Jammu & Kashmir High Court - Srinagar Bench
Reserved On: 26.11.202 vs Ghulam Nabi Dar And Others on 3 February, 2021
HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
...
MA no. 05/2019 [Mac App. 05/2019]
Reserved on: 26.11.2020
Pronounced on: 03.02.2021
Shaheena Begum and others
.........Appellant(s)
Through: Mr. B. A. Tak, Advocate
Versus
Ghulam Nabi Dar and others
......Respondent(s)
Through: None
CORAM:
HON'BLE MR JUSTICE VINOD CHATTERJI KOUL, JUDGE
JUDGEMENT
1. Appellants seek modification of Award (order/judgment) dated
03.11.2018, passed by Motor Accident Claims Tribunal, Srinagar (for
brevity "Tribunal") on a claim petition titled Shaheena Begum & others
v. Ghulam Nabi Dar and others, whereby total award of compensation
of Rs.9,73,000/- along with simple interest @ 6.5% per annum, from the
date of institution of claim petition till its realization, has been given and
enhancement of quantum of compensation is sought.
2. A claim petition was filed by appellants before the Tribunal, stating
therein that deceased, namely, Tasleem Arif Mir, was coming from
Bandipora to Srinagar on his New Motor Cycle (Avenger Bajaj) and
when he reached at Maloora (NHW), he was hit by offending vehicle
(Tipper) bearing registration No. JKO1Q/8180, which was driven by its
driver, i.e. respondent no.1, rashly and negligently from Shalteng
AJAZ AHMAD
2021.02.03 15:47
I attest to the accuracy and
integrity of this document
MA no.05/2019
towards Mujgund, with the result deceased received multiple fatal
injuries on various parts of his body including head and died on spot.
This was followed by lodgement of case FIR no.207/2015 in police
station Parimpora. Appellants, on the basis of case set up in claim
petition, sought Rs.1,03,40,000/- as compensation.
3. Respondents caused their appearance before the Tribunal and filed their
respective written statements. According to driver of vehicle (respondent
no.1), he was driving vehicle on correct side of the said, following all
traffic norms and was not driving the same rashly and negligently, but
deceased was coming in opposite direction on a very high speed and was
driving on wrong side; as a result whereof, he collided with vehicle
being driven by him. It was also stated that offending vehicle was duly
insured with respondent-Insurance Company. Owner of offending
vehicle (respondent no.2), in his written statement averred that he was
registered owner of vehicle and had engaged respondent no.1 as its
driver, after full verification of driving licence and experience.
Respondent no.3 (Insurance Company) insisted that driver of offending
vehicle was not having driving licence at the time of accident and there
were no valid documents, such as R/P & F/C on the date of accident.
4. The Tribunal, upon perusal of pleadings of parties, settled following
Issues for adjudication:
1) Whether on 08.08.2015, deceased namely Tasleem Arif Mir was
coming from Bandipora to Srinagar on his new motorcycle and when
he reached at Maloora and in opposite direction a Tipper bearing regd.
No. JK)1Q/8180 was coming from Shalteng towards Mujgund driven
by its driver namely Gh. Nabi Dar rashly and negligently, hit the
deceased Tasleem Arif Mir, as a result of which, the deceased
sustained multiple fatal injuries on various parts of his body, including
head injuries resulting in his death.? (OPP)
AJAZ AHMAD
2021.02.03 15:47
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MA no.05/2019
2) Whether the driver of the offending vehicle was not holding a valid
and effective D/L at the time of accident and further was not qualified
for holding or obtaining such D/L, insured this having committed
breach of policy terms and conditions, as such the respondent
company is not liable to indemnify the insured? (OPR-3).
3) In case issue No. 1 is proved in affirmative, to what amount extent
and from whom and in what proportion the petitioners are entitled to
receive compensation.? (OPP).
d) Relief-At last parties are entitled to what relief? (OP Parties).
5. Claimants/appellants, in support of their claim, produced and examined
three witnesses, besides claimants 1&2. On 25.09.2018 evidence of
claimants was closed and respondents directed to lead their evidence.
However, respondents, before the Tribunal, did not produce even a
single witness in support of their contention and, accordingly, on
01.11.2018 evidence of respondents was closed, and the impugned
Award was given on 03.11.2018.
6. I have gone through the file and considered the matter.
7. Learned counsel for appellants has stated that deceased, Tasleem Arif
Mir, was working as Carpenter and earning Rs.30,000/- per month as he
was an expert carpenter/highly skilled in this trade and in this regard,
appellants produced sufficient and cogent evidence to establish and
prove income of deceased before the Tribunal. He has contended that
the Tribunal has committed grave error of law while assessing income
of deceased as Rs. 200/- only per day, i.e., total Rs. 6000/- per month, in
view of revision of minimum rates of wages vide Notification, bearing
SRO 460 of 2017 dated 26.10.2017, which shows that wages of a skilled
labour / carpenter is to be taken as Rs.350/- per day, i.e., Rs.10,500/- per
month. He avers that deceased was a skilled worker/Carpenter, which
fact was proved by way of evidence before the Tribunal and the same
remained unrebutted. The Tribunal had no option but to take the income
AJAZ AHMAD
2021.02.03 15:47
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MA no.05/2019
of deceased as a skilled worker/carpenter, i.e., 350/- per day. The
Tribunal was supposed to take a judicial notice of the notification and
accordingly award the compensation. Learned counsel also states that it
has been established/proved by way of evidence that deceased was
skilled worker/carpenter and he could not be treated as unskilled
(Labour), as such, income of deceased has to be taken as Rs. 10,500/-
per month and the Tribunal has without any substance and legal
justification taken income of deceased of Rs. 6000/- per month. His next
submission is that compensation on account of Loss of Estate has not
been awarded by Tribunal. The interest has not been awarded as per the
scheduled bank rate @ 9.5%. It is further contended Tribunal has
escaped notice for grant of compensation on account of Future
Prospects. In support of his submission, learned counsel has placed
reliance on National Insurance Co. Ltd. v. Pranay Sethi and others, AIR
2017 SC 5157.
8. Taking into account grounds raised in the Appeal and submissions made
by learned counsel for parties, I have gone through the record of the
Tribunal and considered the matter.
9. Computation of compensation has been deliberated upon and decided
by Tribunal while adjudicating upon Issue no.3, viz. in case issue No. 1
is proved in affirmative, to what amount extent and from whom and in
what proportion the petitioners are entitled to receive compensation.
Appellants claimed before Tribunal that deceased was earning
Rs.30,000/- per month and on the basis thereof sought compensation.
The Tribunal hashed out in detail claim of appellants. The Tribunal
AJAZ AHMAD
2021.02.03 15:47
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MA no.05/2019
found that claimants/appellants could not support with reference the
income of deceased, i.e., PAN Card and Income Tax Returns.
Accordingly, Tribunal took, and rightly so, Rs.6000/- per month as
income of deceased and computed Loss of Dependency/Income. The
interest @ 6.5% given by the Tribunal also need not to be modified, or
for that matter enhanced. Having said that, impugned Award to the
extent of computation of loss of dependency need not be interfered with.
10.Insofar as computation of compensation on account of Loss of
Consortium and Loss of Burial Expenses are concerned, the impugned
Award does not need any interference inasmuch as the Tribunal has
rightly given Rs.40,000/- on account of Loss of Consortium and
Rs.15,000/- on account of Burial Expenses. Reference in this regard has
also been made by the Tribunal to National Insurance Company
Limited v. Pranay Sethi and others, AIR 2017 SC 5157 . In that view
of matter, Appeal on hand is liable to be dismissed.
11.For the reasons discussed above, instant Appeal is dismissed. Interim
direction, if any, shall stand vacated.
12.Record of the Tribunal, if summoned/received, be sent down along with
copy of this judgement.
(Vinod Chatterji Koul)
Judge
Srinagar
03.02.2021
Imtiyaz.
Whether the order is reportable: Yes/No.
AJAZ AHMAD
2021.02.03 15:47
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integrity of this document
