National Insurance Company Ltd vs Pranay Sethi
2022 Latest Caselaw 1092 j&K

                                                              Sr. No. 46

      HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                     AT JAMMU
                                MA No. 301/2013
                                IA No. 1/2016


National Insurance Company Ltd.                 .....Appellant(s)/Petitioner(s)


                       Through: Mr. Baldev Singh, Advocate.


               Vs

                                                           ..... Respondent(s)
Ali Mohd. and others

                       Through: Mr. B.S.Bali, Advocate for R-1 & 2.
                                Mr. Irfaan Khan, Advocate for R-3 & 4.

Coram: HON'BLE MR. JUSTICE PUNEET GUPTA, JUDGE

                                  ORDER

1. The learned Motor Accidents Claims Tribunal, Ramban awarded

compensation to the tune of Rs.13,00,000/- along with pendentelite and

future interest @ 7.5% per annum throughout till realization in favour

of the claimants in the claim petition filed by them. The liability to pay

the compensation was fastened upon the appellant-Insurer.

2. The learned counsel appearing for the appellant has argued that the

learned Tribunal has committed error in assessing the monthly earning

of the deceased as Rs.10000/- per month; that the Tribunal has

deducted 1/3rd as personal expenses of the deceased instead of 1/2 and,

therefore, the award is required to be set aside on the said score. The

precise submission of the appellant is that there was no proof of income

IA No. 1/2016

of the deceased which could prompt the Tribunal to hold monthly

earning of Rs.10000/- in favour of the deceased person.

3. The respondents are represented through counsels.

4. The learned counsel for the claimants-respondents has argued that the

Tribunal has granted the compensation as per the evidence that has

come on record. The deceased was a shopkeeper and had a monthly

income of more than Rs.10000/- from all resources though the Tribunal

had slashed the income to Rs.10000/- per month. The deduction @

1/3rd on account of personal expenses of the deceased also does not

require any interference by this Court.

5. The record of the Tribunal is before the court.

6. The accident is not in dispute nor is the liability of the appellant to

compensate the claimants. The learned counsel for the claimants has

produced photo copy of the document issued by Assistant Regional

Transport Office, Udhampur with regard to the driving license of the

vehicle No.51630/K involved in the accident which shows that the

driving license covers the period when the accident took place. The

Tribunal has otherwise on going through the record of the case has held

the appellant liable to compensate the claimants and this court also

finds no reason to not agree with the finding of the Tribunal. The main

issue which requires consideration by the court is as to whether the

learned Tribunal has erred in assessing the monthly income of the

deceased, who was a shopkeeper, as Rs.10000/-. Admittedly, there is

no denying of the fact that the claimants did not place on record any

IA No. 1/2016

documentary evidence to support the contention of the appellant

earning as mentioned in the petition. The claim petition also mentions

of the income of the deceased from the agriculture though the same is

also not proved by the claimants before the Tribunal. The court is

required to award just compensation in favour of the claimants in case

the court holds that the claimants are entitled to compensation in the

absence of any documentary evidence. Some guess work has to be

infused while assessing the income of the deceased. Keeping in view

the fact that the deceased was a shopkeeper and was earning from the

said shop the court holds that the monthly income of the deceased Noor

Mohd. should be assessed at Rs.8000/- per month and not Rs.10000/-

as held by the Tribunal. The claimants are also entitled to the loss of

future earning on account of the death of the deceased in view of the

judgment passed by the Hon'ble Apex Court in National Insurance

Company Ltd. V. Pranay Sethi, (2017) 16 SCC 680. The deceased was

of 31 years of age at the time of accident. As the deceased cannot be

said to have fixed income and was self employed, therefore, the

increase to the tune of 40% as future earning of the deceased is to be

taken into consideration.

7. As far as the learned Tribunal has deducted 1/3rd of the monthly

earning towards the personal expenses of the deceased, the same does

require correction by this Court. The court finds substance in the

argument of the learned counsel for the appellant that the deduction on

account of personal expenses had to be 1/2 and not 1/3rd of the earning

IA No. 1/2016

of the deceased as held by the Tribunal in view of the judgment passed

by the Hon'ble Apex Court in Pranay Sethi's case (supra). As far as the

compensation awarded by the Tribunal under the head funeral expenses

and loss of estate is concerned the same need not be disturbed by the

Court. The Tribunal has also rightly applied the multiplier in the case

in hand.

8. Keeping in view the aforesaid discussion, the respondents-claimants

are entitled to compensation to tune of Rs.10,75,200/- on account of the

loss of future earning of the deceased. Adding to this the amount of

compensation awarded under the head loss of funeral expenses to the

tune of Rs.10000/- and loss of estate Rs.10000/-, the total

compensation to which the claimants are entitled to comes to

Rs.10,95,200/- say Rs.10,95,000/-. The claimants shall also be entitled

to interest as awarded by the Tribunal.

9. The appeal stands allowed to the extent of the award modified by this

court.

10. Disposed of.

( Puneet Gupta ) Judge Jammu :

              01.08.2022
              Pawan Chopra

                                           Whether the order is speaking     :   Yes/No
                                           Whether the order is reportable   :   Yes/No




PAWAN CHOPRA
2022.08.04 16:18
I attest to the accuracy and
integrity of this document