Vinod Chatterji Koul JUDGMENT
Vinod Chatterji Koul, J.
1. Impugned in this Appeal is Award dated 14th July 2017, passed by Motor Accident Claims Tribunal, Kulgam (for short "Tribunal") on a Claim Petition bearing File no. 01/CP titled Mst Gulshana and others v. Mohammad Iqbal Sohil and others, directing appellant Insurance Company to pay compensation in the amount of Rs. 6,83,000/- along with 6% interest per annum from the date of institution of claim till realization, on the grounds made mention of therein.
2. A claim petition was filed by respondents 1 to 9 before the Tribunal on 11th April 2012, averring therein that deceased, Mukhtar Ahmad Wagay, aged 23 years, died in an accident, which took place on 10th April 2011 at Sopat National Highway, due to rash and negligent driving of driver of offending vehicle, bearing Registration no. JK02AM-7747, which was insured with appellant Insurance Company. Respondents 1 to 9 sought compensation to the tune of Rs. 25.00 Lacs. Respondents 10&11 did not cause their appearance before the Tribunal an were set ex parte on 28th July 2012.
3. Appellant Insurance Company resisted the claim before the Tribunal on the ground that deceased was himself driver as well as owner of offending vehicle involved in accident and vehicle did not have fitness certificate at the time of accident inasmuch as insurance policy specifically excluded such types of liability; besides driver of offending vehicle was not having valid licence. It was also stated by appellant Insurance Company before the Tribunal that there was no conclusive proof of death of deceased in alleged accident by alleged act of driver of offending vehicle and that it was not safe to rely on FIR of concerned policy agency.
4. The Tribunal, in view of pleadings of parties, framed Issues for determination, which are:
1. Whether on 10.04.2011 deceased Mukhtar Ahmad Wagay S/o Gulam Hassan Wagay died in an accident due to rash and negligent driving by the Respondent No. 1 of the vehicle bearing Registration No. JK02AM-7747, which is owned by respondent No. 2? OPP
2. In case Issue No. 1 is proved in affirmative whether the claimants are entitled to compensation and if so to what extent and from whom? OPC
3. Whether Respondent No. 1 was not holding valid and effective Driving licence at the time of accident as alleged by the respondent No. 3? OPR3
4. Relief. OP Parties
5. Claimants produced and examined two witnesses before the Tribunal; besides respondent no. 2. It is evident from impugned Award that appellant Insurance Company was seeking time for reconciliation and did not produce any witness for a long time and ultimately failed to reconcile the matter with claimants. The right to adduce evidence by appellant Insurance Company was, therefore, closed on 31st May 2017. By impugned Award, the Tribunal found claimants/respondents entitled to receive compensation of Rs. 6.83 Lacs along with 6% interest per annum.
6. Heard and considered.
7. Learned counsel for appellant Insurance Company has stated that the Tribunal erred in passing impugned Award against appellant as driver of offending vehicle was not having valid and effective driving licence on the date of occurrence and route permit of vehicle was not valid. It is also contended that Tribunal was not giving appellant Insurance company a fair, reasonable opportunity to project its defence. According to learned counsel even if claim petition was to be entertained by Tribunal, the income taken as Rs. 6000/- with 50% addition of future prospectus was not in consonance of law. The Tribunal is stated to have wrongly make deduction of 1/3rd as deceased was a bachelor.
8. Taking into consideration submissions 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 1 to 9.
9. While deciding Issue no. 2, the Tribunal has made threadbare discussion. Deceased, as is evident from the file and impugned Award, was a skilled labour and was also studying side by side. He was hit by offending vehicle while he was unloading fertilizer bags from the vehicle. As regards computation of income, it may be mentioned here that income has been rightly computed by the Tribunal as Rs. 6000/- per month.
10. There is a contention of learned counsel for appellant that respondents 3 to 9 are not dependents on deceased and one-half deduction in income of deceased was to be made by Tribunal. This contention of learned counsel for appellant Insurance Company is specious. The Tribunal has, while deciding Issue no. 2, relied upon the law laid down by the Supreme Court in the case of Sarla Verma v. Delhi Transport Corporation, MANU/SC/0606/2009 : (2009) 6 SCC 121, in which it was held that in case where deceased has a large number of younger non-earning sisters or brothers, his personal and living expenses can be restricted to one-third and contribution to the family will be taken as two-third. Having said that, addition of 50% future prospects awarded by the Tribunal in terms of impugned Award, need not to be interfered with.
11. The Tribunal has also rightly applied the multiplier and multiplicand. Compensation on other accounts has been given by Tribunal rightly, rather conservatively. As regards driver was not having proper driving licence, appellant Insurance company failed to adduce any witness in support of this contention.
12. 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.
13. In Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company, MANU/SC/0926/2011 : (2011) 13 SCC 236, the Supreme Court reckoned monthly income of a coolie (manual labourer), who met with a road accident in the year 2004, at the age of 35 years, notionally as Rs. 4,500/-. 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.
14. Again, the Supreme Court in Syed Sadiq v. Divisional Manager, United India Insurance Co. Ltd., MANU/SC/0033/2014 : (2014) 2 SCC 735, while taking note of earlier decision in Ramachandrappa's case (supra), reckoned monthly income of a vegetable vendor, who met with a road accident in the year 2008, at the age of 24 years, notionally as Rs. 6,500/-. In the said decision, the Supreme Court 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.
15. A Constitution Bench of the Supreme Court in National Insurance Company Ltd. v. Pranay Sethi, MANU/SC/1366/2017 : (2017) 16 SCC 680, 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.
16. 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.
17. For the foregoing reasons, Appeal is dismissed. Interim direction, if any, shall stand vacated.
18. Copy of this judgment be sent down.
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