Sh. Ramesh Chander And Others vs United India Insurance Co. Ltd. ...
2022 Latest Caselaw 283 j&K

     HIGH COURT OF JAMMU AND KASHMIR AND LADAKH
                      AT JAMMU

                                                 Reserved on 21.02.2022
                                                 Pronounced on 25.02.2022


                                                Mac App No. 51/2009(O&M)

Sh. Ramesh Chander and others                  .....Appellant(s)/Petitioner(s)


                     Through: Mr. Jatinder Choudhary, Advocate
                vs
United India Insurance Co. Ltd. and                        ..... Respondent(s)
others
                     Through: Mr. Ravinder Sharma, Advocate

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

1. The present appeal has been filed by the appellants/claimants against the

judgment and award dated 31.12.2008 passed by the Motor Accident

Claims Tribunal, Jammu (hereinafter to be referred as the Tribunal) by

virtue of which, compensation of Rs. 4,11,000/- has been awarded in

favour of appellants/claimants along with interest at the rate of 7.5% per

annum from the date of filing of the claim petition till its realization and

prayer has been made for enhancement of compensation.

2. Mr. Jatinder Choudhary, learned counsel for the appellants vehemently

argued that the compensation awarded by the learned Tribunal, is not in

accordance with law as no compensation on account of future prospectus

of the deceased was awarded and also the learned Tribunal has wrongly

applied the multiplier on the age of the parents, instead of age of the

deceased as per judgment of the Apex Court in Sarla Verma and others

vs Delhi Transport Corporation and another, (2009) 6 SCC 121.

3. Mr. Ravinder Sharma, learned counsel for the respondent-Insurance

company submitted that income of the deceased has not been rightly

considered.

4. Heard and perused the record.

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

appellants/respondents have filed a claim petition for grant of

compensation on account of death of Kishore Sharma, age 24 years who

died in a motor traffic accident on 08.12.2004. It was stated that the

deceased was a bachelor and a graduate trainee for two years and he was

getting Rs. 8,000/- as stipend per month. The owner and driver did not

choose to appear before the learned Tribunal and they were set as ex

parte.

6. The Insurance Company-respondent No. 1 filed the response to the claim

petition, in which it was stated that the vehicle was being driven in

violation of the route permit and contrary to the conditions of the policy.

After considering the pleadings of the parties by the learned Tribunal,

following issues were framed by the learned Tribunal:

"1. Whether an accident took place on 08.12.2004 at Udyog Vihar, Dundahera, Gurgaon due to rash and negligent driving of offending vehicle No. NL01A 2072 in the hands of erring driver in which deceased Kishore Sharma 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. Whether petition is not filed in accordance with the Form (Comp-A) of M. V. Act; if so how? OPR-1

4. Whether driver of offending vehicle at the time of accident was not holding valid and effective driving license and drove the vehicle in violation of

route permit, fitness, RC and terms and conditions of insurance policy, if so how and what is its effect? OPR-1

5. Whether claim petition is hit by the doctrine of misjoinder or necessary parties; if so who are necessary parties? OPR-1

6. Whether accident occurred by negligent driving of motorcycle by the deceased; if so how? OPR-1 Relief."

7. The appellant No. 1 examined himself and also examined Maheshwar and

Gourav Arora as witnesses and no witness has been examined by the

Insurance Company in rebuttal. After considering the pleading of the

parties, the learned Tribunal has passed the impugned award along with

7.5% interest from the date of filing of the claim petition till realization

under the following heads:

     For loss of dependency:                   Rs. 3,96,000/-
     For funeral expenses:                     Rs. 15,000/-
     Total                                     Rs. 4,11,000/-

8. The learned Tribunal while relying upon the evidence of PW Gourav

Arora, considered the income of the deceased as Rs. 4500/- for assessing

compensation, however, there is evidence on record that the deceased was

getting Rs. 8,000/- per month as stipend. The Insurance Company has not

challenged the income of the deceased by filing any appeal. As the

income of the deceased was Rs. 8,000/- per month and the deceased was

24 years of age, so monthly income was required to be enhanced by 40%

and also as the deceased was bachelor, so 50% of the income was required

to be deducted for his personal expenses. As the age of the deceased was

24 years, so the multiplier applicable would be 18. Therefore, the loss of

dependency would be Rs. 12,09,600/-(5600x12x18).

9. Further sum of Rs. 15,000/ each was required to be awarded for funeral

expenses and loss of estate of deceased. In view of all what has been

discussed above, the present appeal is partially allowed and appellants are

found entitled to the enhanced compensation as under:

                   For loss of dependency:                   Rs. 12,09,600/-
                   For funeral expenses:                     Rs.    15,000/-
                   For loss of estate                        Rs. 15,000/
                   Total                                     Rs. 12,39,600/-

10. The enhanced amount along with interest @ 7.5% per annum from the

date of filing of petition till the same is paid, shall be paid by the

respondent-Insurance Company within six weeks from today to appellants

1&2/parents of the deceased. Award passed by the Tribunal is modified

accordingly.

11. The record in original of the Tribunal, if received, be sent back.

(Rajnesh Oswal) Judge JAMMU 25.02.2022 Rakesh Whether the order is speaking: Yes/No Whether the order is reportable: Yes/No