Jammu & Kashmir High Court
New India Assurance Co. Ltd vs Rudesh Kumar And Others on 18 February, 2022
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
Reserved on : 29.01.2022
Pronounced on: 18.02.2022
MA No. 11/2017(O&M)
New India Assurance Co. Ltd. .....Appellant(s)/Petitioner(s)
Through: Mr. Jugal Kishore Gupta, Advocate
vs
Rudesh Kumar and others ..... Respondent(s)
Through: Mr. Koshal Parihar, Advocate
Coram: HON'BLE MR. JUSTICE RAJNESH OSWAL, JUDGE
JUDGEMENT
1. The appellant-Insurance Company through the medium of the present
appeal has impugned the award dated 26.10.2016 passed by Motor
Accident Claims Tribunal, Jammu (hereinafter to be referred as the
Tribunal) in claim petition bearing file No. 333/C, by virtue of which the
compensation of Rs. 38,30,000/- along with the interest at the rate of 7%
per annum from the date of institution till realisation, has been awarded to
the respondent Nos. 2 and 3.
2. In the appeal, the appellant has impugned the award primarily on the twin
grounds, first is with regard to the violation of terms and conditions of the
insurance policy and the other is quantum of the compensation awarded
by the learned Tribunal.
3. Mr. Jugal Kishore Gupta, learned counsel appearing on behalf of the
appellant, during the course of arguments, did not press the issue with
regard to the violation of terms and conditions of the policy. However, he
laid much stress on the quantum of the compensation awarded to
respondent Nos. 2 and 3. He submitted that there was no evidence on
record with regard to the monthly income of the deceased-father of
respondent Nos. 2 and 3 as Rs. 20,000/- and further that sum of Rs.
2,00,000/- has been wrongly awarded to the respondent Nos. 2 and 3 on
account of loss of on account of love and affection. He further submitted
that future earnings were required to be enhanced at the rate of 40% but
the learned Tribunal enhanced the same at the rate of 50%.
4. Per contra Mr. Kaushal Parihar, learned counsel appearing on behalf of
the respondents submitted that the Tribunal has rightly determined the
compensation. He further submitted that there is no illegality in the award
impugned.
5. Heard learned counsels for the parties and perused the award.
6. As the only issue that arises for determination is quantum of
compensation, therefore, the factual aspects of the accident are not
required to be reproduced.
7. Initially the respondent Nos. 1 to 3 and the mother and wife of the
deceased had filed the claim petition for grant of compensation on
account of the death of Rajesh Kumar in a vehicular accident on
09.08.2012. However, during the pendency of the petition, the mother and
the wife of the deceased expired and as such, they were deleted from the
array of the respondents. The claimants examined respondent No. 1 and
two eye witnesses, namely, Opinder Kumar and Sanjay Sharma as
witnesses in support of the petition. However, appellant-Insurance
Company did not lead any evidence in support of its case.
8. The main contention that has been raised by the appellant-Insurance
Company is with regard to the monthly income of the deceased. In the
claim petition, it has been stated that the deceased was earning Rs.
20,000/- per month, as he was running a business of printing press in the
name and style of "M/S K C Stationery and Photostat" at Janipur Jammu.
The learned Tribunal has taken the income of the deceased as Rs.
20,000/- per month but there is no documentary evidence on record to
establish that deceased was earning Rs. 20,000/- per month and even no
Income Tax Returns have been placed on record so as to arrive at a
conclusion as to whether the deceased was paying income tax or not. In
absence of any documentary evidence on record to substantiate the
contention of respondent Nos. 2 and 3 that the deceased was earning Rs.
20,000/- per month, the learned Tribunal has erred in considering Rs.
20,000/- per month as income of the deceased. As the deceased was
running the business under the banner of stationary and Photostat under
the banner M/S KC Stationary and Photostat duly established by the
evidence of one of the claimant and witness and there is no rebuttal to
said evidence, the income of the deceased can be considered as 15,000/-
per month, taking into consideration the members of his family
particularly when the exemption limit for the payment of income tax was
Rs. 2,00,000/- for the assessment year 2013-14 and financial year 2012-
13. Further the Tribunal has wrongly determined the compensation by
enhancing income at the rate of 50% and awarding Rs. 2,00,000/- for loss
of love and affection. Further the Tribunal has deducted 1/3rd of income
of the deceased for personal and living expenses of the deceased by
stating that the deceased must have been contributing Rs. 2,40,000/ out of
Rs. 3,60,000/ by considering as if only the minor children were dependent
upon him where as the fact remains that the claim petition was filed by
mother and wife of deceased as well, who expired during the pendency of
the petition and PW Rakesh Kumar @ Rudesh in his statement deposed
that deceased was survived by his mother, wife, one son and one
daughter.
9. As the deceased was 36 years of the age and self employed so, his
earnings are required to be enhanced at the rate of 40% for future
prospects (See National Insurance Company versus Pranay Sethi &
Ors reported in (2017)16SCC 680). So, the monthly income comes
around to be Rs. 21,000/ and 1/4th of income is required to be deducted as
the deceased was having four dependants at the time of his death as per
judgment of the Apex Court in Sarla Verma and others vs Delhi
Transport Corporation and another, (2009) 6 SCC 121. So the loss of
dependency would be Rs. 15,750 (21000-1/4x21000) and the annual loss
would be Rs. 1,89,000. The multiplier applicable would be 15 and thus
total loss of dependency is Rs. 28,35,000/- instead of Rs. 36,00,000/-
calculated by the Tribunal.
10. Further this Court finds that the learned Tribunal has wrongly awarded
Rs. 2,00,000/- as compensation on account of loss of love and affection.
No compensation can be awarded on account of loss of love and affection
but the claimants/respondent Nos. 2 and 3are entitled to Rs. 40,000/- each
on account of loss of consortium (See Magma General Insurance Co.
Ltd. v. Nanu Ram, (2018) 18 SCC 130). Likewise, the funeral expenses
and loss of estate are to be calculated at the rate of Rs. 15,000/- each.
11. Therefore, this Court finds that the claimants/respondent Nos. 2 and 3 are
entitled to the total compensation on the following accounts:
(i) Loss of dependency:- Rs. 28,35,000/-
(ii) Loss of consortium:- Rs. 80,000/-
(iii) Loss of Estate:- Rs. 15000/-
(iv) Funeral expenses:- Rs. 15,000/-
(v) Total: Rs. 29,45,000/-
12. In view of the above, the award passed by the learned Tribunal is modified
and as such, claimants/respondent Nos. 2 and 3 are found entitled to the
compensation of Rs. 29,45,000/- alongwith interest which shall remain the
same. The balance amount, if any, be released in favour of the appellant-
Insurance Company.
13. Disposed of.
(RAJNESH OSWAL)
JUDGE
Jammu
18.02.2022
Sahil Padha
Whether the order is speaking: Yes/No
Whether the order is reportable: Yes/No
