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HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT JAMMU
Reserved on 17.11.2022 Pronounced on: 23.11.2022
MA No. 443/2012 IA No. 922/2012 CM No. 6356/2022 MA No. 54/2013 MA No. 148/2018
United India Insurance Co. Ltd ….Appellant(s)
Through :- Mr. Vishnu Gupta, Advocate.
V/s
Pritma Devi & ors. ….Respondent(s)
Through :- Mr. Piyush Gupta, Advocate in MA No. 443/2012. Mr. Intikhab Hussain Shah, Advocate in MA No. 54/2013. Mr. Asheesh Singh Kotwal, Advocate in MA No. 148/2018
Coram:
HON’BLE MR. JUSTICE SANJAY DHAR, JUDGE
JUDGMENT
Through the medium of the instant judgment, the afore-titled three appeals, which arise out of the same accident but three different awards passed by the Motor Accidents Claims Tribunal, Bhaderwah (for short, ‘Tribunal’), are proposed to be disposed of. 2. MA No. 443/2012 arises out of claim petition filed by the dependents of deceased-Hari Lal, MA No. 54/2013 arises out of the claim petition filed by the dependents of deceased-Rafiq Ahmed Sheikh whereas, MA
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No. 148/2018 arises out of claim petition filed by the dependents of the deceased-Mushtaq Ahmed Mughal. 3. All the afore-mentioned three deceased persons died as a result of motor vehicular accident that took place on 15.01.2010 while the deceased persons were travelling in the offending vehicle bearing registration no. JK06-793 that was on its way from Bhaderwah to Doda. 4. The learned Tribunal vide its impugned award dated 22.05.2012 awarded a compensation in the amount of Rs. 10,65,500/- along with interest @ 7.5% per annum in favour of the dependents of the deceased- Hari Lal, vide impugned award dated 15.05.2022 passed by the learned Tribunal, compensation in the amount of Rs. 21,82,364/- along with interest @ 7.5% per annum has been awarded in favour of the dependents of the deceased-Rafiq Ahmed Sheikh and vide impugned award dated 04.06.2018 passed by the learned Tribunal, a sum of Rs. 11,05,200/- along with interest @ 6% per annum has been awarded as compensation in favour of the dependents of the deceased-Mushtaq Ahmad Mughal. 5. So far as the occurrence is concerned, the appellants in all the three appeals have not disputed the findings of the learned Tribunal in this regard. However, a common ground of challenge has been raised by the appellant-Insurance Company that the vehicle in question was overloaded with passengers at the relevant time and as such, the insurer is not liable to pay compensation to the claimants, though the appellants have admitted that the offending vehicle was covered by policy of insurance at the time of the accident. The second ground that has been
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urged by the appellants is that the compensation awarded in favour of the claimants in each of the three cases is on higher side. 6. I have heard learned counsel for the parties and perused the record of the case including the grounds of appeal. 7. So far as the first ground urged by the appellants-Insurance Company is concerned, a perusal of the record of the learned Tribunal and the impugned awards passed by the learned Tribunal reveal that the appellant-Insurance Company has not led any evidence before the learned Tribunal to prove that the vehicle in question was overloaded at the relevant time nor there is any suggestion to this effect in the cross- examination of the witnesses examined by the claimants before the learned Tribunal. 8. Be that as it may, even if it is assumed that the vehicle in question was loaded with passengers beyond its stipulated capacity, still then in view of the ratio laid down by the Supreme Court in the case of United Indian Insurance Company Limited vs. K.M. Poonam and others, 2011 SCC Online SC 357 in the cases relating to overloading of passengers’ vehicle, the insurance company has to deposit with the Tribunal the total amount of the amounts awarded in favour of the awardees so that the same is utilized to satisfy the claims of those claimants who may not be covered by the insurance company along with the persons so covered. It has been further held that insurance company will be entitled to recover the amounts paid by it in excess of its liability from the owner of the vehicle by putting the decree into execution.
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Thus, even if it is assumed that the vehicle in question was overloaded at the time of the accident still then the appellant-insurance company has to deposit the amounts covered by all the awards that may be passed whereafter it will have a right to recover the amounts of those awards which are in respect of the passengers in excess of the seating capacity. The appellant-Insurance Company cannot be exonerated from its liability to pay compensation to the claimants on this ground. 10. So far as the ground relating to quantum of compensation is concerned, it will be apt to deal with the same separately in respect of each individual appeal.
MA No. 443/2012. 11. This appeal arises out of death of deceased-Hari Lal. Claimants happen to be his widow, two sons and parents. As per the claim petition, the deceased was a pensioner. The learned Tribunal has assessed the income of the deceased as Rs. 12,000/- which, according to the learned Tribunal, comprises Rs. 6,000/- as pension plus Rs. 6,000/- on account of agricultural income. The age of the deceased is shown to be 60 years and an addition of 30 percent on account of future increase in the income has been allowed by the Tribunal. 12. Learned counsel appearing for the appellant-Insurance Company has submitted that the income of the deceased has been taken by the Tribunal on a higher side and even the future increase is on higher side. On this ground, it is urged that the assessment of compensation has not been made properly by the learned Tribunal.
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If we have to look at the evidence led by the claimants, it is to be noted that widow of the deceased, namely, Pritma Devi, has stated that her husband was a pensioner who had retired from Horticulture Department and that he was getting a pension of Rs. 6,000/- per month. She has further stated that the deceased was doing agricultural work and earning Rs. 4,000/- per month. The deceased also used to do cutting of branches of the trees and used to earn Rs. 2,000/- per month. 14. Admittedly, no documentary evidence has been produced on record by the claimants with regard to the income of the deceased. Even the copy of the pension passbook of the deceased has not been placed on record. The claimants have not placed on record anything to show that the deceased owned any agricultural land. In these circumstances, the income of the deceased becomes a matter of speculation. The learned Tribunal by accepting the statement of the petitioner No. 1-Pritma Devi as a gospel truth and taking the income of the deceased as Rs. 12,000/- per month has landed itself into error. In a case where there is no definite evidence as regards the income of the deceased and the same is left to the guess work and speculation of the Tribunal, the factors like age of the deceased and attending circumstances have to be taken into account. Keeping all these factors in view, the income of the deceased is taken as Rs. 10,000/- per month. 15. The age of the deceased as per the postmortem report has been shown as 60 years and even in the claim petition, the same has been shown as 60 years. Therefore, the age of the deceased is taken to be 60 years. For taking care of future prospects of the deceased, as per the ratio laid
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down by the Supreme Court in Pranay Sethi case AIR 2017 SC 5157, an increase of 10% is required to be given to the income of the deceased but the learned Tribunal has increased the same by 30% thereby falling into error. 16. So far as the multiplier applied by the learned Tribunal is concerned, it has been based on Schedule-II to Motor Vehicles Act and accordingly, Multiplier of 8 has been applied whereas, as per the ratio laid down by the Supreme court in Sarla Verma’s case, (2005) 10 SCC 720, the multiplier for the age group 56 to 60 years is 9. Therefore, on this count also, the learned Tribunal has fallen into error. Regarding calculation of dependency also, the learned Tribunal has used the unit method which is not proper method for calculation of dependency. The impugned award passed by the learned Tribunal so far as it relates to assessment of compensation is therefore, required to be modified in the following manner:
(A) Annual income of the deceased :
Rs. 1,20,000/- (B) Future prospects @ 10%
Rs. 12,000/- T o t a l
Rs. 1,32,000/-
The deceased has left behind a widow, two sons and parents. Learned counsel for the appellant-Insurance Company has submitted that both the sons of the deceased are major. It is a fact that both the sons of the deceased were major and there is nothing in the evidence on record to show that they were dependent on the deceased. Thus, only the widow and the parents of the deceased can be taken as dependents of the deceased. Thus, 1/3rd of the income of the deceased is required to be
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deducted towards his personal expenses. Accordingly, the loss of dependency to the petitioners works out to Rs. 88,000 x 9 = 7,92,000/-. Besides this, the claimants are also entitled to funeral expenses of Rs. 15,000/-, loss of estates of Rs. 15,000/- and loss of consortium of Rs. 40,000/-. Thus, total compensation comes to Rs. 8,62,000/-. 18. Accordingly, the claimants are held entitled to compensation of Rs. 8,62,000/- along with interest as awarded by the Tribunal. 75% of the amount shall be payable to the widow and the balance amount shall be shared equally by the other claimants.
MA No. 54/2013 19. This claim petition arises out of death of the deceased-Rafiq Ahmed Sheikh. The amount awarded by the learned Tribunal in this case in favour of the claimants is Rs. 21,82,364/-. 20. The learned counsel appearing for the appellant-Insurance Company has submitted that while assessing the income of the deceased, deduction of income tax has not been taken into account as the income of the deceased was in the taxable range. As per the evidence led by the claimants, the deceased was working as Assistant Registrar in Cooperative Department and he was getting monthly salary of Rs. 24,860/-. The other ground urged by the appellant is that increase on account of future prospects has been given by the learned Tribunal @ 30% whereas the deceased was aged 56 years, as such, addition of only 15% had to be made.
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Both the aforesaid contentions raised by the learned counsel for the appellant appear to be justified. The learned Tribunal has not taken into account the fact that the income of the deceased fell in taxable range and while calculating the future prospects, the age of the deceased has been ignored. 22. Having regard to the rates of income tax that were prevalent at the relevant time and taking into account the exemptions that were available at the relevant time, the income tax that can be deducted from the annual income of the deceased would come to around Rs. 22,600/-. Thus, the annual income of the deceased would be Rs. 24,800x12- 20,000=2,75,000/-. 23. Having regard to the age of the deceased, 15% increase on account of future prospects is to be given which makes the annual income of the deceased as Rs.3,16,250/-. The deceased has left behind six dependents, thus, 1/4th of the income of the deceased is required to be deducted on account of his personal expenses. The loss of dependency thus comes out to Rs.2,37,188 rounded off to Rs.2,37,000/- per annum. The age of the deceased at the time of death was 56 years thus, the multiplier of 9 would be applicable. Thus, the loss of annual dependency would come to Rs. 2,37,000x9=21,33,000/-. 24. Besides this, the claimants are also entitled to compensation under conventional heads like funeral expenses, loss of estate and loss of consortium. When the compensation under these heads is added to amount of loss of dependency calculated above, the amount of
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compensation works out to a figure which is more or less in the same range as has been awarded by the Tribunal. 25. Therefore, there is no ground to interfere in the amount of compensation awarded by the Tribunal. The appeal, as such, is dismissed.
MA No. 148/2018 26. This appeal arises out of claim petition filed by the dependents of the deceased-Mushtaq Ahmed Mughal. The only ground urged by the appellant-Insurance Company in this case is that the deceased was a conductor and the learned Tribunal has taken his income as Rs. 6,000/- which is on higher side. 27. The contention of the learned counsel appearing the appellant- insurance company that the assessment of the income of the deceased appears to be on a higher side keeping in view the fact that the accident has taken place way back in the year 2010 when the wages of a conductor were only around Rs. 150 seems to be just. Thus, the income of the deceased is required to be taken as Rs. 4500/- per month and Rs. 54,000/- annually. 28. The deceased was aged 26 years, as such adding future prospects @ 40%, the annual income of the deceased works out to Rs. 75,600/-. The deceased has left behind five dependents, thus, 1/4th of the income of the deceased is required to be deducted on account of his personal expenses., which would come to Rs. 56,700/-. Having regard to the age
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of the deceased, the applicable multiplier will be 16. The loss of dependency would therefore, work out to Rs. 56,700x16=9,07,200/-. 29. Besides this, the claimants are also entitled to funeral expenses of Rs. 15,000/-, loss of estates of Rs. 15,000/-, loss of consortium to widow Rs. 40,000/- and loss of consortium to minor children Rs. 40,000/-. Thus, total compensation comes to Rs. 10,17,200/-. Accordingly, the claimants are entitled to compensation of Rs. 10,17,200/- along with interest as awarded by the Tribunal. 30. The appeals stand disposed of in above terms along with connected applications.
(SANJAY DHAR) JUDGE JAMMU 23/11/2022 NARESH/PS
Whether order is speaking: Yes/No Whether order is reportable: Yes/No