United India Insurance Co. Ltd vs Kuldeep Singh And Another
2022 Latest Caselaw 610 j&K

        HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                        AT JAMMU
                                                 MA No. 233/2009
                                                 Reserved on : 29.03.2022
                                                 Pronounced on : 13.04.2022

United India Insurance Co. Ltd.                               .....Appellant(s)

                           Through: Mr. Vishnu Gupta, Advocate
                     Vs.

Kuldeep Singh and another                                    ..... Respondent(s)

                           Through: Mr. Suneel Malhotra, Advocate


Coram: HON'BLE MR. JUSTICE TASHI RABSTAN, JUDGE

                                  JUDGMENT

1. The appellant-Insurance Company has filed the present appeal,

challenging the award dated 19.03.2009 passed by the Motor Accidents Claims

Tribunal, Jammu in File No. 573/Claim titled "Sachin Dhar vs. Kuldeep Singh

and anr."

Brief facts :-

2. The respondent No. 2, namely, Sachin Dhar alias Billoji has filed

a claim petition before the Motor Accidents Claims Tribunal, Jammu, wherein

it was alleged that he is an adopted son of the deceased Jia Lal S/o Shankar

Pandit, 78 years old bachelor, who was allegedly injured in a road accident

which took place on 24.07.2006 near Mahesh Pura Chowk, Jammu due to rash

and negligent driving of Mini Bus No. JK02T/8232, resultantly, the deceased

died on 31.07.2006 and accordingly, the respondent No. 2 has filed the claim

petition for grant of compensation to the tune of Rs. 10 Lakhs on account of

death of the deceased Jia Lal.

3. It is narrated by the claimant before the Tribunal that on

24.07.2006 the deceased Jia Lal was on foot near Maheshpura Chowk and was

waiting for a bus at about 3.30 pm, meanwhile the offending matador bearing

No. JK02T 8232 being driven in a rash and negligent manner by the driver

who could not keep control over the speed of the vehicle and thus hit the

deceased, consequently causing grievous injuries to him and accordingly the

deceased was shifted to Govt. Medical College Hospital, Jammu and remained

under treatment upto 31.07.2006. It is alleged that the claimant being an

adopted son of the deceased Jia Lal has spend an amount of Rs. 35,000/ - on

treatment of the deceased. It is further alleged that the deceased at the time of

his death was of 65 years old and was doing tuition work, earning 4,000/- per

month.

4. Objections have been filed by the appellant herein before the

Tribunal. The Tribunal after considering the pleadings of the parties has

framed the following issues:-

"1. Whether an accident occurred on 24.07.2006 near Maheshwara Chowk Bakshi Nagar, Jammu by rash and negligent driving of offending vehicle No. JK02T 8232 being driven in the hands of erring driver in which deceased Jia Lal sustained fatal injuries? OPP

2. If issue No. 1 is proved in affirmative whether petitioner is entitled to the compensation; if so to what amount and from whom? OPP

3. Whether driver of offending vehicle at the time of accident was not holding valid and effective driving license and drove the vehicle in violation of terms and conditions of insurance policy; if so how and what is its effect? OPR-2

4. Whether claim petition is bad for non-joinder of necessary parties; if so which are necessary parties and how? OPR-2

5. Relief. O.P. Parties"

5. The Tribunal, accordingly, directed the parties to lead evidence

and the claimant besides himself has also examined PW Girdhari Lal and PW

J.K. Raina in support of his claim petition. The respondent-insurer/appellant

herein has not examined even a single witness in rebuttal, though opportunities

were afforded.

6. The claim petitioner in his statement deposed that the deceased Jia

Lal was his father and was living with him. He is the only son of the deceased.

It is also deposed that his father at the time of accident was 65 years old and

was doing tuition and earning Rs. 8/9 thousands per month. The deceased was

bearing the household expenses. In cross-examination it is stated that he is the

adopted son of the deceased who was a bachelor. He further deposed that he

does not remember his age at the time of adoption, though he is matric pass

and he does not know the qualification of his father.

7. Witness Girdhari Lal has deposed in his statement that he knows

the deceased. On 24.07.2006 at 8/8.15 hrs when the deceased was standing on

the bank of the road at Maheshpura Chowk, a vehicle bearing No. JK02T 8232

hit the deceased, who fell down on the road and police came on the spot, took

the deceased to the Govt. Medical College, Jammu where he died on

31.07.2006. The deceased was 64/65 years old. He also deposed that the

accident occurred due to negligence of driver who was driving the vehicle in a

rash and negligent manner. Petitioner is son of the deceased. He further

deposed that the deceased used to impart tuition to children. In cross-

examination the witness deposed that he was standing at a distance of 30/40 ft

from the spot of accident. He does not remember the number of matador and

he also does not know how many passengers were in the matador. He neither

knows the name nor driver of matador. Though after 10/15 minutes police took

the deceased to the hospital but, the police did not recorded the statement. He

admitted that he knows the deceased prior to the accident and also deposed in

cross-examination that the deceased had installed a Photostat machine but does

not know when he used to sit on the shop. Today he has come to give evidence

on asking of the claim petitioner.

8. Witness J.K. Raina has stated that he knows the petitioner and the

deceased Jia Lal died in a road accident. It is deposed that the deceased had a

Photostat machine and also imparting tuition to the students and was earning

Rs. 10,000/- per month. He was putting up at Govt. quarter Muthi and the

deceased was 60 years old. The petitioner is not married and does not do any

work. In cross-examination the witness stated that the petitioner is not related

to him but only know him because he used to go on Photostat shop. He told the

age of the petitioner by guess but has not seen his age certificate. He does not

know whether any person can run a shop at Government quarter. He also

deposed that he does not know whether Photostat machine was owned by the

deceased or not. The witness also deposed that he does not know whether the

deceased was married or not and also does not know whether the petitioner is

the real son of the deceased or not.

9. Girdhari Lal is stated to be an eye-witness of the occurrence who

was present on the spot of accident and has identified the offending vehicle

which caused the accident by hitting the deceased who was taken to the

hospital by the police and ultimately succumbed to the injuries on 31.07.2006

in GMC, Jammu. An FIR under Section 279/304-A RPC was immediately

registered with the Police Station against the erring driver, namely, Hardit

Singh S/o Kirpal Singh. The death of the deceased has been proved from the

copy of the postmortem report issued by the hospital authorities.

10. After proper trial and considering the evidence led by the parties

and on the basis of the pleadings the Tribunal has come to the conclusion that

the petitioner is entitled to compensation for the death of the deceased Jia Lal

and awarded a sum of Rs. 1,59,999/- under the head "For loss of dependency"

and Rs. 15,000/- under the head "for funeral expenses", total Rs. 1,75,000/-

along with interest @ 7.5% per annum from the date of filing of claim petition

till realization.

11. The sole ground of challenge taken by the appellant in the appeal

is that the impugned award is against law and facts of the case because the

same is factually incorrect and has been passed in utter disregard to the legal

and factual position. Further, the impugned award has been passed by the

learned Tribunal without application of judicial mind. It is also averred in the

appeal that the Tribunal committed a grave error in law by holding Hardit

Singh, driver of the Mini Bus guilty of rash and negligent driving and causing

the so called accident. Though, the driver was not arrayed as a party to the

claim petition, therefore, the award is contrary to the judgment passed by the

Apex Court wherein it has been held that the driver is a necessary and proper

party in a claim petition and award can only be passed against owner and

insurer after holding the driver primarily responsible for payment of

compensation being the primary tort feasor. It is contended that the Tribunal

further committed patent error and illegality by not framing an issue to prove

whether the petitioner is legally adopted son of the deceased. The said issue

was more important and material issue for deciding the right of the respondent

No. 2 to claim compensation on account of death of the deceased. Therefore,

without deciding the issue of adoption, the award impugned is illegal and

perverse. The claim petitioner/respondent No. 2 herein has neither produced

any adoption deed executed by the deceased nor his matriculation certificate or

state subject certificate etc. from where the factum of adoption could have been

even inferred. Since the claimant is seeking compensation being an adopted

son of the deceased, therefore, the onus to prove the same was upon the

claimant. It is further contended that the Tribunal also did not considered the

fact that the respondent No. 2 had neither claimed economic dependency nor

led any evidence to prove that he had no source of income of his own and was

dependent upon the income of the deceased. Therefore, the learned counsel

submits that the issues No. 2 and 5 have not properly been considered, the

Tribunal rather granted huge amount of compensation in favour of the

respondent No. 2 without he being dependent upon the deceased. He also

averred that the Tribunal also failed in its duty to hold that the respondent No.

2 was neither the adopted son nor dependent upon the deceased. Law is well

settled that even the sons and daughters like the respondent No. 2 who were

major, well settled in life, earning handsome amount for themselves, could not

be dependent and do not fall in the category of dependents and thus not entitled

to any amount on account of dependency. It is further argued that the Tribunal

after disbelieving the plea about the income of the deceased and after holding

that the deceased had no income of his own committed a patent error by

holding that the deceased being an elder member looking after household

affair, as such, his contribution to the family can be taken by the Tribunal at

Rs, 4,000/- per month. Though, it is argued that the deceased had no family, he

was living alone. The respondent No. 2 was not living with the deceased as he

was settled outside the State.

12. To buttress his arguments learned counsel for the appellant has

relied upon the judgments passed by this Court in CIMA No. 194/2005 titled

"New India Assurance Co. vs. Ranjit Singh Manhas & ors" and CIMA No.

130/2014 titled "ICICI Lombard General Ins. Co. Ltd. vs. Sakina Bi & ors."

13. Per contra, learned counsel for the respondents has, vehemently,

argued that the appellant herein has failed to lead any evidence before the

Tribunal, therefore, the arguments put forth by the appellant-insurance

company cannot be accepted as the appellant has not opposed the claim of the

petitioner on the ground of his being an adopted son. The claimant is the son of

brother of the deceased besides being adopted son of the deceased. It is further

argued by learned counsel that the claimant/respondent No. 2 has been adopted

as per the local customs, therefore, there is no requirement to produce any

adoption deed. Learned counsel for the respondents has submitted that the

Tribunal has rightly awarded the compensation in favour of the respondent No.

2. In support of his arguments the respondents have relied upon the judgments

passed by the Apex Court in case titled "Debi Prasad (Dead) by L.Rs vs.

Tribeni Devi & ors" reported as 1970 SCC(1) 677 and case titled "Gujrat

State Road Transport vs. Ramanbhai Prabhatbhai & anr." reported as 1987

SCC(3) 234.

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

considered the matter.

15. The moot question raised by the appellant-Insurance Company

has reference to the entitlement of the respondent No. 2/claimant as adopted

son of the deceased, without establishing such adoption before the Tribunal.

16. The claimant has sought compensation on the ground of his being

an adopted son of the deceased. The appellant herein has objected the grant of

compensation in favour of the respondent No. 2 on the ground of his being an

adopted son in their objections before the Tribunal. The claim

petitioner/respondent No. 2 herein in addition to his own statement has also

produced two witnesses, namely, Girdhari Lal and J.K. Raina in support of his

claim petition before the Tribunal. One of the witness has only stated that he

heard that the claim petitioner is the adopted son of the deceased, but he failed

to depose the date and year of adoption and he has also failed to produce

anything to prove the legality of adoption of the petitioner, however, the

Tribunal has awarded compensation in favour of the claimant on the basis of

his being an adopted son of the deceased, that too without framing any issue or

producing any document in this regard in terms of the provisions contained in

Chapter-II of the J&K Hindu Adoption & Maintenance Act, 1956 (now

repealed). The respondents in their objections have contended that the claim

petition is not maintainable in absence of any proof of adoption. In the

judgment passed by the Supreme Court in Civil Appeal No. 8814/2010 titled

"M.Vanaja vs. M. Sarla Devi" decided on 06.03.2020, it has been held that the

appellant admitted in her evidence that she does not have the proof of the

ceremony of giving and taking of her in adoption. Admittedly, there is no

pleading in the plaint regarding the adoption being in accordance with the

provisions of the Act. The mandate of the Act of 1956 is that no adoption shall

be valid unless it has been made in compliance with the conditions mentioned

in Chapter II of the Act of 1956.

17. On the one hand the petitioner is seeking compensation on

account of death of the deceased on the basis of his being an adopted son and

on the other hand he has produced a succession certificate being a legal

representative of the deceased. A perusal of record of the Tribunal shows that

no issue has been framed with regard to adoption of the respondent No. 2 by

the deceased and also no document has been produced to prove the legality of

the adoption. The Tribunal is duty bound to frame an issue that whether the

petitioner is an adopted son of the deceased or not.

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

dated 19.03.2009 passed by the Motor Accidents Claims Tribunal, Jammu in

File No. 573/Claim titled "Sachin Dhar vs. Kuldeep Singh and anr." is set

aside. Accordingly, this matter is remanded to the Tribunal to reconsider by

framing an additional issue on the point that whether the claimant is legally

adopted son of the deceased, namely, Jia Lal. Thereafter, the matter shall be

considered afresh and appropriate orders be passed. It is made clear that the

issues already framed need not be considered again.

19. Disposed of as above. A copy of this order along with the record

be send down.

              JAMMU                                                          (Tashi Rabstan)
              13.04.2022                                                           Judge
              Pawan Angotra

                                                          Whether the order is speaking : Yes
                                                          Whether the order is reportable : Yes




PAWAN ANGOTRA
2022.04.19 10:26
I attest to the accuracy and
integrity of this document