Dismissed

National Insurance Co.Ltd. v. Jafar Shah and Ors.

J&K HC5 Jun 2020MA/237/2014

Case brief

AI extract

What is this about?

This appeal by an insurance company challenges a ₹5.7 lakh compensation award for a deceased truck conductor. The High Court dismissed the appeal, upholding the Tribunal's calculation of income, the 30% future prospects addition, and the lifetime deduction, noting no merit in the objections regarding framed issues or interest.

What did the court decide?

The appeal is dismissed with no interference in the Tribunal's award; the file is remitted to the court below.

National Insurance Co.Ltd. Vs Jafar Shah and Ors. — Motor Accident Claims | J&K HC (2020)

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HIGH COURT OF JAMMU AND KASHMIR AT JAMMU

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MA No. 237/2014 IA No. 01/2017 CM No. 6785/2019

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Pronounced on:- 5 .06.2020

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National Insurance Co. Ltd. ..…Appellant(s)

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Through: Mr. Baldev Singh, Advocate

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vs.

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Jafar Shah and others ….Respondent(s) Through: Mr. Ajaz Choudhary, Advocate Mr. Wassim Bhukhari, Advocate

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CORAM: HON’BLE MRS. JUSTICE SINDHU SHARMA, JUDGE

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JUDGMENT

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1. This appeal is against award dated 30.12.2013 passed by the Motor Accident Claims Tribunal, Poonch in case titled, ‘Jafar Shah vs. Akhter Hussain Shah and others’ in which the Tribunal has awarded a sum of Rs. 5,71,600/- with interest @ 7.5%.

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2. Briefly stated the facts which arise for consideration of this appeal are, one Shafakat Hussain Shah s/o Jafar Shah died in an accident which occurred due to rash and negligent driving of the vehicle (Truck) No. JK02E-1577 at Seri Chowana Tehsil Surankote, JammuPoonch National Highway on 29.10.2008. The deceased died due to injuries suffered by him on his way to Jammu for medical treatment.

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3. The appellant-Insurer and owner appeared in the proceedings and filed their objections. However, respondent No. 3 i.e. driver did not appear before the Motor Accident Claims Tribunal, Poonch

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(hereafter to be referred to as ‘Tribunal’). Subsequently the owner also did not appear before the Tribunal, as such, both owner and driver were set as ex-parte vide orders dated 07.04.2010 and 21.08.2009. Respondent No. 1 (hereinafter referred to as claimant No. 1) beside himself produced Altaf Hussain (PW2), Afraz Shaw (PW3) and Talab Hussain (PW4) as witnesses in support of his claim, however, no evidence to the contrary was produced by the respondents. The Tribunal after considering the pleadings and evidence awarded an amount of Rs. 5,71,600/- as compensation to the claimants on account of death of the deceased-Shafakat Hussain.

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4. The appellant has filed this appeal on the following grounds:

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“a. That the learned tribunal is wrong in calculating the award of compensation by assessing the income of the respondent as Rs. 4,000/- per month and further increase of the same by 30% without any pleadings and evidence,

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b. That the tribunal has not applied proper multiplier and has applied the multiplier on the age of deceased bachelor,

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c. That no issue with regard to defence of the appellant company has been framed by the learned tribunal,

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d. That the interest on the award amount from the date of filing of the claim petition till realization when the delay in disposal of claim petition is because of the respondents/claimants,

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e. That the learned Tribunal has exceeded its jurisdiction in passing the award impugned.

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f. That in any view of the case the award impugned is

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not sustainable.”

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5. The claimants have pleaded in the claim petition, that the deceased was working as Conductor with the said Truck and was earning Rs. 8000/- per month. Father of the deceased in his evidence has stated that the deceased was Conductor and was earning Rs. 4000/- per month. Altaf Hussain-PW also in his evidence has stated that the deceased was earning Rs. 5,000/- per month. The Tribunal on the basis of evidence on record assessed the income of the deceased as Rs. 4000/- per month. Thus, even if the income of the deceased was taken as that of labourer working on daily basis, he would have earned at least Rs.300/- daily and his monthly income would in no case be less than Rs.9,000/- per month, but the Tribunal relying on the evidence had assessed the income of the deceased at Rs.4,000/per month.

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6. The deceased at the time of his death was 20 years old as pleaded in the claim petition, and this was not denied by the respondents, therefore, the Tribunal while determining his income was correct in applying multiplier of 18, in view of the judgment of the Apex Court

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in ‘Sarla Verma and others. V. Delhi Transport Corporation and another.’ (2009) 6 SCC 121.

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7. The Tribunal while determining the income also made an addition of 30% towards future prospects of the established income in view of the judgment of the Apex Court in Santosh Devi Vs. National Insurance Company Ltd. & ors., AIR 2012 SC 2185. Though the Constitution Bench in National Insurance Company Limited Vs.

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4 MA No. 237/2014

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Pranay Sethi & ors., 2017 (16) SCC 680, in Para 61 held as

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under:-

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“60 (iv) In case the deceased was self-employed or on a fixed salary, an addition of 40% of the established income should be the warrant where the deceased was below the age of 40 years. An addition of 25% where the deceased was between the age of 40 to 50 years and 10% where the deceased was between the age of 50 to 60 years should be regarded as the necessary method of computation. The established income means the income minus the tax component.”

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Though the deceased was entitled to addition of 40% of the established income but the Tribunal, however, relying on the judgment of Apex Court in Santosh Devi (supra) has only made an addition of 30% towards future prospects. Since the claimants are not aggrieved of the same, therefore, no interference in the same at this sage is warranted.

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8. The deceased was a bachelor, therefore, in terms of the judgment of Hon’ble the Supreme Court in case titled ‘Sarla Verma and others. V. Delhi Transport Corporation and another.’ 50% of the income was deducted by the Tribunal as personal and living expenses in case of bachelor.

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9. The award of the Tribunal is also assailed on the ground, that no issue with regard to the defence of the Company has been framed. However, no plea regarding this was raised by the appellant at the time of framing of issues. Neither any effort for framing of

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additional issue was made. Moreover, no plea raised in the appeal that the appellant wanted to lead evidence which was not allowed. In case the appellant was not satisfied with the same, it could have agitated the same before appellate forum.

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10. This apart, perusal of the record reveals that the appellant in its objections has stated that the vehicle Tata Truck JK02E 1577 was insured with it and Insurance Policy was valid from 07.04.2008 to 06.04.2009. The accident occurred on 29.10.2008, when the policy admittedly valid and subsisting. Since the Policy which is on record was valid at the time of occurrence and no effort was made to prove contrary, therefore, the Insurance Company was liable to compensate the claimants in terms of the award. The license of the driver-Akhter Hussain is also on record and there is nothing on record to prove that he was not holding a valid and effective driving license on the date of accident, therefore, the claimants were held entitled to compensation.

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11. The Tribunal, therefore, rightly assessed the income of the deceased as Rs.4,000/- and made 30% addition towards future prospects and deducted 50% towards his personal and living expenses and assessed the monthly income of the deceased at Rs. 2,600/- and annual income of the deceased was right taken at Rs.31,200/- applying multiplier of 18, the compensation of Rs. 5,61,600/- was awarded by the Tribunal. The claimants were also awarded an amount of Rs.5,000/- as funeral expenses, Rs.5,000/- as loss of estate and awarded a sum of Rs.5,71,600/- to the claimants, though the amount

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is not in terms of the judgment of the Apex Court in Pranay Sethi’s case (supra) but as the claimants are not aggrieved of the same, therefore, no interference in the same is made out at this stage.

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12. In view of the above, there is no merit in this appeal and the same is dismissed. Interest awarded by the Tribunal requires no interference.

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13. Record of the court below be remitted back with copy of this order/judgment.

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(Sindhu Sharma)

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JAMMU 5 .06.2020 SUNIL-II

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Whether the order is speaking: Yes Whether the order is reportable: Yes/No

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SUNIL KUMAR 2020.07.01 17:46 I attest to the accuracy and integrity of this document