Jammu & Kashmir High Court
Oriental Insurance Company Limited vs Mohan Lal And Others on 5 August, 2020
Equivalent citations: AIRONLINE 2020 J AND K 397
Author: Sanjeev Kumar
Bench: Sanjeev Kumar
475
HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU
Mac App. No.100/2019
And
Mac App No.101/2019
Mac App No.102/2019
Mac App No.103/2019
Mac App No.104/2019
Mac App No.115/2019
CM No.2075/2020
Mac App No.116/2019
Reserved on : 24.07.2020
Pronounced on: 05.08.2020
Oriental Insurance Company Limited ...Appellant(s)
Through:- Mr. Amrit Sarin, Advocate
V/s
Mohan Lal and others ...Respondent(s)
Through:-Mr. Sheikh Ayaz Hussain,
Advocate in Mac App Nos.100, 101
and 103 of 2019
Mr. K.A.Qazi, Advocate in Mac App
No.115/2019
Coram: HON'BLE MR. JUSTICE SANJEEV KUMAR, JUDGE
JUDGMENT
1. These seven appeals by the Oriental Insurance Company Limited (hereinafter referred to as 'the insurer') are directed against the composite award dated 03.05.2019 passed by the Motor Accident Claims Tribunal, Udhampur (hereinafter 'the Tribunal') in File Nos. 45/Claim titled Sham Lal and others v. Rajinder Kumar and others, 37/Claim titled Channa Devi and others v. Oriental Insurance Company Limited and others, 43/Claim titled Kaushyla Devi and others v. Rajinder Kumar and others, 90/Claim titled Rashpal Singh v. Rajinder Kumar and others, 88/Claim titled Mohan Lal v. Rajinder Kumar and others, 89/claim titled Bodh Raj v. Rajinder 2 Mac App Nos.100/2019 along with connected matters Kumar and others and 44/Claim titled Kewal Kumar v. Rajinder Kumar and others. The Tribunal vide impugned award dated 03.05.2019 has awarded different sums in different claim petitions along with interest @ 7.5% per annum from the date of institution of the claim petition till realization of the amount. The Tribunal has also directed that the awards in all the claim petitions are to be satisfied at the first instance by the appellant within a period of sixty days and after due satisfaction, respondent No.3 shall recover the same from owner, the respondent No.3.
2. Briefly put, the facts leading to the filing of these appeals are that on 24.11.2012 at 4.30 p.m., a motor vehicular accident involving bus bearing Regd. No.JK02J-1735 took place at Dharman (Dudu), District Udhampur due to rash and negligent driving of the offending vehicle by its driver-the respondent No.2. The travelers suffered multiple injuries. Some of them succumbed to the injuries and others suffered disablements of different nature. Next of kins of the deceased filed claim petitions seeking compensation on account of loss of their breadwinner and some petitioners claimed compensation for the disablement they suffered in the accident . The claim petitions were contested by the appellant only. The driver and owner of the offending vehicle did not appear before the Tribunal and were accordingly set ex-parte. On the basis of the pleadings of the parties, the Tribunal framed the issues and asked the parties to lead their evidence to substantiate their claims. The claimants have led evidence to prove their claims, however, the appellant-insurer has not produced any evidence. The Tribunal on the basis of the evidence on record decided the claim petitions vide common award dated 03.05.2019. It is this award of the Tribunal, which is impugned in these appeals.
3 Mac App Nos.100/2019 along with connected matters
3. The appellant-insurance company besides challenging the award of the Tribunal on quantum, has also raised the issue of overloading.
4. Insofar as the plea of the appellant that it is not liable to indemnify the owner-insured on the ground that the vehicle was being driven in violation of the terms and condition of the insurance policy, as at the time of accident, the offending vehicle was carrying 82 passengers whereas the permitted seating capacity of the vehicle was 42 passengers, has been elaborately dealt with by the Tribunal. The Tribunal relying on the judgment of Supreme Court in the case of United India Insurance Company Ltd. v. K.M.Poonam, 2011 ACJ 917 SC and a judgment of this Court rendered in CIMA No.135/2017 (Bajaj Allianz General Insurance Company Limited v. Satpal Badyal and others) decided on 26.07.2018 has rightly concluded that the appellant is under statutory obligation to satisfy all the awards. However, with regard to the forty two highest awards, the liability of insurer is absolute whereas for rest of awards, it shall have recovery rights against the insured. The legal position in this regard is well settled and needs no further discussion or debate.
5. It brings us to the plea of the appellant that the compensation awarded by the Tribunal in each case is excessive and exorbitant. To deal with this plea of the appellant, let us examine individual cases. Mac App No.100/2019 (Oriental Insurance Co. Ltd. v. Mohan Lal & ors.)
1. Claimant, in the instant case, is Mohan Lal, who, at the time of accident, was 27 years old. The claimant, at the time of accident, claims to be earning ₹ 9,000/10,000/- per month by doing the job of labourer. The claimant has suffered permanent disability of 7% due to the injuries suffered in the accident. The claimant has failed to lead any cogent 4 Mac App Nos.100/2019 along with connected matters evidence to prove his exact income at the time of accident. The Tribunal, by guess work, has taken the monthly income of the claimant as ₹ 8,000/-. The Tribunal assessed the functional disability @ 3½ % and applying the multiplier of 15 worked out the loss of future income as ₹ 50,400/-. Besides this, the Tribunal has also awarded ₹ 20,000/- as medical expenses, ₹ 20,000/- as pain and suffering and ₹ 10,000/- on account of loss of amenities of life.
2. Having heard learned counsel for the parties and perused the record, I am of the view that the compensation awarded by the Tribunal calls for modification.
3. In absence of any cogent evidence on record, the Tribunal was not justified in assessing the monthly income of the claimant as ₹ 8000/- which is apparently on the higher side. There could be no dispute that in the case of labourer, where there is no specific proof of income, the monthly income of the claimant can be taken as that of a daily wager, which, at the time of accident, was around ₹4,500/- per month. Therefore, the income of the claimant if taken to be ₹ 4,500/- per month, in my opinion, would be just and reasonable. The claimant is a self employed person and, therefore, there ought to have been an increase of 40% on account of loss of future prospects, as per National Insurance company Limited v. Pranay Sethi and others, (2017) 16 SCC 680. The Tribunal has correctly assessed the functional disability of the claimant as 3½ %. The Tribunal has, however, gone wrong in selecting the multiplier of 15, whereas the multiplier applicable in the instant case is 17.
4. Accordingly, taking the monthly income of the claimant as ₹ 4,500/- and adding 40% on account of loss of future prospects, the monthly income 5 Mac App Nos.100/2019 along with connected matters of the claimant would come to ₹ 6,300/- (4500 + 1800). Taking the functional disability of the claimant, as has been assessed by the Tribunal, at 3½ %, the total monthly loss of future income comes to ₹ 220/-. Adopting the multiplier of 17, the total loss of income would come to (220 x 12 x 17) = ₹ 44,480/-. Thus, the claimant is held entitled to compensation of ₹ 44,480/- on account of loss of future prospects. However, the sums awarded on other heads as also the interest awarded shall remain unchanged.
5. The award of the Tribunal is modified to the aforesaid extent. The appeal is, accordingly, disposed of.
Mac App No.101/2019 (Oriental Insurance Co. Ltd. v. Bodh Raj & ors.)
1. Claimant, in the instant case, is Bodh Raj, who, at the time of accident was 28 years old. The claimant, at the time of accident, claims to be earning ₹ 10,000/- per month by doing the job of labourer, besides being an agriculturist. The claimant suffered permanent disability of 20% due to the injuries suffered in the accident. The claimant failed to lead any cogent evidence to prove his exact income at the time of accident. The Tribunal, by guess work, has taken the monthly income of the claimant as ₹ 8,000/-. The Tribunal assessed the functional disability @ 20 % and applying the multiplier of 14 worked out the loss of future income as ₹ 2,68,800/-. Besides this, the Tribunal has also awarded ₹50,000/- as medical expenses, ₹ 50,000/- as pain and suffering and ₹ 25,000/- on account of loss of amenities of life.
2. Having heard learned counsel for the parties and perused the record, I am of the view that the compensation awarded by the Tribunal calls for modification.
6 Mac App Nos.100/2019 along with connected matters
3. In absence of any cogent evidence on record, the Tribunal was not justified in assessing the monthly income of the claimant as ₹ 8000/-. There could be no dispute that in the case of labourer, where there is no specific proof of income, the monthly income of the claimant can be taken as that of a daily wager which at the time of accident was around ₹4,500/- per month. Therefore, the income of the claimant is taken as ₹ 4,500/- per month, which in my opinion, is just and reasonable. The claimant is a self employed person and, therefore, there ought to have been an increase of 40% on account of loss of future prospects, as per National Insurance company Limited v. Pranay Sethi and others, (2017) 16 SCC 680. The Tribunal has correctly assessed the functional disability of the claimant as 20%. However, the Tribunal has went wrong in selecting the multiplier of 14, whereas the multiplier applicable in the instant case is 17.
4. Accordingly, taking the monthly income of the claimant as ₹ 4,500/- and adding 40% on account of loss of future prospects, the monthly income of the claimant would come to ₹ 6,300/- (4500 + 1800). Taking the functional disability of the claimant, as has been assessed by the Tribunal, at 20%, the total monthly loss of future income comes to ₹ 1,260/-. Adopting the multiplier of 17, the total loss of income would come to (1260 x 12 x 17) ₹ 2,57,040/-. Thus, the claimant is held entitled to compensation of ₹ 2,57,040/- on account of loss of future prospects. However, the sums awarded on other heads as also the interest awarded shall remain unchanged.
5. The award of the Tribunal is modified to the aforesaid extent. The appeal is, accordingly, disposed of.
Mac App No.102/2019 (Oriental Insurance Co. Ltd. v. Sham Lal & ors.) 7 Mac App Nos.100/2019 along with connected matters
1. Claimants, in the instant case, are the sons and daughter of the deceased Hans Raj, who died in the motor vehicular accident in question. The deceased at the time accident was 55 years. The claimants failed to lead any cogent evidence to prove exact income of the deceased. The Tribunal, by guess work, has taken the monthly income of the claimant as ₹ 8,000/-. The Tribunal deducting 50% on account of personal living expenses and applying the multiplier of 9 worked the loss of dependency as ₹ 4,32,000/-. Besides this, the Tribunal has also awarded ₹15,000/- as funeral expenses, ₹ 15,000/- as loss of estate, love and affection.
2. Having heard learned counsel for the parties and perused the record, I am of the view that the compensation awarded by the Tribunal calls for modification.
3. In absence of any cogent evidence on record, the Tribunal was not justified in assessing the monthly income of the deceased as ₹ 8000/-. Where there is no specific proof of income, the monthly income of the deceased labourer can be taken as that of a daily wager, which, at the time of accident, was around ₹4,500/- per month. Therefore, the income of the deceased is taken as ₹ 4,500/- per month, which in my opinion, is just and reasonable. The deceased was self employed and, therefore, there ought to have been an increase of 10% on account of loss of future prospects, as per National Insurance company Limited v. Pranay Sethi and others, (2017) 16 SCC 680. The Tribunal has went wrong in applying deduction @ 50%, whereas as per Sarla Verma and ors. V. Delhi Transport Corporation and another, (2009) 6 SCC 121, deduction @ 1/3rd is applicable, as there are three dependents. The Tribunal has also went wrong in selecting the multiplier of 09, whereas the multiplier applicable in the 8 Mac App Nos.100/2019 along with connected matters instant case is 11. The Tribunal has also not awarded any amount on account of loss of parental consortium.
4. The amount of compensation, if computed, as per the accepted legal parameters, would become more than the amount awarded by the Tribunal; Although, the claimants have not filed any appeal or closs-objections, yet it is the bounden duty of the Tribunal/Court to ensure that the compensation awarded is just and reasonable.
5. Accordingly, taking the monthly income of the claimant as ₹ 4,500/- and adding 10% on account of loss of future prospects, the monthly income of the deceased would come to ₹ 4,950/- (4500 + 450). Deducting 1/3rd from the income of the deceased on account of personal living expenses, the total monthly loss of income comes to ₹ 3,300/-. Adopting the multiplier of 11, the total loss of income would come to (3300 x 12 x 11)= ₹ 4,35,600/-. Thus, the claimants are held entitled to compensation of ₹ 4,35,600/- on account of loss of dependency.
6. Accordingly, the claimants shall be entitled to the compensation in the following manners:-
Loss of dependency : ₹ 4,35,600/-
Loss of estate : ₹ 15,000/-
Funeral expenses : ₹ 15,000/-
Loss of parental consortium to the : ₹ 1,20,000/-
claimants @ ₹ 40,000 each
Total : ₹ 5,85,000/-
5. The award of the Tribunal is modified. The appeal is, accordingly, disposed of. The appellant shall deposit the balance amount in terms of the 9 Mac App Nos.100/2019 along with connected matters modified award within six weeks. The amount on it deposit shall be released in favour of the claimants after proper identification and verification.
Mac App No.103/2019 (Oriental Insurance Co. Ltd. v. Rashpal Singh & ors.)
1. Claimant, in the instant case, is Rashpal Singh, who, at the time of accident, was 21 years old. The claimant, at the time of accident, claims to be earning ₹ 9,000/10,000/- per month by doing the job of labourer. The claimant suffered permanent disability of 10% due to the injuries suffered in the accident. The claimant failed to lead any cogent evidence to prove his exact income at the time of accident. The Tribunal, by guess work, has taken the monthly income of the claimant as ₹ 8,000/-. The Tribunal assessed the functional disability @ 5 % and applying the multiplier of 16 worked out the loss of future income as ₹ 76,800/-. Besides this, the Tribunal has also awarded ₹ 30,000/- as medical expenses, ₹ 20,000/- as pain and suffering and ₹ 10,000/- on account of loss of amenities of life.
2. Having heard learned counsel for the parties and perused the record, I am of the view that the compensation awarded by the Tribunal calls for modification.
3. In absence of any cogent evidence on record, the Tribunal was not justified in taking the monthly income of the claimant as ₹ 8000/-. There could be no dispute that in the case of labourer, where there is no specific proof of income, the monthly income of the claimant can be taken as that of a daily wager which at the time of accident was around ₹4,500/- per month. Therefore, the income of the claimant is taken as ₹ 4,500/- per month, which in my opinion, is just and reasonable. The claimant is self employed and, therefore, there ought to have been an increase of 40% on 10 Mac App Nos.100/2019 along with connected matters account of loss of future prospects, as per National Insurance company Limited v. Pranay Sethi and others, (2017) 16 SCC 680. The Tribunal has correctly assessed the functional disability of the claimant as 5%. However, the Tribunal has gone wrong in selecting the multiplier of 16, whereas the multiplier applicable in the instant case is 18.
4. Accordingly, taking the monthly income of the claimant as ₹ 4,500/- and adding 40% on account of loss of future prospects, the monthly income of the claimant would come to ₹ 6,300/- (4500 + 1800). Taking the functional disability of the claimant, as has been assessed by the Tribunal, at 5%, the total monthly loss of future income comes to ₹ 315/-. Adopting the multiplier of 18, the total loss of income would come to (315 x 12 x 18) ₹ 68,040/-. Thus, the claimant is held entitled to compensation of ₹ 68,040/- on account of loss of future prospects. However, the sums awarded on other heads as also the interest awarded shall remain unaltered.
5. The award of the Tribunal is modified to the aforesaid extent. The appeal is, accordingly, disposed of.
Mac App No.100/2019 (Oriental Insurance Co. Ltd. v. Kewal Kumar & ors.)
1. Claimant, in the instant case, is Kewal Kumar, who, at the time of accident, was 25 years old. The claimant, at the time of accident, claims to be earning ₹ 15,000/- per month by doing the job of labourer. The claimant suffered permanent disability of 5% due to the injuries suffered in the accident. The claimant failed to lead any cogent evidence to prove his exact income at the time of accident. The Tribunal, by guess work, has taken the monthly income of the claimant as ₹ 8,000/-. The Tribunal, taking the functional disability @ 5% and applying the multiplier of 16 worked out the loss of future income as ₹ 76,800/-. Besides this, the Tribunal has also 11 Mac App Nos.100/2019 along with connected matters awarded ₹20,000/- as medical expenses, ₹ 10,000/- as pain and suffering and ₹ 10,000/- on account of loss of amenities of life.
2. Having heard learned counsel for the parties and perused the record, I am of the view that the compensation awarded by the Tribunal calls for modification.
3. In absence of any cogent evidence on record, the Tribunal was not justified in taking the monthly income of the claimant as ₹ 8000/-. There could be no dispute that in the case of labourer, where there is no specific proof of income, the monthly income of the claimant can be taken as that of a daily wager which at the time of accident was around ₹4,500/- per month. Therefore, the income of the claimant is taken as ₹ 4,500/- per month, which in my opinion, is just and reasonable. The claimant is a self employed person and, therefore, there ought to have been an increase of 40% on account of loss of future prospects, as per National Insurance company Limited v. Pranay Sethi and others, (2017) 16 SCC 680. The Tribunal has correctly assessed the functional disability of the claimant as 5%. However, the Tribunal has went wrong in selecting the multiplier of 16, whereas the multiplier applicable in the instant case is 18.
4. Accordingly, taking the monthly income of the claimant as ₹ 4,500/- and adding 40% on account of loss of future prospects, the monthly income of the claimant would come to ₹ 6,300/- (4500 + 1800). Taking the functional disability of the claimant, as has been assessed by the Tribunal, at 5%, the total monthly loss of future income comes to ₹ 315/-. Adopting the multiplier of 18, the total loss of income would come to (315 x 12 x 18) = ₹ 68,040/-. Thus, the claimant is held entitled to compensation of ₹ 68,040/- on account of loss of future income. However, the sums 12 Mac App Nos.100/2019 along with connected matters awarded on other heads as also the interest awarded shall remain unchanged.
5. The award of the Tribunal is modified to the aforesaid extent. The appeal is, accordingly, disposed of.
Mac App No.104/2019 (Oriental Insurance Co. Ltd. v. Kaushyla Devi & ors.)
1. Claimants, in the instant case, are the wife and five minor children of the deceased Bitto Ram, who died in the motor vehicular accident in question. The deceased at the time accident was 31 years. The claimants have failed to lead any cogent evidence to prove exact income of the deceased. The Tribunal, by guess work, has taken the monthly income of the claimant as ₹ 9,000/-. The Tribunal deducting 1/3rd on account of personal living expenses and applying the multiplier of 14 worked the loss of dependency as ₹ 11,34,000/-. Besides this, the Tribunal has also awarded ₹15,000/- as funeral expenses, ₹ 15,000/- as loss of estate, love and affection. However, the Tribunal has not awarded any amount on account of loss of consortium.
2. Having heard learned counsel for the parties and perused the record, I am of the view that the compensation awarded by the Tribunal calls for modification.
3. In absence of any cogent evidence on record, the Tribunal was not justified in assessing the monthly income of the deceased as ₹ 9000/-. Where there is no specific proof of income, the monthly income of the deceased labourer can be taken as that of a daily wager, which, at the time of accident, was around ₹4,500/- per month. Therefore, the income of the deceased is taken as ₹4,500/- per month, which in my opinion, is just and 13 Mac App Nos.100/2019 along with connected matters reasonable. The deceased was self employed person and, therefore, there ought to have been an increase of 40% on account of loss of future prospects, as per National Insurance company Limited v. Pranay Sethi and others, (2017) 16 SCC 680. The Tribunal has gone wrong in applying deduction @ 1/3rd, whereas as per Sarla Verma and ors. V. Delhi Transport Corporation and another, (2009) 6 SCC 121, deduction @ 1/4th is applicable, as in the instant case, there are six dependents. The Tribunal has gone went wrong in selecting the multiplier of 14, whereas the multiplier applicable in the instant case is 16. The Tribunal has also not awarded any amount on account of loss of consortium. Therefore, the same is also required to be awarded in terms of Pranay Sethi (supra)
4. Accordingly, taking the monthly income of the claimant as ₹ 4,500/- and adding 40% on account of loss of future prospects, the monthly income of the deceased would come to ₹ 6300/- (4500 + 1800). Deducting 1/4th from the income of the deceased on account of personal living expenses, the total monthly loss of income comes to ₹ 4,725/-. Adopting the multiplier of 16, the total loss of income would come to (4725 x 12 x 16) ₹ 9,07,200/-. Thus, the claimants are held entitled to compensation of ₹ 9,07,200/- on account of loss of dependency.
5. Accordingly, the claimants shall be entitled to the compensation in the following manners:-
Loss of dependency : ₹ 9,07,200/-
Loss of estate : ₹ 15,000/-
Funeral expenses : ₹ 15,000/-
Loss of parental spousal consortium
to Respondent No.1 : ₹ 40,000/-
Loss of parental consortium to : ₹ 2,00,000/-
14 Mac App Nos.100/2019 along with connected matters
Respondent Nos. 2 to 6 @ ₹ 40,000 each
Total : ₹ 11,77,200/-
The amount shall be payable along with pendet lite and future interest @ 7.5% per annum and as per other terms and conditions of the impugned award.
6. The award of the Tribunal is modified. The appeal is, accordingly, disposed of.
Mac App No.115/2019 (Oriental Insurance Co. Ltd. v. Channa Devi & ors.)
1. Claimants, in the instant case, are the wife and two children of the deceased Sonku Ram, who died in the motor vehicular accident in question. The deceased at the time accident was 55 years and claimed to be earning ₹ 10,000/- per month by working as conductor besides being an agriculturist. The claimants have failed to lead any cogent evidence to prove exact income of the deceased. The Tribunal, by guess work, has taken the monthly income of the claimant as ₹ 8,000/-. The Tribunal deducting 1/3rd on account of personal living expenses and applying the multiplier of 9 has worked out the loss of dependency as ₹ 5,76,000/-. Besides this, the Tribunal has also awarded ₹15,000/- as funeral expenses and ₹ 15,000/- as loss of estate, love and affection. However, the Tribunal has not awarded any amount on account of loss of consortium.
2. Having heard learned counsel for the parties and perused the record, I am of the view that the compensation awarded by the Tribunal calls for modification.
3. In absence of any cogent evidence on record, the Tribunal was not justified in taking the monthly income of the deceased as ₹ 8000/-. Where there is no specific proof of income, the monthly income of a unskilled 15 Mac App Nos.100/2019 along with connected matters labouer can be taken as that of a daily wager, which, at the time of accident, was around ₹4,500/- per month. Therefore, the income of the deceased is taken as ₹ 4,500/- per month, which in my opinion, is just and reasonable. The deceased was a self employed and, therefore, there ought to have been an increase of 10% on account of loss of future prospects, as per National Insurance company Limited v. Pranay Sethi and others, (2017) 16 SCC 680. The Tribunal has correctly applied the deduction @ 1/3rd. However, the Tribunal has gone wrong in selecting the multiplier of 09, whereas the multiplier applicable in the instant case is 11. The Tribunal has also not awarded any amount on account of loss of consortium. Therefore, the same is also required to be awarded in terms of Pranay Sethi (supra)
4. Accordingly, taking the monthly income of the claimant as ₹ 4,500/- and adding 10% on account of loss of future prospects, the monthly income of the deceased would come to ₹ 4,950/- (4500 + 450). Deducting 1/3rd from the income of the deceased on account of personal living expenses, the total monthly loss of income comes to ₹ 3,300/-. Adopting the multiplier of 11, the total loss of income would come to (3300 x 12 x 11) ₹ 4,35,600/-. Thus, the claimants are held entitled to compensation of ₹ 4,35,600/- on account of loss of dependency.
5. The claimants are held entitled to the compensation in the following manners:-
Loss of dependency : ₹ 4,35,600/-
Loss of estate : ₹ 15,000/-
Funeral expenses : ₹ 15,000/-
Loss of parental spousal consortium
16 Mac App Nos.100/2019 along with connected matters
to Respondent No.1 : ₹ 40,000/-
Loss of parental consortium to : ₹ 80,000/-
Respondent Nos. 2 & 3 @ ₹ 40,000 each
Total : ₹ 5,85,600/-
The amount shall be payable along with interest pendent lite and future @ 7.5% per annum and as per other terms and conditions of impugned award.
5. The award of the Tribunal is modified. The appeal is, accordingly, disposed of.
(Sanjeev Kumar) Judge JAMMU.
05.08.2020 Vinod.
Whether the order is speaking : Yes Whether the order is reportable: Yes/No VINOD KUMAR 2020.08.06 18:28 I attest to the accuracy and integrity of this document