Jammu & Kashmir High Court - Srinagar Bench
Oriental Insurance Company Ltd vs Showkat Hussain Khatana And ... on 11 November, 2021
Supplementary - 1
S. No. 27
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
MA 35/2018
c/w
MA 10/2018, CMAM 79/2017,
CMAM 80/2017, CMAM 81/2017
Oriental Insurance Company Ltd.
... Petitioner/Appellant(s)
V/s
Showkat Hussain Khatana and others
... Respondent(s)
CORAM: HON'BLE MR. JUSTICE JAVED IQBAL WANI, JUDGE
ORDER
11-11-2021
MA 35/2018:
Mr. Manzoor A. Dar, Advocate for appellant
Mr. M. Altaf Khan, Advocate for respondents
Impugned in the instant appeal is award dated 31.10.2017 passed by
Motor Accidents Claims Tribunal, Srinagar, (hereinafter referred to as the
tribunal) in claim petition titled "Showkat Hussain Khatana and others versus
Oriental Insurance Company Limited".
Before adverting to the grounds of challenge, few facts in brief as stated
in the petition provide that a claim petition came to be filed by the claimants
respondents herein for grant of compensation on account of a vehicular
accident stated to have occurred on 20.8.2011 resulting in death of one Mst.
Akhter wife of Showkat Hussain. One Shakeel Hussain, stated to have been
driving the vehicle rashly and negligently, also is stated to have got killed in
the said accident while driving the offending vehicle from Poonch towards
Surankote.
The tribunal is stated to have framed four issues after the respondent
appellant herein filed its response to the claim petition and upon adjudication
of the claim petition, the tribunal is stated to have passed the impugned award
holding the claimants respondents herein entitled to Rs. 6,11,000/- including
loss of consortium to the tune of Rs. 1,00,000/- and burial expenses of Rs.
25,000/-.
The award is being challenged inter alia on the grounds that the tribunal
while passing the award took into consideration monthly income of the
deceased as Rs.3,000/- only, and after making deduction of Rs.750/- on
account of personal expenses, loss of income was estimated to the tune of Rs.
27,000/- per annum. The multiplier of 18 was applied on the basis of law and
principles laid down by the Apex court in Sarla Verma's case, making the
amount of compensation to the tune of Rs. 4,86,000/- and after adding the
amount of Rs. 1,00,000/- on account of loss of consortium to the husband of
the deceased and Rs. 25,000/- on account of funeral expenses, the award came
to be passed for a total amount of Rs. 6,11,000/-. It is being stated that an
interest at the rate of 6% on the award amount also came to be awarded by the
tribunal from the date of presentation of the petition till the final realization of
the award amount.
It is being urged in the grounds that the tribunal overlooked the
contention raised before it by the appellant herein regarding the breach of the
policy having been committed by the owner of the offending vehicle while
allowing to carry 40 passengers in the offending vehicle as against 27
permissible passengers. The tribunal, it is stated, did not frame an issue in this
regard and the failure of the tribunal thus resulted in wrongly saddling the
appellant company with the liability to pay compensation to the claimants. It
is being further urged in the grounds that granting of compensation towards
loss of consortium as also under funeral expenditure has not been in tune with
the principles laid down by the Apex court.
Counsel for the appellant thus sought setting aside of the award.
Per contra, counsel for the respondent, however, would controvert the
submissions made by the counsel for the appellant and prayed for dismissal
of the appeal.
Heard learned counsel for the parties and perused the record.
The appearing counsel for the appellant company, Mr. Manzoor A Dar,
learned counsel, at the very outset submits that even though multiple grounds
have been urged in the memo of appeal while throwing challenge to the
impugned award, yet the challenge would be confined to the impugned award
vis-à-vis two grounds only: Firstly, non-providing of right of recovery to the
appellant company against the owner of the offending vehicle, of the award
amount, on account of breach of terms and conditions of policy for having
allowed more than 28 permissible passengers to travel in the vehicle in
question as the said issue according to the learned counsel stands settled by a
coordinate bench of this court in case titled Oriental Insurance Company
versus Mohammad Rashid and others, CIMA 17/2017; and secondly, that
the award of consortium of Rs. 1,25,000/- is against the principle laid down
by the Apex court in case titled as National Insurance Co. Ltd. vs. Pranay
Sethi decided on 31 Oct. 2017, reported in (2017) 16 SCC 680.
Mr. Mohammad Altaf Khan, appearing counsel for the claimants
respondents herein would admit the position in so far as the first ground
pressed by learned counsel for the appellant is concerned and would concede
to the issue having been adjudicated upon by the coordinate bench of this court
in CIMA 17/2017 supra. Para 7 of the judgment, being relevant, is in extenso
extracted as under:
"7. In United India Insurance Co. Ltd. v. K.M. Poonam and Others,
2011 ACJ 917, the Hon'ble Supreme Court in para 26, held as
follows:
"26. Having arrived at the conclusion that the liability of the Insurance
Company to pay compensation was limited to six persons travelling inside
the vehicle only and that the liability to pay the others was that of the
owner, we, in this case, are faced with the same problem as had surfaced
in Anjana Shyam's case (supra). The number of persons to be
compensated being in excess of the number of persons who could validly
be carried in the vehicle, the question which arises is one of
apportionment of the amounts to be paid. Since there can be no pick and
choose method to identify the five passengers, excluding the driver, in
respect of whom compensation would be payable by the Insurance
Company, to meet the ends of justice we may apply the procedure
adopted in Baljit Kaur's case (supra) and direct that the Insurance
Company should deposit the total amount of compensation awarded to
all the claimants and the amounts so deposited be disbursed to the
claimants in respect to their claims, with liberty to the Insurance
Company to recover the amounts paid by it over and above the
compensation amounts payable in respect of the persons covered by the
Insurance Policy from the owner of the vehicle, as was directed in Baljit
Kaur's case."
In view of the above, the appellant-insurance company is
therefore, liable to first settle the highest of 28 claims. In so far
balance claims it will pay the claimants and therefore, recover
the excess paid amount from the owner of the offending vehicle
as per law."
In so far as the second ground is concerned, Mr. Khan would contend
that the judgment of the Apex court passed in National Insurance Co. Ltd.
vs. Pranay Sethi, supra, is followed by a judgment of the Apex court in case
titled as Magma General Insurance Company Ltd. Vs. Nano Ram reported
in (2018) 18 SCC 130 wherein the principle laid down in Pranay Sethi case
has been elaborated making the claimants respondents herein entitled to the
amount of awarded consortium.
Mr. Dar, appearing counsel for the appellant without going to the issue
of consortium to be decided on its merits would suggest an amount to be
worked out by this court in the facts and circumstances of the case keeping in
mind both the judgments of the Apex court referred to by him and Mr. Khan.
In so far as the first issue is concerned a perusal of the judgment passed
by the coordinate bench in CIMA 17/2017, supra, tends to show that same
applies mutatis mutandis to the facts of the instant case as such the same
judgment shall apply to the instant case as well
So far as the second issue is concerned this court finds it appropriate to
slash down the amount of consortium of Rs. 1,00,000/- to Rs. 70,000 without
disturbing the amount of Rs 25,000 awarded on account of burial expenses to
the claimants respondents herein. The said amount of consortium
compensation thus is reduced to Rs. 95,000/- instead of Rs. 1,25,000/-. The
said amount is being accepted by the counsel for the parties.
Thus, having regard to the aforesaid position, the instant appeal shall
stand settled and award shall stand modified accordingly.
Appeal disposed of.
CMAM 79/2017:
Mr. Nissar Ahmad Dendroo, Advocate for appellant
Mr. M. Altaf Khan, Advocate for respondents
Impugned in the instant appeal is award dated 16.05.2017 passed by
Motor Accidents Claims Tribunal, Srinagar, (hereinafter referred to as the
tribunal) in claim petition titled Rehmat Jan and others versus Sh. Vishal Dutta
and another.
Before adverting to the grounds of challenge, few facts in brief as stated
in the petition provide that a claim petition came to be filed by the claimants
respondents herein for grant of compensation on account of a vehicular
accident stated to have occurred on 20.8.2011 resulting in death of one Karam
Dad Chouhan son of Kaka Chohan. It is alleged that the deceased was
travelling in the offending vehicle when it met with an accident at Madana
while being on way from Poonch towards Surankote. One Shakeel Hussain,
stated to have been driving the vehicle rashly and negligently, also is stated to
have got killed in the said accident while driving the offending vehicle from
Poonch towards Surankote.
The tribunal is stated to have framed four issues after the respondent
appellant herein filed its response to the claim petition and upon adjudication
of the claim petition, the tribunal is stated to have passed the impugned award
holding the claimants respondents herein entitled to Rs. 6,65,000/- including
loss of consortium to the tune of Rs. 1,00,000/- and burial expenses of Rs.
25,000/-.
The award is being challenged inter alia on the grounds that the tribunal
while passing the award took into consideration monthly income of the
deceased as Rs.5,000/- only, and after making deduction of Rs.1250/- on
account of personal expenses, loss of income was estimated to the tune of Rs.
45,000/- per annum. It is stated that the tribunal while conceding that the
relevant multiplier is "13", however, applied multiplier 12 on the basis of law
and principles laid down by the Apex court in Sarla Verma's case, making the
amount of compensation to the tune of Rs. 5,40,000/- and after adding the
amount of Rs. 1,00,000/- on account of loss of consortium and Rs. 25,000/-
on account of funeral expenses, the award came to be passed for a total amount
of Rs. 6,65,000/-. It is being stated that an interest at the rate of 6% on the
award amount also came to be awarded by the tribunal from the date of
presentation of the petition till the final realization of the award amount.
It is being urged in the grounds that the tribunal overlooked the
contention raised before it by the appellant herein regarding the breach of the
policy having been committed by the owner of the offending vehicle while
allowing to carry 40 passengers in the offending vehicle as against 27
permissible passengers. The tribunal, it is stated, did not frame an issue in this
regard and the failure of the tribunal thus resulted in wrongly saddling the
appellant company with the liability to pay compensation to the claimants. It
is being further urged in the grounds that granting of compensation towards
loss of consortium as also under funeral expenditure has not been in tune with
the principles laid down by the Apex court.
Counsel for the appellant thus sought setting aside of the award.
Per contra, counsel for the respondent, however, would controvert the
submissions made by the counsel for the appellant and prayed for dismissal
of the appeal.
Heard learned counsel for the parties and perused the record.
The appearing counsel for the appellant company, Mr. N. A. Dendru,
learned counsel, at the very outset submits that even though multiple grounds
have been urged in the memo of appeal while throwing challenge to the
impugned award, yet the challenge would be confined to the impugned award
vis-à-vis two grounds only: Firstly, non-providing of right of recovery to the
appellant company against the owner of the offending vehicle, of the award
amount, on account of breach of terms and conditions of policy for having
allowed more than 28 permissible passengers to travel in the vehicle in
question as the said issue according to the learned counsel stands settled by a
coordinate bench of this court in case titled Oriental Insurance Company
versus Mohammad Rashid and others, CIMA 17/2017; and secondly, that
the award of consortium of Rs. 1,25,000/- is against the principle laid down
by the Apex court in case titled as National Insurance Co. Ltd. vs. Pranay
Sethi decided on 31 Oct. 2017, reported in (2017) 16 SCC 680.
Mr. Mohammad Altaf Khan, appearing counsel for the claimants
respondents herein would admit the position in so far as the first ground
pressed by learned counsel for the appellant is concerned and would concede
to the issue having been adjudicated upon by the coordinate bench of this court
in CIMA 17/2017 supra. Para 7 of the judgment, being relevant, is in extenso
extracted as under:
"7. In United India Insurance Co. Ltd. v. K.M. Poonam and Others,
2011 ACJ 917, the Hon'ble Supreme Court in para 26, held as
follows:
"26. Having arrived at the conclusion that the liability of the Insurance
Company to pay compensation was limited to six persons travelling inside
the vehicle only and that the liability to pay the others was that of the
owner, we, in this case, are faced with the same problem as had surfaced
in Anjana Shyam's case (supra). The number of persons to be
compensated being in excess of the number of persons who could validly
be carried in the vehicle, the question which arises is one of
apportionment of the amounts to be paid. Since there can be no pick and
choose method to identify the five passengers, excluding the driver, in
respect of whom compensation would be payable by the Insurance
Company, to meet the ends of justice we may apply the procedure
adopted in Baljit Kaur's case (supra) and direct that the Insurance
Company should deposit the total amount of compensation awarded to
all the claimants and the amounts so deposited be disbursed to the
claimants in respect to their claims, with liberty to the Insurance
Company to recover the amounts paid by it over and above the
compensation amounts payable in respect of the persons covered by the
Insurance Policy from the owner of the vehicle, as was directed in Baljit
Kaur's case."
In view of the above, the appellant-insurance company is
therefore, liable to first settle the highest of 28 claims. In so far
balance claims it will pay the claimants and therefore, recover
the excess paid amount from the owner of the offending vehicle
as per law."
In so far as the second ground is concerned, Mr. Khan would contend
that the judgment of the Apex court passed in National Insurance Co. Ltd.
vs. Pranay Sethi, supra, is followed by a judgment of the Apex court in case
titled as Magma General Insurance Company Ltd. Vs. Nano Ram reported
in (2018) 18 SCC 130 wherein the principle laid down in Pranay Sethi case
has been elaborated making the claimants respondents herein entitled to the
amount of awarded consortium.
Mr. N. A. Dendru, appearing counsel for the appellant without going to
the issue of consortium to be decided on its merits would suggest an amount
to be worked out by this court in the facts and circumstances of the case
keeping in mind both the judgments of the Apex court referred to by him and
Mr. Khan.
In so far as the first issue is concerned a perusal of the judgment passed
by the coordinate bench in CIMA 17/2017, supra, tends to show that same
applies mutatis mutandis to the facts of the instant case as such the same
judgment shall apply to the instant case as well
So far as the second issue is concerned this court finds it appropriate to
slash down the amount of consortium of Rs. 1,00,000/- to Rs. 70,000 without
disturbing the amount of Rs 25,000 awarded on account of burial expenses to
the claimants respondents herein. The said amount of consortium
compensation thus is reduced to Rs. 95,000/- instead of Rs. 1,25,000/-. The
said amount is being accepted by the counsel for the parties.
Thus, having regard to the aforesaid position, the instant appeal shall
stand settled and award shall stand modified accordingly.
Appeal disposed of.
CMAM 80/2017:
Mr. Nissar Ahmad Dendroo, Advocate for appellant
Mr. M. Altaf Khan, Advocate for respondents
Impugned in the instant appeal is award dated 09.05.2017 passed by
Motor Accidents Claims Tribunal, Srinagar (hereinafter referred to as the
tribunal) in claim petition titled Chandia Khatana and another and others
versus Sh. Vishal Dutta and another.
Before adverting to the grounds of challenge, few facts in brief as stated
in the petition provide that a claim petition came to be filed by the claimants
respondents herein for grant of compensation on account of a vehicular
accident stated to have occurred on 20.8.2011 resulting in death of one
Mohammad Farooq Khatana son of Chandia Khatana. It is alleged that the
deceased was travelling in the offending vehicle when it met with an accident
at Madana while being on way from Poonch towards Surankote. One Shakeel
Hussain, stated to have been driving the vehicle rashly and negligently, also
is stated to have got killed in the said accident while driving the offending
vehicle from Poonch towards Surankote.
The tribunal is stated to have framed four issues after the respondent
appellant herein filed its response to the claim petition and upon adjudication
of the claim petition, the tribunal is stated to have passed the impugned award
holding the claimants respondents herein entitled to Rs. 5,35,000/- including
burial expenses of Rs. 25,000/-.
The award is being challenged inter alia on the grounds that the tribunal
while passing the award took into consideration monthly income of the
deceased as Rs.5,000/- only, and after making deduction of Rs.2500/- on
account of personal expenses, loss of income was estimated to the tune of Rs.
30,000/- per annum. It is stated that the tribunal while conceding that the
relevant multiplier is "18", however, applied multiplier 17 on the basis of law
and principles laid down by the Apex court in Sarla Verma's case, making the
amount of compensation to the tune of Rs. 5,10,000/- and after adding the
amount of Rs. 25,000/- on account of funeral expenses, the award came to be
passed for a total amount of Rs. 5,35,000/-. It is being stated that an interest
at the rate of 6% on the award amount also came to be awarded by the tribunal
from the date of presentation of the petition till the final realization of the
award amount.
It is being urged in the grounds that the tribunal overlooked the
contention raised before it by the appellant herein regarding the breach of the
policy having been committed by the owner of the offending vehicle while
allowing to carry 40 passengers in the offending vehicle as against 27
permissible passengers. The tribunal, it is stated, did not frame an issue in this
regard and the failure of the tribunal thus resulted in wrongly saddling the
appellant company with the liability to pay compensation to the claimants. It
is being further urged in the grounds that granting of compensation towards
loss of consortium as also under funeral expenditure has not been in tune with
the principles laid down by the Apex court.
Counsel for the appellant thus sought setting aside of the award.
Per contra, counsel for the respondent, however, would controvert the
submissions made by the counsel for the appellant and prayed for dismissal
of the appeal.
Heard learned counsel for the parties and perused the record.
The appearing counsel for the appellant company, Mr. Nissar A
Dendru, learned counsel, at the very outset submits that even though multiple
grounds have been urged in the memo of appeal while throwing challenge to
the impugned award, yet the challenge would be confined to the impugned
award vis-à-vis two grounds only: Firstly, non-providing of right of recovery
to the appellant company against the owner of the offending vehicle, of the
award amount, on account of breach of terms and conditions of policy for
having allowed more than 28 permissible passengers to travel in the vehicle
in question as the said issue according to the learned counsel stands settled by
a coordinate bench of this court in case titled Oriental Insurance Company
versus Mohammad Rashid and others, CIMA 17/2017; and secondly, that
the award of consortium of Rs. 1,25,000/- is against the principle laid down
by the Apex court in case titled as National Insurance Co. Ltd. vs. Pranay
Sethi decided on 31 Oct. 2017, reported in (2017) 16 SCC 680.
Mr. Mohammad Altaf Khan, appearing counsel for the claimants
respondents herein would admit the position in so far as the first ground
pressed by learned counsel for the appellant is concerned and would concede
to the issue having been adjudicated upon by the coordinate bench of this court
in CIMA 17/2017 supra. Para 7 of the judgment, being relevant, is in extenso
extracted as under:
"7. In United India Insurance Co. Ltd. v. K.M. Poonam and Others,
2011 ACJ 917, the Hon'ble Supreme Court in para 26, held as
follows:
"26. Having arrived at the conclusion that the liability of the Insurance
Company to pay compensation was limited to six persons travelling inside
the vehicle only and that the liability to pay the others was that of the
owner, we, in this case, are faced with the same problem as had surfaced
in Anjana Shyam's case (supra). The number of persons to be
compensated being in excess of the number of persons who could validly
be carried in the vehicle, the question which arises is one of
apportionment of the amounts to be paid. Since there can be no pick and
choose method to identify the five passengers, excluding the driver, in
respect of whom compensation would be payable by the Insurance
Company, to meet the ends of justice we may apply the procedure
adopted in Baljit Kaur's case (supra) and direct that the Insurance
Company should deposit the total amount of compensation awarded to
all the claimants and the amounts so deposited be disbursed to the
claimants in respect to their claims, with liberty to the Insurance
Company to recover the amounts paid by it over and above the
compensation amounts payable in respect of the persons covered by the
Insurance Policy from the owner of the vehicle, as was directed in Baljit
Kaur's case."
In view of the above, the appellant-insurance company is
therefore, liable to first settle the highest of 28 claims. In so far
balance claims it will pay the claimants and therefore, recover
the excess paid amount from the owner of the offending vehicle
as per law."
In so far as the issue involved in the appeal is concerned, a perusal of
the judgment passed by the coordinate bench in CIMA 17/2017, supra, tends
to show that same applies mutatis mutandis to the facts of the instant case as
such the same judgment shall apply to the instant case as well. The CMAM
shall accordingly stand disposed of.
MA 10/2018, CMAM 81/2017
Mr. Manzoor A. Dar, Advocate for appellant
Mr. Nissar A. Dendroo, Advocate for appellant
Mr. M. Altaf Khan, Advocate for respondents
On the request of learned counsel for the parties, these two petitions are
directed to be detached from other petitions and be listed on 25.11.2021.
(JAVED IQBAL WANI)
JUDGE
Srinagar
11-11-2021
N Ahmad
NISSAR A BHAT
2021.11.16 16:50
I attest to the accuracy and
integrity of this document
