The main legal point established in the judgment is that in proceedings under Section 163-A of the Motor Vehicles Act, the insurance company cannot raise a defense of negligence to counter a claim for compensation.

JUDGMENT :

1. These are two appeals. In one, viz. CMAM no.223/2013, enhancement of award from Rs.2.00 Lacs to Rs.4,93,339/- is sought. And in another setting aside of the Award dated 31st January 2013 passed by Motor Accident Claims Tribunal, Srinagar, in a claim petition bearing File no.58/2008, titled as Nazir Ahmad Wani and others v. Bashir Ahmad Wani and another.

2. I have heard learned counsel for parties. I have gone through the record. I have also gone through impugned Award and considered the matter.

3. A claim petition was filed by Nazir Ahmad Wani and others (appellants in CMAM 223/2013) on 7th April 2008 before the Tribunal. They averred therein that on 10th March 2008, one Mudasir Ahmed Mir (son of appellant no.1 and brothers of appellants 2&3) met with an accident while plying motorcycle bearing Registration no.JK01J-4338 at Vingipora and later succumbed to injuries. The claimants sought compensation of Rs.26,50,000/-. Written statements were submitted by owner of vehicle as also by Insurance Company. Taking into account rival contentions of parties, the Tribunal framed and settled as many as four issues, which are:

(i) Whether on 10.03.2008, the deceased was driving the offending vehicle and on reaching Vingi pora near Shilvat in order to save children, who suddenly started crossing the road, the offending vehicle overturned and the deceased received fatal injuries to which he succumbed on the same date? OPP

(ii) In case issue no.1 is proved in affirmative to what amount of compensation, the petitioner is entitled and from whom? OPP

(iii) Whether the respondent Co. is not liable to indemnify the owner for breach of policy condition committed by the owner, who was not authorized to let the offending vehicle to be driven by any other person? OPR-2

(iv) Relief.

4. Parties were directed to adduce witnesses. An application under Section 170 of Motor Vehicles Act preferred by appellant-Insurance Company, was vide order dated 2nd February 2011 dismissed for non-prosecution and Insurance Company proceeded ex parte. Thereafter, application for setting-aside ex parte proceedings was moved, to which objections were not filed and consequently ex parte proceedings were set-aside. The evidence of appellant-Insurance Company was closed by the Tribunal vide Order dated 8th February 2012 as no witness was produced by it.

5. While deciding Issue no.3, the Tribunal observed and said that the claim petition had been moved by claimants under Section 163-A of the Act, where no negligence was to be proved and compensation was to be assessed on structured formula on no fault basis. It was also observed by the Tribunal that when a party who pleads a certain fact, it has to prove the same as well but appellant-Insurance Company did not lead any evidence. Accordingly, the Tribunal decided Issue no.1 in favour of claimants and against appellant-Insurance Company. As a consequence of which, an amount of Rs.3.00 Lacs has been awarded by the Tribunal.

CMAM no.223/2013

6. In CMAM no.223/2013, it is contended by appellant that compensation given by the Tribunal is on lower side. Appellant aver that deceased at the time of accident was 20 years and, therefore, multiplier of 17 was to be applied instead of 14 as applied by the Tribunal. It is also averred that the Tribunal has wrongly made 50% deduction of income of deceased whereas it should have been 1/3rd. His further contention is that claimants are entitled to Rs.4,93,339/-. In support of the grounds taken in the appeal, learned counsel for appellants has placed reliance on Amrit Bhanu Shali and others v. National Insurance Co. Ltd and others, 2012 ACJ 2002; National Insurance Co. Ltd. v. Sinitha and others, 2012 ACJ 1; Oriental Insurance Co. Ltd. v. Viswanath, 2012 ACJ 2316; Oriental Insurance Co. Ltd v. Monika and others, 2013 ACJ 24; Kamlesh Devi and others v. New India Assurance Co. Ltd, 2017 ACJ 2678; Shivaji and another v. Divisional Manager, United India Insurance Co. Ltd and others, 20