Jammu & Kashmir High Court - Srinagar Bench
Reserved On: 30.12.202 vs Shabir Ahmad Rather And Others on 16 March, 2021
HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
...
CMAM no. 55/2015
Reserved on: 30.12.2020
Pronounced on: 16.03 .2021
Gull Mohammad Sheikh
.........Appellant(s)
Through: Mr. P. S. Ahmad, Advocate
Versus
Shabir Ahmad Rather and others
......Respondent(s)
Through: Ms. Rifat Khalida, Advocate for
respondent no.3
CORAM:
HON'BLE MR JUSTICE VINOD CHATTERJI KOUL, JUDGE
JUDGEMENT
1. This Appeal is preferred by the appellant for modification of Award
(order/judgment) dated 06.03.2015, passed by Motor Accident Claims
Tribunal, Anantnag (for brevity "Tribunal") on a claim petition (MACT
Claim No. 37 of 205), titled Gull Mohammad Sheikh Vs. Shabir Ahmad
Rather and others, whereby total award of compensation of
Rs.2,88,000/- along with simple interest @ 6% 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 appellant before the Tribunal on
16.09.2005, stating therein that on 29.04.2004, he was plying the vehicle
bearing Registration No.JK01C-9054 and was going from Srinagar
towards Jammu. On reaching Hernawas, NHW, the vehicle was hit by
offending vehicle bearing Registration No. JK01B- 2746, as being
driven by its driver, i.e., respondent no.1, rashly and negligently, as a
CMAM No.55/2015
result of which, the appellant sustained multiple injuries on various parts
of his body and rendered disabled. The offending vehicle was insured
with respondent no.3 - Insurance Company.
3. Respondent no.3 resisted the claim before the Tribunal on the ground
that the offending vehicle insured with it, at the time of accident was
being driven, in contravene of the policy of insurance.
4. The Tribunal, upon perusal of pleadings of parties, settled following
Issues for adjudication:
1. Whether on 29.04.2004, the petitioner was plying the vehicle bearing
registration No. JK01C-9054 and was going from Srinagar toward
Jammu. On reaching Hernawas NHW, the vehicle of the petitioner was
hit by the offending vehicle bearing registration No. JK01B-2746
coming from Jammu towards Srinagar driven by respondent No. 1
rashly and negligently, as a result of which the petitioner sustained
multiple injuries on various parts of his body and rendered disabled?
OPP
2. If issue No. 1 is proved in affirmative, whether the petitioner is entitled
to compensation, if so, to what extent and from whom? OPP
3. Whether the respondent No.1 who was driving the vehicle of respondent
No. 2 was not holding valid and effective driving licence at the time of
accident, as such company cannot be saddled with the liability? OPR3
4. Relief? O.P (Parties)
5. Claimant produced and examined five witnesses before the Tribunal;
besides claimant/appellant. Respondent no. 3-Insurance Company has
failed to examine any witness(s) in its defence. Instead of giving a
separate resume of the statements of witnesses and it is proposed to
refer the same as and when relevant while deciding the issues.
6. By impugned Award, the Tribunal found claimant/appellant entitled to
receive compensation of Rs.2,88,000/- along with 6% interest per
annum.
7. Heard and considered.
8. Learned counsel for appellant- Gull Mohammad Sheikh, has stated that
impugned award has been passed by the Tribunal in a hot haste manner,
CMAM No.55/2015
without application of mind inasmuch as the appellant has not been
given reasonable opportunity of being heard. He also submits that the
appellant at the time of accident was of the age of 39 years and was
driver by profession and earning Rs.6000/- per month, but the court
below while passing the impugned award has taken the monthly income
of appellant as Rs.1500/- on notional basis instead of Rs.6000/-. It is
contended that appellant produced the evidence before the Tribunal and
proved his monthly income as Rs.6000/- but despite of that the Tribunal
has taken monthly income of the appellant as Rs.1500/-. The Tribunal
is said to have wrongly applied the multiplier of 11 when the Tribunal
ought to have applied the multiplier of 15. According to learned
counsel, disablement of the appellant to the extent of 40% has been
proved before the Tribunal during the evidence. The Tribunal is stated
to have passed the same award in favour of appellant which was passed
in ex parte in 2011.
9. Taking into consideration submissions made by learned counsel for
appellant, I deem it appropriate to go through the record on the file
including impugned Award and earlier ex parte Award dated 5.2.2011,
particularly Issue no.2, by virtue of which the Tribunal has assessed and
computed the amount of compensation, to which appellant was found
entitled to. It is true that in terms of ex parte Award dated 5.2.2011, the
Tribunal had given compensation in the amount of Rs.2,88,000/- along
with interest @ 6% in favour of appellant. And even after setting-aside
the ex parte Award.
CMAM No.55/2015
10.Perusal of file reveals that while passing Order dated 28.9.2013, the
execution application filed by present appellant for seeking execution
of ex parte Award dated 5.2.2011 was also consigned to record as it was
thought apt not to decide the said execution application at that material
point of time owing to the fact that the ex parte Award dated 5.2.2011,
was set-aside by the Tribunal consequent upon arraying Insurance
Company as party respondent in claim petition, which had not been
arrayed by appellant in his claim petition. The Tribunal, after
considering the respective stand of parties, has by impugned judgement
found appellant/claimant entitled to same amount of compensation as
was given and granted by it in terms of its earlier Award dated 5.2.2011.
11.Perusal of Award dated 5.2.2011 qua computation of compensation,
reveals that multiplier of "16" has been rightly applied by the Tribunal.
The Tribunal has taken Rs.1500/- as monthly income of appellant/
claimant, which also need not be interfered with. The Tribunal on the
basis of evidence adduced by appellant/claimant has rightly calculated
and taken Rs.1500/- as monthly income for awarding compensation in
the amount of Rs.2,88,000/-. There is nothing on record to show or
suggest that the Tribunal has erred in passing the impugned Award,
which, therefore, need not be interfered with.
12.For the reasons discussed above, Appeal on hand is dismissed.
13.Copy be sent down.
(Vinod Chatterji Koul)
Judge
Srinagar
16.03.2021
Imtiyaz
Whether the order is reportable: Yes/No.
IMTIYAZ UL GANI
2021.03.16 22:31
I attest to the accuracy and
integrity of this document
