Jammu & Kashmir High Court
National Insurance Co. Ltd. Through Its vs Shyama Gupta W/O Late Sh. Ram Gopal on 28 February, 2024
Author: Puneet Gupta
Bench: Puneet Gupta
Sr. No. 04
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
Pronounced on : 28.02.2024
Case No : MA No. 150/2014
National Insurance Co. Ltd. Through its
Dy. Manager, TP-Hub, Divisional Office-I,
Shalimar Road, Jammu. .....Appellant(s)..
Through :- Mr. Baldev Singh, Advocate.
Ms. Damini Singh Chouhan, Advocate vice
Mr. D.S.Chouhan, Advocate.
Vs
1. Shyama Gupta W/o Late Sh. Ram Gopal
Gupta
2. Akhilesh Gupta S/o Late Sh. Ram Gopal
Gupta.
3. Akshita Gupta D/o Late Sh. Ram Gopal
Gupta
4. Mohak Gupa S/o Late Sh. Ram Gopal
Gupta,
5. Ram Dulari W/o Late Sh. Krishan Lal
Gupta
(Respondent Nos. 2 to 4 minors through
respondent No.1) R/o Naban Mohalla
Rajouri City, District Rajouri.
6. Sonu S/o Sh. Rattan Singh Caste
Mazhabi Sikh R/o Village Harchowal,
Tehsil Batal, District Gurdaspur.
7. Swaran Kour W/o S. Gulab Singh
C/o Sh. Suderershan Kumar
Prop. Vee Ess Travels Pvt. Ltd.
K.C.Chowk, Jammu. ....Respondent(s)..
Through :- Mr. C.S.Gupta, Advocate for R-1 to 5.
Coram: HON'BLE MR. JUSTICE PUNEET GUPTA, JUDGE
JUDGMENT
28.02.2024
1. The appeal has been filed against the award dated 05.11.2013 passed by
learned Motor Accident Claims Tribunal, Rajouri whereby the award to
the tune of Rs.15,10,000/- along with interest pendente lite and future @
7.5% per annum has been passed against the respondent Nos. 1 to 5-
claimants.
2. The respondents-claimants have only appeared through their counsel and
contested the appeal.
3. Mr. Baldev Singh, learned counsel appearing for the appellants has
argued that the learned Tribunal has erred in awarding the compensation
in favour of the respondents-claimants as the Tribunal has not taken care
of the deduction which was required to be made while assessing the
compensation. The income tax which was required to be deducted from
the income of the deceased has not been taken into consideration even if
the income of the deceased as assessed by the Tribunal is to be accepted.
The other contention raised by the counsel is that the driver of the vehicle
was not having valid driving license at the time of accident. The witness
expenses had been deposited with the Tribunal but the Tribunal did not
take steps to summon the concerned official from the Transport
Department. The liability of the insurance company to compensate the
claimants does not arise.
4. Mr. C.S.Gupta, learned counsel for the claimants submits that the
Tribunal has infact erred in passing the award to the extent of
Rs.15,10,000/- only as the multiplier has not been applied correctly in the
case in hand by the Tribunal. The insurance company cannot escape its
liability to pay the awarded amount on the plea raised by the appellant
before this Court.
5. Heard learned counsel for the parties.
6. The original record of the Tribunal is also before the Court.
7. The accident of 22.12.2008 at Sahar Khud Pul (Kathua) in which Ram
Gopal Gupta lost his life is not seriously in dispute.
8. The Tribunal has rightly assessed the compensation in favour of the
claimants and whether the insurance company is liable to discharge the
liability are the questions which require determination in the appeal in
hand.
9. The Tribunal has held that the deceased was running business of cloth
merchant for the last 20 years and assessed the income of the deceased as
Rs. 15,000/- per month. Learned counsel for the appellant disputes this
finding of the Tribunal. The Court is of the view that this court need not
take a view different from the one taken by the Tribunal. The Tribunal
has relied upon the income tax return filed by the claimants regarding the
year 2007-2008.
10. The appellant has argued that the income tax payable on the income
should have been deducted from the total income of the deceased for the
purposes of determining the compensation. The tax for the assessment
year even if payable for the year 2007-2008 would be negligible and,
therefore, need not be taken into consideration for determination of
compensation in the case in hand.
11. The Court finds no reason to tinker with the income assessed by the
Tribunal.
12. The learned counsel for the respondents-claimants has argued that the
Tribunal while passing the award has not applied the multiplier correctly.
Instead of applying the multiplier of 11, the multiplier of 14 should have
been applied as the deceased was 43 years of age at the time of accident.
It may be noted that the learned Tribunal while relied upon the celebrated
judgment of Sarla Verma and others Vs. Delhi Transport Corporation
and others, 2009 (6) SCC 121 still scaled down the multiplier from 14 to
11 which should not have been done. To that extent the award requires to
be modified.
13. The consortium has been awarded by the Tribunal to the tune of
Rs.10,000/- only. The same will not be in consonance with the judgment
passed by the Apex Court in Magma General Insurance Co. Ltd. v. Nanu
Ram, (2018) 18 SCC 130. As per the said judgment, each of the claimant
is required to be granted Rs.40,000/- as consortium in the case in hand.
The compensation awarded under other heads does not require any
interference by this Court.
14. Thus, the total compensation to which the respondents-claimants is to be
held entitled to under various heads is as under:-
S.No. Head Compensation to be awarded
1. Annual Income Rs.15000 x 12 x 14 = Rs.25,20,000/-
2. Deduction (1/4th) towards Rs.6,30,000/- (1/4th of Rs.25,20,000/-)
personal expenses
3. Total income Rs.18,90,000/-
4. Funeral expenses Rs. 5,000/-
5. Loss of estate Rs. 10,000/-
6. Loss of consortium Rs.2,00,000/- (Rs.40,000/- per claimant)
Total Rs. 21,05,000/-
15. The appellant has also argued that the appellant cannot be held liable to
pay compensation to the claimants as the driving license of the driver of
the vehicle was fake one. The Tribunal failed to discharge its duty by not
summoning the concerned witnesses though the list of witnesses was
deposited with the Tribunal for summoning the witnesses.
16. The perusal of the objections filed by the insurance company does not
reveal of any specific defense taken by the Insurance Company to the
effect that the license of the driver was fake one. Only vague stand was
taken that the vehicle was not been driven as per the conditions of the
Policy.
17. The trial court file also reveals that the insurance company while filing
the application dated 29.04.2011 for depositing the expenses of clerk
from District Transport Office, Gurdaspur has submitted that the renewal
of driving license dated 16.05.2006 in favour of the driver-Sonu has been
found genuine but the basic driving license has not been issued in his
name. The photo copy of the driving license dated 16.05.2006 issued in
favour of Sonu, respondent No.6 in the appeal, is on the record of the
Tribunal. The stand taken by the appellants herein before the Tribunal
and the driving license placed on record do prima facie make out that the
insurance company cannot escape its liability to compensate the claimants
of the amount awarded by the Tribunal. The fact remains that at the time
of accident, the driving license of the driver of the vehicle was valid one.
18. In view of the aforesaid discussion, the appeal filed by the appellant is
dismissed. Infact the respondents-claimants are held entitled to
compensation to the tune of Rs.21,05,000/- instead of one awarded by the
Tribunal along with interest @ 7.5% per annum from the date of filing of
the claim petition till the same is realized by the claimants.
19. The appeal is, accordingly, disposed of in aforesaid terms.
(PUNEET GUPTA)
JUDGE
Jammu:
28.02.2024
Pawan Chopra
Whether the Judgment is speaking: Yes/No
Whether the Judgment is reportable: Yes/No
