Bajaj Allianz Gen. Insurance vs Mst. Sara

Hasnain Massodi, J.—The Civil Ist Miscellaneous Appeal on hand is directed against the award dated 31st August, 2009 passed by Motor

Accident Claims Tribunal, Srinagar in claim petition titled ""Mst. Sara and Ors. v. Mohd. Rafiq and Ors."", whereby the Tribunal has awarded an

amount of Rs. 11,73,000/- (Rupees Eleven Lacs and Seventy Three Thousands) to the respondents as compensation on account of death of Shri

Abdul Hamid - husband of respondent/claimant No. 1, father of respondents/claimants 2 to 5 and son of respondent/claimant No. 6 in the

vehicular accident on 22nd June, 2007. The appellant-Insurance Company questions the award on following two grounds :--

(i) That the Tribunal failed to take into account contributory negligence on part of the deceased while assessing the compensation, as the deceased

at the time of accident was driving scooter rashly and negligently and contributed to the accident.

(ii) That the amount assessed by the Tribunal as compensation was exorbitant, excessive and unjust, inasmuch as the Tribunal without evidence,

took into account monthly income of the deceased as Rs. 8,000/- per month and without any reason granted an amount of Rs. 50,000/- on

account of loss of estate and Rs. 20,000/- on account of loss of love and affection.

I have gone through the memorandum of appeal, the award impugned as also the record received from the Tribunal. I have heard Learned Counsel

for the parties.

The appellant-Insurance Company though given adequate opportunities by the Tribunal failed to adduce any evidence to substantiate its case set

up against the claim petition or to rebut the evidence adduced by the respondents/claimants. There was, thus, no material before the Tribunal to

opine that the deceased at the time of accident was driving the vehicle rashly and negligently and, in any manner, contributed to the accident or

guilty of contributory negligence.

In the circumstances, while the appellant-Insurance Company pleaded that the deceased contributed to the vehicular accident, it by not

adducing any evidence to substantiate its case has not travelled distance between pleading and proof. There is, thus, no merit in the ground urged in

the appeal as regards contributory negligence on part of the deceased and failure of the Tribunal to take into account such contributory negligence

while assessing the compensation. Furthermore, the case FIR No. 89/07 under Sections 427, 279, 304A, R.P.C. and the fact that the investigation

culminated the charge-sheet against the driver of the offending vehicle, point to the rash and negligent driving on part of the driver of the offending

vehicle and not the deceased.

The Tribunal as against Rs. 20,000/-, 30,000/- per month stated to have been income of the deceased by the witnesses who stepped into the

witness box, has made a conservation estimate of income of the deceased as Rs. 8,000/- per month. The deceased as per the evidence brought on

file was 35 years of age on the date of accident. He was a clothes merchant and was running a lucrative business that sustained him and his family

comprising of his wife, four minor children and his mother. The monthly income of the deceased taken into account by the Tribunal, thus, cannot be

taken to be exaggerated, unreal or on higher side. However, the Tribunal applied the multiplier of 17 as against the multiplier of 16 that ought to

have been applied having regard to the age of the deceased at the time of his death. The Tribunal again fell into an error while deducting 1/3rd of

the income on account of personal expenses of the deceased. The deceased as already pointed out was having six dependents and would ill

afforded to spend 1/3rd of his income on his personal expenses. The Tribunal ought to have deducted 1/4th of the income on account of personal

expenses against 1/3rd deducted by it. The award of Rs. 20,000/- on account of loss of love and affection is unwarranted, inasmuch as such loss is

internalized in the loss of dependency. The amount awarded on account of loss of estate is also on higher side and ought to have been Rs.

20,000/- as against Rs. 50,000/-awarded by the Tribunal.

So viewed, while the amount of Rs. 20,000/- awarded on account of loss of love and affection deserves to be deleted. The amount of Rs.

50,000/- awarded on account of loss of estate deserves to be slashed down to Rs. 20,000/-.

In the said background, ""just compensation"" payable to the respondents-claimants works out to be as under;

Loss of dependency 6,000 x 12x16 = Rs. 11,52,000/-

Loss of consortium =Rs. 10,000/-

Loss of estate =Rs. 20,000/-

Funeral Expenses Rs. 5.000/-

Total =Rs. 11.87.000/-

It needs to be pointed out that the appellant is permitted to question the quantum on the ground other than contemplated by Section 149(2),

Motor Vehicles Act, notwithstanding such permission having been declined by the Tribunal. It is now well settled that where the claimant arrays

Insurance Company as a party respondent, the Insurance Company is competent to raise all the grounds irrespective of restrictions laid down in

149(2), Motor Vehicles Act. However, where the Insurance Company is not so arrayed but appears pursuant to notice issued in terms of Section

149 of the Act, it is permitted to raise and plead in absence of permission u/s 170 of the Act, grounds set out in 149(2) of the Act.

For the reasons discussed above, the award impugned is modified as under;

The appellant-Insurance Company shall pay an amount of Rs. 11,87,000/- to the respondents/claimants in lieu of all the claims under the award

with the rate of interest and all other conditions subject to which award was made left unaltered.

The appeal is disposed of accordingly along with connected CMP(s).