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Judgment
The appellant-Insurance Company is in appeal against the award passed by the Motor Accident Claims Tribunal, Srinagar (hereinafter referred
to as ""the Tribunal"") on 31.10.2015 in petition titled Gh. Mohammad Thokar and others v. Tariq Ahmed Zargar and others. The impugned award
has been assailed by the appellant on two grounds:-
i) Learned Tribunal did not appreciate the fact that there was head on collision between the vehicle driven by the deceased and Santro car bearing
registration No.JK01K-8615 (hereinafter referred to as ''the offending vehicle"") and therefore, it was a clear case of contributory negligence by the
deceased also.
ii) The compensation awarded by the Tribunal is unjust and exorbitant.
With a view to appreciate the grounds of challenge aforesaid, few facts need to be noticed. The deceased Imtiyaz Ahmed Thokar son of
respondent No.1 while driving Tata Sumo vehicle bearing registration No.JK01J-3886 from Baltal towards Srinagar met with an accident on
23.06.2008 near Kokernphul Neelgranth. The accident took place due to head on collision, which occurred between the vehicle driven by the
deceased and the offending vehicle bearing Registration No.JK01K-8615 which was coming from opposite side driven by its driven, i.e., Aijaz
Ahmed Zarger, respondent No.7. It is alleged that the accident took place due to rash and negligent driving by respondent No.7. As a result of the
impact of collision, the vehicle driven by the deceased fell down in Nullah Sindh about 250 feet down the road. The deceased and two other
passengers who were travelling in the Tata Sumo received critical injuries and died on spot. The Tata Sumo vehicle too was totally damaged. The
offending vehicle on the fateful day was insured with the appellant-Insurance Company. Accordingly, the next of kin of the deceased-Imtiyaz
Ahmed Thokar, i.e., respondent Nos. 1 to 5 filed a claim petition before the Tribunal. Respondent Nos. 1 and 2 are the parents of the deceased
whereas respondent Nos. 3 to 5 are the siblings of the deceased. It was claimed on behalf of respondent Nos. 1 to 5 that the deceased at the time
of accident and his death was earning an amount of Rs.10,000/- per month and that his age was 29 years, accordingly, respondent Nos. 1 to 5
laid a claim for compensation of Rs.37,00,000/- under various heads, pecuniary and non-pecuniary. Before the Tribunal, the claim petition was
contested by the appellant as well as respondent No.6 (owner of the offending vehicle). Learned Tribunal after appreciating the evidence that had
been produced by the claimants, inter alia, came to the conclusion that the accident in question had occurred due to rash and negligent driving by
respondent No.7 and that there was no negligence contributed by the deceased and accordingly, passed an award for a sum of Rs.20,90,500/-
along with interest @ 6% p.a. from the date of institution of the claim petition till final liquidation. The respondent Nos. 1 to 5, i.e., claimants were
also held entitled to share the award amount in equal proportion. The basis of awarding the amount aforesaid, as indicated in the impugned award,
is that the Tribunal on appreciating the evidence, found the income of the deceased at the time of his death as Rs.9,000/- per month. Since the
deceased at the time of accident/death was a bachelor of 29 years, therefore, the Tribunal deducted 1/4th of his income towards his personal
expenses and worked out the dependency of the claimants on the deceased to the extent of 3/4th. The Tribunal further added 50% to the
established income towards the future prospects. Applying the multiplier of 17, the loss of dependency was worked out to be Rs.20,65,500/-.
Additionally a sum of Rs.25,000/- was granted by the Tribunal on account of burial expenses. Thus, an award to the extent of Rs.20,90,500/- was
passed in favour of the claimants/respondent Nos. 1 to 5.
I have heard learned counsel for the parties and perused the record.
The first contention raised by the learned counsel for the appellant that the accident had taken place due to head on collision between the two
vehicles, therefore, the deceased had also contributed towards the accidents and thus, the Tribunal should have apportioned the liability, cannot be
accepted for the simple reason that there is no evidence adduced by the appellant in this regard. On the other hand, the claimants have produced
number of witnesses who have categorically testified that the accident had taken place due to sheer negligence on the part of the driver of the
offending vehicle. Learned counsel for the appellant, however, placed strong reliance on the statement of the Investigating Officer, PW-Abdul
Rehman who deposed before the Tribunal that as per his investigation both vehicles were involved in the accident, though the offending vehicle was
involved to the major extent. This statement of the Investigating Officer is, however, contradicted by other eye witnesses who have unimpeachably
deposed that the accident had taken place due to the rash and negligent driving of the offending vehicle by its driver, which was coming from the
wrong side and was driven in such a high speed that it knocked the Tata Sumo, i.e. vehicle of the deceased with such an impact that it fell down in
river Sindh about 250 feet deep. Apart from the oral testimonies of the witnesses, the manner in which the accident took place, as is deposed by
all the witnesses consistently, doctrine of ""res ipsa loquitur"", i.e., things speak for themselves would be attracted. This Court, therefore, will have no
hesitation to hold that the accident in question had taken place due to the rash and negligent driving by respondent No.7 and there was no
contributory factor on the part of the deceased who was driving the Tata Sumo. Having held thus, the contention raised by the appellant with
regard to the quantum may be examined.
Admittedly, the age of the deceased at the time of accident was 29 years, therefore, the relevant multiplier to be used was 17. It is this multiplier
which has been used by the Tribunal and is not disputed by the parties before this Court. The Tribunal has taken the income of the deceased who
was working as driver at Rs.9,000/- per month. There could be no exception to this finding of fact recorded by the Tribunal. Now the only
question which is required to be determined is as to what should be the amount which is required to be deducted towards personal expenses of the
deceased, for, the deceased at the time of accident/death was a bachelor of 29 years. The claimants before the Tribunal were parents, one brother
and two unmarried sisters. That being the position, the family of the deceased is large, as besides having dependent parents the deceased had also
left behind a younger brother and two unmarried sisters. What was settled by the Supreme Court in para 32 of Sarla Verma v. Delhi Transport
Corporation; (2009) 6 SCC 121 would be applicable and it is 1/3rd income of the deceased that alone would be deducted towards his personal
expenses and 2/3rd would be the loss of dependency.
In view of the dictum of law laid down in the case of National Insurance Company Ltd. v. Pranay Sethi and others; 2017 ACJ 2700, since the
deceased was a driver, self employed of the age below 40 years, 40% of the established income would be added towards future prospects for
calculating the loss of dependency. Rest of the award, however, does not call for any interference.
In light of the aforesaid, the impugned award is modified to the following extent:-
Deducting 1/3rd towards personal expenses of the deceased from the monthly income of the deceased which has been assessed as Rs.9000/-,
monthly loss of dependency would come to Rs.6,000/- and adding 40% on account of future prospects, the monthly dependency comes to
Rs.8,400/-, thus the annual dependency of the claimants on the income of the deceased would come to (8400 x 12) Rs.1,00,800/-. Applying the
multiplier of 17, the amount payable to the claimants on account of loss of dependency would come to Rs. 17,13,600/-. Therefore, the claimants
are held entitled to the following amount along with the interest as has been awarded by the Tribunal:-
On account of loss of dependency as well as
Rs.17,13,600/-
Loss of future prospects
On account of burial expenses Rs.25,000/-
Total Rs.17,38,600/-
Consequently, the appeal is partially allowed and the impugned award stands modified to the aforesaid extent.