Jammu & Kashmir High Court - Srinagar Bench
Oriental Insurance Company Limited vs Gulzar Begum And Others on 15 March, 2012
IN THE HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR CIMA No. 161 of 2009 CMP No. 547 of 2009 Oriental Insurance Company Limited Petitioners Abdul Rehman Lone and others Respondents !Mr. N. H. Khuru, Advocate ^Mr. J. H. Reshi, Advocate Honble Mr. Justice Hasnain Massodi, Judge Date:15/03/2012 : J U D G M E N T :
Shri Nazir Ahmad Lone son of Lassi Mohammad Lone resident of Shanker Pora, Tehsil Doru, Anantnag, lost his life in a vehicular accident on 16th June 2000 when passenger bus bearing no. JK02 D 7077 driven rashly and negligently by its driver fell into a deep gorge at Nandni on National Highway NH-A1. On 31.7.2000 the dependents of the deceased laid a claim under section 166 Motor Vehicles Act before Motor Accident Claims Tribunal Anantnag.
The claimants/respondents 1 to 8 in the present appeal claimed an amount of Rs. 50 lakh as compensation from the appellant insurance company with which the offending vehicle was insured. The claim petition was resisted by the appellant on the ground that as the driver of the offending vehicle respondent no. 10 in the appeal, was not having a valid and effective licence at the time of the tragic accident, the appellant was absolved of its liability under the Insurance Contract to indemnify the owner of the offending vehicle respondent no. 9 in the appeal. It was next contended that the offending vehicle was not having valid fitness certificate at the time of the accident and in terms of the Insurance Contract, the liability to pay compensation to the victim of any accident involving the offending vehicle was shifted to the owner of the vehicle. The offending vehicle, it was pleaded, was at the time of the accident carrying passengers over and above the permitted capacity releasing the appellant from the liability to pay compensation under the Insurance Contract.
The Tribunal on perusal of the pleadings settled following issues:
1. Whether on 16.06.2000 at Nandni while Nazir Ahmad Lone was traveling in the vehicle bearing registration No. 7077-JK02D coming from Jammu towards Srinagar met an accident and fell into a Nalla from National Highway with the result the deceased received multiple injuries and succumbed to his injuries on spot? OPP
2. Whether the said accident was caused due to the rash and negligent driving of the respondent No. 2 who at the relevant time was plying the vehicle in question? OPP
3. In case issues 1 & 2 are proved in affirmative, to what amount of compensation are the petitioner entitled to, from whom and in what proportion? OPP
4. Whether the driver of the offending vehicle has got valid driving license at the time of accident? OPR3
5. Relief.
Following additional issue was framed after respondents 1 to 8 concluded their evidence.
Whether on the date of accident the offending bus was being plied having passengers more than the permissible capacity, if so it amounted to violation of route permit and consequently the violation of terms and conditions of insurance policy? OPR3 Respondents 1 to 8 examined two witnesses namely Nazir Ahmad Sheikh and Ghulam Hassan Wani to substantiate their claim. Respondent no. 5 also stepped in the witness box.
The appellant examined two witnesses Mohammad Nayeem Khan, Insurance Surveyor and Mohammad Mehraj ul Hassan, Assistant Manager of the company, as its witnesses.
The Tribunal on going through the evidence adduced by the parties decided all the issues in favour of respondents 1 to 8 and against the appellant. It was held that the accident that claimed life of the deceased was attributable to rash and negligent driving of the offending vehicle by its driver at the time of accident and that the appellant could not escape liability under the Insurance Contract to indemnify the owner of the offending vehicle either on the ground of overloading or absence of valid and effective driving licence.
The Tribunal on the basis of the evidence produced before it found the deceased to have been serving J&K Police Department (IRP Ist. Bn) as SG constable and to have been drawing a salary of Rs. 6878/- per month. The Tribunal found the deceased to have been more than 35 years of age at the time of the accident. The Tribunal on account of loss of future prospects doubled the salary drawn by the deceased immediately before his death and applying multiplier of 16 and deducting 1/3rd of the amount i.e. 55,024/- towards deceaseds personal expenses worked out loss of dependency as Rs. 17,60,788/- {(Rs. 6878 + 6878) x 12 x 16 1/3rd}. The Tribunal awarded Rs. 10,000 each to the parents on account of loss of love and affection, Rs. 25,000 to the widow of the deceased on account of loss of consortium and Rs. 20,000 each to the children of the deceased on account of loss of love and affection. An amount of Rs. 3,000 was also awarded on account of funeral expenses. The Tribunal in all awarded Rs. 18,68,788/- to respondents 1 to 8. The appellant was given right to recover compensation beyond its liability from the owner of the offending vehicle.
The award dated 13.6.2009 is questioned in the Civil Ist. Misc. Appeal on hand on the grounds that the award has been passed in a mechanical manner without adhering to the established principle of law; that the Tribunal has without any justifiable reason doubled the admitted income of the deceased in the name of future prospects unmindful of the settled legal position on the subject. The appellant is also aggrieved that the Tribunal without any authority has awarded amount of Rs. 10,000 each and Rs. 25,000 each in favour of the parents and children of the deceased respectively. The amount awarded on account of loss of consortium, according to the appellants, is also not sustainable under law. It is pleaded that the offending vehicle at the time of the accident was carrying 54 passengers as against the permitted capacity of 42 passengers and that the deliberate breach of contract on the part of the owner made the owner of the offending vehicle and not the appellant insurance company liable to pay compensation to the dependents of the victims.
I have gone through the impugned award, memorandum of appeal and record available on the file. I have heard counsel for the parties.
The appellant, it needs to be recalled, contested the claim petition and sought to wriggle out of its liability under the Insurance Contract to pay compensation to the respondents 1 to 8/claimants on the ground that the owner of the offending vehicle had committed a breach of the Insurance Contract. Such breach in the first place was attributable to overloading of the offending vehicle and its entrustment to a person not holding a valid and effective licence. The appellant did not adduce any evidence to establish that the driver of the offending vehicle was not having an effective driving licence. Issue no. 4 was thus rightly decided in favour of the respondents1 to 8/claimants and against the appellant. The Tribunal dealt with the controversy as regards overloading of the offending vehicle by restricting the liability of the appellant to compensation to the number of passengers, the offending vehicle in terms of the Insurance Contract was competent to carry. Though the Tribunal asked the appellant to deposit the whole of the compensation amount determined by it, yet the appellant was given liberty to recover the amount over and above its liability from respondent no. 9 in the claim petition/owner of the offending vehicle. The approach of the Tribunal has been in strict conformity with law and cannot be faulted on any ground whatsoever. This takes us to the question of quantum of compensation.
It now needs to be seen whether the compensation assessed by the Tribunal is just compensation within the meaning of section 168 Motor Vehicles Act. Learned counsel for the appellant reiterating the stand taken in its reply to the claim petition insists that the amount assessed as compensation is on higher side; that the Tribunal has awarded compensation on the counts not recognized under law and that the Tribunal has fallen in a grave error while computing the loss of dependency by taking into account double the salary drawn by the deceased. Learned counsel for the respondents 1 to 8 on the other hand pleads that the compensation determined is just within the meaning of section 168 Motor Vehicles Act and does not call for any interference or a second look. It is insisted that the appellant having failed to apply for obtaining permission in terms of section 170 Motor Vehicles Act to defend the claim on any ground other than the grounds available under section 149 (2), is not competent to question to the quantum of compensation in the present appeal. To buttress his arguments learned counsel for respondents 1 to 8/claimants places reliance on law laid down in:
Oriental Insurance Company Vs. Gulzar Begum and others, 2011 ACJ 898.
United India Insurance Company Vs. K M Poonam and others, 2011 ACJ 917.
United India Insurance Company Limited Vs. Sulochana and others, 2008 ACJ 1818 Suman Jain and others Vs. Abdul Kayum and another, 2007 ACJ 1242.
Oriental Insurance Company Limited Vs. Rama Gupta and others, 2007 ACJ 1758.
Oriental Insurance Company Limited Vs. Allahdin and others, 2006 (2) JKJ, 698 (HC).
A claimant under Motor Vehicles Act may file a claim petition impleading the insurance company with which the offending vehicle is insured as one of the respondents. However, the claimants are not under an obligation to invariably implead such insurance company as party respondent. In such a case, the Tribunal once on the basis of the material on record finds that the insurance company may be liable to pay compensation, may in terms of Section 149 Motor Vehicles Act, issue notice to the insurance company and implead it as party respondent in the petition.
Where the claimants implead the insurance company as party respondent in the claim petition, the insurance company is competent to take up all the grounds including the grounds available to the owner and driver of the offending vehicle to contest the claim petition. Such a right extends to the appeal as well. However, where the claimants dont implead the insurance company as a party respondent and the insurer appears only after a notice is issued to it under section 149(2) of the Act, the insurer is to have only grounds set out in section 149 (2) of the Motor Vehicles Act to contest the claim petition. In the present case the appellant was arrayed as party respondent by the claimants in the claim petition. The appellant in the circumstances has a right to take up all defences available to the owner and the driver of the offending vehicle and is competent to question the quantum of compensation granted by the Tribunal. This clears the hurdle in the way of the appellant to question the quantum of compensation.
The Tribunal has erroneously doubled the income of the deceased in the name of future prospects to work out loss of dependency. The deceased was born on 2.2.1965 and was therefore more than 35 years of age at the time of the fatal accident. The Tribunal as laid down in Sarla Verma and others versus Delhi Transport Corporation and another 2009 (6) SCC 121 ought to have made an addition of 50 per cent of the actual salary to the salary drawn by the deceased and not doubled the salary to workout the loss of dependency. Again, the Tribunal erred while awarding Rs. 10,000 on account of loss of love and affection to the parents of the deceased and Rs. 20,000 on the same count to to each of three minor children of the deceased. Loss, if any, suffered by the defendants on said count is to be taken to have been internalized in the loss of dependency and no separate amount is to be awarded on account of loss of love and affection. The only exception to the said rule is award of reasonable amount on account of loss of consortium to the spouse of the deceased. However, the Tribunal has fallen in error while deducting 1/3rd of the income on account of personal expenses of the deceased. It needs no emphasis that the person having as many as six dependents can ill afford to spend 1/3rd of his income on his personal expenses. The Tribunal in the circumstances ought to have deducted 1/4th of the income on account of personal expenses. Similarly, in view of Sarla Vermas case supra, the Tribunal ought to have applied multiplier of 15 as against 16. Though the respondents 1 to 8 have not come up with a cross appeal to question the award, this Court equally has statutory obligation to ensure that just compensation in terms of Section 168 Motor Vehicles Act is awarded to the dependents of the deceased who falls victim to a vehicular accident.
For the reasons discussed, the appellants shall pay an amount of Rs. 14,20,660 i.e. Rs 13,92,660 {(6878 + 3439 = 10317) 2580 (i.e. 1/4th) = 7737 x 12 = 92844 x 15 (multiplier)} on account of loss of dependency together with Rs. 25,000 and Rs. 3,000 on account of loss of consortium and funeral expenses, to the respondents/claimants with 6 per cent simple interest from the date of filing of the claim petition till final realization of the award amount. The other conditions subject to which the award has been made, shall remain unaltered. The award amount, if any deposited with the Registry or the Tribunal and not disbursed till date, shall be paid to the respondents/claimants in accordance with rules and amount, if any left after disbursement, returned to appellant under rules. The decree sheet be drawn up accordingly.
Needless to mention that compensation, if any received by the respondents/claimants on account of aforesaid death that debars the respondents/claimants from claiming compensation under Motor Vehicle Act, shall be set off against the award amount.
Disposed of along with connected CMP(s).
(Hasnain Massodi) Judge N Ahmad Srinagar 15.03.2012