1 Serial No. 40 Regular HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT SRINAGAR Mac App 5/2022 CM(1790/2022) c/w i)Mac App 4/2022 CM(1788/2022) United India Insurance Company Ltd. …Petitioner(s)/Appellant(s) Through: Mr. N H. Khuru, Advocate. VERSUS Showkat Ahmad Dar and Ors. …Respondent(s) Through: Mr. Sheikh Younis, Adv. CORAM: HON’BLE MR. JUSTICE JAVED IQBAL WANI, JUDGE. JUDGMENT 16-09-2025 Mac App 5/2022; 1. The instant appeal has been filed under Section 173 of the Motor Vehicles Act 1988, by the appellant herein challenging award dated 29-10-2021titled as “Showkat Ahmad Dar vs Abdul Majeed War and Ors”. Facts emerging from the record that the respondent No. 1 herein filed a claim petition before the Tribunal alleging therein that an accident had happened on 01st May, 2016, caused by the said Tractor Trolley bearing registration No. JK02AE-3368 owned by respondent No. 3 herein and driven by respondent No. 2 herein while hitting a 2 Motor Cycle bearing Registration No. JK02AF-3368 plied by the claimant-respondent 1 herein with a pillion rider thereof namely Abid Farooq Bhat, wherein the both persons on the said motor cycle suffered multiple bodily injuries and remained hospitalized for treatment besides having undergone surgeries as well and that an FIR in regard to the said accident being FIR No. 97/2016 also came to be registered for commission of offences under Sections 279 and 338 RPC. 2. The claimant claimed compensation in the said claim petitions and impleaded the driver and owner of the offending tractor as respondents as also the Insurance Company, appellant herein contending that he suffered a permanent disability in the said accident rendering him permanently incapacitated and disabled, as such, sought compensation under various components. 3. In the claim petition, the owner and driver respondents herein did not contest the claim petition however, the Insurance Company, appellant herein contested the same. 4. The Insurance Company/appellant herein while opposing the claim petition pleaded that the same is not admissible without proof besides, contending that the accident was caused by the negligence of the claimant himself and that the quantum of compensation sought is imaginative and exaggerated one and that the offending tractor was being driven in derogation of the 3 policy of Insurance, as such, the Insurance Company is not liable to pay any compensation. 5. The claimant respondent No. 1 herein appeared as own witness besides examining one Bashir Ahmad Dar as his witness as also Dr. Mohammad Saleem Tak, whereas the Insurance Company examined one witness namely Mohammad Hussain Bhat being Branch Manager of the Insurance Company. 6. The Tribunal on the basis of the case setup in the claim petition, reply filed thereto, as also the evidence lead by the contesting parties awarded an amount of Rs. 23,36,967/- as compensation to the claimant under the following heads; S.No. Particulars of Award Quantum of Award 1. Expenses relating to treatment, hospitalization, medicines and loss of earning during treatment. Rs. 1,24,967/-(bills) 2. Loss of earnings Rs. 15,12,000.00 3. 9. Pain and Sufferings Rs. 1,00,000.00 4. Compensation for conveyance and special diet Rs. 1,00,000.00 5. Loss of amenities/loss of prospects of marriage. Rs. 500,000.00 6. Total awarded amount Rs. 23,36,967.00 7. The Insurance Company, appellant herein, has challenged the impugned award on multiple grounds urged in the instant appeal. 4 Heard counsel for the parties and perused the record. 8. According to Mr. N H Khuru, appearing counsel for the appellant herein, the Tribunal although under the head loss of earnings took the monthly income of the claimant as Rs. 7000/- lump sum instead of Rs. 15000/- claimed to have been earned by the claimant-respondent 1 herein, yet, the Tribunal did not make necessary 30% deductions thereof while taking into consideration 70% disablement of the claimant and wrongly awarded the award without the said deductions compensation to the tune of Rs. 15,12,000/- for the loss of earnings instead of 10,80,000/- for having taken the monthly income of the claimant at Rs. 5000/- instead of 7000/-. Mr. Khuru, would also contend that the Tribunal wrongly also awarded an amount of Rs. 05.00 lakhs on a higher side for loss of amenities/loss of prospects of marriage in favour of the claimant without any basis. 9. Perusal of the record would reveal that the Tribunal has not framed any issues in the claim petition on the basis of the pleadings of the contesting parties being the claimant respondent 1 herein, as also the Insurance Company, appellant herein and proceeded to decide the claim petition with the consent of the appearing counsel for the parties on the basis of the material available before it being the claim petition, 5 documents attached thereto, response/objections filed thereof by the Insurance Company, appellant herein, as also the respective evidence lead by the claimant as well as the Insurance Company, appellant herein. 10. Perusal of the record also reveals that indisputably the Tribunal assessed the monthly income of the claimant at Rs. 7000/- as lump sum as against of Rs. 15000/- claimed to have been monthly earning of the claimant after having noticed that the claimant has not produced any certificate or document to substantiate his monthly income of Rs. 15000/- The Tribunal admittedly did not made any deductions in the said monthly income of Rs. 7000/- while assessing the loss of earnings of the claimant, in that, in law such deductions were necessarily to be made owing to the 70% of disability proved before it of the claimant while treating the disability said 100%. To the said extent alone, the Tribunal is seemingly has errored and the rest of the award under the rest of the heads is found to have been validly, rightly and justly assessed and granted by the Tribunal on the basis of the evidence before it, as also the case setup by the claimant besides, the principles of law laid down by Apex Court in case titled as “Sarla Verma others v. DTC and Anr, AIR 2009 Supreme Court”. 6 11. 6 11. Thus, in view of the above, the impugned award is upheld except qua the head component (ii) i.e. “loss of earnings” wherein after deductions of 30%, the quantum of award is determined as Rs. 10,80,000/- instead of Rs. 15,12,000/- 12. Accordingly, the appeal is disposed of with the aforesaid modification in the award quantifying the total awarded amount at Rs. 18,36,967/- 13. Registry is directed to release the said award amount, if any, deposited by the Insurance Company, appellant herein and is lying with the Registry, in favour of the claimant respondent 1 herein along with interest, if any, accrued thereupon after proper verification and identification and the rest of the amount be returned back to the Insurance Company, appellant herein, along with interest, if any. 14. Disposed of along with connected CM(s). 15. Mac App 04/2022 is de-linked and ordered to be listed separately. (JAVED IQBAL WANI) JUDGE SRINAGAR 16-09-2025 Sarvar