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Jammu & Kashmir High Court

New India Assurance Co. Ltd. vs Imran Hafiz & Ors. on 31 December, 2018

Equivalent citations: AIRONLINE 2018 J AND K 852

Author: Sindhu Sharma

Bench: Sindhu Sharma

             HIGH COURT OF JAMMU AND KASHMIR
                        AT JAMMU

MA No. 72/2016

                                                             Date of decision: 31.12.2018
New India Assurance Co. Ltd.                     Vs.                    Imran Hafiz & ors.
Coram:
                    Hon'ble Mrs. Justice Sindhu Sharma, Judge.

Appearing Counsel:
For appellant(s)         :     Mr. Jugal Kishore, Advocate with
                               Mr. Udhay Bhaskar, Advocate.

For respondent(s)        :     Mr. Ankush Manhas, Advocate.

i/     Whether to be reported in             :                Yes
       Press/Media


ii/    Whether to be reported in             :                 Yes
       Digest/Journal

1. This appeal by the New India Assurance Company Limited is against the award passed by the Motor Accidents Claim Tribunal, Bhaderwah (District Judge) on 25.03.2015 in File no. 16/Claim titled "Imran Hafiz & another v. New India Assurance Company Ltd. & another" awarding a sum of Rs.3,26,600/- along with 9% interest to the claimants, who were sons of the deceased, Mst. Shafiqa Begum, who died in accident on 25.02.2009 at Galginder near Pul Doda.

2. The facts of the case in brief are as under:- , On 25.02.2009, the deceased, Mst. Shafiqa Begum, who was travelling in a bus bearing registration No. JK02U-0759 from Bhaderwah towards Doda met with an accident at Galginder near Pul Doda. The deceased sustained injuries in the accident and died on spot. The claimants/respondent Nos. 1 & 2, who are the sons of the deceased, MA No. 72/2016 Page 1 of 5 have filed the claim petition alleging that the accident took place due to rash and negligent driving of the driver of the offending vehicle, i.e, Bus and the Tipper belonging to GREF, as such, the claimants sought compensation from the appellant-Insurance Company.

In the claim petition, the owner, i.e., Capt. Saran Singh, respondent No. 3 in the appeal was set ex-parte and the petition was contested by the Insurance Company. The petitioners in the claim petition though after examining themselves have produced witnesses in their support, yet the respondents had not led any evidence on the subject.

3. The offending vehicle bearing registration No. JK02U-0759 was owned by Captain Saran Singh, who was insured with the appellant. On the fateful day of the accident, the vehicle was proceeding on way to Doda when it met with an accident at Galginder near Pul Doda as a consequence of which one, Mst. Shafiqa Begum, mother of respondent Nos. 1 & 2 died along with many others, who were travelling in the bus. The case of the appellant/insurer is that the vehicle was insured only for 27 persons but at the time of accident 54 persons were travelling in it which amounts to violation of the Insurance Policy, therefore, appellant cannot be saddled with the liability to pay compensation for the death of more than 27 persons. For this, reliance by the appellant is placed in an FIR registered by the Police which states that 54 passengers were travelling against the seating capacity of 27 in which 41 died. Another challenge is that the amount awarded was excessive because the claimants are not entitled to loss of consortium and the income of the deceased has been highly exaggerated without any evidence. As the owner of the vehicle did not controvert the claim made by the petitioner, the Tribunal framed the following issues, which are as under:-

"1. Whether on 25.02.2009 the deceased Shafiqa Begum as travelling in Bus No. JK02-U-0759 from Bhaderwah towards Doda and the vehicle met with an accident due to rash and negligent driving of the driver of the said vehicle at Galginder near Pul Doda due to which the deceased received injuries and died?

OPP

2. If issue No.1 is proved in affirmative, whether the petitioners are entitled to any compensation if so to what extent and from whom?

OPP

3. Whether the vehicle was carrying passengers more than prescribed capacity at the relevant time, if so, what is its effect on the present petition?

OPR-1

4. Relief?

O.P.Parties"

4. The Tribunal found all the issues in favour of the claimants/respondents and awarded Rs.3,26,600/- as compensation. Both the sides have admitted the position that batch of appeals arising out of this accident was decided by this Court vide judgment dated 09.12.2016. Para Nos. (3), (4) & (5) of the same is extracted below:-

"3. In the appeals the plea taken by the appellant-Insurance Company is that it is a clear case of overloading of the bus which resulted in the accident because the vehicle involved in the accident had a permit for passengers carrying capacity of 27 inclusive of driver and conductor whereas, even as per the claim there are 54 passengers, therefore, liability of the Insurance Company as pleaded would be limited to the cover in terms of the seating capacity of the vehicle only.

4. This plea deserves acceptance in view of the decision of this Court in case titled The National Insurance Company Limited v. Narso Devi & others decided on August 10, 2016 following the Apex Court decision in National Insurance Co. Ltd. V. Anjana Shyam and others, reported as 2007 ACJ 2129.

Accordingly, appellant-Insurance Company will be liable to pay the compensation in respect of those highest of the 27 claims. However, it will settle the claim in respect of other claim petitions and the Insurance Company will have right to recover the amount from the owner of the vehicle as per law after settling the claimants/claims.

5. The next issue that is canvassed in these appeals is on the quantum of compensation. A number of cases have been decided by the Tribunal in this accident. Since it is a common issue, appeals are filed challenging he quantum of compensation."

5. The aforesaid judgment of this Court has attained finality. However, with regard to the question of quantum, the Tribunal has erred in making deduction of only 1/4th of the income of the deceased instead of 1/3rd which is the standard deduction as per law settled in Sarla Verma and ors. V. Delhi Transport Corporation & anr, reported as (2009) 6 SCC 121. So the income of the deceased after deduction of 1/3 rd as personal expenses instead of Rs.3600/- would be Rs.2400/- and the annual contribution of the deceased in the family after applying the multiplier of 9 would be come to Rs.2,59,200/- so the loss of dependency comes to Rs. 2,59,200/-. The Tribunal also erred in awarding loss of consortium because the claimant Nos. 1 & 2 are the major sons and she was the widow, so this amount is also to be disallowed. Hence the amount awarded is reduced i.e. loss of dependency comes to Rs.2,59,200/-, funeral expenses comes to Rs.15,000/- and litigation part comes to Rs.10,000/-.

6. Since the finding on issue Nos. 1 & 2 stands concluded by the judgment of the coordinate Bench of this Court, therefore, no further appreciation of evidence is required. Even otherwise, it is a case of res ipsa loquitur because the accident speaks of itself. Hence, the award is modified and the claimants are held entitled to the following amount of compensation along with interest as has been awarded by the Tribunal, Rs.2,59,200/- on account of loss of dependency, Rs.15,000/- on account of funeral expenses, Rs.10,000/- towards cost of litigation (total Rs.2,84,200/-).

7. In the above observation, the appeal is partially allowed and the award of the Motor Accidents Claim Tribunal is modified in the above terms. Awarded amount deposited may be released in favour of the claimants after proper verification.

8. Disposed of as above.

(Sindhu Sharma) Judge Jammu:

31.12.2018 Pawan Chopra MA No. 72/2016 Page 5 of 5