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2016 Supreme(J&K) 387
IN THE HIGH COURT OF JAMMU AND KASHMIR
JANAK RAJ KOTWAL, J.
NEW INDIA ASSURANCE COMPANY LTD. - Appellant
Versus
REHANA BEGUM - Respondent
CIMA No. 173 of 2013
Decided on : 14-10-2016
Advocate Appeared:
For the Appellant : Mr. Amrit Sareen, learned counsel.
For the Respondent: Mr. Baldev Singh and Mr. Bari Abdullah, learned counsels.
The duty of the claims Tribunal to hold a thorough inquiry into the claim and determine just and reasonable compensation under section 166 of the Motor Vehicles Act, 1988, and the right of the Insurance company to file an appeal against the award of the Claims Tribunal.
Headnote:
Motor Accident Claims Tribunal - Compensation Claim - Motor Vehicles Act, 1988, Section 166 - [Loss of Dependency, Funeral Expenses, Loss of Estate] - The court discussed the negligence of the driver of the offending vehicle, the breach of the policy of insurance, and the determination of compensation under the Act. The court emphasized the need to prove the negligence of the driver and the duty of the claims Tribunal to hold a thorough inquiry into the claim and determine just and reasonable compensation.
Fact of the Case:
The claimants filed for compensation under section 166 of the Motor Vehicles Act, 1988, for the death of Mudasir Afzal in a road traffic accident. The Insurance company appealed the judgment and award, contesting the negligence of the driver and the quantum of compensation awarded by the Tribunal.
Finding of the Court:
The court found that the Tribunal erred in recording the finding of negligence without any evidence and in not considering important factual aspects relating to the status of the deceased. The court also addressed the maintainability of the appeal by the Insurance company.
Issues: The issues included the negligence of the driver, the breach of the policy of insurance, the determination of compensation, and the maintainability of the appeal by the Insurance company.
Ratio Decidendi: The court emphasized the need to prove the negligence of the driver and the duty of the claims Tribunal to hold a thorough inquiry into the claim and determine just and reasonable compensation. The court also clarified the right of the Insurance company to file an appeal against the award of the Claims Tribunal.
Final Decision: The appeal was accepted, the impugned judgment and award were set aside, and the matter was remanded to the Tribunal for a fresh inquiry from the stage of framing of the issues and for passing a fresh award. The court also addressed the return of the award amount deposited by the appellant and the appearance of both sides on a specified date.
JANAK RAJ KOTWAL, J.
1. This appeal by the Insurance company is directed against judgment and award dated 22-12-2012 rendered by the learned Motor Accident Claims Tribunal, Ramban (for short the Tribunal) in a claim for compensation under section 166 Motor Vehicles Act, 1988 (for short the Act) filed by legal representatives, respondents 1 to 5 (hereinafter to be referred as the claimants), of one Mudasir Afzal, who died in a road traffic accident that occurred on 4-2-2010. The breakup of the compensation is as under:
1.
Loss of Dependency :
Rs. 16,30,000/-
2.
Funeral Expenses :
Rs. 10,000/-
3.
Loss of Estate :
Rs. 10,000/-
Total :
Rs. 16,50,000/-
2. Heard Mr. Amrit Sareen, learned counsel for the appellant and Mr. Baldev Singh and Mr. Bari Abdullah, learned counsels for the respondents.
3. Claimant No.1 is wife of the deceased and claimants 2 and 3 are their sons. Claimants 4 and 5 are parents of the deceased. The case of the claimants in their claim application before the Tribunal is that the deceased was engaged as second driver with the vehicle bearing registration No. JK 14A 7976 (for short the offending vehicle). On 4-2-2010 deceased was standing at the side of the road and was giving signal for safe crossing to the driver of the offending vehicle. The driver lost control over the vehicle. This accident occurred due to rash and negligent driving of the driver of the offending vehicle who also died in this accident. The deceased died on spot.
4. Owner of the offending vehicle, herein respondent No. 6, in his reply before the learned Tribunal did not resist the claim or deny the allegation against the driver. The appellant-insurance company in its reply, however, raised a plea that there had been breach of the policy of insurance inasmuch as the driver of the offending vehicle was not holding a valid driving license issued by a competent authority authorizing him to drive the offending vehicle and the vehicle was being driven without requisite route permit and fitness certificate. Appellant raised a specific plea that deceased was not engaged as the second driver with the offending vehicle and had boarded the vehicle at a place called Haemda.
5. Following issues were framed by the Tribunal on 30-12-2011:
1. 'Whether deceased Madassar Afzal Khan died as a result of injuries received in a Road Traffic Accident on 4-2-2010 under the jurisdiction of Police Station Banihal, involving vehicle No. 7976/JK 14A driven by driver of the offending vehicle rashly and negligently? (OPP)
2. Whether petitioners are entitled to receive compensation in terms of M. V. Act from the respondents? (OPP)
3. Whether the respondent No. 1 New India Assurance Co. is not liable to pay any compensation to the petitioner? (OPR1)
4. Relief ?'
6. Besides claimant No. 1 entering the witness box, claimants produced three witnesses, namely, Mohd. Afzal, Bashir Ahmed and Rehmat Ullah. Respondents, however, did not lead any evidence.
7. Learned Tribunal held that the claimants on the basis of oral as well as documentary evidence have succeeded to prove that deceased Mudasir Afzal had died as a result of the injuries received in a vehicular accident involving offending vehicle No. JK 14A/7976 on 4-2-2010 due to negligence of Mohd. Akhter driver of the offending vehicle. Learned Tribunal, while taking monthly income of the deceased as Rs. 12,000/- and the yearly income of as Rs. 1,44,000/-, deducted one-third of the income towards his personal and living expenses and, while taking Rs. 96,000/- as annual loss of dependency suffered by the claimants, applied multiplier of 17 and awarded compensation of Rs. 16,30,000/- under the head 'loss of dependency' In addition learned Tribunal awarded Rs. 10,000/- each as compensation for funeral expenses and loss to estate.
8. Appellant has assailed the impugned judgment and award mainl
