Jammu & Kashmir High Court - Srinagar Bench
National Insurance Company Ltd vs Ghulam Nabi Chopan & Ors on 16 March, 2021
IN THE HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
Reserved on: 02.03.2021
Pronounced on:16 .03.2021
MA No.35/2019
National Insurance Company Ltd. ...Appellant(s)
Through: - Mr. J. A. Kawoosa, Sr. Adv. with Mr. Areeb
Javed Kawoosa, Advocate
Vs.
Ghulam Nabi Chopan & Ors. ...Respondent(s)
Through: - Mr. Mohammad Altaf Khan, Advocate
CORAM: HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE
JUDGMENT
1) The appellant insurance company has challenged the award dated
31.03.2016, passed by Motor Accident Claims Tribunal, Srinagar (for
short "the Tribunal"), whereby a sum of Rs.9.00/ lacs along with
interest @7.5% has been awarded in favour of the claimants/respondent
Nos.1 and 2 on account of death of one Riyaz Ahmad Chopan and the
awarded sum has been made payable by the appellant insurance
company with a right to recover the same from the owners of the
offending vehicle i.e. respondent Nos.4&5 herein.
2) Briefly stated, case of the claimants before the Tribunal was that
on 17.01.2011, deceased Riyaz Ahmad Chopan was knocked down by
a vehicle bearing registration No.JK01J-7671 that was being driven
rashly and negligently by its driver i.e. respondent No.3 herein. As a
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result of the accident, the deceased succumbed to the injuries and an
FIR bearing No.99/2010 for offences under Section 279, 304-A RPC
was registered with Police Station, Kunzar. Claimants happen to be the
parents of the deceased who, as per the claim petition, was a young
person aged 27 years working as a Rehbar-e-Taleem Teacher.
Claimants sought compensation in the amount of Rs.21.50/ lacs from
the owners/driver and the insurer of the offending vehicle claiming that
the deceased was earning Rs.10,000/ per month.
3) The claim petition was resisted by the appellant insurance
company by filing its reply thereto and even other respondents filed
their written statement to the claim petition. The appellant insurance
company, while admitting that the offending vehicle was insured with it
at the relevant time, claimed breach of policy conditions on the part of
insured and also denied the occurrence.
4) On the basis of the pleadings of the parties, the following issues
were framed:
1) Whether on 26.12.2010, a vehicle (Tata
Sumo) bearing registration No.JK01J-7671,
being driven by respondent No.1 rashly and
negligently on Kunzar - Magam road and
on reaching near Batapora on the Kunzar -
Magam road lost control over his vehicle3
and struck against one Riyaz Ahmad
Chopan (hereinafter deceased) who was
standing on the correct side of the road,
causing thereby multiple fatal injuries to the
deceased and be succumbed to the injuries
on way to hospital? OPP.
2) Whether the respondent No.1 driver was
permitted by respondents 2&3, owners
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knowingly to drive the offending vehicle
with invalid and ineffective license and
other vehicular documents like RP, FC etc.
on the material date of accident, if yes, the
insured has committed breach of policy
stipulations absolved the respondent no.4,
the company from its liability on account of
petitioners claim? (OPR-4)
3) In case the issue no.1 is proved in
affirmative, to what amount of
compensation the petitioners are entitled to,
from whom and in what proportion? OPP.
4) Relief? OP parties.
5) The learned Tribunal, after recording the evidence, came to the
conclusion that the accident was caused due to rash and negligent
driving of the offending vehicle by its driver, the respondent No.3
herein. It was further found by the learned Tribunal that the vehicle in
question was being driven without a route permit at the relevant time
and, as such, there was a breach of policy conditions on the part of the
insured. After finding claimants entitled to compensation of Rs.9.00/
lacs with interest @ 7.5% per annum, the learned Tribunal fastened the
liability to pay the awarded sum upon the appellant insurance company
with a right to recover the same from the owners of the offending
vehicle.
6) The appellant insurance company has challenged the award on
several grounds but during the course of hearing, the learned counsel
for the appellant has laid emphasis on the contention that the learned
Tribunal, after finding that there was breach of policy conditions on the
part of insured in the instant case, should have exonerated the appellant
insurance company from payment of compensation and fastened the
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liability to pay the awarded sum upon the owners of the offending
vehicle but instead of doing so, the learned Tribunal has directed the
appellant insurance company to pay the amount of compensation to the
claimants with a right to recover the same from the owners of the
offending vehicle. In this regard, learned counsel has relied on the
judgments of the Supreme Court in (1988) 1 SCC 626 (National
Insurance Company Ltd. Vs. Jugal Kishore and ors.)
7) The second ground taken by the appellant is that compensation
awarded by the learned Tribunal is on a higher side, inasmuch as the
learned Tribunal has taken future increase in the monthly income of the
deceased @50% and besides this, the compensation awarded under
conventional heads in favour of the claimants is not in accordance with
the ratio laid down by the Supreme Court in National Insurance
Company Limited v. Pranay Sethi and Ors., AIR 2017 SC 5157.
8) I have heard learned counsel for the parties and perused the
impugned award, grounds of appeal and the record of the learned
Tribunal.
9) There is no dispute to the fact that while deciding issue No.2, the
learned Tribunal has come to a conclusion that the vehicle in question
was being driven without a valid route permit and, as such, there was
breach of policy conditions on the part of the insured. The said finding
of the learned Tribunal is not under challenge before this Court.
Therefore, this Court has to proceed on the basis that there was a
breach of policy condition on the part of the insured in this case. The
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only question that arises for determination is whether or not the learned
Tribunal was justified in directing the insurance company to pay the
awarded sum with a right to recover the same from the owners of the
offending vehicle. According to the learned counsel for the appellant,
the same could not have been done by the learned Tribunal in view of
the law laid down by the Supreme Court in Jugal Kishore's case
(supra).
10) So far as the law with regard to payment of compensation and
recovery thereof is concerned, it has been repeatedly reiterated by the
Supreme Court that even in the cases where the insurer is able to prove
the breach of policy conditions, it is open to a Tribunal to directed the
insurer to pay the awarded sum to the claimants with a right to recover
the same from the insured. This principle has been recognized by the
Supreme Court in National Insurance Co. Ltd. Vs. Swaran Singh and
others, (2004) 3 SCC 297.
11) In National Insurance Co. Ltd. v. Challa Upendra Rao and
others, AIR 2004 SC 4882, the Supreme Court, in a case where
violation of policy conditions was proved as the vehicle was being
plied without valid permit, directed the insurance company to pay
compensation to the claimants with a right to recover the same from the
insured.
12) Again in Amrit Paul Singh and Ors. v. TATA AIG General
Insurance Co. Ltd. & Ors., 2018 ACJ 1768, the Supreme Court held
that the direction of the Tribunal, whereby the insurer was required to
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pay compensation amount to the claimants with a stipulation that the
insurer shall be entitled to recover the same from the owner and driver
in a case where it was proved that the offending vehicle was being plied
without a route permit, is in consonance with the principles laid down
in Swarn Singh's case.
13) From the foregoing discussion of law on the subject, it is clear
that the direction of the Tribunal in the instant case whereby appellant
insurance company has been directed to satisfy the award with a right
to recover the same from the owners of the offending vehicle is in
accordance with the law and does not deserve to be interfered with.
14) So far as the second contention with regard to quantum of
compensated awarded by the learned Tribunal in favour of the
claimants is concerned, there appears to be some merit in the said
contention of the appellant. The learned Tribunal while deciding the
issue No.3 has returned a finding that the deceased was aged 27 years
and that he was working as a Rehbar-e-Taleem Teacher. The monthly
income of the deceased has been taken by the learned Tribunal as
Rs.5000/ which includes the wages which he was earning as a Rehbar-
e-Taleem Teacher and the earnings of the deceased from tuitions.
However, the learned Tribunal has added 50% income of the deceased
towards his future prospectus thereby taking his monthly income to
Rs.7500.
15) It is not in dispute that the deceased was not a permanent
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government employee but was working on a consolidated salary as
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Rehbar-e-Taleem Teacher and he was also earning income from
tuitions. The Constitution Bench of the Supreme Court in National
Insurance Company Limited v. Pranay Sethi and Ors., AIR 2017 SC
5157, has clearly laid down that in case the deceased was self-
employed or on a fixed salary, an addition of 40% of the established
income should be the warrant where the deceased was below the age of
40 years. It is only in the cases where the deceased had a permanent job
that an addition of 50% of the actual salary to the income of the
deceased towards future prospectus, has been provided in the said
judgment. Thus, the learned Tribunal has fallen into an error by taking
future prospectus of the deceased @ 50% of his income. The same is
required to be taken as 40%.
16) The next contention with regard to the quantum of
compensation advanced by the learned counsel for the appellant is
that the compensation awarded by the Tribunal under the
conventional heads is on a higher side.
17) As per the impugned award, a sum of Rs.25,000/ has been
awarded as funeral expenses, Rs.50,000/ on account of loss of care
and affection and a further sum of Rs.50,000/ has been awarded
for loss of estate. As per the ratio laid down by the Supreme Court
in Pranay Sethi's case (supra), the compensation under the
conventional heads, namely, loss of estate, loss of consortium and
funeral expenses has been fixed at Rs.15,000/, Rs.40,000/ and
MOHAMMAD ALTAF BHAT Rs.15,000/ respectively. However, it has been further provided that the
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aforesaid amount should be enhanced at the rate of 10% in every three
years. Therefore, in the instant case, the compensation awarded by the
learned Tribunal under the conventional heads is required to be brought
at par with the compensation provided under these heads in terms of the
aforesaid judgment of the Supreme Court.
18) Having regard to the aforesaid discussion, the revised
compensation to which the claimants would become entitled to in
this case is calculated as under:
(A) For loss of dependency:-
Step-I The monthly income of the deceased is to be taken as
Rs.5000+40% of Rs.5000/ on account of future
prospectus=Rs.7000/-
Step-II A deduction of ½ of the aforesaid amount towards
personal expenses of the deceased who was
unmarried at the relevant time would make the
monthly loss of dependency of the claimants as
Rs.3500/.
Step-III The age of the deceased was 27 years and thus
applying the multiplier of 17, the loss of dependency
of the claimants would come to
Rs.3500x17x12=7,14,000.
(B) Compensation under Conventional Heads
Step-IV The claimants would be entitled to a compensation of
Rs.15000/ on account of loss of estate, Rs.40,000/ on
account of loss of filial consortium and Rs.15,000/ on
account of funeral expenses.
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Besides the above, the claimants are also entitled to a sum of
Rs.10,000/ on account of medical expenses, as has been awarded
by the learned Tribunal.
19) Thus, the claimants are now entitled to the revised
compensation as under:-
1. Loss of dependency =7, 14,000/
2. Loss of estate =15,000/
3. Loss of filial consortium =40,000/
4. Funeral expenses =15,000/
5. Medical expenses =10,000/
Total =7,94,000/
20) Accordingly, the claimants are held entitled to revised
compensation in the amount of amount of Rs.7,94,000/ 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.
21) The appeal shall stand disposed of in the above terms.
22) 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
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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
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