Jammu & Kashmir High Court
United India Insurance Co.Ltd. vs Kalyan Singh And Anr on 27 April, 2016
Author: Ramalingam Sudhakar
Bench: Ramalingam Sudhakar
HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU
MP No. 468/2014 CIMA No. 220/2008
&
CIMA No. 51/2004 MP No. 137/2004
CIMA No. 62/2004 MP No. 496/2004
CIMA No. 16/2004 MP Nos. 104/2004, 41/2004 & 220/2008
CIMA No.17/2004 MP Nos. 219/2008, 220/2008 & 140/2004
CIMA No. 120/2005
CIMA No. 123/2005
Date of Order: 27.04.2016
United India Insurance Co. Ltd. Vs. Kalyan Singh & anr.
National Insurance Co. Vs. Bibi & ors.
National Insurance Co. Vs. Akam Jan & ors.
Green Hill Transport Co. Vs. Akam Jan & ors.
Green Hill Transport Co. Vs. Bibi & ors.
Akam Jan & ors. Vs. National Insurance Co. Ltd.
Bibil & ors. Vs. National Insurance Co. Ltd.
Coram:
Hon'ble Mr. Justice Ramalingam
Ramalingam Sudhakar,
Sudhakar, Judge.
Appearing Counsel:
For the Appellant(s): M/s Dinesh Singh Chauhan, C. S. Gupta,
Advocates.
For the Respondent(s): M/s Vishnu Gupta & Aruna Thakur, Advocates.
1. CIMA No.220/2008 has wrongly been attached with these files. Let the same be de-linked and listed separately after two weeks.
2. Now out of the remaining six appeals, two appeals have been filed by the Insurance Company being CIMA Nos. 51/2004 and 62/2004. Brief main facts in all these cases are as follows:
3. On 05.05.2001 a Truck bearing registration No. 7913-JKS was proceeding from Jammu towards Srinagar. In that vehicle two persons, namely, Nazir Ahmed and Noorani were also 2 traveling in the Cabin. While reaching Makarkot, the Truck met with an accident and in that accident these two persons died. In respect of death of Nazir Ahmed, his legal heirs - Akam Jan- Widow aged 38, Junaid 17 years, Shakeela aged 6 years and Zahida aged 7 years, filed a claim petition before the Motor Accidents Claims Tribunal in terms of Sections 140/160 of the Motor Vehicles Act. On the death of Noorani- his widow Bibi 45 years, Ashmat aged 18 years, Riyaz aged16 years, Tafi aged14 years and Anza aged 10 years made the claim. The appellant/Insurance Company is the respondent in two cases, i.e., CIMA Nos. 120/2005 & 123/2005. Mushtaq Ahmed Dar was the driver of the vehicle and M/s. Green Hill Transport Company was the owner. Two persons, namely, Mehmood and Bashir Ahmed were examined as petitioners/claimants' witnesses, besides the spouses of the deceased persons Akam Jan and Bibi. On behalf of Insurance Company, one Som Lal, Senior Assistant in the Insurance Company was examined before the learned Tribunal and the following three issues were raised:-
a) Whether accident took place on 05.05.2001 at Makarkot, Banihal NHW 1A due to rash and negligent driving of the offending vehicle No. 7913-JKS by its driver/respondent No.2 in which deceased namely; Nazir Ahmed and Noorani had died? OPP
b) If issue No.1 is proved in affirmative whether petitioners in each case are entitled to the compensation; if so of what amount and from whom? OPP
c) Whether driver of offending vehicle was not holding a valid driving licence at the time of accident and the vehicle was being driven in 3 violation of terms and conditions of the insurance policy, without fitness certificate etc? OPR-1
4. First issue appears to be not seriously in dispute. Fact remains that death of these two persons was caused by rash and negligent driving of the driver of the vehicle, owned by M/s. Green Hill Transport Company and, therefore, issue No. 1 was answered in favour of claimants and against the respondents. So far as issue No. 3, i.e., whether the driver of the offending vehicle was not holding a valid driving license is concerned, the same is also not in dispute that there was a valid driving license and, therefore, that came to be answered in favour of claimants. However a plea was taken at the time of hearing by the Insurance Company that these two persons, who are deceased in this case, were gratuitous passenger in a goods vehicle, so there is no liability under law to compensate the claims passed in terms of the policy and the decision of the Supreme Court. The learned Tribunal held that here is a case where the passengers were traveling in a Vehicle meant for carriage of goods and owner allowed the passengers to be carried in goods vehicle and the passengers were not insured at all, therefore, on issue No. 3 Tribunal kept on hold that there has been violation in terms of policy and therefore, Insurance Company is not liable. Issue No. 2 relates to quantum of compensation. It was claimed that Nazir Ahmed was an agriculturalist. He was rearing sheep and goat and his income was Rs. 6,000/- per month but the Tribunal assessed his income as Rs.3000/- per month. Thereafter, Tribunal decided pecuniary loss after following unit method fixed at 7 units. The share per unit comes to Rs. 428/- and the personal expenses of the 4 deceased spent on himself is fixed at Rs.856/- every month and his pocket expenses Rs. 200/- makes it Rs. 1056/- leaving behind balance of Rs. 1944/- which was treated as monthly economic loss and the total annual dependence was fixed at Rs. 23,328/-. Learned Tribunal adopted Multiplier 8 and compensation for loss of dependence was fixed at Rs. 1,86,624/-. An amount of Rs. 10,000/- was awarded each under loss of consortium and loss of estate. Rs. 5000/- was awarded for burial expenses. Total award of Rs. 2,11,624/- was passed with interest at the rate of 9% per annum from the date of filing of the claim petition till the payment of the same.
5. Award of Tribunal under various other heads comes to as follows:
01. Loss of dependency Rs.1,86,624/-
02. Loss of consortium Rs. 10,000/-
03. Loss of estate Rs.10,000/-
04. Burial expenses Rs.5,000/-
Total Rs. 2, 11, 624/-
6. Insofar as Noorani is concerned, his income was assessed by the learned Tribunal as Rs.3000/- per month. Thereafter, Tribunal decided pecuniary loss after following unit method fixed at 10 units. The share per unit comes to Rs. 300/- and the personal expenses of the deceased spent on himself is fixed at Rs.600/- every month and his pocket expenses Rs. 200/- makes it Rs. 800/- leaving behind balance of Rs. 2200/- which was treated as monthly economic loss and the total annual dependence was fixed at Rs. 26,400/-. Tribunal adopted Multiplier 9 and 5 compensation for loss of dependency was fixed at Rs. 2,37,600/-.
An amount of Rs. 10,000/- was awarded each under loss of consortium and loss of estate. Rs. 5000/- was awarded for burial expenses. Total award of Rs. 2, 62, 600/- was passed with interest at the rate of 9% per annum from the date of filing of the claim petition till the payment of the same.
7. Award of Tribunal under various other heads comes to as follows:
01. Loss of dependency Rs.2, 37, 600/-
02. Loss of consortium Rs. 10,000/-
03. Loss of estate Rs.10,000/-
04. Burial expenses Rs.5,000/-
Total Rs.2,62,600/-
8. This amount was directed to be recovered from the owner of the vehicle as Insurance Company was exonerated.
9. Counsel for the Insurance Company state that interim payment in terms of Section 140 of the MV Act was paid and that was ordered to be deducted. Insurance Company's counsel have filed the appeal only to the extent that their liability is extinguished by the order of learned Tribunal and, therefore, they are entitled to recover No Fault Liability paid as the owner alone is liable to pay the compensation.
10. Owner of the vehicle has also in turn filed appeal challenging the award inter alia contending that the liability should be shifted to the Insurance Company. However, pending consideration of the matter, there appears to be have been a compromise entered into between the claimants'- deceased 6 widow(s) and minors with the owner of the vehicle, where the settlement as arrived out is an amount lesser than what has been awarded by the Tribunal. On that plea owner of the vehicle seeks withdrawal of the appeal by filing an application in CIMA No. 16/2004.
11. I have gone through the terms of agreement. On the face of it, the settlement arrived at between the claimants and owner of the vehicle does not appear to be fair and equitable for the simple reason that the claimants have been asked to settle for lesser amount by the owner. He has also filed appeal challenging the liability fixed on him and wants to shift the liability on Insurance Company. Such agreement which is vague and uncertain cannot be accepted to be final and binding on parties and the same would not entitle the owner of the vehicle to withdraw the appeal.
12. The next primary question that requires to be decided is as to whether Tribunal was justified in exonerating the Insurance Company merely on the basis of settlement made by Mr. Som Lal who stated that vehicle bearing No. JKS-7913 was insured with company for the period in question in the name of M/s Green Hill Transport Company. He also produced attested copy of Insurance Policy marked as Expw-SL. It is stated in the award that policy was in respect of Truck on which no passenger could travel as such there is no liability of the company. On this premise, the issue was held in favour of Insurance Company and the Insurance Company was exonerated in light of the fact prevalent then. But, in reality, as has been rightly pointed out by counsel for the claimant, the Insurance Policy bearing No. 420802/2000/6301190, dated 30.10.2000 was valid for a period 7 up to 29.10.2001. It also contains hand written endorsement in the schedule of premium which will be relevant to decide the case which reads as follows:
Basic Premium Rs.2779/-
Legal Liability to passenger/MRPP Rs. 75/-
2NFPP Rs. 100/-
4 lab Rs. 60/-
Dr. Cl. Rs. 30/-
Gross Rs. 3044/-
13. This has not been disputed by the Insurance Company.
Admittedly, deceased was No Fare Payee Passenger (NFPP) who traveled by the vehicle on the fateful day. The insurance covers that claim in such an event and, therefore, the stand of Insurance Company has erroneously been accepted by the learned. Hence, that finding of the Tribunal is set aside in light of the document produced. All other legal arguments have no legs to stand. It clearly provides for liability in case of death of two No Fare Payee passengers. The issue is answered in favour of claimants and against the Insurance Company.
14. The next question that arises is on the quantum of compensation. In respect of death of claimants learned counsel for the claimants relied on the decision rendered in Sarla Verma & ors. vs. Delhi Transport Corporation & anr., (2009) 6 SCC 121, seeking just compensation. In Sarla Verma case, the took place on 18.4.1988 and the case was filed against Delhi Transport Company and in a path breaking judgment Supreme Court set out general parameters as to how quantum of compensation should be designed in order to ensure uniformity before the claims Tribunal.
815. In the present case, both the deceased have four to six number of claimants and therefore, 1/4 should be deducted towards personal expenses of the deceased and the multiplier in both the cases should be applied as laid down in para 21 of the above referred case which reads as follows:
"21. We, therefore hold that the multiplier to be used should be as mentioned in column (4) of the Table above (prepared by applying Susamma Thoma, Trilok Chandra and Charlie), which starts with an operative multiplier of 18 (for the age groups of 15 to 20 and 21 to 25 years) reduced by one unit for every five years, that is M-17 for 26 to 30 years, M-16 to 31 to 35 years, M-15 for 36 to 49 years, M-14 for 41 to 45 years, and M-13 for 46 to 50 years, then reduced by two units for every five years, that is, M-11 for 51 to 55 years, M-9 for 56 to 60 years, M-7 for 61 to 65 years and M-5 for 66 to 70 years."
16. In view of the above, the award passed by the Tribunal in case of Nazir Ahmed is modified to the extent as follows:
01. Loss of pecuniary Rs.2250/- 2250 x 12 x 11 Rs. 2, 97,000/- loss
02. Loss of consortium Rs.50,000 -- Rs. 50,000/-
03. Loss of estate Rs. 10,000/- -- Rs. 10,000/-
04. Funeral expenses Rs. 10,000/- -- Rs. 10,000/-
Total amount Rs. 3,67,000/-
17. In case of Norrani the award is modified as :9
01. Loss of pecuniary Rs.2200/- 2200 x12 x11 Rs. 290,000/- loss
02. Loss of consortium Rs. 50,000 -- Rs. 50,000/-
03. Loss of estate Rs. 10,000/- -- Rs. 10,000/-
04. Burial expenses Rs. 10,000/- -- Rs. 10,000/-
Total amount Rs. 3,60,000/-
18. The interest, however, stands reduced to 6% in terms of Sarla Verma's case from the date of petition to date of payment only in respect of excess amount from the owner of the vehicle in terms of the agreement which is referred to supra. 6% interest will be applicable only to the excess of amount already received in terms of compromise. While determining the amount to be paid under Section 140 of the Act, the same shall also stand deducted from the amount ordered by this Court and to that also interest is not payable.
19. The owner of the vehicle has not chosen to appear through the counsel. An application has been filed for withdrawal of the appeals, i.e., CIMA Nos. 16/2004 and 17/2004. Leave is granted to withdraw both the appeals along with connected miscellaneous petitions, if any. The amount already deposited by the owner of the vehicle shall be transferred and deposited in favour of the Legal Services Authority, as there is no appearance or request by him for the disbursement of same.
20. Appeals of claimants are allowed.
21. Appeal of Insurance Company partly allowed and appeal of the owner dismissed. Award stands enhanced and modified as above.10
22. Record of trial Court be sent back.
CIMA No. 220/2008 Delinked.
CIMA No. 51/2004 Partly allowed.
CIMA No. 62/2004 Partly allowed.
CIMA No. 16/2004 Dismissed.
CIMA No. 17/2004 Dismissed.
CIMA No. 120/2005 Allowed.
CIMA No. 123/2005 Allowed.
( Ramalingam Sudhakar)
Judge
Jammu:
Sunita.
27.04.2016
11