Reliance General Insurance Co vs Pawandeep Kour And Others
2022 Latest Caselaw 218 j&K

     HIGH COURT OF JAMMU AND KASHMIR AND LADAKH
                      AT JAMMU

                                                  Reserved on 03.02.2022
                                                  Pronounced on 18.02.2022

                                               Mac App No. 148/2019(O&M)

Reliance General Insurance Co.                  .....Appellant(s)/Petitioner(s)
Ltd.


                      Through: Mr. Vishnu Gupta, Advocate &
                               Ms. Damini Singh Chauhan, Advocate
                 vs
Pawandeep Kour and others                                   ..... Respondent(s)
                      Through: Mr. Anuj Dewan Raina, Advocate

Coram: HON'BLE MR. JUSTICE RAJNESH OSWAL, JUDGE
                                 JUDGMENT

1. In this appeal, the appellant-Insurance company has impugned the award

and judgment dated 30.09.2019 passed by the Motor Accidents Claims

Tribunal, Jammu (hereinafter to be referred as the Tribunal) in claim

petition, titled, „Pawandeep Kour and others vs Ajit Singh and others‟ by

virtue of which compensation of Rs. 25,12,584/- along with interest at the

rate of 7.5% per annum from the date of filing of the claim petition till its

realization has been granted to the claimants/respondent Nos. 1 to 3.

2. The present appeal has been filed only on the issue of quantum as it is

stated that there was no documentary evidence regarding the profession as

well as income of the deceased-Bachiter Singh and also that the deduction

of one-fourth as personal expenses of the deceased has been wrongly

made.

3. Mr. Vishnu Gupta, learned counsel for the appellant has reiterated the

submissions those have been made in the memo of appeal.

4. Per contra, Mr. Anuj Dewan Raina, learned counsel for the

claimants/respondent Nos. 1 to 3 has submitted that there was sufficient

evidence on record with regard to the profession as well as income of the

deceased and the learned Tribunal has rightly determined the

compensation.

5. The facts necessary for disposal of the present appeal are that the

claimants/respondent Nos. 1 to 3 filed the claim petition for grant of

compensation on account of death of Bachiter Singh who was the father

of respondent Nos. 2 and 3 and husband of respondent No. 1, died in a

motor vehicle accident on 11.08.2013 while he was riding on his motor

cycle bearing registration No. JK02 BA 2360 on the way from his house

towards Digiana near Digiana Pully National Highway where he was hit

by offending vehicle bearing registration No. JK02D 1423 that was

coming from Satwari. It was also stated in para 19 of the claim petition

that the deceased was working as a private building construction

contractor and was earning sum of Rs. 30,000/- to 35,000/- per month.

The appellant and respondent Nos. 4 and 5 were put to notice and on the

basis of the pleadings of the parties, following issues were framed:

"1. Whether an accident took place on 11.08.2013 at 1.00 PM at Digiana Pulli, National Highwaywith the jurisdiction of P/S Gandhi Nagar, Jammu (I/C Police Post Digiana) involving offending vehicle JK02T- 1423(Truck) driven by its driver rashly and negligently, as a result of which Bachiter Singh (husband of petitioner No. 1) received grievous injuries and died? ....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. Whether there was any violation of terms and conditions of insurance policy with respect to the offending vehicle on the date of occurrence and the driver of offending vehicle was not holding a valid and effective driving licence? If so, to what effect? OPR-3 Relief."

6. The respondents, besides examining respondent No. 1, examined PW

Parshotam Lal, PW Omkar Singh and PW Gurdayal Singh in support of

their claim whereas appellant examined Sudesh Sawhney as witness.

After considering the evidence, pleadings and hearing the arguments, the

learned Tribunal has passed the order impugned.

7. Heard and perused the record.

8. The first contention raised by the appellant is with regard to the lack of

evidence with regard to the profession and income of the deceased. It is

relevant to note here that the appellant has replied to para 19 of the claim

petition in a general by submitting that the contents of paras 19 to 27 of

the petition are completely wrong and denied vehemently. It was also

stated that the respondents are claiming huge, exorbitant and superfluous

amount and further that it is wrong that the deceased was earning Rs.

30,000/- to 35,000/- per month from his profession of a private building

construction and as such there is no specific denial by the appellant in

their pleadings that the deceased was not working as a private building

construction contractor. Respondent No. 1 examined herself as a witness

and she categorically stated that her husband was a contractor and was

engaged in private building construction work and he was holding a

contractor card and after the accident, it was lost. She also stated that she

had no knowledge as to whether the deceased was income tax payee or

not but he was holding a PAN Card.

9. PW Parshotam Lal also stated that the deceased was working as a

contractor and he and Bachiter (deceased) used to carry out the

construction of various buildings on contractual basis and his monthly

income was Rs. 30,000/- to 35,000/- per month. In cross examination, he

stated that deceased was neither having any contractor card nor was an

income tax payee but he was holding the PAN Card. He also stated that he

did not know the income of the deceased.

10. PW Gurdayal Singh who was examined by the respondents stated that the

deceased was a private building contractor and had been in the said

business for the last ten years. He and the deceased had jointly executed

many constructions projects and his monthly income was Rs. 30,000 to

40,000/-. In cross examination, he stated that he is running the company

under the name and style of Gurdyal Singh and Sons and deceased was

not his relative. He and the deceased were not having any contractor card.

So far as PAN Card of the deceased is concerned, the same was brought

on record before the Tribunal.

11. Though the claimants/respondent Nos. 1 to 3 placed on record the income

certificate issued by the PW Parshotam, however, the same was not

considered by the learned Tribunal. Though the respondent Nos. 1 to 3

claimed the monthly income of the deceased as Rs. 30,000/- to 35,000/-

per month but the learned Tribunal has not considered the same and rather

has considered the monthly income of the deceased as Rs. 15,000/- per

month. It was established by the claimant/respondent Nos. 1 before the

Tribunal that the deceased was working as a contractor and there is no

evidence on behalf of the appellant that the deceased was not contractor

but was involved in some other activity or profession.

12. In view of this, this Court does not find any reason whatsoever to take any

view contrary to the view taken by the learned Tribunal with regard to the

profession as well as the monthly income of the deceased as Rs. 15,000/-

per month as such, this contention of the appellant is rejected.

13. The other contention raised by the appellant is with regard to the quantum

of compensation. As per judgment of the Apex Court in Sarla Verma

and others vs Delhi Transport Corporation and another, (2009) 6

SCC 121, the learned Tribunal, though in the award impugned has

mentioned that one-third income of the deceased is required to be

deducted as his personal and living expenses, but while computing the

compensation, the learned Tribunal has deducted one-fourth of the income

towards the personal expenses of the deceased. This Court is of the

opinion that the learned Tribunal has erred in deducting one-fourth of the

income towards personal expenses of the deceased rather the learned

Tribunal should have deducted one-third of his income towards the

personal expenses. There is no dispute with regard to the multiplier of 14

as applied by the learned Tribunal as the age of the deceased was 41

years. As per judgment of the Supreme Court in National Insurance

Company vs Pranay Sethi and others, (2017) 16 SCC 680, the

enhancement was to be made at the rate of 25% as such, the total income

of the deceased comes out to be Rs. 18,750/-(25/100x15,000+15,000).

Out of this, one-third income is required to be deducted as personal and

living expenses and as such the monthly income would be Rs. 12,500/-

therefore, the annual loss of dependency would be Rs.

12,500x12=1,50,000/-. Now the multiplier applicable is 14, therefore, the

total loss of dependency works out to be Rs. 21,00,000/-. So far as the

compensation under other head are concerned, they are in accordance with

law laid down by Apex Court and as such, they do not require any

interference therefore, the total compensation payable to the respondent

Nos. 1 to 3 comes to be as under:

             Loss of dependency:                      21,00,000/-
             Consortium:                               1,20,000/-
             Funeral expenses:                           15,000/-
             Loss of estate                              15,000/-
             Total                                    22,50,000/-

14. For the foregoing reasons, the present appeal is partly allowed and the

award is modified accordingly. The amount, if deposited, shall be released

in favour of the claimants/respondent Nos. 1 to 3 in terms of the award of

the Tribunal after proper identification and verification. Excess amount, if

any, shall be reimbursed to the appellant.

15. Disposed of.

(Rajnesh Oswal) Judge JAMMU 18.02.2022 Rakesh Whether the order is speaking: Yes/No Whether the order is reportable: Yes/No