Jammu & Kashmir High Court
Oriental Insurance Co. Ltd vs Asha Devi And Others on 17 September, 2021
Sr.No.7
HIGH COURT OF JAMMU& KASHMIRAND LADAKH
ATJAMMU
MA No. 234/2011
IA No.753/2011
Oriental Insurance Co. Ltd. ......Appellant(s)
Through:- Mr. D.S Chouhan, Advocate.
V/s
Asha Devi and Others .....Respondent(s)
Through:- None.
CORAM : HON'BLE MR. JUSTICE TASHI RABSTAN, JUDGE
JUDGMENT
17.09.2021
1. When the matter was called, no one has caused appearance on
behalf of the respondents-claimants. A perusal of order sheets reveals that
earlier also on several dates of hearing, respondents remained unrepresented.
Therefore, this Court is left with no other option but to dispose of this appeal
on the basis of pleadings and averments made in the appeal.
2. The present appeal has been filed against the award dated
31.01.2011 passed by the Presiding Officer, Motor Accident Claims
Tribunal, Kathua, hereinafter referred to as „Tribunal‟ in file No. 52/Claim,
title "Asha Devi and Others Vs. Raj Kumar and Others.". The aforesaid
claim was allowed with a direction to the insurance company to pay an
compensation amount of Rs.6,10,000/- to the respondents along with interest
@ 7.5 % till liquidation of the whole amount minus the interim
compensation if any received by the claimants under Section 140 of the
Motor Vehicle Act.
3. The parties were directed to lead evidence before the Tribunal and
after appreciation of the evidence lead by the parties, the Tribunal on the
basis of statements of the witnesses and on perusal of the record annexed
with claim petition, came to the conclusion that compensation amounting to
Rs.6,10,000/- shall be paid to the claimants-respondents herein by the
insurance company along with interest @ 7.5% till liquidation of the whole
amount.
4. I have heard learned counsel for the appellant-insurance company,
considered his submissions and have gone through the record placed along
with this appeal.
5. The precise ground of challenge thrown to impugned award is that
the Tribunal has not appreciated the law as well as the facts on record in a
proper perspective and the conclusions drawn are erroneous under law. On
this count, Mr. D. S Chouhan, learned counsel for the appellant has
submitted that the findings of the Tribunal are perverse and deserve to be set
aside. He has further submitted that the Tribunal has not appreciated the law
and facts in its right perspective and is not justified in deciding the award
because the claimants-respondent Nos. 1 to 3 are not dependents of
deceased-Balkar Chand and as a matter of fact the respondent No.1 is the
married sister of deceased, respondent No.2 is nephew of deceased and
respondent No. 3 is also married sister of the deceased.
6. It is further argued that though the claimants are the legal
representatives of deceased but they are not dependents of deceased Balkar
Chand and were not dependent upon the earning of the deceased. Mr.
Chouhan, learned counsel for the appellants on the basis of this contention
has submitted that the claim petition was not maintainable and as such the
award passed by the Tribunal needs interference of this Court being
unjustified in light of Section 155 of the Motor Vehicle Act.
7. The arguments advanced by learned counsel for the appellant
appears to be full of substance. In support of his arguments, he has relied
upon judgment passed by the Apex Court in Civil Appeal No.1702 of 2007
title "Smt. Majuri Bera Vs. The Oriental Insurance Co. Ltd. and Another"
reported in 2007(2) Law Herald (Supreme Court) 1346 and decision
rendered by this Court in case "New India Assurance Co. Vs. Ranjit Singh
Manhas and Others", reported in 2007 (3) JKJ 271(HC).
8. For facility of reference, it would be advantageous to reproduce
paragraph Nos. 8, 11, 12, 14 and 16 hereunder.
"8. Section 166 of the Act corresponds to Section 110 of the
Motor Vehicles Act, 1939 (hereinafter referred to as the 'Old
Act') and the same reads as follows:
Application for compensation: (1) An application for
compensation arising out of an accident of the nature
specified in Sub-section (1) of Section 165 may be made-
(a) by the person who has sustained the injury; or
(b) by the owner of the property; or
(c) where death has resulted from the accident, by all or any
of the legal representatives of the deceased; or
(d) by any agent duly authorized by the person injured or all
or any of the legal representatives of the deceased, as the
case may be.
Provided that where all the legal representatives of the
deceased have not joined in any such application for
compensation, the application shall be made on behalf of or
for the benefit of all the legal representatives of the
deceased and the legal representatives who have not so
joined, shall be impleaded as respondents to the application.
(2) Every application under Sub-section (1) shall be made,
at the option of the claimant, either to the Claims Tribunal
having jurisdiction over the area in which the accident
occurred or to the Claims Tribunal within the local limits of
whose jurisdiction the claimant resides or carries on
business or within the local limits of whose jurisdiction the
defendant resides, and shall be in such form and contain
such particulars as may be prescribed:
Provided that where no claim for compensation
under Section 140 is made in such application, the
application shall contain a separate statement to that effect
immediately before the signature of the applicant.
Xx xx xx
(4) The Claims Tribunal shall treat any report of accidents
forwarded to it under Sub-section (6) of Section 158 as an
application for compensation under this Act.
11. The Tribunal has a duty to make an award, determine
the amount of compensation which is just and proper and
specify the person or persons to whom such compensation
would be paid. The latter part relates to the entitlement of
compensation by a person who claims for the same.
12. According to Section 2(11) of CPC, "legal
representative" means a person who in law represents the
estate of a deceased person, and includes any person who
intermeddles with the estate of the deceased and where a
party sues or issued in a representative character the person
on whom the estate devolves on the death of the party so
suing or sued. Almost in similar terms is the definition of
legal representative under the Arbitration and Conciliation
Act, 1996, i.e. under Section 2(1)(g).
14. There are several factors which have to be noted. The
liability under Section 140 of the Act does not cease
because there is absence of dependency. The right to file a
claim application has to be considered in the background of
right to entitlement. While assessing the quantum, the
multiplier system is applied because of deprivation of
dependency. In other words, multiplier is a measure. There
are three stages while assessing the question of entitlement.
Firstly, the liability of the person who is liable and the
person who is to indemnify the liability, if any. Next is the
quantification and Section 166 is primarily in the nature of
recovery proceedings. As noted above, liability in terms
of Section 140 of the Act does not cease because of absence
of dependency.
16. Judged in that background where a legal representative
who is not dependant files an application for compensation,
the quantum cannot be less than the liability referable
to Section 140 of the Act. Therefore, even if there is no loss
of dependency the claimant if he or she is a legal
representative will be entitled to compensation, the quantum
of which shall be not less than the liability flowing
from Section 140 of the Act. The appeal is allowed to the
aforesaid extent. There will be no order as to costs. We
record our appreciation for the able assistance rendered by
Shri Jayant Bhushan, the learned Amicus Curiae.
9. Admittedly, in the present case, the claimants‟ relation as
described above is that claimant Nos. 1 and 3 are the married sisters of
deceased whereas claimant No.2 is son of claimant No.1 and the provision
of Section 166 of the Motor Vehicle Act indicates that the legal
representative who is not a dependent can file an application for
compensation, the quantum cannot be less than the liability referable to
Section 140 of the Act and therefore, even if there is no loss of dependency
the claimant if he or she is a legal representative will be entitled to
compensation, the quantum of which shall be not less than the liability
flowing from Section 140 of the Act.
10. Thus the claimants are the legal representatives but they are not
dependent upon the deceased, therefore, the impugned award and judgment
dated 30.01.2011 warrants interference of this Court and is required to be set
aside because the Tribunal has not appreciated the provisions of law
admissible to the field which is against the law.
11. On going through the award passed by the Tribunal and in view of
settled law by the Apex Court in case Majuri Bera supra as well as decision
of this Court rendered in the appeal bearing CIMA No.194/2005 reported in
2007 (3) JKJ 271(HC), I am of the considered view that the contention of
the appellant has substance and accordingly, this appeal is allowed.
Resultantly, the impugned award is set aside. However, the claimants are
entitled to interim award, if any, as per the provisions of Section 140 of the
Motor Vehicle Act. Registry is directed to remit the awarded amount
deposited by the insurance company along with interest accrued thereon in
favour of insurance company minus the interim award of Rs. 50,000/- which
shall be paid to the claimants-respondents herein on laying their appropriate
application for grant of the same before the Registry.
Disposed of as above. Registry is directed to send down the record.
(Tashi Rabstan)
Judge
JAMMU
17.09.2021
Surinder
Whether the order is speaking? : Yes/No
Whether the order is reportable? : Yes/No
SURINDER KUMAR
2021.09.20 16:28
I attest to the accuracy and
integrity of this document
