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2018 Supreme(J&K) 848
IN THE HIGH COURT OF JAMMU AND KASHMIR AT JAMMU
Sindhu Sharma, J.
New India Assurance Co. Ltd. - Appellant
Vs.
Imran Hafiz & Ors. - Respondents
MA No. 72 of 2016
Decided On : 31-12-2018
For the Appellant :Mr. Jugal Kishore, Advocate with Mr. Udhay Bhaskar, Advocate
For the Respondent:Mr. Ankush Manhas, Advocate
Liability of the insurance company is limited to the seating capacity of the vehicle, and the standard deduction for personal expenses applies to calculate loss of dependency.
Headnote:
Insurance - Motor Accident Claim - Overloading - Violation of Insurance Policy - The National Insurance Company Limited v. Narso Devi & others - 2007 ACJ 2129 - Sarla Verma and ors. V. Delhi Transport Corporation & anr - (2009) 6 SCC 121
Fact of the Case:
The appeal is against the award passed by the Motor Accidents Claim Tribunal, Bhaderwah, awarding compensation to the claimants, sons of the deceased, who died in a bus accident. The appellant, an insurance company, contested the claim on the grounds of overloading and violation of the insurance policy.
Finding of the Court:
The Tribunal found in favor of the claimants and awarded compensation. The court partially allowed the appeal, modifying the award to reduce the amount of compensation awarded.
Issues: The issues included the cause of the accident, entitlement to compensation, overloading, and the quantum of compensation.
Ratio Decidendi: The court relied on the decision in The National Insurance Company Limited v. Narso Devi & others to limit the liability of the insurance company to the seating capacity of the vehicle. The court also applied the standard deduction for personal expenses as per the law settled in Sarla Verma and ors. V. Delhi Transport Corporation & anr.
Final Decision: The appeal was partially allowed, and the award of the Motor Accidents Claim Tribunal was modified to reduce the amount of compensation awarded.
1. This appeal by the New India Assurance Company Limited is against the award passed by the Motor Accidents Claim Tribunal, Bhaderwah (District Judge) on 25.03.2015 in File no. 16/Claim titled “Imran Hafiz & another v. New India Assurance Company Ltd. & another” awarding a sum of Rs.3,26,600/- along with 9% interest to the claimants, who were sons of the deceased, Mst. Shafiqa Begum, who died in accident on 25.02.2009 at Galginder near Pul Doda.
2. The facts of the case in brief are as under:-
On 25.02.2009, the deceased, Mst. Shafiqa Begum, who was travelling in a bus bearing registration No. JK02U-0759 from Bhaderwah towards Doda met with an accident at Galginder near Pul Doda. The deceased sustained injuries in the accident and died on spot. The claimants/respondent Nos. 1 & 2, who are the sons of the deceased, have filed the claim petition alleging that the accident took place due to rash and negligent driving of the driver of the offending vehicle, i.e, Bus and the Tipper belonging to GREF, as such, the claimants sought compensation from the appellant-Insurance Company.
In the claim petition, the owner, i.e., Capt. Saran Singh, respondent No. 3 in the appeal was set ex-parte and the petition was contested by the Insurance Company. The petitioners in the claim petition though after examining themselves have produced witnesses in their support, yet the respondents had not led any evidence on the subject.
3. The offending vehicle bearing registration No. JK02U-0759 was owned by Captain Saran Singh, who was insured with the appellant. On the fateful day of the accident, the vehicle was proceeding on way to Doda when it met with an accident at Galginder near Pul Doda as a consequence of which one, Mst. Shafiqa Begum, mother of respondent Nos. 1 & 2 died along with many others, who were travelling in the bus. The case of the appellant/insurer is that the vehicle was insured only for 27 persons but at the time of accident 54 persons were travelling in it which amounts to violation of the Insurance Policy, therefore, appellant cannot be saddled with the liability to pay compensation for the death of more than 27 persons. For this, reliance by the appellant is placed in an FIR registered by the Police which states that 54 passengers were travelling against the seating capacity of 27 in which 41 died. Another challenge is that the amount awarded was excessive because the claimants are not entitled to loss of consortium and the income of the deceased has been highly exaggerated without any evidence. As the owner of the vehicle did not controvert the claim made by the petitioner, the Tribunal framed the following issues, which are as under:-
“1. Whether on 25.02.2009 the deceased Shafiqa Begum as travelling in Bus No. JK02-U-0759 from Bhaderwah towards Doda and the vehicle met with an accident due to rash and negligent driving of the driver of the said vehicle at Galginder near Pul Doda due to which the deceased received injuries and died?
OPP
2. If issue No.1 is proved in affirmative, whether the petitioners are entitled to any compensation if so to what extent and from whom?
OPP
3. Whether the vehicle was carrying passengers more than prescribed capacity at the relevant time, if so, what is its effect on the present petition?
OPR-1
4. Relief?
O.P. Parties”
4. The Tribunal found all the issues in favour of the claimants/respondents and awarded Rs.3,26,600/- as compensation. Both the sides have admitted the position that batch of appeals arising out of this accident was decided by this Court vide judgment dated 09.12.2016. Para Nos. (3), (4) & (5) of the same is extracted below:-
“3. In the appeals the plea taken by the appellant-Insurance Company is that it is a clear case of overloading of the bus which resulted in the accident because the vehicle involved in the accident had a permit for passengers carrying capacity of 27 inclusive of driver and conductor whereas, even as per the claim there are 54 passengers, therefore, liability of
