1. This Civil 1st Miscellaneous Appeal is directed against the judgment and Award dated 2nd of March, 2010, hereinafter for short as 'impugned award' passed by Motor Accidents Claims Tribunal Srinagar, hereinafter for short as 'Tribunal' in a claim petition titled Mst. Neelofar & Ors. v. Manzoor Ahmad Gunchoo and others on the grounds taken in the memo of appeal.

2. In order to deal with the appeal in hand, the history of the case needs to be underlined so that the impugned award is appreciated to be just or otherwise.

3. The claimants approached the Tribunal and sought compensation, as per the break-up given in the claim petition, for the loss suffered by them allegedly in a vehicular accident. To elaborate the contention further, it was projected by the claimants there that Adil Wahid, while walking on the right side, was hit by a bus bearing registration No. JK01B 3503, sustained and succumbed to injuries on spot. The said vehicle was being driven by its driver Assadullah Rather-respondent No. 5 rashly and negligently.

4. The written statement was filed and claim petition was resisted only by the appellant. As the driver and owner did not choose to appear they were set ex-parte.

5. In order to discharge the onus of issues framed by the Tribunal, claimants examined witnesses and respondent No. 1 also appeared in the witness box, while as appellant could examine only one witness namely Mr. Harish Raina, Adminis­trative Officer of the Company, in this behalf.

6. The witnesses examined by the respondents/claimants have deposed that on 13.03.2007 at Wantpora, due to rash and negligent driving of respondent No. 5, deceased was hit by the offending vehicle, who sustained and succumbed to injuries. The deceased was 10-12 years of age at the relevant point of time. Claimants have lost source of income, hope, and helping hand at the old age.

7. Despite stiff and lengthy cross-examination of respondent No. 1-mother of the deceased, by the counsel for the appellant, the deposition withstands and its credibility has not vanished in any way. On the other hand the lone witness examined by the appellant only makes mention of the fact that respondent No. 1 has moved an application before the Police concerned, to the effect that in the process of clearing snow from the rooftop of the vehicle, the deceased fell down, sustained and succumbed to injuries. But the witness could not disprove the allegation of the offending vehicle being involved in the accident, and to negate the clinching evidence available on the file to the effect that the offending vehicle hit the deceased in the process of rash and negligent driving by the respondent No. 5 on the fateful day. One more assertion needs repetition that no witness, despite being cross-examined by the counsel for the appellant, has deviated from his stand not to speak of supporting the appellant's version.

8. In the given background, the evidence of the claimants can very safely be held, to have remained unrebutted.

FINDING ISSUE NO. 1

9. As discussed hereinabove, the Tribunal has rightly held that claimants have proved by leading oral evidence that driver has driven the offending vehicle rashly and negligently and hit the deceased, who sustained and succumbed to the injuries.

ISSUE NO. 2

10. The offending vehicle is admittedly insured; no breach is alleged or proved not to speak of willful commission of breach by the insured. Thus insurer-appellant has failed to prove issue No. 2.

ISSUE NO. 3

11. Admittedly the deceased was a student and would have become an earning hand; earning not less than Rs. 6000/- per month while exercising guess work and would also have contracted marriage after few years. Thus it can be safely held that he would have been spending 1/3rd of his income for his personal expenses, 1/3rd for claimants-Parents and minor brother. Thus claimants have lost source of depen­dency to the tune of Rs. 2,000/- per month. It has enormously been held that for assessing the compensation, multiplier m

Click Here to Read the rest of this document