1. These are two appeals. In one, viz. CMAM no.223/2013, enhancement of award from Rs.2.00 Lacs to Rs.4,93,339/- is sought. And in another setting aside of the Award dated 31st January 2013 passed by Motor Accident Claims Tribunal, Srinagar, in a claim petition bearing File no.58/2008, titled as Nazir Ahmad Wani and others v. Bashir Ahmad Wani and another.

2. I have heard learned counsel for parties. I have gone through the record. I have also gone through impugned Award and considered the matter.

3. A claim petition was filed by Nazir Ahmad Wani and others (appellants in CMAM 223/2013) on 7th April 2008 before the Tribunal. They averred therein that on 10th March 2008, one Mudasir Ahmed Mir (son of appellant no.1 and brothers of appellants 2&3) met with an accident while plying motorcycle bearing Registration no.JK01J-4338 at Vingipora and later succumbed to injuries. The claimants sought compensation of Rs.26,50,000/-. Written statements were submitted by owner of vehicle as also by Insurance Company. Taking into account rival contentions of parties, the Tribunal framed and settled as many as four issues, which are:

"(i) Whether on 10.03.2008, the deceased was driving the offending vehicle and on reaching Vingi pora near Shilvat in order to save children, who suddenly started crossing the road, the offending vehicle overturned and the deceased received fatal injuries to which he succumbed on the same date OPP

(ii) In case issue no.1 is proved in affirmative to what amount of compensation, the petitioner is entitled and from whom OPP

(iii) Whether the respondent Co. is not liable to indemnify the owner for breach of policy condition committed by the owner, who was not authorized to let the offending vehicle to be driven by any other person OPR-2

(iv) Relief."

4. Parties were directed to adduce witnesses. An application under Section 170 of Motor Vehicles Act preferred by appellant-Insurance Company, was vide order dated 2nd February 2011 dismissed for non-prosecution and Insurance Company proceeded ex parte. Thereafter, application for setting-aside ex parte proceedings was moved, to which objections were not filed and consequently ex parte proceedings were set-aside. The evidence of appellant-Insurance Company was closed by the Tribunal vide Order dated 8th February 2012 as no witness was produced by it.

5. While deciding Issue no.3, the Tribunal observed and said that the claim petition had been moved by claimants under Section 163-A of the Act, where no negligence was to be proved and compensation was to be assessed on structured formula on no fault basis. It was also observed by the Tribunal that when a party who pleads a certain fact, it has to prove the same as well but appellant-Insurance Company did not lead any evidence. Accordingly, the Tribunal decided Issue no.1 in favour of claimants and against appellant-Insurance Company. As a consequence of which, an amount of Rs.3.00 Lacs has been awarded by the Tribunal.

CMAM no.223/2013

6. In CMAM no.223/2013, it is contended by appellant that compensation given by the Tribunal is on lower side. Appellant aver that deceased at the time of accident was 20 years and, therefore, multiplier of 17 was to be applied instead of 14 as applied by the Tribunal. It is also averred hat the Tribunal has wrongly made 50% deduction of income of deceased whereas it should have been 1/3rd . His further contention is that claimants are entitled to Rs.4,93,339/-. In support of the grounds taken in the appeal, learned counsel for appellants has placed reliance on Amrit Bhanu Shali and others v. National Insurance Co. Ltd and others, 2012 ACJ 2002 [LQ/SC/2012/352] ; National Insurance Co. Ltd. v. Sinitha and others, 2012 ACJ 1 [LQ/SC/2011/1491] ; Oriental Insurance Co. Ltd. v. Viswanath, 2012 ACJ 2316 [LQ/KarHC/2011/534] ; Oriental Insurance Co. Ltd v. Monika and others, 2013 ACJ 24 [LQ/PunjHC/2011/4244] ; Kamlesh Devi and others v. New India Assurance Co. Ltd, 2017 ACJ 2678 [LQ/MPHC/2016/981] ; Shivaji and another v. Divisional Manager, United India Insurance Co. Ltd and others, 2018 ACJ 2161 [LQ/SC/2018/965] ; and Savita and others v. Divisional Manager, Maharashtra State Road Transport Corporation, 2018 ACJ 2862.

7. The above contentions of appellant are required to be discussed as these have some substance. Perusal of impugned Award, particularly Issue no.2, reveals that claimants maintained that deceased was getting Rs.3000/- as monthly salary from Valley Gas Agency. So, the annual earning of deceased was to be taken as Rs.36,000/-. Nevertheless, the Tribunal has taken annual income of deceased as Rs.40,000/- and deducted it by half for personal expenses. The Tribunal has also wrongly applied multiplier of 14 by taking into consideration age of father of deceased whereas age of deceased was to be taken into account for applying the multiplier. Law in this regard is already settled in P.S. Somanathan v. District Insurance Officer, 2011 ACJ 737 (SC), wherein it is held by the Supreme Court that to have uniformity, the age of deceased is to be taken into consideration and 1/3rd is to be deducted towards his personal expenses when deceased is bachelor as he could not spend much for his expenses since his parents will take care of him.

8. Thus, the impugned Award is modified as under:

Annual income of the deceased is taken as Rs.36,000/- which is deducted by 1/3rd for personal expenses of deceased and as a consequence of which, the loss of dependency is worked out as Rs.24,000/- per annum and multiplier of 17 is applied, which when calculated comes to Rs.4,08,000/- (Rs.24,000 x 17). Insofar as compensation in the amount of Rs.10,000/- on account of loss of Estate and Rs.10,000/- towards Funeral Expenses, given by the Tribunal, are not modified.

In total, Rs.4,28,000/- along with 6% interest from the date of filing of claim petition till final realization shall be paid by appellant-Insurance Company to respondents/claimants

To the above extent the Appeal, CMAM no.223/2013, is allowed and disposed of.

CMAM no.112/2013

9. In appeal, CMAM no.112/2013, it is contention of appellant-Insurance Company that insurance policy covers only owner of scooter and not any other person and, therefore, it is owner who can claim benefit on account of accidental death or injury. It is also stated that deceased, plying motorcycle, could under no circumstances claim benefit of being third party and in absence thereof no indemnification can be sought form appellant-Insurance Company. It is also contended that deceased was holding possession of motorcycle on behalf of insured in the capacity of being immediate relative of deceased, as such, benefit of being third party cannot be pressed into service when the deceased was rash and negligent in driving the offending motorcycle and consequently legal heirs of deceased cannot claim compensation on account of accident caused due to rash and negligent driving of deceased.

10. The above contentions of appellant-Insurance company are without any substance. The Tribunal has taken care of this contention while deciding Issue no.3. As is evident from perusal of the file, claim petition was preferred under Section 163-A of the. In such cases, negligence is not to be proved inasmuch as compensation is to be assessed on structured formula on no fault basis. Such a plea is not available to appellant-Insurance Company as such a plea/defence of negligence raised by Insurance Company would be inconsistent with the legislative objection behind introduction of Section 163-A of the Act, which is final compensation within a limited timeframe on the basis of structured formula to overcome situations where the claims of compensation on the basis of fault liability were taking an unduly long time. The Supreme Court in United India Insurance Co. Ltd v. Sunil Kumar, 2018 ACJ 1 (SC) and reiterated in Shivaji v. Divisional Manager (supra) has observed that if insurance company is permitted to raise a defence of negligence under Section 163-A of the Act, it would bring a proceeding preferred under Section 163-A of theat par with the proceedings under Section 166 of the Act, which would not only be selfcontradictory but also defeat the very legislative intention. Resultantly, it was held that in a proceeding under Section 163-A of the Act, the insurance company cannot raise any defence of negligence on the part of victim to counter a claim for compensation.

11. Perusal of the Insurance Policy reveals that apart from the offending motorcycle being insured as “Basic Third Party”, there had been further collection of charges by appellant-Insurance Company for “PA to Dr.”

12. Insofar as the expression “Basic TP” is concerned, it is a Third-Party Insurance which offers protection against damages to third-party by the insured vehicle. It covers physical injuries, damages to the vehicle, damage to the property, and death.

13. Insofar as the expression “PA to Paid Driver” is concerned, PA means Personal Accident. PA (Personal Accident) cover is a precautionary measure for owner and his family as it protects the owner against the risk of physical disability or death due to an accident. The “PA to Paid Driver” premium is being paid with an intention to pay compensation for bodily injury suffered by the paid driver or death due to accident.

14. In such circumstances the appeal (CMAM no.112/2013) of Insurance Company fails and is accordingly dismissed.