United India Insurance Company Limited vs Bilala Saleem And Ors

Impugned in this Appeal is Award dated 16th July 2019, passed by Motor Accident Claims Tribunal, Srinagar (for short “Tribunalâ€) on a Claim

Petition bearing File no.166/2016/ titled Mst. Bilala Saleem and others v. Nazar-ul-Islam Misger and another, directing appellant Insurance Company

to pay compensation in the amount of Rs.15,50,000/- along with 7.5% interest per annum from the date of institution of claim till final realization, on the

grounds made mention of therein.

A claim petition, as is discernible from the record, was filed by respondents 1 to 3 before the Tribunal, averring therein that deceased, Mohammad

Saleem Dar S/o Abdul Ahad Dar R/o Suthra Shahi, Srinagar, aged 45 years, died in an accident, which took place on 17th August, 2016 at General

Road Batamaloo, Srinagar, due to rash and negligent driving of driver of offending vehicle, bearing Registration no.JK01X/1660, which was insured

with appellant Insurance Company. Respondents 1 to 3 sought compensation in the amount of Rs.2.03 crores.

Appellant Insurance Company â€"resisted the claim before the Tribunal. It was contention of appellant before the Tribunal since no opinion of

doctor had been obtained by police in the case on the report merg, hence claim did not disclose authentic cause of death inasmuch as claimants

manipulated pleading in claim petition. Another contention of appellant before the Tribunal was that driver of offending vehicle was not holding valid

and effective driving licence at the time of accident.

Respondent no.4 herein also filed written statement in opposition to claim petition before the Tribunal.

The Tribunal, in view of pleadings of parties, framed Issues for determination, which are:

Whether on 17.08.2016 at Batamaloo Srinagar, the deceased was hit by the vehicle bearing Registration No. JK01X/1660 which was being driven

by respondent no. 1 rashly and negligently with the result deceased got injured and succumbed to his injuries? OPP

Whether Respondent No.1 was not holding a valid and effective Driving licence at the time of accident, if so, what will be its effect on the claim

petition OPR2

Whether in case the Issue No.1 & 2 are decided in affirmative, to what extent and from whom the petitioners/claimants are entitled to receive

compensation? OPP

Claimants produced and examined three witnesses before the Tribunal; besides respondent no.1. Appellant Insurance Company examined three

witnesses. In addition to this, respondent-owner-cum-driver was also examined. Claimants also produced documentary proof in support of their claim.

By impugned Award, the Tribunal found claimants/ respondents entitled to receive compensation of Rs.15.50 Lakhs along with 7.5% interest per

annum.

Heard and considered.

Learned counsel for appellant Insurance Company has stated that the Tribunal while deciding the liability has committed an error in fastening the

same on appellant as claimants have failed to prove rash and negligent driving of respondent no.4 which was mandatory for maintaining a claim under

Section 166 of the Motor Vehicles Act and, thus, impugned award requires to be set aside.

Taking into consideration submission made by learned counsel for parties, it would be appropriate to say that what is discernible from perusal of file is

that the Tribunal, while deciding Issue no.1 qua death of deceased due to rash and negligent driving, has elaborately discussed the statement of

witnesses adduced by complainants and has also gone through the documentary evidence available before it, and it was only after discussing those

facets of the matter that the Tribunal has decided Issue no.1 in favour of claimants/respondents.

It is necessary to be borne in mind that in motor accident claims petitions, the claimants are merely to establish their case on the touchstone of

preponderance of probability. The standard of proof beyond reasonable doubt could not have been applied. The standard of proof in motor accident

claims’ matters is one of preponderance of probabilities, rather than beyond reasonable doubt. One needs to be mindful that the approach and role

of Courts while examining evidence in accident claim cases ought not to be to find fault with non-examination of some best eyewitnesses, as may

happen in a criminal trial; but, instead should be only to analyze the material placed on record by the parties to ascertain whether claimant’s

version is more likely than not true.

Another contention of learned counsel for appellant is that that the tribunal while mulcting liability on appellant Insurance company has failed to

consider fakeness of driving licence produced by respondent no.4. The Tribunal is said to have failed to appreciate evidence brought on record by

appellant Insurance Company by which it was established that driver played fraud with the Tribunal as well as with police authorities by managing two

licences at a time.

This submission of learned counsel for appellant has no substance as the record of the Tribunal as also impugned Award portray contrarily.

The Tribunal as regards validity of driving licence of driver of offending vehicle, framed Issue no.2, which was to be proved by appellant Insurance

Company. In this regard it was the case of appellant before the Tribunal that it deputed an Investigator to investigate the claim petition and driving

licence of driver was got verified from RTO Srinagar and that as per record of licencing authority â€" RTO, Srinagar, the driving licence was issued in

the name of Mohammad Altaf Haji Molvi S/o Mohammad Akbar Haji R/o Chanapora, Housing Colony and not in favour of driver of offending vehicle

(respondent no.4 herein). It was also claimed by appellant Insurance Company before the Tribunal while adducing witness, namely,Sham Lal Anand,

that driver of offending vehicle was not holding valid and effective driving licence at the time of accident. When the witness was cross-examined, he

stated that it was job of investigator to collect documents and driving licence of driver and same was required to be got verified. The Tribunal found

that report submitted by investigator nowhere revealed that investigator had gone to the house of owner of vehicle or collected the documents from

owner and that it was also not known to witness of appellant Insurance Company that whether driver was having licence issued from ARTO, Budgam

and it was also not known to him whether licence was shown to owner of vehicle or not.

Perusal of impugned Award also reveals that driver of offending vehicle (respondent no.4 herein) contested claim petition. He filed written statement.

He adduced witness, namely, Imtiyaz Ahmad Malik, employee of ARTO, Budgam. The witness produced the record concerning driving licence of

respondent no.4, bearing D/L no.30684. Verification report as to driving licence was also produced by him. Thus, from testimony of respondent no.4

and his witness as well as documents produced before the Tribunal, it was proved that respondent no.4 was holding a valid and effective driving

licence.

Next contention of learned counsel for appellant is that the Tribunal has failed to take into account actual monthly income when the claimants

could not prove the same while leading evidence in support of same issue. The tribunal has applied guess work as such award is based on hypothetical

income. The quantum assessed by the tribunal to the extent of taking monthly income of the deceased as Rs.10,000/- without any proof of income to

be furnished on the part of the claimants before the trial court and age of the deceased at the time of accident and future prospects, are not in

consonance with law and does not fall within the parameters of just compensation. It is maintained that established income means the income minus

tax component as held in National Insurance Company v. Pranay Sethi and others, (2017) 16 SCC 680, and therefore, impugned award is exorbitant

and not commensurate with the entitlement of claimants, and appropriate reduction needs to be made in the quantum assessed by the tribunal, as such.

It is also averred by learned counsel for appellant that the Tribunal has committed error while applying multiplier as prescribed under landmark

judgment of the Supreme Court in Sarla Verma v. Delhi Transport Corporation, (2009) 6 SCALE 129. The age of the deceased was more than 45

years at the time of the accident as per the Date of Birth Certificate produced by the claimants, thus the appropriate multiplier of ‘13’ was to be

applied instead of ‘14’and the impugned award requires to be modified. He also contends tribunal has also committed error in computing the

‘future prospects of 25 percent’ as the claimants had failed to establish income of the deceased and the tribunal had taken monthly income on

guess work, and, thus, the award requires to be modified/slashed down on this count. According to him, granting of penal interest by the tribunal

@7.5% per annum is not in accordance with the law as there is no delay on the part of the Appellant in prosecuting the claim. The practice of

awarding panel rate of interest has already been depreciated by Apex Court. Thus, the impugned award being illegal, improper and not in consonance

with law.

As regards above submissions, the Tribunal, while deciding Issue no.3, has made threadbare discussion. Deceased, as is evident from the file and

impugned Award, was having a shop, being run under the name and style of M/s Dar Engineer Works, in which spare parts manufacturing etc. was

being carried and it was on the basis of said averment that claimants/respondents maintained that deceased was earning Rs.1.00 lakh per month. The

witnesses produced by claimants, however, deposed that deceased was earning more than Rs.50,000/- per month but they could not produce any

documentary evidence to that extent. It is only after discourse of all the evidence available before the Tribunal that it computed, and rightly so,

Rs.10,000/- as monthly income of deceased. While doing so, the Tribunal has rightly placed reliance on the judgement rendered by the Supreme Court

in U.P. State Road Transport Corporation v. Shanti Devi, 2009 ACJ 1119. The Tribunal has also correctly applied the multiplier and multiplicand.

Compensation on other accounts has been given by Tribunal appropriately.

It may not be out of place to mention here that the Supreme Court in the case of Sarla Verma (supra) has laid down the principles governing

determination of quantum of compensation in the case of death in a motor accident. The Supreme Court held that compensation awarded does not

become ‘just compensation’ merely because the Tribunal considers it to be just. Just compensation is adequate compensation, which is fair and

equitable, on the facts and circumstances of the case, to make good the loss suffered as a result of the wrong, as far as money can do so, by applying

the well settled principles relating to award of compensation. It is not intended to be a bonanza, largesse or source of profit. To have uniformity and

consistency, Tribunals should determine compensation in cases of death, by following well settled steps, namely, ascertaining multiplicand (annual

contribution to the family), multiplier and calculation of loss of dependency by multiplying the multiplicand by such multiplier.

In Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company, (2011) 13 SCC 236, the Supreme Court held that claimant, who

was working as a coolie, cannot be expected to produce any documentary evidence to substantiate his claim. In absence of any other evidence

contrary to claim made by claimant, in the facts of the said case, the Tribunal should have accepted the claim of claimant. The Supreme Court has

made it clear that in all cases and in all circumstances, the Tribunal need not to accept claim of claimant, in the absence of supporting material. It

depends on the facts of each case. In a given case, if the claim made is so exorbitant or if the claim made is contrary to ground realities, the Tribunal

may not accept the claim and may proceed to determine the possible income by resorting to some guess work, which may include the ground realities

prevailing at the relevant point of time.

Again, the Supreme Court in Syed Sadiq v. Divisional Manager, United India Insurance Co. Ltd., (2014) 2 SCC 735, while taking note of earlier

decision in Ramachandrappa’s case (supra), held that a labourer in an unorganized sector doing his own business could not be expected to

produce documents to prove his monthly income. Therefore, there was no reason for Tribunal and the High Court to ask for evidence to prove his

monthly income. Going by the state of economy, prevailing at that time and rising prices in agricultural products, the Supreme Court accepted his case

that a vegetable vendor was reasonably capable of earning 6,500/- per month.

A Constitution Bench of the Supreme Court in Pranay Sethi (supra) has held that Section 168 of Motor Vehicles Act, 1988, deals with concept of

‘just compensation’ and same has to be determined on foundation of fairness, reasonableness and equitability on acceptable legal standard

because such determination can never be in arithmetical exactitude. It can never be perfect. The aim is to achieve an acceptable degree of proximity

to arithmetical precision on the basis of materials brought on record in an individual case. The conception of ‘just compensation’ has to be

viewed through the prism of fairness, reasonableness and non-violation of the principle of equitability. In a case of death, the legal heirs of the

claimants cannot expect a windfall. Simultaneously, the compensation granted cannot be an apology for compensation. It cannot be a pittance. Though

the discretion vested in the Tribunal is quite wide, yet it is obligatory on the part of the Tribunal to be guided by the expression, i.e., just compensation.

While analysing the case in hand on the touchstone of law laid down by the Supreme Court, as discussed herein above, impugned Award does not

warrant for any interference and as a corollary thereof Appeal on hand is liable to be dismissed.

For the foregoing reasons, Appeal is dismissed. Interim direction, if any, shall stand vacated.

Copy of this judgement be sent down along with record of the Tribunal.