United India Insurance Co. Ltd @APPELLANT@Hash Hussan Jan And Others

1.United India Insurance Company Limited (Insurance Company for short), is in appeal against the award dated 12.02.2016 passed by the Motor Accident Claims Tribunal, Poonch (the Tribunal for short) passed in File No.32/2012 titled Hussan Jan and others Vs United India Insurance Company Limited and others. The appeal is primarily on quantum and, therefore, there is no necessity to go to the facts in detail. The claimants before the Tribunal i.e. the respondent Nos. 1 to 4 are next of kins of the deceased Mohd. Shafeeq who had died in the motor vehicular accident that took place on 08.12.2009 at Khaneter involving the offending vehicle being driven rashly and negligently by the respondent No.5. The respondent No.1 is wife, respondent Nos. 2 and 3 are major sons and respondent No.4 is major daughter of the deceased, Mohd. Shafeeq. They all filed a claim petition before the Tribunal seeking inter alia compensation to the tune of Rs. 15.00 lacs. In the claim petition, the respondent Nos. 1 to 4 claimed that the deceased at the time of accident, was 50 years old and was a carpenter by profession. The claim petition was contested by all the respondents. The appellant-insurance company refuted the claim of the claimants that the deceased at the time of accident, was 50 years old and that he was working as a carpenter and earning Rs.15,000/- per month. The identity card issued by the Election Commission of India in favour of the deceased, was also placed on record by the appellant -insurance company to indicate that the deceased at the time of accident was 57 years old. On the basis of pleadings of the parties, the Tribunal framed the following issues:

i)Whether the deceased Mohd. Shafeeq S/O Mir Baz R/O Surankote Tehsil Surankote district Poonch died due to the accident of vehicle No.JK02D 8897 Bus on 8.12.2009 at Khanter, Surankote Poonch road due to rash and negligent driving of the driver?OPP

ii)In case issue No.1 is proved in affirmative, whether the petitioners are entitled for compensation, if yes, to what extent.?OPP

iii)Whether the claim of the petitioners is not covered by the insurance policy of respondent No.1 for 3rd party risk, if yes, how?OPR-1

iv)Relief.?OP.Parties.

2.Issue Nos.1 and 3 were proved in favour of the claimants and against the appellant-insurance company. The appellant-insurance company is not aggrieved of the decision of the aforesaid issues. What is objected by the appellant-insurance company in this appeal, is the amount of compensation paid by the Tribunal under different heads.

3.Before proceeding further, it would be appropriate to take note of the manner in which the Tribunal has worked the compensation payable to the claimants. The Tribunal has taken monthly income of the deceased as Rs.8000/- on the ground that, as claimed, the deceased was a tailor and used to earn Rs.1000/- per day. Age of the deceased has been taken by the Tribunal as 48 years by way of referring to post mortem report placed on record by the claimants. 13 is the multiplier applied by the Tribunal to work out the actual loss of dependency of the respondents. So far as deductions on account of personal expenses are concerned, 1/4th of established income of the deceased has been taken into account. There is, however, no amount added by way of loss of future prospectus. In the result, the Tribunal has ordered a sum of Rs. 9,76,000/- with the following break up:

a)Loss of dependency                                                 :                       Rs. 9,36,000/-

b)Funeral expenses                                                      :                       Rs. 10,000/-

c)Loss of consortium                                                   :                       Rs. 5,000/-

d)Mental shock and agony to the family members.     :                       Rs. 25,000/-

The learned counsel for the appellant submits that the learned Tribunal has gone absolutely wrong in working out the compensation and has thrown established norms laid down by the Supreme Court in series of judgments to wind. It is submitted that the claimants in the claim petition have claimed that the deceased was a carpenter by profession but during the course of evidence, it was proved that he was working as labourer but the Tribunal, of its own, has held that the deceased was a tailor and, therefore, was earning a sum of Rs. 8000/- per month. Learned counsel for the appellant further submits that though the claimants have themselves claimed that the age of the deceased at the time of accident was 50 years which fact is also substantiated by the post mortem report yet the Tribunal, of its own, took the age of the deceased as 48 years which is factually incorrect. He points out discrepancy in applying deductions on account of living and personal expenses of the deceased. The amount granted under the conventional heads too has been disputed by the learned counsel for the appellant-insurance company

5.Per contra, learned counsel for the respondents submits that the award passed by the Tribunal represents just and fair compensation and does not call for any interference.

6.Having heard learned counsel for the partied and perused the record, I am of the view that the Tribunal has gone wrong on many aspects and has awarded the compensation which is not in consonance with the settled legal position. As per own showing of the claimants, the deceased was 50 years old at the time of accident and, therefore, there was no reason or occasion for the Tribunal to take age of the deceased as 48 years. Similarly, in absence of any cogent evidence on record with regard to the income of the deceased who was stated to be a farmer/labourer by the claimants and their witnesses, appropriate income to be taken into account should not have been more than Rs.5000/- per month. In terms of the judgments rendered in the cases of Sarla Verma and Others Vs Delhi Transport Corporation and another (2009) 6 SCC 121 and National Insurance Company Ltd Vs Pranay Sethi and others, 2017 SCJ 2700, there should have been an increase by 10% of the established income on account of loss of future prospectus. This is so because the age of the deceased at the time of accident was 50 years. Deductions to be applied in the instant case would be 1/3rd of the established income for reasons the deceased has left behind only two dependents i.e. wife and daughter. Two major sons cannot be said to be dependent upon the deceased. As laid down in paragraph No. 30 of the judgment in case of Sarla Verma (supra), deduction towards personal and living expenses of the deceased had to be 1/3rd, where the number of family members is 2 to 3. So far as the multiplier is concerned, since the age of the deceased was 50 years, the multiplier of 13 was applicable and the same has been correctly used by the Tribunal. Similarly under the conventional head, following amount is payable :

a)Funeral expenses                              :                       Rs. 15,000/-

b)Loss of estates                                  :                       Rs. 40,000/-

c)Loss of Consortium to wife              :                       Rs. 15,000/-

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Total                :           :           Rs. 70,000/-

7.There shall be no payment under the head mental shock and agony. Accordingly, the compensation payable to the claimants would work out to be in the following manner:

i)Monthly income of the deceased                   :                       Rs. 5000/-

ii)Additional income on account of future prospectus @ 10%:Rs. 500/-

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Total:   Rs.5500/-

iii)Deduction @ 1/3rd                           :                                               Rs.1833

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iv)Annual loss of dependency : 3667x12x13 = Rs,2,80,448/-

v)Amount payable under conventional head =70,000/-

Total := Rs.3,50,448/-

8.Amount of Rs. 3,50,448/-shall be payable to the respondents/claimants alongwith simple interest @ 7.5% per annum from the date of institution of this claim petition till the realisation of the award amount.

9.The appeal is partly allowed and the award is modified to the extent as above. The amount award if deposited in the registry, shall be released in favour of the claimants and any amount remaining outstanding after satisfying the award, shall be released in favour of the insurance company.