United India Insurance Co. Ltd vs Pummy & Ors

The above appeal is filed under Section 173 of the Motor Vehicle Act against the judgment and award dated 27.04.2018 passed by the learned Motor Accident Claims Tribunal, Jammu (for short, 'the Tribunal') in file No.38/Claim wherein the appellant/Insurance Company has been directed to pay an amount of Rs.43,12,816/-. The claim petition was filed by respondent No.1 i.e. wife of Sher Singh and her two children, both being minor, through their mother.

Brief facts which arise for consideration are that one Sher Singh, who was riding on bicycle and on his way from Gangyal to Satwari when reached near Digiana Pulli, a Mini Bus bearing Registration No.JK21B/4811 which was being driven by its driver hit the applicant from behind, as a result of which, Sher Singh was seriously injured and rushed to Government Medical College, Jammu where he was declared as bought dead.

Respondent No.1/Insurance Company has appeared and filed the objections, however, respondent Nos.2 and 3 being owner and driver respectively of the offending vehicle did not chose to appear and contest the claim of the petitioners/claimants, as a result of which, both were set ex-parte on 07.05.2016. On pleadings of the parties, the following issues were framed:-

I. Whether an accident occurred on 06.10.2015 near Digiana Puli, Jammu, within the jurisdiction of police Station, Satwari due to rash and negligent driving of respondent No.3, the driver of vehicle bearing Registration No.JK21B/4811 (Mini Bus 407) and caused the death of Sher Singh S/o Late Sh. Munshi Singh R/o Babey, Tehsil Majalta, District Udhampur?.........                 OPP

II. If Issue No.I is proved in affirmative, then to what extent of compensation, the claimants are entitled to and from whom? .....                              OPP

III. Whether the vehicle was being plied by its driver in contravention of the terms and conditions of the insurance policy and the insurance company (respondent No.1) is not liable to indemnify the insured? ....                               OPR

IV. Relief. ...               OP Parties.

The onus of proving Issue No.I regarding the death of the deceased as a result of injury received due to rash and negligent driving of the Vehicle bearing Registration No.JK21B-4811 was on the petitioner. Petitioner No.1 and her witness, PW-Amarjeet Singh, who is an eye witness and had acknowledged that he has stated that he has seen the occurrence and taken to victim in the hospital, who was brought dead in the hospital in the ambulance. His statement was recorded by the Police in the case and challan has also been placed on record which reveals that the accident took place on 06.10.2015 due to rash and negligent driving of the Vehicle bearing Registration No.JK21B-4811 which was being driven by the driver. In view of this documentary as well as oral evidence, this issue was rightly decided by the Tribunal in favour of the petitioners and against the respondents.

The second issue is that what extent of compensation, the claimants are entitled to and from whom. The appellant/Insurance Company, while filing objections to the claim petition, had not denied the fact that the vehicle was insured with the Insurance Company with effect from 04.11.2014 to 03.11.2015. Thus, the accident had occurred while the insurance of the vehicle was existing. The appellant/Insurance Company in their objections stated that they had taken the routine objections but have stated that they be allowed to contest the claim petition on behalf of the driver and the owner on all grounds under Section 170 of the Motor Vehicles Act.

Claimant Nos.1 to 3 i.e., widow and children of the deceased-Sher Singh were, thus, entitled to receive the compensation on account of the death of the deceased Sher Singh. Since from the date of accident, vehicle was insured with the appellant/Insurance Company vide Policy No.1106003114P106270738 valid from 04.11.2014, thus, this issue was also decided in favour of the claimants and they were found entitled to the compensation of the deceased due to accident.

With regard to Issue No.III, although the plea had been taken by the Insurance Company that the offending vehicle was being driven in contravention to the terms and conditions of the Insurance Policy and without a valid driving license. Since neither the oral evidence or documentary evidence was led to prove this issue, as such, this issue was also rightly decided in favour of the claimants and against the respondent/appellant by the Tribunal.

Lastly, the issue of relief and quantum of compensation which was to be granted to the petitioners, admittedly the deceased was Ex- serviceman who retired as Subedar Hon'y Captain from JAKLI and was getting monthly pension of Rs.35,357/-. Although the plea was raised that since the respondents/claimants would be receiving family pension, therefore, amount of family pension is to be deducted while computing the loss of income.

Hon'ble Delhi High Court in 'Delhi Transport Corporation Vs. Meena Chaturvedi & ors.', '2006 ACJ 406' has held in Paragraph Nos.12 & 13 as under :-

"12. In case of N. Sivammal and Ors. v. Managing Director, Pandian Roadways Corporation and another 1985 ACJ 75, the Apex Court pointed out that the reduction of monetary benefit of pension from the amount of compensation is without justification.

Our attention was invited to different judgments to point out that the amount of gratuity could not have been deducted from the amount of compensation [Jahirabi and Ors. v. V.S. Siddalingappa and Ors. 2001 ACJ 1340 (Karnataka High Court)]. Punjab and Haryana High Court in the case of Savitri Devi and Ors. v. Pala Ram and Ors. 2000 ACJ 935 has taken the view that the pension/family pension payable to the widow could not be taken into consideration for reducing the dependency of the claimants. Similar is the view expressed by Karnataka High Court in Rajeswari and Ors. v. Divisional Controller, Bangalore Transort 2000 ACJ 732. The High Court of Madhya Pradesh in Fulmati Bai and Ors. v. Pancham Singh and Ors. 1999 ACJ 1283 has taken the similar view. In Revben and Ors. v. Kantibhai Narottambhai Gohil and another 1995 ACJ 548 the Court pointed out the settled position of law and principle in view of the decisions of Gujarat High Court in Prataprai Arjandas Dhameja v. Bhupatsing Gagji 1982 ACJ 316 and Arunaben v. Mehmoodbhai Imamali Kaji 1983 ACJ 409. The Court pointed out that on the basic principles, no deduction can be made in as much as the benefits which would accrue to the dependents of the deceased are benefits which would even otherwise have accrued to the claimants on the death of the deceased irrespective of how he had died."

There is no dispute that the monthly income of the deceased at the time of his death was Rs.35,357/- and the age of the deceased was 47 years, as such, multiplier of 12 was appropriate and 10% income tax on his income, as such, out of this income. In terms of the judgment of Hon'ble Supreme Court in National Insurance Co. Vs. Pranay Sethi & ors. '2017 ACJ Page 2700' 25% of the above income was added as future prospects at Rs.35,357/- + Rs.8839 = Rs.44,196/- and out of this income, 1/3rd on his own personal expenses i.e., Rs.44,196 - Rs.14,732 = Rs.29,464. Thus the annual income would be Rs.3,53,568/-.

Though the learned Tribunal had deducted 10% as income tax on taxable income which was Rs.2,03,568/-, Therefore, the annual income of the petitioner including 25% as future prospects and deducted 1/3rd towards his personal expenses would be Rs.3,33,211/- and after applying multiplier of 12, the amount would come at Rs.39,98,532/-. In terms of the judgment of Hon'ble Supreme Court in National Insurance Co. Vs Pranay Sethi & ors, '2017 ACJ page 2700', the claimants are also entitled to Rs.40,000/- as loss of consortium, Rs.15,000/- as funeral expenses and Rs.15,000/- as loss of estate, thus, the claimants are entitled to compensation of Rs.40,68,532/- with 6% interest from the date of filing the claim petition.

The award dated 27.04.2018 is modified as above.

Appeal is disposed of.