Partly allowed

New India Assurance Co. Ltd. v. Aziz Din

J&K HC2 Jul 2020MA/63/2019

Case brief

AI extract

What is this about?

Appeal by insurer against Motor Accident Claims Tribunal award. Court rejected liability plea regarding overloading due to lack of evidence. Court modified compensation quantum by adjusting percentage for loss of future prospects, personal expense deduction, and multiplier based on deceased's age.

What did the court decide?

Compensation modified from ₹ 29,10,000 to ₹ 21,72,000.

New India Assurance Co. Ltd. Vs Aziz Din — Motor Accident Claims | J&K HC (2020)

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Sr. No.3 & 4 Supplementary-1

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HIGH COURT OF JAMMU AND KASHMIR AT JAMMU

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MA No.63/2019 CM Nos. 2957 & 2958 of 2020

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New India Insurance Company Limited

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...Petitioner(s)

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Through:- Mr. Vipan Gandotra, Advocate

V/s

Aziz Din and others

...Respondent(s)

Through:- Mr. Mohd. Yasir Akhoon, Advocate

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

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ORDER

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The New India Assurance Company Limited (hereinafter ‘ insurer’ for short) is in appeal against the judgment and award dated 30.11.2018 passed by the Motor Accident Claims Tribunal, Doda (‘the Tribunal’ for short) in file No.146/Claim entitled Aziz Din v. Branch Manager, New India Assurance Company Limited and others, whereby the claimants (respondent Nos.1 and 2) have been held entitled to the compensation of ₹ 29,10,000/alongwith simple interest @ 7.5% per annum from the date of filing of the claim petition till final realization of the amount. The appellant-Insurance Company has been directed to indemnify the owner and pay award amount to the claimants.

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The impugned award has been assailed by the appellant primarily on two grounds:-

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i) The offending vehicle, at the time of accident, was overloaded and was carrying passengers beyond its registered seating capacity and,

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2 MA No.63/2019

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therefore, the appellant was absolved of its liability to indemnify the insured/owner of the offending vehicle.

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ii) The Tribunal has committed serious error in computing the compensation payable to the claimants. It is submitted that the impugned award is exorbitant and does not represent just and fair compensation.

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Having heard learned counsel for the parties and perused the record, I am of the view that the first ground of challenge urged by the appellant is not sustainable.

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From a perusal of the award of the Tribunal, it clearly transpires that amongst five issues framed by the Tribunal, there is no issue framed with regard to the overloading nor do I find any evidence led by the appellant to prove the aforesaid fact. In the absence of any specific pleadings and evidence led by the appellant, it is difficult to agree with the learned counsel for the appellant that the offending vehicle, at the time of accident, was overloaded and was being driven in violation of the terms and conditions of the insurance policy.

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Next comes the arguments of learned counsel for the appellant regarding quantum of compensation. The Tribunal had framed specific issue with regard to the quantum of compensation payable to the claimants, onus whereof was on the claimants. The claimants discharged their burden by examining their witnesses, namely, Nasreena Begum, respondent No.1-Aziz Din. There is, however, no evidence led by the appellant in rebuttal. The Tribunal after evaluating the evidence brought on record by the claimants came to the conclusion that the deceased, at the time of death in the accident,

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3 MA No.63/2019

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was earning ₹ 15,000/- per month and added 50% towards loss of future prospects. The Tribunal also applied deduction of 1/3^rd towards personal expenses. Keeping in view the age of the deceased i.e. 26 years, the Tribunal applied the multiplier of 16 and computed the compensation. The Tribunal also awarded ₹ 15,000/- as funeral expenses and ₹ 15,000/- on account of loss of estate in view of the law laid down by the Supreme Court in the case of National Insurance Company v. Pranay Sethi and others, AIR 2017 SC 5157 .

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Learned counsel for the claimants urges that the Tribunal has computed the compensation payable to the claimants in light of the law laid down by the Supreme Court in the case of Pranay Sethi (supra) and, therefore, the same does not call for any interference. He, however, submits that given the evidence on record, the award of compensation to the tune of ₹ 29,10,000/- is totally just and fair.

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Per contra , Mr. Vipan Gandotra, learned counsel for the appellant, submits that the Tribunal has not correctly applied the law laid down by the Supreme Court in the case of Pranay Sethi (supra) and, therefore, urges that the award needs to be modified, so as to bring it in conformity with the law laid down by the Supreme Court in the cases of Sarla Verma & others v. Delhi Transport Corporation & another, (2009) 6 SCC 121 and Pranay Sethi (supra).

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I have given my thoughtful consideration to the rival contentions. Having regard to the evidence led by the claimants, it cannot be said that the Tribunal has committed any illegality in coming to the conclusion that the monthly income of the deceased, at the time of accident, was ₹ 15,000/-.

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4 MA No.63/2019

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However, the Tribunal was not correct in adding 50% of the established income towards loss of future prospects. The deceased at the time of accident was 26 years and in private employment and, therefore, there ought to have been increase of 40% to the established income towards loss of future prospects. Similarly, deduction @ 50% should have been applied in view of the fact that the deceased was a bachelor. The Tribunal has also committed an error while applying multiplier of 16, when, for the age group of 26-30, the multiplier of 17 is provided.

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The amounts awarded by the Tribunal under conventional heads are in tune with the principles laid down by the Supreme Court in the case of Pranay Sethi (supra), therefore, same are upheld.

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Accordingly, taking the monthly income of the deceased at ₹ 15,000/-, adding 40% towards loss of future prospects and applying deduction of 50% towards personal expenses, the monthly income of the deceased would come to ₹ 10,500/- (15000+6000=21000-10,500). The annual loss of dependency comes to ₹ 1,26,000/- (10500 x 12). Applying the multiplier of 17, the total loss of dependency would come to ₹ 21,42,000/-. Thus, the claimants/ respondent Nos. 1 and 2 are held entitled to compensation in the following manner along with interest as has been awarded by the Tribunal.

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i)	Loss of dependency	₹ 21,42,000/-
ii)	Loss of estate	₹ 15,000/-
iii)	burial expenses	₹ 15,000/-
	Total	₹ 21,72,000/-

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The appeal is partly allowed and the award of the Tribunal stands

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modified to the aforesaid extent.

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5 MA No.63/2019

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Registry shall release the amount, if deposited, in favour of the claimants in terms of the modified award in the proportion given in award of the Tribunal after proper identification and verification. The excess amount, if any, shall be refunded to the appellant along with interest earned thereon.

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JAMMU 02.07.2020 Vinod.

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(Sanjeev Kumar) Judge Whether the order is speaking :Yes/No Whether the order is reportable :Yes/No

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Judge

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VINOD KUMAR 2020.07.03 18:18 I attest to the accuracy and integrity of this document

New India Assurance Co. Ltd. v. Aziz Din

Case brief

What is this about?

What did the court decide?

New India Assurance Co. Ltd. v. Aziz Din

Case brief

What is this about?

What did the court decide?

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