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IN THE HIGH COURT OF JAMMU AND KASHMIR
Sanjeev Kumar, J.
UNITED INDIA INSURANCE CO. LTD. — Appellant
Vs.
AMINA BEGUM AND OTHERS — Respondent
Civil 1St Miscellaneous Appeal No. 491 of 2011, 446 of 2011; Interlocutory Application No. 1 of 2016, 150 of 2012
Decided on : 10-05-2019
Civil Procedure Code 1908 - section 13 - Motor Vehicles Act 1988 - Section 149(1) - Claim by appellant - Motor Accident Claim - petition before Tribunal seeking compensation of from driver owner and insurer - Petition was contested by insurer only - owner though filed his objections but chose not to contest claim petition as such was proceeded exported by Tribunal - Claim petition of claimants was resisted by insurer inter alia on ground that driver of offending vehicle did not possess valid and effective driving license at relevant time accident and therefore violated terms and conditions of insurance policy - Specific objection was taken by appellant insurer that offending vehicle was not insured with them as cherub issued on behalf of owner for premium amounting to was dishonored and policy of insurance issued in anticipation of encashment cherub was cancelled which fact appellant insurer claims had been intimated to owner in whose name policy insurance had been issued –Held, Tribunal arbitrarily and without taking note of settled legal position - It is claimed that deceased at time death was earning and was also getting daily allowance but Tribunal took income of deceased as instead of per month - Tribunal it is claimed also committed another error by applying multiplier on basis of age of mother of deceased whereas as per law down in case of Delhi Transport Corporation it should have been on basis of age deceased - Claimants therefore claim that since deceased at time of death was years and therefore appropriate multiplier to be applied was and not which has been applied by Tribunal - Claimants further submit that since deceased Tribunal calls for enhancement in manner mentioned hereinafter - On basis of evidence led Tribunal has found that income of deceased at time of accident was per month which was monthly salary deceased was receiving from his employer Lucky Auto Works Ishtar - Tribunal however has not found any evidence of payment of an extra allowance per day to deceased - Court have no reason to differ with findings of fact recorded by Tribunal upon proper evaluation of evidence - However court am in agreement with counsel for claimants that Tribunal did not apply correct multiplier which as per case should have been applied on basis of age of deceased - Since deceased at time of death was years age old therefore multiplier of was applicable - There can be no dispute that as laid down in case of there ought to be enhancement by established income of deceased by way of future prospectus - Since deceased was bachelor as such deduction on account of personal expenses ought to be one half of estimated income - Appeals disposed
JUDGMENT :
Sanjeev Kumar, J. - The award passed by the Motor Accident Claims Tribunal, Jammu (hereinafter referred to as "Tribunal") dated 03.06.2016 in File No. 243/claim titled Amina Begum and others, is subject matter of challenge in these appeals.
MA No. 491/2011
2. This is an appeal filed by the United India Insurance Co.Ltd., in which it is inter alia, claimed that the Tribunal MA No. 491/2011&MA No. 446/2011 Page 2 of 33 has erroneously fastened the liability of satisfying the award on the Insurance Company. There is challenge to the impugned award on quantum as well.
MA No. 446/2011
3. This is an appeal filed by the claimants, who also feel dissatisfied with the amount of compensation awarded and are, therefore, seeking enhancement.
4. Before I proceed to appreciate the grounds of challenge taken in each one of the appeals, I deem it appropriate to take note of the factual context in which these two appeals have arisen.
5. On 31.05.2009, an accident involving vehicle bearing registration No. JK02G/5217 (offending vehicle for short) took place near Tapal Service Station, Kishtwar due to rash and negligent driving of its driver. The offending vehicle first hit Maruti Car bearing registration No.JK02L-7308 standing on the road side and then ran into the Service Station and caused grievous injuries to deceased Akhtar Hussain, who was working there. The injured later on succumbed to the injuries. The driver-respondent No.5 at the time of accident, was under the employment of respondent No.4, the owner of the offending vehicle. The offending vehicle was claimed to be insured with the appellant-insurance company (hereinafter referred to as "Insurer" for brevity). The respondents 1 to 3 (hereinafter referred to as claimants for brevity) who are parents and brother of the deceased filed a claim petition before the Tribunal seeking a compensation of Rs.20,75,000/- from the driver, owner and the insurer. The petition was contested by the insurer only. The owner though filed his objections, but, chose not to contest the claim petition, as such, was proceeded exparte by the Tribunal. The claim petition of the claimants was resisted by the insurer, inter alia, on the ground that the driver of the offending vehicle did not possess a valid and effective driving licence at the relevant time of accident and therefore, violated the terms and conditions of the insurance policy. A specific objection was taken by the appellant-insurer that the offending vehicle was not insured with them as the cheque issued on behalf of the owner Mohd. Abbas for the premium amounting to Rs.9136/- was dishonoured and the policy of insurance issued in anticipation of encashment of cheque was cancelled, which fact, the appellant insurer claims, had been intimated to the owner Mohd Abbas in whose name the policy of insurance had been issued.
6. Be that as it may, in the light of pleadings of the parties, and the rival claims, the Tribunal framed the following issues:-
(i) Whether an accident occurred on 31.05.2009 near Tapal Service Station, Kishtwar by the rash and negligent driving of offending vehicle No.JK02G-5217 in the hands of erring driver in which deceased Akhtar Hussain sustained fatal injuries ? OPP.
(ii) If issue No.1 is proved in affirmative, whether the petitioners are entitled to the compensation, if so to what amount and from whom? OPP
(iii) Whether the driver of the offending vehicle at the time of accident was not holding valid and effective driving license and plied the vehicle in violation of terms and conditions of insurance policy? OPR-2.
(iv) Relief. OP Parties.
7. In order to prove the issues and discharge the burden, the claimants examined one Tariq Maqsood and Ashok Kumar besides examining one of the claimants, namely, Ghulam Mustafa, father of the deceased. The appellant-insurance company examined only one witness, i.e., Karam Chand, Admini
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