1 S. No. 78 Regular Cause List IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT SRINAGAR CMAM 76/2014 NATIONAL INSURANCE COMPANY LIMITED LEH. …Appellant(s) Through: Mr. Aatir Kawoosa, Advocate. Vs. TSEWANG MURUP AND ANOTHER. ...Respondent(s) Through: None. CORAM: HON’BLE MR JUSTICE JAVED IQBAL WANI, JUDGE O R D E R 28.08.2025 1. The appellant herein has maintained the instant appeal under Section 173 of the Motor Vehicles Act, 1980, against award dated 22.11.2013 passed by MACT, Leh in claim petition titled as “Tsewang Murup and Another v. National Insurance Company Limited Leh.” 2. Facts emerging from the record would reveal that the respondent 1 herein filed a claim petition under Section 166 of the Act of 1980, before the Tribunal on 28.12.2011, claiming therein compensation on the ground that while travelling in a load carrier bearing Registration No. JK10-7843 on 06.09.2011, met with an accident and suffered serious injuries, owing to the rash and negligent driving of its driver being respondent 2 herein and in the said claim petition, besides the driver of the offending vehicle, the National Insurance Company, appellant herein as well came to be impleaded as a party respondent in view of the said vehicle being insured with it. 3. The Tribunal after entertaining the claim petition summoned the respondents therein including the appellant herein whereafter objections came to be filed to the claim petition by the appellant herein stating therein in the said objections that the offending vehicle was being driven by the driver without being possessed of a valid and 2 effective driving license at the time of accident and that there has been violation of the terms and conditions of the policy of the Insurance, while stating further that the claimant/respondent 1 herein was travelling as an unauthorised passenger in the offending vehicle and as such risk to his life was not covered by the terms of the Insurance Policy and also that the claimant/respondent 1 herein have had sought excessive amount of compensation without any basis, while admitting that the accident in question had happened during the currency of the Insurance Policy pertaining to the offending vehicle. Respondent 2 in the claim petition and respondent 2 herein as well in his objections to the claim petition denied the happening of the accident in question. 4. The Tribunal on the basis of the pleadings in the parties framed following four issues: 1. Whether claimant sustained permanent disability due to rash and negligent act of respondent No. 1 dated 06.09.2011 by Vehicle No. JK10-7843? …..OPP. 2. Whether petitioner has been rendered quadriplegic with amputation of upper limbs above elbow? …..OPP. 3. To what compensation claimant is entitled to? ….OPP. 4. Whether claimant was travelling in offending vehicle No. JK10-7843 as gratuitous passenger? …..OPD. 5. The claimant-respondent herein before the Tribunal led evidence in order to prove issues 1,2 and 3 whereas the Insurance Company appellant herein as well examined one witness namely Kaushal Chand to prove issue 4, whereafter the Tribunal in terms of the impugned award granted Rs.16,50,000/- (including interim compensation) in view of the claimant/respondent 1 herein to be payable by the Insurance Company appellant herein along with an interest @ 7.5% per annum (except the components at serial 1, 5, 7, 9 and 10) from the date of filing of the claim petition till its actual payment while providing further that the 50% of the awarded amount shall remain in a fixed depositin the name of the petitioner for a period of five years. 6. The Insurance Company appellant herein has challenged the impugned award on multiple grounds urged in the memo of appeal. Heard counsel for the appellant and perused the record. 3 7. Notwithstanding multiple grounds of challenge urged in the memo of appeal, the counsel for the appellant would however confine the challenge qua the wrong determination of the Issues 2, 3 and 4 by the Tribunal. 8. Having regard to the facts of the case, it is deemed appropriate in the first instance to advert to the challenge urged by the counsel for the appellant to the impugned award qua Issue 4. 9. Perusal of the record available on the file reveals that the claimant respondent 1 herein have had specifically pleaded in the claim petition as also deposed while appearing as his own witness that he was travelling in the offending vehicle as an owner of the firewood loaded in the offending vehicle which firewood he have had loaded from Saspol Leh and the said statement of the claimant respondent herein have had been corroborated by the statement of his wife before the Tribunal while appearing as a witness and in rebuttal thereto the said statements, the Insurance Company appellant herein have had examined only one witness namely Khushal Chand being its Branch Manager who in his statement have had deposed that the claimant/respondent 1 herein was travelling as an unauthorised passenger in the offending vehicle at the time of the accident and as such risk to his life was not covered under the terms of the Insurance Policy. 10. 10. The Tribunal in presence of the aforesaid evidence of the complainant respondent 1 herein as also that of the Insurance Company appellant herein seemingly has rightly held that the Insurance Company- appellant herein failed to discharge the onus qua the issue in question, in that the witness of the Insurance Company appellant herein namely Khushal Chand was not an eye witness of the accident and that even during cross-examination the Insurance Company failed to have the statements of the claimant respondent 1 and his witness discredited the Tribunal, thus, rightly concluded that the claimant respondent 1 was not travelling as an unauthorised passenger in the offending vehicle, but as an owner of the goods loaded therein the offending vehicle and in terms of Section 147(1) of the Act of 1980, the life of owner of 4 goods travelling in a load carrier along with goods is compulsorily covered under an Insurance Policy pertaining to such vehicle. 11. Insofar as the aforesaid next contention of the counsel for the appellant herein qua the determination of aforesaid issues 2 and 3 are concerned, record tends to show that the Tribunal have had taken into consideration the fact that the claimant respondent 1 herein was a government employee drawing a monthly salary of Rs.11107/- however having not proved the same yet had deposed while appearing as his witness to have been drawing a salary of Rs. 8,000/- per month at the time of accident while working as an Attendant in Animal Husbandry Department of the J&K Government and that on account of the disability suffered by him in the accident though has not been discharged from the service or else reverted to a lower post inasmuch as having not suffered any loss of salary/perks, yet has not rightly lost sight of the fact that the claimant respondent 1 herein after his retirement from service was expected to take up a private job or else to attend to his household work but for the 80% permanent disability suffered by him and proved before the Tribunal upon examination of one Doctor Anwar Hussain, rightly held that the claimant respondent 1 herein would loose earning capacity after his retirement while taking the monthly wages of an unskilled worker at the rate of Rs.5,000/- per month and rightly calculated the annual loss of the income of the claimant respondent 1 herein after his retirement to Rs.60,000/- and having regard to the principles of law laid down by the Apex Court in Sarla Varma’s case qua the application of multiplier inasmuch as the superannuation age of a government employee as also the fact of amputation of the left upper limb of the claimant respondent 1 coupled with the fracture and dislocation of C4 and C5 of cervical spine as well as the expenses incurred by the claimant respondent 1 herein for the said injuries while receiving treatments at Delhi in the hospital and the Tribunal has rightly assessed and worked out the compensation payable to the claimant respondent 1 herein in the award under the aegis of loss of future income, for loss of amenities of life, medical expenses, future medical expenses, transport/attendant charge, future attendant charges, special diet charges, future diet charges 5 and cost of wheel chairs/anti-bedsore mattresses, collectively amounting to Rs.16,50,000/-. Besides it also gets revealed from the closer examination of the impugned award that the Tribunal has rightly awarded the interest upon the amount of compensation in favour of the claimant respondent 1 herein at the rate of 7.5% per annum except for the components reflected in the award at Serial Nos. (1), (5), (7), (9) and (10) from the date of the filing of the claim petition till its realization and has also rightly directed keeping of the 50% of the award amount in a fixed deposit in the name of the petitioner for a period of five years. 12. In view of above, thus, it cannot by any stretch of imagination, be said, that the Tribunal while passing the impugned award either faulted or committed any irregularity or illegality. Therefore, the challenge thrown to the impugned award by the appellant herein fails, as a consequence whereof the impugned appeal is dismissed. 13. Dismissed along with all connected applications. (JAVED IQBAL WANI) JUDGE SRINAGAR 28.08.2025 Sabreena Rahim Whether the judgement / order is speaking: Yes/No Whether the judgement / order is approved for report: Yes/No.