Jammu & Kashmir High Court - Srinagar Bench
Oriental Insurance Company Ltd vs Tauseef Ahmad Dar & Ors on 16 March, 2021
IN THE HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
Reserved on: 03.03.2021
Pronounced on:16.03.2021
CMAM No.33/2017
Oriental Insurance Company Ltd. ...Appellant(s)
Through: - Mr. Manzoor A. Dar, Advocate
Vs.
Tauseef Ahmad Dar & Ors ...Respondent(s)
Through: - Mr. Rizwan, Advocate
CORAM: HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE
JUDGMENT
1) The appellant insurance company has challenged the award
dated 13.06.2015, passed by Motor Accident Claims Tribunal,
Anantnag (for short "the Tribunal"), whereby a sum of Rs.9,10,000/
along with interest @7.5% per annum has been awarded as
compensation in favour of the claimants/respondent Nos.1 and 2 to be
payable by the appellant insurance company.
2) The instant appeal owes its genesis to a motor vehicular
accident that took place on 15.03.2012 at Tulkhun Bijbehara, when a
vehicle bearing No.JK03B-9192 that was being driven rashly and
negligently by its driver, the respondent No.4 herein, knocked down
mother of the claimants, the respondent Nos.1 & 2 herein, resulting in
her death.
MOHAMMAD ALTAF BHAT
2021.03.16 14:56
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3) The claim petition was resisted by the appellant insurance
company as well as by the owner and driver of the offending vehicle
i.e. respondent Nos.3 and 4 herein, by filing their pleadings in answer
to the claim petition. All the respondents before the Tribunal denied
the occurrence. The appellant insurance company, while admitting
that the offending vehicle was covered by a policy of insurance with
it, claimed that there was breach of policy conditions, inasmuch as the
driver of the offending vehicle was not holding a valid driving license
at the relevant time. However, the owner and driver of the offending
vehicle i.e. respondent Nos.3 and 4 herein, in their reply categorically
stated that there was no breach of policy conditions on their part and
that the driver was holding a valid driving license.
4) On the basis of respective pleadings of the parties, the learned
Tribunal framed the following issues:
1) Whether on 15th of March, 2012, the
deceased Fatima was on her way to fetch
some vegetables and was going on her
side of the road and the offending vehicle
bearing registration No.JK03B-9192
driven by the respondent No.2 at a very
high speed hit the deceased from behind,
resulting in serious injuries to the
deceased on her head and other parts and
succumbed to injuries in SKIMS on
21.03.2012?(OPP)
2) Whether the accident was caused due to
the rash and negligent driving of the
respondent No.2?
3) Whether the petitioners are entitled to
compensation, if so, from and to what
extent?
MOHAMMAD ALTAF BHAT
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4) Whether the respondents are not liable to
indemnify the petitioner as he was not
having a valid and effective D/L at the
time of accident?(OPR5)
5) Relief? OP Parties
5) After recording the evidence led by the parties, the learned
Tribunal, while deciding issue Nos.1 and 2, came to the conclusion
that the accident that had resulted in death of the deceased caused due
to rash and negligent driving of the offending vehicle by its driver, the
respondent No.4 herein. Regarding issue No.3, the learned Tribunal
while recording a finding that the deceased was a housewife besides
doing the job spinning, chain stitching and looking after the orchards
and other family affairs, computed the compensation by taking the
monthly income of the deceased at Rs.5000/- per month, where-after
it concluded that the claimants are entitled to a compensation of
Rs.9,10,000/-.
6) Regarding issue No.4, the learned Tribunal observed that the
insurer has failed to examine any witness or any official from the
licensing authority to conclusively prove that the driver was not
holding a valid driving license at the relevant time and, accordingly,
the insurance company was saddled with the liability to satisfy the
award.
7) I have heard learned counsel for the parties and perused the
impugned award, grounds of appeal and the record of the learned
Tribunal.
MOHAMMAD ALTAF BHAT
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8) The appellant has challenged the award of the learned Tribunal
on a number of grounds but during the course of arguments only two
grounds have been urged by the learned counsel for the appellant.
9) The first ground that has been urged by the learned counsel for
the appellant is that the driving license of the offending was not valid
at the relevant time and that the learned Tribunal has fallen into an
error by holding that it was for the insurance company to prove that
the driver was not holding the valid driving license. It has been
contended that the initial burden that the driver was holding a valid
driving license is upon the owner and driver of the offending vehicle
and unless this initial burden is discharged by the owner/driver, the
burden of proving this issue does not shift to the insurance company.
10) In support of the above contention, the learned counsel has
relied upon the judgment of the Supreme Court in the case of Pappu
and Ors v. Vinod Kumar and anr, Civil Appeal No.20962 of 2017
(arising out of SLP(C) No.29032 of 2015). In the aforesaid case, the
Supreme Court has observed that the onus would shift on the
insurance company only after the owner of the offending vehicle
pleads and proves the basic facts within his knowledge that the driver
of the offending vehicle was authorized by him to drive the vehicle
and was having a valid driving license at the relevant time.
11) In the instant case, a perusal of the record of the learned
Tribunal shows that the respondent Nos. 3 and 4 i.e. owner and driver
MOHAMMAD ALTAF BHAT of the offending vehicle did contest the claim petition by filing
2021.03.16 14:56
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objections to the same. In their objections, it was specifically pleaded
by the said respondents that the driver was holding a valid driving
license. In fact, the record shows that photocopies of the documents of
the vehicle including photocopy of the driving license of the offending
driver had been placed on record. Thus the owner and driver of the
offending vehicle, in the instant case, had discharged their initial
burden of showing that the offending driver was holding a valid
driving license at the relevant time. Once the pleadings and the
documents to the effect that the driver was holding a driving license
were brought before the learned Tribunal, the onus would shift to the
insurance company to prove that the driving license in question was
either fake or not valid at the relevant time.
12) The appellant insurance company, in the instant case, has
examined only RW Jasweet Singh, an official of the appellant
insurance company. He has made a statement that the driving license
of the driver was not valid. This he has stated on the basis of the
report of the investigator. However, the investigator has not been
examined by the appellant insurance company. No official of the
Transport Authority/Department from where the driving license of the
offending driver was issued, was examined by the appellant insurance
company to show that the driving license in question was not valid.
Thus, the finding of the learned Tribunal that the insurer has failed to
prove the contravention of the terms and conditions of insurance
policy cannot be interfered with.
MOHAMMAD ALTAF BHAT
2021.03.16 14:56
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13) The other contention raised by the learned counsel for the
appellant insurance company is with regard to quantum of
compensation. According to learned counsel, the quantum of
compensation awarded by the learned Tribunal, in this case, is on
a higher side as it is not in accordance with the ratio laid down by
the of the Supreme Court in National Insurance Company Limited v.
Pranay Sethi and Ors., (AIR 2017 SC 5157).
14) The learned Tribunal, on the basis of the evidence, has come to
the conclusion that the deceased besides being a housewife was doing
the job of spinning and chain stitching. Therefore, the learned
Tribunal has rightly taken her monthly income as Rs.5000/ for the
purpose of calculation of compensation. The learned Tribunal has
taken future prospects of the deceased by making an addition of 30%
of her income. The age of the deceased has been taken as 40 years. As
per the ratio laid down by the Supreme Court in Pranay Sethi's case
(supra), an addition of 25% is to be made to the income of the
deceased where the deceased was a self employed or on a fixed salary
and the deceased falls in the age group of 40 to 50 years. Thus, the
learned Tribunal has erred in increasing the income of the deceased by
30% while taking her future prospectus into account.
15) Similarly, the learned Tribunal has awarded a sum of
Rs.1,00,000/ on account of loss of love and care, Rs.25,000/ as funeral
expenses and Rs.5,000/ as loss of estate which is not in accordance
MOHAMMAD ALTAF BHAT
2021.03.16 14:56
with the ration laid down by the Supreme Court in Pranay Sethi's case
I attest to the accuracy and
integrity of this document
(supra). As per the ratio laid down by the Supreme Court in aforesaid
case, the compensation under the conventional heads, namely, loss of
estate, loss of consortium and funeral expenses has been provided at
Rs.15,000/, Rs.40,000/ and Rs.15,000/ respectively. However, it has
been further provided that the aforesaid amount should be enhanced at
the rate of 10% in every three years. To this extent also, the award is
required to be modified.
16) Having regard to the aforesaid discussion, the modified
compensation in this case is computed in the following manner:-
(A) Loss of Dependency:-
Step-I By taking monthly income of the deceased as Rs.5000/-
and adding 25% on account of future prospectus, the
monthly income of the deceased comes to Rs.6250/-.
Thus, the annual income of the deceased would be
Rs.6250x12=75,000/-.
Step-II Having regard to the number of dependents of the
deceased, 1/3rd of her income is to be deducted towards
her personal expenses. Accordingly, the annual loss of
dependency to the claimants comes to Rs.50,000/-.
Step-III The age of the deceased was 40 years and thus applying
the applicable multiplier of 15, the loss of dependency
of the claimants comes to Rs.50,000x15=7,50,000/-.
(B) Conventional heads:
The claimants are also entitled to a compensation of
Rs.15000/- on account of loss of estate, Rs.40,000/- on
MOHAMMAD ALTAF BHAT
2021.03.16 14:56
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account of loss of parental consortium and Rs.15,000/-
on account of funeral expenses.
17) Thus, the claimants are now entitled to the compensation in
the following manner :
1. Loss of dependency =7, 50,000/-
2. Loss of estate = 15,000/-
3. Loss of parental consortium = 40,000/-
4. Funeral expenses = 15,000/-
Total = 8,20,000/-
18) Accordingly, the claimants are entitled to revised
compensation in the amount of amount of Rs.8,20,000/- along
with interest @7.5 per annum from the date of filing of the claim
petition till its realization. Award of the learned Tribunal shall
stand modified to the above extent.
19) The appeal shall stand disposed of in the above terms.
20) A copy of this order be sent to the learned Tribunal for
information.
(Sanjay Dhar)
Judge
Srinagar
16.03.2021
"Bhat Altaf, PS"
Whether the order is speaking: Yes/No
Whether the order is reportable: Yes/No
MOHAMMAD ALTAF BHAT
2021.03.16 14:56
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Pronounced today on 16.03.2021 in terms of Rule 138(3) of
the Jammu and Kashmir High Court Rules, 1999.
(Vinod Chatterji Koul)
Judge
MOHAMMAD ALTAF BHAT
2021.03.16 14:56
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