Union Of India And Others vs Vinay Kumari And Another
2021 Latest Caselaw 1064 j&K

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      HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                      AT JAMMU
                                                  MA No.114/2010
                                                  IA No.189/2010

Union of India and others                                     ...Appellant(s)

                             Through:- Mr. Sandeep Gupta, CGSC
      V/s

Vinay Kumari and another                                    ...Respondent(s)
                            Through:- Mr.Akash Gupta, Advocate

Coram: HON'BLE MR. JUSTICE SANJY DHAR, JUDGE
                                  JUDGMENT

1. Union of India and its functionaries are in appeal against the

award dated 30.01.2009 passed by the Motor Accident Claims Tribunal,

Jammu (hereinafter referred to as "the Tribunal") in File No.471/claim

titled Vijay Kumar and another v. Union of India and others, whereby the

respondents-claimants have been held entitled to a compensation of

Rs.7,50,000/- along with interest @ 7.5% per annum on account of death of

Jagdish Kumar.

2. The facts giving rise to the filing of this appeal are that on

19.02.2006 at about 3.30 p.m., when deceased Jagdish Kumar was going

on a scooter bearing Regd. No.JK02AA-9990 from Jammu to Akhnoor, an

army vehicle bearing Regd. No.5D164661K, that was being driven in a

rash and negligent manner by its driver i.e. appellant No.1, hit the deceased

Jagdish Kumar near Dhoi Morh, as a result of which deceased suffered

serious injuries. The deceased-Jagdish Kumar succumbed to the injuries

later on. The deceased was stated to be 34 years of age and was running a

shop in Akhnoor under the name and style of M/s Sawhney Studio. The

income of the deceased was stated to be Rs.10,000/- per month.

3 The respondent No.1 the widow and respondent No.2 minor

daughter of the deceased filed a claim petition before the Motor Accidents

Claims Tribunal, thereby claiming a sum of Rs.35,90,000/- as

compensation. On being put on notice, the appellants appeared before the

Tribunal and filed their objections. On the basis of the pleadings of the

parties, the Tribunal framed the following issues:-

"1. Whether an accident occurred on 19-2-2006 near village at Dhoi Morh on Jammu-Akhnoor road by rash and negligent driving of the offending army vehicle No.JK02AA-9990 in the hands of erring driver in which deceased Jagdish Kumar sustained fatal injuries? OPP

2. If issue No.1 is proved in affirmative whether petitioners are entitled to the compensation if so to what amount and from whom? OPP

3. Relief."

4. Respondent No.1, besides appearing herself as her

witness, examined PW-Mohinder Singh and PW Romesh Sharma as

her witnesses in support of her claim. The Tribunal, after

appreciating the evidence led by the respondents before it, assessed

the income of the deceased as Rs.6,000/- per month. Deducting 1/3rd

therefrom on account of personal expenses and applying the

multiplier of 15, the Tribunal awarded following amount of

compensation in favour of the claimants:-

             "1. For loss of dependency       :      Rs.7,20,000.00

             2. For Funeral expenses          :      Rs. 15,000.00

             3.For consortium to widow        :      Rs.15,000.00

             Total               Rs.7,50,000.00

5. The appellants assail the award of the Tribunal

primarily on the ground that the alleged accident, which resulted in

death of the deceased Jagdish Kumar had occurred due to rash and

negligent driving of the scooter that was being driven by the

deceased. It is also contended that the compensation awarded by the

Tribunal is exorbitant and unjust.

6. I have heard learned counsel for the parties and perused

the record of the case.

7. Insofar as first contention of the appellants is

concerned, the claimants have, by leading cogent and convincing

evidence proved the occurrence and according to the eye witness,

namely, Mohiner Singh, the accident took place on account of

rashness and negligence on the part of the driver of the army vehicle.

FIR relating to the accident also corroborates this statement. There is

no rebuttal to the evidence led by the claimants on this issue. In fact,

the appellants did not produce any evidence before the Tribunal and

not even the driver of the army vehicle was examined before the

Tribunal. In the circumstances, the version of occurrence given by

the claimants has remained un-rebutted and as such, the Tribunal

was justified in coming to the conclusion that the accident had

occurred on account of rashness and negligence on part of the driver

of the army vehicle. Therefore, the said finding does not call for any

interference.

8. As regards the second contention of the appellants, the

Tribunal has assessed the income of the deceased at Rs.6,000/- per

month, which, by no stretch of imagination, can be said to be

exorbitant.

9. The claimants have examined PW-Romesh Sharma,

who has stated that the deceased was running business in his shop

under the name "Sawhney Studio" as also the business of repairing

STD machines. According to this witness, the deceased was earning

Rs.7000/- to Rs.8000/- per month. There is nothing in his cross-

examination to disbelieve his statement.

10. The record of the Tribunal shows that the claimants

have placed on record the certificate showing that the deceased was

selling recharge coupons of BSNL on commission basis. There is

another certificate EXPW-RS, according to which, the deceased was

expert in repairing of STD/PCO machines. In the absence of any

evidence in rebuttal, the Tribunal was justified in assessing the

income of the deceased as Rs.6,000/- per month. The same,

therefore, does not call for any interference.

11. The Tribunal has applied the multiplier of 15 whereas in

terms of Sarla Verma v. Delhi Transport Corporation, (2009) 6

SCC 121, multiplier of 16 is provided for the age group of 31-35.

The Tribunal has rightly applied 1/3rd deduction on account of

personal expenses and granted Rs.15,000/- on account of funeral

expenses and Rs.15,000/- on account of loss consortium to the

widow.

12. In view of the above, the compensation awarded by the

Tribunal in favour of the respondents/claimants, who have lost the

only earning member of their family, cannot be held to be excessive

or exorbitant.

13. For the foregoing reasons, I find no merit in this appeal.

The same is, accordingly, dismissed. The appellant No.1 shall

deposit the amount of compensation in terms of the impugned award

with the Registry of this Court within a period of one month, if not

already deposited, whereafter the amount shall be released in favour

of the respondents in terms of the impugned award.

(Sanjay Dhar) Judge JAMMU.

09.09.2021 Vinod, PS Whether the order is speaking : Yes Whether the order is reportable: Yes