United India Insurance Company vs Zahoora Begum And Others

The United India Insurance Company Limited is in appeal against the award dated 31.10.2017 passed by the Motor Accident Claims Tribunal,

Ramban (hereinafter “the Tribunal†for short) in File No.170/Claim titled Zahoora Begum and others v. Branch Manager, United India Insurance

Company Limited and others, whereby a sum of Rs.22,62,166/- has been awarded to the claimants as compensation on account of death of Mohd.

Ameen Malik.

Briefly stated, the facts narrated in the impugned award are; that on 09.03.2015, respondent No.8 had driven the offending vehicle bearing

Registration No.RJ-09/PB-0081-M-2011 in a rash and negligent manner at Sabzi Mandi New Delhi, as a result whereof one Mohd. Ameen Malik,

who was unloading the luggage of the passengers from the offending vehicle, fell down and sustained serious injuries and later succumbed to the

injuries. Widow, three minor children and parents of the deceased Mohd. Ameen Malik filed a claim petition before the Tribunal. The claim made by

the claimants was resisted by the appellant as well as respondent Nos. 7 and 8 by filing their objections. On the basis of the pleadings of the parties,

the tribunal framed following issues:-

“1. Whether deceased Mohd. Amin Malik died as a result of injuries received in a Road Traffic Accident on 10.03.2015 at Sabzi Mandi Tis Hazari

New Delhi falls within the jurisdiction of Police Station, Sabzi Mandi New Delhi, involving vehicle No.Rj-09/PB-0081 M-2011 being driven in a rash

and negligent manner by its driver?

Whether the petitioners are entitled to receive compensation in terms of M.V.Act, and if so, to what extent and from whom?

Whether the offending vehicle was being driven at the time of accident in contravention of terms and conditions of the insurance policy and the

driver is not having a avlid license, thus respondent insurance company is not liable to pay compensation?

Relief?â€​

In support of their claim, respondent Nos.1 and 5 besides appearing themselves as their witness examined one Mohd. Saleem. On the other hand,

Udhey Bhan, attorney holder of the owner and driver of the vehicle have been examined as defence witnesses.

After appreciating the evidence on record, the Tribunal has assessed the monthly income of the deceased at the time of accident as Rs.15,000/-.

After deducting 1/4th on account of personal expenses and applying the multiplier of 16, the Tribunal awarded compensation in favour of the claimant

in the following manner:-

“1. Loss of income = Rs.21,60,000/-

Medical Expenses = Rs.57,186/-

Loss of love and affection = Rs.20,000/-

Funeral plus transport Expenses = Rs.25,000/-

Total = Rs.22,62,186/-

Learned counsel for the appellant-Insurance company assails the award of the Tribunal primarily on the ground that the alleged accident has not

been caused due to any negligence on the part of the driver of the offending vehicle. It is submitted that the deceased fell down from the roof of the

bus due to his own negligence while unloading the passengers’ luggage without permission or knowledge of owner or driver or their

agent/employee. The appellant-Insurance Company also disputes the quantum of compensation awarded in favour of the claimants.

Having heard learned counsel for the parties and perused the record, I am of the view that the decision of the Tribunal on issue No.1 is based on

the evidence available before it and, therefore, does not call for any interference.

7 The oral evidence led by the claimants clearly substantiate their plea that the deceased Mohd Ameen Malik died as a result of injuries received on

10.03.2015 at Sabzi Mandi New Delhi when he fell down while unloading the goods from the vehicle and that the accident had occurred due to the

negligence of the driver of the offending vehicle who had driven the vehicle without noticing that the deceased was unloading the goods.

8 The claimants, in support of their claim and to discharge the burden of issue No.1, examined one Mohd Saleem, an independent witness, who was

present on the spot. The statements of claimants Zahoora Begum and Ghulam Rasool and Mohd Saleem when read together substantiate the

aforesaid plea of the claimants.

9 The appellant-Insurance Company has not led any evidence in rebuttal. The driver and the owner of the offending vehicle have examined two

witnesses, namely, Shiv Parshad and Udey Bhan. They have denied that the accident had occurred due to the negligence of the driver of the

offending vehicle. The witness of driver and owner of the offending vehicle, namely Udey Bhan in his cross-examination, however, stated that he had

no personal knowledge about the accident as he was not available on the spot and was 100 feet away from the offending vehicle. Witness Shiv

Parshad, who was driver of the offending vehicle, however, deposed before the Tribunal that the alleged accident had not taken place due to the

negligent driving of the offending vehicle. He has stated that the deceased fell down while unloading the luggage of the passengers from the rooftop of

the offending vehicle without his permission or knowledge. The evidence of the driver and owner of the offending vehicle before the Tribunal is shaky

and totally unconvincing and, therefore, cannot be relied upon. Even if one would believe the story projected in the FIR, it clearly comes to fore that

the vehicle did not have proper stair for loading and unloading of goods. If that be so, it is nothing, but negligence on the part of the driver and the

owner of the vehicle who had failed to keep the vehicle in such position where it could have avoided causing injury or death of a person engaged for

loading and unloading of goods.

Taking into account the totality of circumstances and the nature of evidence on record, the view which the Tribunal has taken is the only possible

view and, therefore, this Court is not inclined to accept the contention of learned counsel for the appellant-Insurance Company that the claimants have

failed to prove that the accident in which the deceased died was a result of rash and negligent driving of the offending vehicle by its driver and,

therefore, the appellant-Insurance Company is absolved of indemnifying the owner and pay the compensation to the claimants.

11 Learned counsel for the appellant-Insurance Company places strong reliance on the copy of the FIR which projects a different story of the

incident. Interestingly and for the reasons best known to the appellant-Insurance Company, neither the Investigating Officer was produced as a

witness, nor copy of the chalaln was placed on record. It is, thus, not known, whether the FIR was investigated and the case was challaned in the

Court of law or the same was closed. For all these reasons, the plea of the appellant that claimants have failed to prove issue No.1 is not acceptable.

This brings me to the question of quantum of compensation awarded to the claimants.

12 The Tribunal, on the basis of evidence on record, came to the conclusion that there was no cogent evidence, particularly the documentary evidence

brought on record by the claimants with regard to the income of the deceased, but taking into consideration the facts and circumstances of the case,

took the income of the deceased at Rs.15000/- per month. The Tribunal, however, has not indicated as to what were the facts and circumstances,

which it took into consideration to take the income of the deceased at Rs.15000/- per month, more so, when there was no cogent evidence on record.

From the evidence led by the claimants, it is clearly borne out that the deceased was working as a labourer employed for loading and unloading of the

goods from the Buses attached with Ashok Travels at Delhi. It is nowhere stated by the witnesses in their deposition that the deceased was getting

any monthly salary from the Ashok Travels nor any salary certificate in this regard was brought on record. In that situation, taking the monthly income

of the labourer at Rs.15000/-would be on higher side, but, at the same time, monthly income of the deceased could not be anything less than

Rs.10,000/-. The Tribunal has deducted 1/4th towards personal expenses in terms of the law laid down in the case of Sarla Verma and others vs Delhi

Transport Corporation and another, (2009) 6 SCC 121, which cannot be found fault with. Going by the age of the deceased which was proved to be

32 years, the multiplier of 17 would be applicable. The Tribunal has wrongly scaled it down to 16. The Tribunal has also failed to add anything to the

assessed income of the deceased towards the future prospects.

13 In terms of the principle laid down by the Supreme Court in the case of National Insurance Company Ltd. Vs Pranay Sethi and others, AIR 2017

SC 5157), and keeping in view the age of the deceased which has been proved as 32 years, an addition of 40% is required to be made to the

established income of the deceased.

14 Therefore, taking the monthly income of the deceased as Rs.10,000/-adding 40% towards future prospects, the monthly income of the deceased

would come to Rs.14000/-. Deducting 1/4th on account of personal expenses of the deceased, the monthly loss of dependency would come to

Rs.10,500/-. Accordingly, the annual loss of dependency comes to Rs.10,500x12=126,000/- Applying the multiplier of 17, the loss of dependency would

be Rs.126000x17=21,42,000/-. Rest of the award however shall remain intact.

15 In view of the aforesaid and for the reasons stated above, the claimants are held entitled to the compensation in the following terms:-

Loss of dependency : Rs. 21,42,000/-.

Medical expenses : Rs. 57186/-

Loss of love and affection : Rs. 20000/-

Funeral plus transport expenses : Rs.25000/-

Total : Rs.22,44,186/-

16 Accordingly, the present appeal is partly allowed and the award is modified to the aforesaid extent. The compensation payable shall attract interest

@ 7.5% as has been awarded by the Tribunal and shall be released in favour of the claimants after proper identification strictly in terms of the award

of the Tribunal.