Jammu & Kashmir High Court
Oriental Insurance Co. vs Amina Begum And Ors. on 23 April, 2015
Author: Mohammad Yaqoob Mir
Bench: Mohammad Yaqoob Mir
HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU
CIMA No.96/2007
CMA No.167/2007
Date of order:- 23.04.2015
ORIENTAL INSURANCE Vs. AMINA BEGUM AND OTHERS
COMPANY LTD.
Coram:
Hon'ble Mr. Justice Mohammad Yaqoob Mir, Judge
Appearing Counsel:
For the Appellant(s) : Mr. Vishnu Gupta, Advocate
For the respondent(s) : Mr. F. A. Natnoo, Advocate.
(i) Whether to be reported in Press, YES/NO Journal/Media
(ii) YES/NO/OPTIONAL.
Whether to be reported in Journal/Digest
1. By the medium of this appeal the award passed by the Motor Accidents Claims Tribunal (Additional District Judge),Doda dated 16.03.2007 holding claimants entitled to an amount of Rs.9,36,500/- as compensation with interest @ 7.5 per cent per annum from the date of filing of claim petition till its realization is assailed.
2. On 10.10.2004, Mohd Sharief Natnoo, a Govt. Servant at the age of 35 years lost life in a motor vehicular accident at Neel Trahal KM 13, Doda-Bharat Road, when he was travelling in the vehicle (Matador) bearing No. 544 JK06 which met with an accident due to rash and negligent driving of its driver.
3. The offending vehicle is owned by respondent no.7, same was insured with Oriental Insurance Company (appellant). On the basis of respective pleadings of the parties, tribunal has framed the following four issues:
(1) Whether the deceased died on 10.10.2004 at 4 pm at Doda-Bharat road in a Road Traffic Accident, due to rash and negligent driving of the driver of the vehicle No.JK06-
0544. (OPP) (2) If issue No.1 is proved in affirmative, then whether the petitioners (therein) are entitled to compensation, if yes, then, how much and from whom? (OPP) (3) Whether the vehicle was being driven in violation of insurance policy? (OPR-1) (4) Relief.
4. Finding returned on issue no.1 by the learned Tribunal is not disputed.
5. Learned Tribunal after appreciating the evidence as has been produced and on proper application of law and then on the basis of the salary certificate of the deceased as was produced has taken the monthly income of the deceased as Rs.11,160/- per month.
6. It is also noticed that the deceased is survived by widow, two sons and three minor daughters, eldest at the time of accident was 21 years' old.
7. Learned Tribunal after applying the law as has been laid down in the judgment reported in 1996 ACJ SC, (U.P. Transport Corporation Vs. Tarlok Chand) has opined that the dependence value of the income of the deceased has to be taken as Rs.7,000/- p.m., 11 has been applied as multiplier, therefore, the amount of compensation has been worked out as under:
1. 7,000 x 12 x 11 = 84,000 x 11 = 9,24,000
2. Funeral expenses = 2,500
3. For love and affection = 5,000
4. For loss of consortium = 5,000 5 Total = 9,36,500
8. Grant of Rs.25,00/- as funeral expenses and Rs.5,000/- for love and affection is impermissible. The funeral expenses to the extent of Rs.2,000/- are permissible, same is allowed.
9. Therefore, the total amount of just compensation payable to the claimant shall be as under:
(i) Dependence value of the income of the deceased i.e. 7,000 p.m. x 12 = 84,000/-
(ii) Multiplier applicable is 11 = 84000 x 11
= 9,24,000
(iii) Consortium in favour of widow = 5,000/-
(iv) Funeral expenses = 2,000/-
(i) Total amount = 9,31,000/-
2.
3.
10. Regarding issue no.3, the respondent no.1 therein (appellant) was to prove the same. But he has failed to produce any evidence so as to show that the vehicle was driven in violation of insurance policy.
11. Learned counsel for the appellant highlighted that in the accident, eight passengers died and more than twenty passengers were injured. The owner as per permit was authorized to carry 15 passengers and a driver. Carrying passengers more than authorized amounts to violation to the conditions of the insurance policy which disentitles the insured to claim indemnification by the insurer.
12. It was for the insurance company who had raised this defense to prove that the vehicle was carrying 22 passengers and the permit was only for 15 passengers. When the insurance company (insurer) has failed to prove the same before the learned Tribunal, how can such an argument without any support be entertained in the appeal?
13. The object of welfare legislation has to be promoted. On the basis of surmises, the victim cannot be deprived of getting the just compensation. Learned Tribunal has appreciated the position of the dependence. The widow, five children with eldest child being 21 years' old, all dependent on the salary of the deceased. The tragedy has befallen on them, their only bread-earner died in the accident. Court cannot afford to be swayed by sentiments in working out the just compensation. There can be no compensation for the loss of life but a small protection by way of consolation to the family of the deceased so as to save them from any further awkward situation on income side.
14. With modification as indicated in para 9 in the quantum of compensation, the award impugned dated 16.03.2007 is maintained. Appeal to the extent succeeds. The amount of compensation alongwith interest, as may have accrued thereon minus the amount which has been paid, be released in favour of the claimants strictly in terms of the award. Surplus amount, if any, shall be refunded to the insurance company alongwith interest which may accrued to that extent thereon.
15. Appeal accordingly succeeds as such is disposed of alongwith connected CMA. Copy of the judgment be sent to the Tribunal along with its record.
(Mohammad Yaqoob Mir)
Judge
Jammu
23.04.2015
Raj Kumar