National Insurance Company Ltd vs Dev Raj And Ors
2022 Latest Caselaw 292 j&K

      HIGH COURT OF JAMMU AND KASHMIR AND LADAKH
                       ATJAMMU

                                                     Reserved on   15.02.2021
                                                     Pronounced on 25.02.2022

                                                     MA No. 2/2017 (O&M)

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

                                  Through :- Mr. Suneel Malhotra, Advocate

                           v/s
Dev Raj and ors.                                                       .....Respondent(s)


                                  Through :- Ms. Garima Gupta, Advocate

Coram:      HON'BLE MR. JUSTICERAJNESH OSWAL, JUDGE

                                   JUDGMENT

1. The present appeal has been filed by the appellant-Insurance

Company against the judgment and award dated 30.09.2016 passed by

the Motor Accidents Claim Tribunal, Udhampur (hereinafter to be

referred as the Tribunal) in file No. 42/claims, titled, Dev Raj and

others vs. Manager National Insurance Company Ltd and others, by

virtue of which a sum of Rs. 9,44,000/- has been awarded in favour of

the respondent Nos. 1 to 6 along with interest @ 7.5% from the date of

filing of the claim petition till its realization.

2. The award impugned has been assailed primarily on the ground of

quantum of compensation as there was no evidence with regard to the

monthly income of the deceased and further that the earning should not

have been enhanced at the rate of 50%.

3. Mr. Suneel Malhotra, learned counsel for the appellant submitted that

there was no evidence with regard to the income of the deceased and

further that the income of the deceased was not required to be

enhanced at the rate of 50%. In support of this contention, Mr.

Malhotra has relied on the judgment of the Supreme Court in. National

Insurance Company vs Pranay Sethi & Ors reported in (2017)

16SCC 680.

4. On the other hand, Ms. Garima Gupta, learned counsel for the

claimants/respondents vehemently argued that at the time of accident,

the deceased was 18 years of age and the learned Tribunal has wrongly

applied the multiplier.

5. Heard and perused the record.

6. The respondents No. 1 to 6 filed a claim petition for grant of

compensation on account of death of son of original petitioner Nos. 1

& 2 and brother of other petitioners in the claim petition, who died in a

road traffic accident on 20.06.2012. In the claim petition, it was

submitted that the deceased was working as a private Electrician and

was earning Rs. 9000/- per month at the time of his death. The

appellant-Insurance Company filed the response to the claim petition.

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

1. "Whether the accident was caused due to rash and negligent act of the driver? OPP

2. Whether the deceased Gotishewar Sharma S/o Dev Raj received multiple injuries and died on way to hospital on account of the accident? OPP

3. Whether the respondent driver was driving a vehicle in violation of the insurance policy and was not holding a valid driving licence at the time of accident? OPR-1

4. Whether the ....OPR-1

5. Whether the petition under M.V. Act 170 is not maintained? OPR-1

6. Relief. OP Parties."

7. The claimants/respondents examined respondent No. 1, Dev Raj and

one Padam Khajuria in support of their claim, whereas the appellant-

Insurance Company did not lead any evidence in support of its case.

After considering the pleadings as well as the evidence, the learned

Tribunal passed the award impugned.

8. The main ground urged by the appellant-Insurance Company in the

appeal is that there was no evidence with regard to the monthly

income of the deceased. It requires to be noted that in the pleadings it

was submitted that the deceased was working as a private Electrician

and was earning Rs. 9000/- per month. In support thereof the

claimants/respondents examined respondent No. 1 and also one Padam

Khajuria. While considering the evidence, the learned Tribunal did not

accept the contention of the claimants/ respondents with regard to the

income of the deceased as Rs. 9,000/- and taking him as a skilled

labourer, considered his monthly income as Rs. 6000/- per month. In

view of this, the monthly income of the deceased cannot be considered

as exorbitant. Therefore, this Court does not find any reason to

interfere with the finding returned by the learned Tribunal with regard

to the income of the deceased.

9. The next question is with regard to the quantum of compensation. No

doubt the learned Tribunal added 50% of the income as future

prospects. However, the same was required to be enhanced at the rate

of 40% only. Be that as it may, even the multiplier applied is required

to be applied 18 instead of 16 in view of age of the deceased. Even if,

the calculation is made with regard to the quantum of compensation in

terms of Pranay Sethi's judgment (supra), it would not make

substantial difference with regard to the quantum of compensation

already granted by the learned Tribunal. As such, this Court does not

find any reason, whatsoever, to interfere with the quantum of

compensation awarded by the Tribunal.

10. Viewed thus, there is no merit in this appeal, the same is dismissed.

Awarded amount shall be released in favour of the

claimants/respondents strictly in accordance with the judgment and

award dated 30.09.2016.

11. Record of the Tribunal be sent back.

(Rajnesh Oswal) Judge JAMMU 25.02.2022 Karam Chand/Secy.

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