

amount within three months. The Tribunal has further directed that if the amount is not paid within this period interest @ 10% per annum shall be

payable till the final payment is made.

Section 171 of the Motor Vehicles Act provide for award of interest where any claim is allowed. It provides as under:-

Where any Claims Tribunal allows a claim for compensation made under this Act, such Tribunal may direct that the in addition to the amount of

compensation simple interest shall also be paid at such rate and from such date not earlier than the date of making the claim as it may be specified

in this behalf.

The section empowers the Tribunal to award simple interest on the compensation awarded at such rate and from such date not earlier than the

date of making the claim as it may specify in this behalf. Interest is not awarded as damages but is awarded to the claimant only for being kept out

of money which ought to have been paid to him. It takes care of the period between the date of claim and the date of the final payment of the

compensation. The power of the Tribunal to grant interest is discretionary and is to be passed properly and on due reasons both while awarding or

declining interest. If the Tribunal while granting the amount finds that the party entitled to the compensation is not entitled to the interest it must

record its reasons otherwise it will be deemed to have failed to exercise jurisdiction vested in it. The discretion is always to be exercised on just

and proper grounds for which due reasons are to be given. If the Tribunal finds a party entitled to the compensation amount it has to make a

provision for interest on the amount from the date of the claim to the date of its realization and if the Tribunal from the facts of a particular case

finds that such party is not entitled to such interest it has to record its reasons. In the present case the Tribunal has not recorded its reasons as to

why it is not allowing the interest. Failure to give reasons shows that the Tribunal has failed to exercise jurisdiction properly. From the facts and

circumstances of the present case I find no circumstances which could disentitle the appellants from claiming any interest on the compensation

amount.

In the facts and circumstances of the case, I find the appellant entitled to 9% interest on the awarded amount from the date of order of the

Tribunal till its final realization.

With these observation the appeal No. 29/2004 stands disposed of. Appeal No. 74/2004

Learned counsel for the appellants-Insurance Company Mr. J.A. Kawoosa has vehemently argued that the Tribunal has fixed the

compensation amount at higher side and has granted higher rate of interest in default. In this behalf he has relied on National Insurance Co. Ltd.

Vs. Keshav Bahadur and Others, , 1993 ACJ (2748) : 1982 J&K 105, 1999 SLJ 6,and The Municipal Corporation of Greater Bombay Vs. Shri

Laxman Iyer and Another, .

In view of the provisions of Section 149(2) and 170 of the Motor Vehicles Act and also the law laid down by the Apex Court I find that the

grounds taken by the learned counsel for the appellants - Insurance Company are not available to him to challenge the amount of compensation

awarded by the Tribunal in favour of the legal heirs of the deceased. In National Insurance Co. Ltd., Chandigarh Vs. Nicolletta Rohtagi and

Others, the Apex Court held that the right of appeal is not an inherent right and as the Insurance Company is permitted to contest only on the

grounds stated in Section 149(2) of the Motor Vehicles Act the Insurer cannot file an appeal on any other ground except in accordance with the

procedure prescribed in Section 170 of the Act. The Court observed:

The aforesaid provisions show tow aspects. Firstly, that the insurer has only statutory defences available as provided in Sub-section (2) of Section

149 of the 1988 Act and secondly, where the Tribunal is of the view that there is a collusion between the claimant and the insured, or the insured

does not contest the claim, the insurer can be made a party and on such impleadment the insurer shall have all defences available to it. Then comes

the provision of Section 173 which provides for an appeal against the award given by the Tribunal. u/s 173, any person aggrieved by an award is

entitled to prefer an appeal to the High Court. Very often the question has arisen as to whether an insurer is entitled to file an appeal on the grounds

available to the insured when either there is a collusion between the claimants and the insured or when the insured has not filed an appeal before the

High Court questioning the quantum of compensation. The consistent view of this Court had been that the insurer has no right to file an appeal to

challenge the quantum of compensation of finding of the Tribunal as regards the negligence or contributory negligence of offending vehicle.

The view adopted in Nicolita Rohtak's case was followed by the Court in United India Insurance Co. Ltd. Vs. Jyotsnaben Sudhirbhai Patel

and Others, and it was held:

On a considered of the relevant provisions under the Motor Vehicles Act, it is plain and clear that the Insurance Company can contest the claim

preferred before the Tribunal only on the statutory grounds prescribed u/s 149(2) of the Act, but, if there is collusion between the person making

the claim and the person resisting the claim or if the person against whom the claim is made has failed to contest the claim, the Insurance Company

can step in and seek permission of the Tribunal and make a prayer for getting itself impleaded as a party to the proceeding and the insurer so

impleaded can then contest the proceeding on grounds other than the grounds enumerated in Sub-section (2) of Section 149 of the Act. This is an

enabling provision in the event of a collusion between the claimant and the insured or the tortfeaser"".

In view of this finding I find that the appeal of the present appellant - National Insurance Company is not maintainable. Even otherwise, on

going through the evidence, I find that the Tribunal has given due reasons while fixing the amount of compensation. So far the income of the

deceased is concerned it has already been observed while disposing of Appeal No. 29 of 2004 that the Tribunal has come to a just conclusion in

fixing the same. It may be added here that where the decreased was an able-bodied young man, having entered the medical profession and coming

from a well to do family who afforded even having his own car an amount of Rs. 5000/- as his monthly income can in no circumstances be termed

as unreasonable. I could not find any error in the findings of the Tribunal on this issue.

The Tribunal has taken into consideration all the relevant facts and circumstances of the case. The conclusions arrived are proper evidence

recorded by the Tribunal.

The appeal filed by the Company is, therefore, dismissed.

Order accordingly.