Allowed

National Insurance Co.Ltd. v. Mohinder Singh and Ors.

J&K HC3 Jul 2020MA/43/2016

Case brief

AI extract

What is this about?

This civil appeal challenged the Motor Accident Claims Tribunal's award in a claim by deceased passengers of a vehicle owned by the insured. The High Court upheld the principle of pay and recover for a gratuitous passenger, modified the compensation quantum by adjusting future prospects and deducting personal expenses, and modified the total award to ₹7,14,800.

What did the court decide?

The appeal is allowed; the impugned award is modified to ₹7,14,800, and the insurer is granted liberty to recover the amount from the insured.

National Insurance Co.Ltd. Vs Mohinder Singh and Ors. — Insurance | J&K HC (2020)

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Serial. No. 209

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HIGH COURT OF JAMMU AND KASHMIR AT JAMMU

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MA No. 43/2016 CM No. 6375/2019

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National Insurance Co. Ltd.

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...Appellant(s)

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Through:- Mr. Sanjay K. Dhar, Advocate.

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V/s

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Mohinder Singh and others

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...Respondent(s)

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Through:- Mr. B. S Charak, Advocate for Respondent Nos. 1 & 2 None for respondent Nos. 3 & 4

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CORAM: HON’BLE MR. JUSTICE SANJEEV KUMAR, JUDGE

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ORDER

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This is Civil 1^st Miscellaneous Appeal filed by the National Insurance Company Limited (for short “the insurer”) against the judgment dated 29.12.2015 passed by the Motor Accident Claims Tribunal, Jammu (for short “the Tribunal”) in claim petition No. 380/2012 titled Mohinder Singh and anr. Vs. National Insurance Company Ltd. and ors., whereby respondent Nos. 1 and 2 have been held entitled to compensation of ₹7,78,000/- along with interest @ 7.5% per annum.

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The appellant-insurer has been held liable to indemnify the insured and pay compensation to respondent Nos. 1 & 2. The amount awarded has been assailed by the appellant primarily on two grounds:

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The compensation awarded is not in consonance with the law laid down by the Supreme Court in the cases “Smt. Sarla Verma & Ors. Vs. Delhi Transport Corporation & anr.” reported in 2009 (3) Supreme 487 and “National

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2 MA No. 43/2016

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Insurance Company Limited Vs. Pranay Sethi & Ors.”, reported in 2017 (16) SCC 680.

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The Tribunal has not appreciated the fact that the deceased was travelling in the offending vehicle as a gratuitous passenger and, therefore, the principle of Pay and Recover was attracted and applicable.

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Having heard learned counsel for the parties and perused the record, I am of the view that the plea of the appellant-insurer, that since the deceased was travelling in the offending vehicle as a gratuitous passenger, therefore, the appellant-insurer after satisfying the award was entitled to recover the amount from the insured, merits acceptance.

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It is submitted by Mr. Dhar, learned counsel for the appellant that despite the fact that there was ample evidence on record to show that the deceased was travelling in the offending vehicle as a gratuitous passenger, yet the Tribunal fastened the liability on the insurer without reserving any right to recover the same from the insured. To bring home his argument, he refers to the statement of claimant Mohinder Singh and also the statement of appellants‟ witnesses i.e., Senior Assistant in the Office of ARTO, Udhampur, Rahul Bakshi and Executive Engineer, Jammu and submits that as per the statement of the Executive Engineer, the owner of the vehicle, the deceased was neither the employee of the Department nor even temporarily engaged as worker. He, therefore, submits that from a conjoint reading of the statement of the witnesses examined before the Tribunal, it is abundantly clear that the deceased was travelling in the offending vehicle as a gratuitous passenger.

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Mr. B.S Charak, learned counsel for the claimants has not been able to

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dispute the evidence referred by Mr. Dhar, learned counsel for the appellant.

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3 MA No. 43/2016

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As a matter of fact, Mr. Charak, fairly concedes that it is a fit case where the principle of pay and recover should have been applied by the Tribunal.

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In view of the aforesaid, as also the law laid down by the Supreme Court in the case of Manuara Khatun & Ors. Vs. Rajesh Kr. Singh & Ors. reported in 2017 (2) JT 490, that in case of death of a gratuitous passenger in the Motor Vehicle Accident, the insurer in the first instance is liable to pay the third party/gratuitous passenger and, thereafter, it may recover the same from the insured/owner of the offending vehicle. The plea of the appellant-insurer, therefore, succeeds.

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So far as the quantum of compensation awarded by the Tribunal is concerned, it is pointed out by Mr. Dhar, learned counsel for the appellant that since the deceased was not a Government employee as such the Tribunal was not correct in adding 50% of the income towards loss of future prospects. He submits that in terms of the judgment rendered in the case of Pranay Sethi (supra), there should have been addition of only 40% of the established income of the deceased.

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The Tribunal has taken the income of the deceased at ₹ 4,500/- per month, which, by no stretch of reasoning, can be said to be on higher side. Multiplier adopted by the Tribunal has not been disputed.

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I am in agreement with learned counsel for the appellant. I also find some incongruity in awarding the compensation on conventional heads. The amount awarded under the conventional heads like funeral expenses, loss of estates, loss of consortium is also not in tune with the judgment of Constitution Bench of the Supreme Court rendered in the case of Pranay Sethi (supra).

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4 MA No. 43/2016

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Accordingly, taking the monthly income of the deceased at ₹ 4,500/per month, adding 40% towards loss of future prospects and deducting 50% towards personal expenses, the loss of income would come to ₹3,150 (4,500+1800=6300÷2) . The total annual loss of dependency comes to ₹ 37,800 (12×3150). Adopting the multiplier of 16, which is, provided for the age group of 31 to 35, the total loss of dependency comes to ₹ 6,04,800 (37,800×16).

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For the foregoing reasons, this appeal is allowed and the impugned award is modified in the following manner:

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Loss of dependency :- ₹ 6,04,800/Funeral Expenses :- ₹ 15,000/Loss of Estate :- ₹ 15,000/Loss of filial consortium to parents :- ₹ 80,000/- Total :- ₹ 7,14,800/-

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The amount as per the modified award shall be payable along with interest as awarded by the Tribunal. Furthermore, the appellant-insurer, after satisfying the award, shall be at liberty to recover the same from the insured on the principle of „pay and recover‟.

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The amount if deposited in the Registry of this Court shall be released in favour of the claimants, on their proper identification and verification and excess amount, if any, be refunded to the appellant.

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(Sanjeev Kumar) Judge

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JAMMU 03.07.2020 Shivalee

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

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SHIVALEE KHAJURIA 2020.07.08 14:59 I attest to the accuracy and integrity of this document

National Insurance Co.Ltd. v. Mohinder Singh and Ors.

Case brief

What is this about?

What did the court decide?

National Insurance Co.Ltd. v. Mohinder Singh and Ors.

Case brief

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