Reserved On: 30.09.202 vs Tsering Smanla
2021 Latest Caselaw 1251 j&K/2

       HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                      AT SRINAGAR

                             MA No. 91/2018
                            CM No. 6505/2021

                                                 Reserved on: 30.09.2021
                                              Pronounced on: 07 .10.2021
National Insurance Company Limited
                                                              ... Appellant
                         Through:
Mr. Javid Ahmad Kawoosa, Sr. Advocate with Mr. Aatir Kawoosa, Advocate
                                  v.
Tsering Stanzin and Anr.
                                                         ...Respondent

Through:

Mr. Muzaffar Ahmad Baqal, Advocate with Mr. Mian Muzaffar, Advocate

Coram:

Hon'ble Mr. Justice Ali Mohammad Magrey, Judge.

(JUDGMENT)

1. The appellant Insurance Company (hereinafter referred to as

"Insurance Company"), has challenged the impugned award dated

09.10.2018, passed by the Motor Accident Claims Tribunal, for short

MACT, Kargil, in claim petition titled Tsering Stanzin Vs. Tsering Smanla,

with the relief of seeking setting aside of the award and rejection of the

claim petition.

Brief facts:-

2. A claim Petition was filed by the respondent-claimant before the

Motor Accident Claims Tribunal Kargil (hereinafter to be referred as

"Tribunal") wherein it was alleged that on 11.10.2013, respondent No. 2 was

driving the offending Vehicle bearing registration No. JK10-4452, rashly

and negligently and the same met with an accident at Fokarfo due to which

some passengers sustained injuries amongst whom the deceased got

seriously injured and succumbed to the injuries.

3. The respondent/ claimant, thereafter, approached the Tribunal with a

claim petition seeking compensation to the tune of Rs. 20.00 lacs along with

interest.

4. The appellant had appeared and filed their reply before the Tribunal

resisting the claim of the respondent/ claimant and prayed for the dismissal

of the claim petition.

5. The Tribunal framed seven issues for adjudication, which for facility

of reference are reproduced as under:-

i.Whether on 11.10.2013, deceased namely Tsering Stob son of Tsering Namsal resident of Shargole was travelling in the offending vehicle bearing registration No. JK-10-4452 from Sapi to Shargole which met with accident and fell into gorge about 100 feet deep at Fokar Phoo resulting in serious injuries to many passengers and death of the deceased? OPP.

ii. Whether the driver (respondent No. 1) of the offending vehicle was driving the vehicle rashly and negligently? OPP. iii. Whether the claimant is the adopted son of the deceased and as such, entitled to claim compensation? OPP iv. Whether the claimant was dependent upon the earnings of the deceased and hence entitled to claim compensation? OPP v. In case issues 1 to 4 are proved in affirmative then to what compensation the claimant is entitled and from whom he is entitled to claim compensation? OPP vi. Whether monthly income of the deceased was Rs. 20,000/-? OPP vii. Whether the respondent No. 1, i.e., driver of the offending vehicle was not having valid and effective driving license, R/C and Route permit on the date of accident and thereby committed breach of policy conditions exonerating the respondent No. 2 from paying the compensation to the claimant? OPR-2

6. Upon hearing the learned counsel for the parties and on consideration

of the matter, the Tribunal has allowed the claim petition and passed an

Award to the tune of Rs. 17,70,000/- with interest @ 12% per annum from

the date of filing of the claim petition till its final realization.

7. The Appellant Insurance Company feeling aggrieved, challenges the

said award on the grounds as under:-

i. That the impugned Award is contrary to law and facts and as

such is liable to be set aside.

ii. That it is an admitted case of the claimant that he was an

adopted son of the deceased as such he is not a legal heir. He

has no locus to file the claim Petition and under law he is not

entitled to any compensation. Besides, the claimant is a major

and was 35 years of age at the time of accident, and as such

cannot claim to be dependent upon the earnings of the

deceased. Thus, the Learned Tribunal has not considered all

these aspects in its right perspective, as such, the award is

liable to be set aside.

iii. That even otherwise also, the compensation awarded by the

learned Tribunal is arbitrary, excessive and unjust. The claimant

in the claim Petition has submitted the age of the deceased as 60

years and has claimed that he was shopkeeper earning

Rs.20,000/- per month. The witnesses produced by the

Respondent No.1, have stated that the deceased was earning

the sum of Rs. 50,000/- per annum and some have stated the he

was earning Rs. 45000/- per annum. The learned Tribunal has

also referred to the said statements in the award but has taken

the income of the deceased as Rs.20, 000/- per month. The

learned Tribunal failed to appreciate that there has been no

independent witness on record that the deceased was earning

Rs.20, 000/- per month. The respondent No.1 has failed to

produce any documentary evidence so as to prove that he was

earning Rs.20, 000/- per month. He had not produced any bills,

vouchers or any documents (income tax returns) so as to justify

that he was earning Rs.20,000/- per month merely on the basis

of statement of some witnesses without any documentary

evidence on record regarding the income.

iv. That the learned Tribunal is also not justified in taking the age

of the deceased as 55 years. The respondent in the claim

petition has himself stated the age of the deceased as 60 years.

As per the Aadhar Card the date of birth of the deceased is

15.08.1940, meaning thereby that he was 70 years of age. Thus,

the learned Tribunal is not justified in taking the age of the

deceased as 55 years for applying the multiplier. Thus, the

multiplier of 13 is on the higher side. The learned Tribunal

ought to have taken the age of the deceased as 70 years

in terms of the Aadhar Card and applied multiplier of 5

instead of 13.

v. Similarly the Learned Tribunal has deducted 1/3rd on account of

personal expenses. The claimant being the major adopted son of

35 years of age at the time of accident was not dependent upon

the earnings of the deceased. Thus, the learned Tribunal ought

to have deducted at least ½ on account of personal

expenses instead of 1/3rd. Thus, the compensation awarded in

all respects is excessive, arbitrary and unjust.

vi. That the learned Tribunal is also not justified in holding that in

case the amount is not deposited within a period of one month

an interest of 12% shall be charged, which has been

already deprecated by the Hon'ble Supreme Court. It has been

held that the Tribunals have no power of awarding panel

rate of interest. Thus, the entire compensation awarded is

arbitrary, excessive and unjust.

8. Heard learned counsel for the parties, perused the records and

considered the matter.

9. The moot question raised by the appellant Insurance Company has

reference to the entitlement of the respondent-claimant as adopted son of the

deceased, without establishing such adoption before the Tribunal.

10. Mr. Javid Ahmad Kawoosa, learned senior counsel appearing for the

appellant Insurance Company while re-iterating the pleadings of the parties

before the Tribunal as also before this Court has supported the contention for

the relief claimed in the appeal with reference to the provisions of Jammu

and Kashmir Hindu Adoptions and Maintenance Act, 1960. Learned senior

counsel submits that no adoption can be made after the commencement of

the Act by or to a Hindu except in accordance with the provisions contained

in Chapter II of the J&K Hindu Adoptions and Maintenance Act, 1960 now

repealed. Learned senior counsel further submits that the requisite for the

valid adoption are not fulfilled by the respondent-claimant, as he has failed

to establish before the Tribunal that the deceased person had the capacity

and the right to take in adoption the claimant and there is no declaration in

the form of any documentation made by the deceased, who has taken in

adoption the claimant or the one who has given in adoption the respondent,

claimant, therefore, the adoption is not valid in terms of provisions contained

in Chapter II of J&K Hindu Adoptions and Maintenance Act, 1960 now

repealed. Learned senior counsel referred to and relied upon the Judgment

delivered by the Hon'ble Apex Court in case titled M. Gurudas v.

Rasaranjan reported in AIR 2006 Supreme Court 3275.

11. Mr. Javid Ahmad Kawoosa, learned senior counsel appearing for the

Insurance Company has invited the attention of this Court to the evidence

recorded by the Tribunal on the issues framed.

12. Regarding issue No. 3, "as to whether the claimant being adopted son

of the deceased entitled for compensation", Mr. Javid Ahmad Kawoosa,

learned senior counsel submits that only PW Tsring Phunchuk has stated that

respondent-claimant is the only adopted son of the deceased and the

deceased was left behind adopted son and wife. Learned senior counsel

submits that there is no evidence produced by the respondent-claimant in the

shape of any adoption deed/declaration deed, establishing adoption. He

further submits that the respondent-claimant has failed to establish the

adoption under law before the Tribunal, therefore, the award passed by the

Tribunal is unsustainable under law, as such, deserves to be set aside.

13. Mr. Muzaffar Ahmad Baqal, learned appearing counsel for the

respondent-claimant along with Mr. Mian Muzaffar, learned Advocate have

vehemently opposed the contention raised by Mr. J. A. Kawoosa, learned

senior counsel on the strength of the pleadings of the parties, have referred to

the evidence recorded by the Tribunal on the issue of adoption of the

respondent-claimant and on reading evidence, they stayed that adoption is

established and respondent-claimant has rightly been awarded the

compensation.

14. The Court has given thoughtful consideration of the matter and

minutely examine the evidence on record regarding all issues and in

particular issue No. 3, which has reference to the adoption of the respondent-

claimant by the deceased. In a very cursory manner and halfheartedly the

Tribunal has declared the adoption valid on two statements of PWs Stanzin

Namgyal and Tsring Phunchuk. The Tribunals weightage given to the

evidence of the above witnesses is taken note of and reproduced as under:-

"with regard to this issue PW Stanzin Namgyal has stated that petitioner is the only adopted son of the deceased. PW Tsring Phunchik has also stated that deceased has left behind an adopted son and wife. In rebuttal no evidence has been led by the respondents. Hence this issue is also decided in favour of the petitioner."

15. The Tribunal in the opinion of the Court has established the adoption

of the claimant by the oral evidence without there being any valid

documentation in the form of evidence on the issue of adoption as required

in terms of provisions contained in Chapter II of the J&K Hindu Adoptions

and Maintenance Act, 1960 now repealed, being relevant are extracted as

under:-

10. Persons who may be adopted.--No person shall be capable of being taken in adoption unless the following conditions are fulfilled, namely:--

(i) he or she is a Hindu ;

(ii) he or she has not already been adopted ;

(iii) he or she has not been married, unless there is a custom or usage applicable to the parties which permits persons who are married being taken in adoption ;

(iv) he or she has not completed the age of fifteen years, unless there is a custom or usage applicable to the parties which permits persons who have competed the age of fifteen years being taken in adoption.

11. Other conditions for a valid adoption.--In every adoption, the following condition must be complied with:--

(i) if the adoption is of a son, the adoptive father or mother by whom the adoption is made must not have a Hindu son, son's son or son's, son's son (whether by legitimate blood relationship or by adoption) living at the time of adoption ;

(ii) if the adoption is of a daughter, the adoptive father or mother by whom the adoption is made must not have a Hindu daughter or son's daughter (whether by legitimate blood relationship or by adoption) living at the time of adoption ;

(iii) if the adoption is by a male and the person to be adopted is a female, the adoptive father is at least twenty-one years older than the person to be adopted ;

(iv) if the adoption is by a female and the person to be adopted is a male the adoptive mother is at least twenty-one years older than the person to be adopted ;

(v) the same child may not be adopted simultaneously by two or more persons ;

(vi) the child to be adopted must be actually given and taken in adoption by the parents or guardian concerned or under their authority with intent to transfer the child from the family of its birth to the family of its adoption :

Provided that the performance of datta homan shall not be essential to the validity of an adoption.

12. Effects of adoption.--An adopted child shall be deemed to be the child of his or her adoptive father or mother for all purposes with effect from the date of the adoption and from such date all the ties of the child in the family of his or her birth shall be deemed to be severed and replaced by those created by the adoption in the adoptive family :

Provided that --

(a) the child cannot marry any person whom he or she could not have married if he or she had continued in the family of his or her birth ;

(b) any property which vested in the adopted child before the adoption shall continue to vest in such person subject to the obligations, if any, attaching to the ownership of such property, including the obligation to maintain relatives in the family of his or her birth ;

(c) the adopted child shall not divest any person of any estate which vested in him or her before the adoption.

13. Right of adoptive parents to dispose of their properties.-- Subject to any agreement to the contrary, an adoption does not deprive the adoptive father or mother of the power to dispose of his or her property by transfer inter-vivos or by will.

14. Determination of adoptive mother in certain cases.--(1) Where a Hindu who has a wife living adopts a child, she shall be deemed to be the adoptive mother.

(2) Where an adoption has been made with the consent of more than one wife, the senior most in marriage among them shall be deemed to be the adoptive mother and the others to be step-mothers.

(3) Where a widower or a bachelor adopts a child, any wife whom he subsequently marries shall be deemed to be the step-mother of the adopted child.

(4) Where a widow or an unmarried woman adopts a child, any husband whom she marries subsequently shall be deemed to be the step-father of the adopted child.

15. Valid adoption not to be cancelled.--No adoption which has been validly made can be cancelled by the adoptive father or mother or any other person nor can the adopted child renounce his or her status as such and return to the family of his or her birth.

16. Presumption as to registered documents relating to adoption.-- Whenever any document registered under any law for the time being in force is produced before any Court purporting to record an adoption made and is signed by the person giving and the person taking the child in adoption, the Court shall presume that the adoption has been made in compliance with the provisions of this Act unless and until it is disproved.

17. Prohibition of certain payments.--(1) No person shall receive or agree to receive any payment or other reward in consideration of the adoption of any person, and no person shall make or give or agree to make or give to any other person any payment or reward the receipt of which is prohibited by this section.

(2) If any person contravenes the provisions of sub-section (1), he shall be punishable with imprisonment which may extend to six months, or with fine, or with both.

(3) No prosecution under this section shall be instituted without the previous sanction of the Government or an officer authorized by the Government in this behalf.

16. From the bare perusal of the above extracted provisions of Chapter II of

the J&K Hindu Adoptions and Maintenance Act, 1960 now repealed and the

evidence on record, the Court comes to the definite conclusion that the adoption

is not established as being valid in terms of law.

17. Seemingly, after the death of deceased Tsering Stob, the respondent-

claimant has led the claim for extracting benefit of insurance, which Court had

no difficulty, but there is no valid adoption established before the Tribunal or

this Court.

18. The J&K Hindu Adoptions and Maintenance Act, 1960, now repealed is

relevant for the disposal of the claim as being in vogue at the time of the filing of

the claim petition and its decision notwithstanding such finding the provisions of

the said Act now repealed as Hindu Adoptions and Maintenance Act (78 of 1956)

for short the Act of 1956, the Hon'ble Supreme Court in case titled M. Vanaja v.

M. Sarla Devi reported in AIR 2020 Supreme Court 1293 SC 330, has declared that

if the adoption by male Hindu is made without fulfilment of essential conditions of

consent of wife and actual ceremony, the same is invalid. Section 6 of the Act of

1956, prescribes the prerequisites for a valid adoption, which are"-

" 6. Requisites of a valid adoption- No adoption shall be valid unless.

i. The person adopting has the capacity, and also the right, to take in adoption, ii. The person giving in adoption has the capacity to do so; iii. The person adopted is capable of being taken in adoption; and iv. The adoption is made in compliance with the other conditions mentioned in this Chapter".

v.

"7. Section 7 provides that the male Hindu who is of sound mind and is not a minor has the capacity to take a son or a daughter in adoption. The consent of his wife has been made mandatory by the proviso to Section 7. Section 9 deals with persons who are capable of giving a child in adoption. The other conditions for a valid adoption are stipulated in Section 11 (6) which is as under:-

" 11. Other conditions for a valid adoption.

xx

(vi) the child to be adopted must be actually given and taken in adoption by the parents or guardian concerned or under their authority with intent to transfer the child from the family of his birth (or in the case of an abandoned child or child whose parentage is not known, from the place or family where it has been brought up) to the family of its adoption;

Provided that the performance of data homan shall not be essential to the validity of adoption."

19. Learned counsels appearing for the respondent-claimant were pointedly

asked as to whether there is any document establishing the adoption of the

respondent-claimant, as required in terms of the law, have replied in negative,

therefore, entitlement of the claim fails as the respondent-claimant has not

proved the issue of adoption, as required under law and there is no material

evidence forming the basis for such entitlement of compensation.

20. On the proper examination of the evidence on record along with

contentions raised and supported by law by the counsel appearing for the

Insurance Company, the Court comes to an irresistible conclusion that the

respondent-claimant has failed to establish his adoption as son of the deceased,

therefore, the issue No. 3 is decided in favour of the Insurance Company and

against the respondent-claimant, as such, there is no need to go to the other

issues raised, as the claim petition fails on the above issue only.

21. In view of above, the appeal is allowed and the impugned award passed

by the Tribunal on 09.10.2018, in claim petition titled Tsering Stanzin Vs.

Tsering Smanla is set aside and claim petition dismissed. No order as to costs.

22. Disposed of .

23. In view of the fact that the award dated 09.10.2018, passed by the Motor

Accident Claims Tribunal in claim petition titled Tsering Stanzin Vs. Tsering

Smanla, stands set aside and the claim petition dismissed, therefore, the award

amount deposited by the appellant Insurance Company before the Registry is

directed to be returned to the appellant Insurance Company forthwith through

counsel.

CM No. 6505/2021

In view of the disposal of the main appeal, the instant application filed by

the respondent-claimant does not survive consideration, therefore, the same shall

stand dismissed.

Registry to send down the copy of order along with records to the Court

below.

(Ali Mohammad Magrey) Judge Srinagar, 07.10.2021 "Mohammad Yasin Dar"

I. Whether the Judgment is reportable? Yes/No.

                     II.       Whether the Judgment is speaking?                 Yes/No.




MOHAMMAD YASIN DAR
2021.10.07 15:53
I attest to the accuracy and
integrity of this document