United India Insurance Company Ltd vs Manzoor Ahmad Kumar And Others

Vinod Chatterji Koul, J

Impugned in this Appeal is Award dated 11th December 2017, passed by Motor Accident Claims Tribunal, Srinagar, (for short “Tribunal”) on a Claim Petitions bearing File no. 207 of 2015 titled as Manzoor Ahmad Kumar and another v. Zahid Fayaz Ganie and others, and File no.208 of 2015 titled as Manzoor Ahmad Kumar v. Zahid Fayaz Ganie and others.

Two claim petitions, as is apparent from perusal of the file, were filed by claimants before the Tribunal on 18th August 2015, for grant of compensation in view of death of Mst Shameeda Alias Shameema W/o Manzoor Ahmad Kumar R/o Heff Shirmal Shopian and foetus of eight months, which deceased was carrying in her womb, due to vehicular accident which took place due to rash and negligent driving of vehicle (Dumper) bearing Registration no.AP07-TA/5803.

Respondents before the Tribunal field their respective written statements, but subsequently respondents – driver and owner of offending vehicles did not turn up. Appellant Insurance Company resisted the claim petition before the Tribunal on the ground that driver of offending vehicle was not holding valid driving licence at the time of accident and also the allied documents of the offending vehicle.

The Tribunal, in view of pleadings of parties, framed five Issues for determination of claim petitions

Both claimants and Insurance Company adduced witnesses in support of their respective stands. In terms of impugned Award, the Tribunal found claimants/respondents 1 to 8 entitled to receive compensation of Rs.16,01,000/- along with 6.5% interest per annum from the date of presentation of claim till its final realization.

I have heard counsel for parties. I have gone through record on the file and considered the matter.

The contention of counsel for appellant Insurance Company is that driver of offending vehicle was not holding valid and effective driving licence on the date of occurrence. She also submits that even an application was filed by appellant-Insurance Company before the Tribunal to direct respondent-owner of offending vehicle to produce vehicular documents, which, however, was dismissed by the Tribunal vide order dated 16th September 2017.

The above contentions of counsel for appellant are misconceived. The reason being, it was incumbent upon appellant Insurance Company to prove its case/stand, which it has not been able to prove. Perusal of order dated 16th September 2017 reveals that an application was filed by appellant before the Tribunal to direct owner to produce copies of all documents relating to offending vehicle. Objections to the said application were filed by other-side. The Tribunal observed that respective written statements had been filed by opposite parties in claim petition and on the basis of such pleadings, issues were framed, including Issue no.2. The Tribunal also observed that documents sought to be produced through the medium of an application were public documents and that it remained undisputed that copies of those would have easily been obtained by Insurance Company from concerned authorities and would have been produced before the Tribunal. It has been also observed by the Tribunal that the documents/ information was already available on the record of the file. Perusal of the Order dated 16th September 2017 also reveals that counsel appearing for Insurance Company made a prayer that company was not interested to lead any other evidence in the matter and accordingly evidence of Insurance Company was closed.

It is urged by counsel for appellant Insurance Company that order dated 16th September 2017 is bad as in terms of the said order evidence of Insurance Company was closed. Again, this contention of counsel for appellant Insurance Company is specious. Had Insurance Company been aggrieved of order dated 16th September 2017, it could have at that very moment assailed the said order before the appropriate forum, which Insurance Company has not done. So, now taking such a plea in the appeal will not give them a ground to seek setting-aside of the Award on such a plea.

Insofar as plea of validity of driving licence of driver of offending vehicle is concerned, Issue no.2 had been framed by the Tribunal. While deciding Issue no.2, it has been found by the Tribunal that Insurance Company produced two witnesses, namely, Aijaz Ahmad Mir, Star Investigator, and Sham Lal Anand, Administrative Officer, in support of its stand. It was found that there was no denial to the fact that offending vehicle was insured with appellant Insurance Company. The Insurance Company, as is observed by the Tribunal, had failed to adduce any evidence in support of its contention that respondent-driver was plying the offending vehicle without driving licence or otherwise in absence of the valid and effective driving licence, besides evidence was lacking that there was any violation of insurance contract. As a consequence of which, Issue no.2 was rightly and correctly decided in favour of claimants and against Insurance Company. So, appellant-Insurance is liable to pay the compensation to the claimants/respondents.

Another contention of counsel for appellant Insurance Company is that the compensation awarded by the Tribunal is excessive, arbitrary and unjust. The Tribunal has taken income of the deceased as Rs.6750/- per month, which is on the higher side.

This contention of counsel for appellant needs discussion. Perusal of impugned Award, particularly Issue no.4, reveals that the Tribunal has relied upon SRO 460 dated 26th October 2017, to calculate income of deceased for grant of compensation on account of loss of dependency.

It is pertinent to mention here that accident took place on 8th July 2015 whereas SRO 460 has issued on 26th October 2017, so applying SRO 460 retrospectively is, per se, a mistake that needs to be rectified here and now.

So, the monthly income of the deceased is taken as Rs.4500/-instead of Rs.6750/- as had been calculated by the Tribunal. To this extent impugned Award is to be modified.

It is worthwhile to mention here that important facet of the matter that needs to be looked into is that the compensation awarded by the Tribunal should be just compensation and not a bonanza. The Supreme Court in Sarla Verma v. Delhi Transport Corporation (2009) 6 SCC 121; Ramachandrappa v. Manager, Royal Alliance Insurance Company, (2011) 13 SCC 236; Syed Sadiq v. Divisional Manager, United India Insurance Co. Ltd., (2014) 2 SCC 735; National Insurance Company Ltd v. Pranay Sethi (2017) 16 SCC 680, has held that Section 168 of Motor Vehicles Act, 1988, deals with concept of just compensation and same has to be determined on foundation of fairness, reasonableness and equitability on acceptable legal standard because such determination can never be in arithmetical exactitude. It can never be perfect. The aim is to achieve an acceptable degree of proximity to arithmetical precision on the basis of materials brought on record in an individual case. The concept of just compensation has to be viewed through the prism of fairness, reasonableness and non-violation of principles of equitability. In case of death, the legal heirs of claimants cannot expect a windfall. Simultaneously, the compensation granted cannot be an apology for compensation. It cannot be pittance. Although the discretion in the Tribunal is quite wide, yet it is obligatory on the Tribunal to be guided by the expression, i.e., just compensation.

In the above backdrop impugned award is modified as under:

a. On account of loss of dependency:

[Rs.4500 x 12 = Rs.54000/-]

[Rs.54000 x 16 = Rs. 8,64,000/-] : Rs.8,64,000.00

b. On account of loss of consortium : Rs. 40,000.00

c. On account of burial expenses : Rs. 15,000.00

d. On account of death of unborn child (foetus) : Rs.2,50,000.00

Total :Rs.11,69,000.00

In view of above, the appeal is partly allowed and respondents/ claimants are held entitled to compensation of Rs.11,69,000/- and appellant-Insurance Company is saddled with the liability to pay the compensation to the claimants/respondents along with interest @ 6.5% per annum from the date of filing of the claim petition till the final realization of the award amount. The amount, if any, paid by appellant-Insurance Company to respondents/claimants shall be deducted from the above compensation amount.

The record of the Tribunal along with copy of this judgement be sent down.