United India Insurance Company Limited vs Abdul Majeed Wani And Ors

Impugned in this Appeal is Award dated 19th February 2015, passed by Motor Accident Claims Tribunal, Anantnag (for short “Tribunalâ€) on a

Claim Petition bearing File no. 74/2013 titled Abdul Majeed Wani and Anr. v. Sajad Ahmad Wani and Ors., directing appellant Insurance Company to

pay compensation in the amount of Rs. 23,70,000/- along with 7.5% interest per annum from the date of institution of claim till realization, on the

grounds made mention of therein.

A claim petition, as is discernible from perusal of the file, was filed by claimants/respondents 1&2, before the Tribunal on 22nd March 2013,

averring therein that deceased, Shahzad Hussain Wani S/o Abdul Majeed Wani, aged 32 years, died in an accident, which took place on 20th

December 2012 at Gulshan Abad, Anantnag, due to rash and negligent driving of driver of offending vehicle, bearing Registration no.JK03-5262,

which was insured with appellant Insurance Company. Claimants/ Respondent no. 1 & 2. sought compensation to the tune of Rs.66,38,100/-.

Appellant Insurance Company resisted the claim before the Tribunal.

The Tribunal, in view of pleadings of parties, framed five Issues for determination, which are:

Whether on 20th December 2012, the deceased Shahzad Hussain Wani son of petitioners was walking on the extreme left of the road at Gulshan

Abad Anantnag, when the offending vehicle bearing registration no. JK03-5262, driven by its driver, respondent no. 1, rashly and negligently hit the

deceased who received multiple injuries and was shifted for medical treatment but succumbed to his injuries? (OPP).

Whether the accident was caused due to the rash and negligent driving of respondent no. 1? (OPP).

Whether the petitioners are entitled to compensation, if so, from whom and to what extent? (OPP).

Whether the respondent no. 1 was not having a valid and effective driving licence at the time of the accident? (OPR3).

Relief. OP. Parties.

Claimants produced and examined four witnesses before the Tribunal; besides claimants/respondent no. 2. Appellant Insurance Company did not

produce any witness.

By impugned Award, the Tribunal found claimants/ respondents entitled to receive compensation of Rs. 23,70,000/-along with 7.5% interest per

annum.

Heard and considered.

Learned counsel for appellant Insurance Company has stated that the Tribunal erred in passing impugned Award for an amount of Rs.23,70,000/- in

favour of respondents 1&2, after taking income of deceased at Rs.20,000/- per month, which came to be subsequently increased by 50% as future

prospects income, thus making notional income of deceased as Rs.30,000/- per month for working out quantum of compensation. The income of

deceased had to be proved by documentary evidence but no such evidence was made available before the court and the Tribunal on the other hand

has relied upon the oral evidence and of its own has taken the monthly income of the deceased initially at Rs.20,000/- and subsequently has increased

it by 50%. Though the petitioners had placed on record before the learned tribunal the copies of the licence and diploma certificate of the deceased

and the copies of the accounts of sale of the medicines but there was no corroboratory documentary evidence adduced by the petitioners to

substantiate their claim with regard to the income of the deceased. The learned tribunal being not satisfied with the evidence of the respondent nos. 1

& 2 with regard to the income of the deceased had discarded the same but has erred in taking the income of the deceased Rs. 20,000/- per month.

The income of the deceased taken by the learned tribunal is without any evidence and merely based on surmises and conjunctures, hence is not

sustainable in the eyes of law. Admittedly, the learned tribunal has to work out the just compensation but for working out the just compensation there

has to be some reasoning available with the learned tribunal. In the case in hand, the learned tribunal has merely relied on the degree of the deceased

who was simply a diploma holder and also on the drug licence which documents would have not been enough for the learned tribunal to fix the notional

income of the deceased at Rs.20,000/-per month, but much below that and, accordingly, the compensation worked by the learned tribunal by fixing the

income of the deceased Rs.20,000/- per month and enhanced by 50% more toward future income, would be much less than what has been awarded

by the learned tribunal. On this count, the impugned award merits to be either set-aside against the appellant company or modified by slashing down

the awarded amount after reducing the income of the deceased as the income taken by the tribunal is on the higher side without any evidence. The

learned tribunal has again erred in applying the multiplier of 13 against the income of the deceased for working out the compensation on account of

loss of dependency of respondents nos. 1 & 2. The multiplier in the case in hand should have been on lesser side as the claimants in the claim petition,

respondent nos. 1 & 2 herein are the parents of the deceased falling in the age group of 55 to 60 and, accordingly, the multiplier against the age of

respondent nos. 1 & 2 should have been adopted by the learned tribunal for working out the compensation instead of multiplier of 13 against the age of

the deceased. On this count also the impugned award is either liable to be set-aside or modified by applying the appropriate multiplier while taking into

consideration the age of the dependents of the deceased who are his parents. The learned tribunal has further erred in granting the interest initially @

7.5% when it should have been only 6% keeping in view the present bank rates and the law laid down from time to time by the Hon’ble Supreme

Court. The learned tribunal has further erred in directing the appellant company to pay 10% interest for the delayed period in case the amount is not

paid within a period of 30 days as directed under the award, as such, direction amounts to be imposition of penalty which under law cannot be charged

without affording an opportunity to the appellant company to be heard and show cause why the amount could not be paid within the stipulated time.

Further, the appellant under the Statute has a right to file an appeal against the award in case it fails aggrieved of the same, but the above referred

direction of the learned tribual runs against the provision as contained in the M.V. Act, hence the same needs to be deleted from the impugned award.

In view of submissions made by learned counsel appellant Insurance Company, I thought it appropriate to go through the record on the file as also

impugned Award.

The Tribunal decided Issues 1&2 in favour of claimants and against respondents there. Claimants on the basis of oral and documentary evidence

succeeded to prove that deceased, Shahzad Hussain Wani, died as a result of fatal injuries received in a vehicular accident involving offending vehicle.

Issue no.3, framed and settled by the Tribunal, was with respect to compensation. It was claim of claimants/respondents 1&2 before the Tribunal

that deceased was a Pharmacist and Chemist and therefore, earning Rs.30,000/- per month. Witnesses had been produced and examined by claimants

before the Tribunal. The Tribunal, however, took Rs.20,000/- as monthly income of deceased.

There is sum and substance in submission of learned counsel for appellant Insurance Company that documentary evidence in support of claim

made by claimants/respondents 1&2 that deceased had income of Rs.30,000/- has not been made available by claimants. In such circumstances,

impugned Award is liable to be set-aside and modified.

Having said that, the impugned Award as regards computation of Loss of Dependency/Income is taken as Rs.10,000/- per month, which comes to

Rs.1,20,000/- per annum.

There is also sum and substance in submission of learned counsel for Appellant Insurance Company that Tribunal has wrongly added 50% future

prospects towards Loss of Income of deceased. The future prospects in view of law laid down by the Supreme Court in National Insurance Company

v. Pranay Sethi and others, AIR 2017 SC 5157, is taken as 40% instead of 50%. The impugned Award to this extent is set-aside and modified

accordingly.

In that view of matter, Rs.1,20,000/- as calculated above as annual income of deceased, is added by future prospects @ 40%, which comes out to

Rs.1,68,000/- (Rs. 1,20,000 + Rs.48,000).

50% deduction is to be made to Rs.1,68,000/- on account of personal and living expenses of deceased as he was a bachelor at the time of death,

which comes to Rs.84,000/-. Reference in this regard is made to Sarla Verma v. Delhi Transport Corporation and another, (2009) 3 Supreme 487.

Insofar as multiplier is concerned; according to learned counsel for appellant Insurance Company, the multiplier has been wrongly applied.

However, the said submission has no force, in view of law laid down by the Supreme Court in Sunita Tokas and another v. New India Insurance Co.

Ltd and another, 2019 SCC Online SC 1045 : 2019 (11) SCALE 24. It has been held by the Supreme Court that multiplier according to the age of

deceased (bachelor) is to be applied.

Therefore, multiplier of 13 is to be applied. By this, the total loss of dependency/income comes to Rs.10,92,000/- (Rs.84,000 x 13).

The compensation on account of other Heads/Accounts, though vehemently urged by learned counsel for appellant Insurance Company to be on

higher side, need not be interfered with in view of the aw laid down by the Supreme Court in catena of judgements including Pranay Sethi (supra).

Insofar as 10% interest is concerned, again there is sum and substance in submission of learned counsel for appellant Insurance Company. The

interest is reduced to 6% per annum.

For the reasons detailed herein above, Appeal on hand is partly allowed and impugned Award is partly set-aside and modified in the following

manner: Â

Loss of Dependency : Rs.10,92,000.00

Funeral Expenses : Rs. 25,000.00

Loss of Estate : Rs. 5,000.00

Total : Rs.11,22,000.00

Claimants/respondents 1&2 are entitled to compensation of Rs.11,22,000/- along with interest @ 6% per annum from the date of institution of

claim petition till its final realisation.

Appellant Insurance Company is, accordingly, directed to pay to claimants/respondents 1&2, the aforesaid amount of Rs.11,22,000/- along with

interest @ 6% per annum from the date of institution of claim petition till its final realisation. Amount, if any, received by claimants/respondents 1&2

shall be deducted from the amount as awarded finally.

Disposed of in terms of above.

Cross Appeal

During perusal of file, it came to fore that Cross Appeal has been filed by respondents 1&2/claimants, seeking modification of impugned Award

and enhancement of compensation.

It is stated in Cross Appeal that on 20th December 2012 at about 11.45 AM, the deceased Shahzad Husain Wani, while walking at the extreme

left of the road at Gulshan Abad, Anantnag, the offending vehicle (Tata Minibus) bearing Registration no.JK03-5262, while coming from Mattan,

driven by respondent no.3, with sheer negligence, hit deceased very hard, which resulted in fatal injuries and subsequently the deceased succumbed to

injuries.

It is also averred that deceased was an educated person, had done his diploma in D-Pharmacy from Paray Medical Institute, Srinagar, and had

also got certificate of Alternative Medicines from Indian Board of Alternative Medicines and the deceased was running a medical shop at Sarnal Bala,

Anantnag vis-Ã -vis Certificate of Registration no.8103 dated 3rd December 2006 and keeping in view his quality work he was counted amongst the

reputed Pharmacist and Chemist of District Anantnag. It is submitted that deceased was comfortably earning Rs.30,000/-per month which has been

proved by claimants/respondents by leading both oral and documentary evidence, i.e., by producing entire record including day book and cash receipts.

Multiplier of 13, it is maintained by respondents, has been wrongly applied by the Tribunal and multiplier of 17, or at least 16, ought to have been

applied by Tribunal. Interest @ 7.5%, according to respondents, has been on lower side.

I have given my thoughtful consideration to the case set up and grounds taken by respondents 1&2/claimants in the Cross Appeal. I do not find

any case, or for that matter any ground has been made out by respondents 1&2 to modify the impugned Award. All that has been observed and held

by me while deciding the Appeal of appellant Insurance Company herein above, also answers and decides the Cross Appeal in hand and the same

need not be reiterated here again. In that view of matter Cross Appeal is liable to be dismissed.

In view of above, the Cross Appeal is dismissed.

Record of the Tribunal, if summoned/received, be sent down along with copy of this judgement.