Jammu & Kashmir High Court

New India Assurance Co. Ltd vs Bianti Devi Wd/O Sh. Kewal Krishan on 28 February, 2024

Author: Puneet Gupta

Bench: Puneet Gupta

                                                                            Sr. No. 02

       HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                       AT JAMMU
                                                       Pronounced on :28.02.2024

Case No : MA No. 295/2012


New India Assurance Co. Ltd.
Through its Manager,
Sh. R.S.Negi, Aged 50 years,
T.P.Legal Claims-HUB,
Divisional Office-II, Aquaf Market,
Gandhi Nagar, Jammu.                                                  .....Appellant(s)..


                        Through :- Mr. Rupinder Singh, Advocate.

                   Vs

1. Bianti Devi Wd/o Sh. Kewal Krishan
   Gaddi, R/o Chakwa, Batote.
2. Ghulam Ali S/o Noor Din,
   R/o Khelani, Doda.
3. Mubarak Hussain S/o Mohammad Iqbal,
   R/o Pul Doda, District Doda.                                      ....Respondent(s)..

                        Through :- Mr. M.P.Gupta, Advocate.


Coram:     HON'BLE MR. JUSTICE PUNEET GUPTA, JUDGE
                                     JUDGMENT

28.02.2024

1. The appeal is filed against the Award dated 12.03.2012 passed by the learned Motor Accident Claims Tribunal (Additional District & Sessions Judge), Doda wherein the Tribunal awarded amount to the tune of Rs.7,42,000/- along with interest @ 7.5% per annum from the date of filing of the claim petition till its realization of the amount and in case the same is not paid within two months the rate of interest shall be 9% per annum till realization of the whole amount.

2. The respondent No.1-claimant has appeared through counsel and contested the appeal.

3. It is fairly submitted by the learned counsel for the appellant as the challenge to the award is mainly on the quantum of compensation awarded by the Tribunal there is no requirement to summon the other respondents.

4. Mr. Rupinder Singh, learned counsel appearing for the appellant-

Insurance Company has submitted that the award is required to be modified as the Tribunal has erred in granting compensation under certain heads. The income assessed by the Tribunal to the tune of Rs.6000/- per month of the deceased-Kewal Krishan who as per the evidence brought on record was a driver should not have been assessed more than Rs.4500/- per month as the salary of the deceased was not proved. Further the dependency factor is not taken correctly and 1/4th deduction by the Tribunal is also not correct. The interest awarded is excessive and that the default interest of 9% is also uncalled for in the award passed by the Tribunal.

5. Mr. M.P.Gupta, learned counsel appearing for the respondent-Claimant, Bianti Devi has argued that the income of the driver has infact been taken on lower side as it should have been at least Rs.9000/- per month keeping in view the Minimum Wages Act. The claimant was also entitled to further enhancement in view of the consortium and also loss of estate etc. Furthermore, future loss of income has to be assessed in terms of Judgment cited as 'National Insurance Company Limited V. Pranay Sethi & Ors.' 2017 ACJ 2700 (SC).

6. The original record of the Tribunal is before the court.

7. The Appeal is preferred mainly on the ground that the compensation has been provided in excess to what the respondent-claimant was entitled to. The just and reasonable compensation is only required to be awarded in favour of the claimant in a case like the present one. The accident which occurred on 05.05.2009 resulted into death of Kewal Krishan, husband of respondent-Bianti Devi. It is also apt to mention herein that the respondent-claimant has three children as per the statement of the witness herself though not impleaded in the claim petition filed by her. The Tribunal has, however, taken note of the same and awarded the compensation keeping in view that they are also dependent upon the deceased-father and has also directed that the amount shall remain deposited to the tune of Rs.1.50 lac each for all the children in the fixed

deposit in the nationalized back till Swami Raj (minor son of the deceased) attains majority and rest of the children to be paid in cash.

8. The victim-Krishan Lal was the driver of Tipper at the time of accident cannot be disputed in view of what has come on record. The Tribunal has taken the income of the deceased as Rs.6000/- per month. The argument of the counsel for the appellant that as the income of the victim was not proved, therefore, the income could not be assessed more than Rs.4500/- per month is without any force.

9. The reliance placed upon the judgment reported in 2007 Legal Eagle (SC) 52 titled 'New India Assurance Company Limited vs. Kalpana & Others' is misplaced as the death of the deceased-driver in that case had occurred in the year 1999 whereas in the case in hand the death has occurred in the year 2009. The income assessed of Rs.6000/- per month cannot be said to be excessive in any manner.

10. In view of the fact that the claimant-Bianti Devi has three children who were minor at the time of accident and, therefore, they are to be held dependent upon the deceased. The Tribunal while taking care of this fact has held that 1/4th of the amount of the income should be deducted towards the personal expenses of the deceased.

11. The Court finds no reason to upset the finding of the Tribunal regarding the deduction made in the case in hand keeping in view more particularly the fact that the deceased had also three minor children at the time of his death.

12. The age of the deceased is stated to be 46 years though the counsel for the appellant submits that there is no proof of the same but at the same time there is no cross-examination to the assertion made by the claimant during her examination before the Tribunal. No reason to doubt the age of the victim as 46 years at the time of death.

13. As per the Pranay Sethi's case (supra), the multiplier of 13 is required to be applied and which is applied by the Tribunal as well.

14. Learned counsel for the respondents-claimants has submitted that no appeal has been preferred by the claimant against the award passed by the

Tribunal yet there is no impediment in awarding more amount in favour of the claimant if the claimant is to be otherwise held entitled to as the just compensation is required to be granted in favour of the claimant. There cannot be any dispute with the proposition of law in view of various judgments of the Hon'ble Apex Court that the claimant can be awarded more amount than the one awarded by the Tribunal in case the claimant is held entitled to though no appeal or cross-objections stood filed by the claimant.

15. The claimant shall also be entitled to 25% towards future prospects keeping in view the age of the victim and also for the reason that the deceased cannot be said to have any fixed income. The claimants are also held entitled to consortium compensation of Rs.40,000/- each in view of the judgment passed by the Apex Court in Magma General Insurance Co. Ltd. v. Nanu Ram, (2018) 18 SCC 130. In addition to the above, the claimants are also entitled to compensation on account of loss of estate and funeral expenses to the tune of Rs. 15,000/- each.

16. Thus, the total compensation to which the claimants, wife and three children of the deceased, are to be held entitled under various heads is as under:-

      S.No.     Head                           Compensation to be awarded
      1.        Annual Income                  Rs.6000 x 12 = Rs.72,000/-

2. Add 25% towards future Rs.18,000/- ( i.e 25% of the income) prospects (Rs.72,000+Rs.18,000) = Rs.90,000/-

3. Deduction (1/4th) towards Rs.90,000-Rs.22,500= Rs.67,500/-

personal expenses

4. Total income Rs.67,500/-

5. Compensation after multiplier Rs.67,500 x 13 = Rs.8,77,500/-

of 13 is applied

6. Funeral expenses Rs.15,000/-

7. Loss of estate Rs.15,000/-

8. Compensation on account of Rs.1,60,000/- (Rs.40,000/- for each person) consortium

Total Rs. 10,67,500/-

17. In the final analysis, the claimant No.1 is held entitled to Rs. 10,67,500/-

as compensation from the appellant-Insurance Company. The claimant shall also be held entitled to interest @ 7.5% per annum as awarded by the Tribunal from the date of filing of the claim petition till realization of the whole amount. The Tribunal awarded 9% interest in case the amount is not paid within two months from the date of passing of the Award is set aside as the same could not be granted by the Tribunal.

18. The appeal filed by the appellant is dismissed. The compensation awarded by the Tribunal shall stand modified to the extent mentioned in the judgment passed by this Court.

(PUNEET GUPTA) JUDGE Jammu: