National Insurance Co. Ltd ... vs Sunila Sharma Wife Of Lekh Raj ...
2023 Latest Caselaw 1576 j&K

    HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                    AT JAMMU

                                                                  MA no. 461/2010
                                                                  IA no. 1/2016


National Insurance Co. Ltd through its Sr. Divisional Manager,
Divisional Office No. II, Volga Complex, Canal Road, Jammu.
                                                           .....Appellant(s)

                        Through: Mr. Baldev Singh, Advocate.

                           Vs

   1.   Sunila Sharma wife of Lekh Raj Sharma Resident of H.
        No. 13269, New Manjit Nagar, Near Gopal Nagar, Tibba
        Road, Ludhiana. (Pb)

   2. Sain Dass Son of Chajju Ram
      Resident of Village Shama Chak, Tehsil Malpur District
      Jammu (Owner).

   3. Romesh Kumar Son of Sain Dass
      Resident of Batera 10 Corps C/ 56 APO (Driver)



                                                           ..... Respondent(s)

                        Through: Mr. Sunil Dutt Sharma, Advocate.

                                                                 MA no. 459/2010
                                                                 IA no. 1/2015
National Insurance Co. Ltd through its Sr. Divisional
Manager, Divisional Office No. II, Volga Complex, Canal
Road, Jammu.
                                                           .....Appellant(s)

Through:                                                   Mr. Baldev Singh, Advocate.

                           Vs

   1.   Sunila Sharma wife of Lekh Raj Sharma

   2. Lekh Raj Son of Sh. Bhola Ram
      Residents of H. No. 13269 New Manjit Naar, Near
      Gopal Nagar, Tibba Road, Ludhiana (Pb).

   3. Sain Dass Son of Chajju Ram
      Resident of Village Shama Chak, Malpur District
      Jammu        (Owner).

   4. Romesh Kumar Son of Sain Dass Resident of
      Batera 10 Corps C/ 56 APO (Driver)

                                                           ..... Respondent(s)

                         Through:                          Mr. Sunil Dutt Sharma, Advocate.

Coram: HON'BLE MR. JUSTICE RAHUL BHARTI, JUDGE
                                  2                MA nos. 461/2010 & 459/2010




                              JUDGMENT

1. Motor Accidents Claim Tribunal, Jammu came to entertain a

claim petition on file no. 433/Claim filed on 21.09.2002 by the

respondents no. 1 and 2 herein seeking grant of compensation

under Section 166 read with Section 140 of the Motor Vehicles

Act, 1988 for loss of their child (son) Master Susheel Kumar in a

road traffic accident which occurred on 31.07.2002 at Batera on

Akhnoor road when the respondents no. 1 and 2, as being the

parents along with their deceased child Master Susheel Kumar

aged one and half year were riding Scooter bearing registration

no. JK02R-6826, came to be hit from back by the offending

vehicle (Tractor) bearing registration no. JK02H-7998 owned by

the respondent no. 3-Sain Dass, driven by the respondent no. 4-

Romesh Kumar and insured by the appellant-National Insurance

Company Ltd.

2. In this accident, the respondent no. 1-Sunila Sharma was also

left grievously injured who, along with her husband-respondent

no. 2-Lekh Raj, came to maintain separate claim petition on file

no. 83/Claim filed on 14.05.2003 before the Motor Accidents

Claim Tribunal, Jammu.

3. Both the aforesaid claim petitions, being related to the same

accident, came to be disposed of by the Motor Accidents Claim

Tribunal, Jammu with a common judgment dated 29.01.2010

against which the appellant-National Insurance Company 3 MA nos. 461/2010 & 459/2010

Limited came forward with time barred two appeals i.e., CIMA no.

459/2010 and CIMA no. 461/2010 under Section 173 of the

Motor Vehicles Act, 1988 filed on 29.06.2010. Delay in filing the

said two appeals came to be condoned in terms of orders dated

22.04.2013 and 24.07.2013 respectively.

4. In terms of the impugned award, the Motor Accidents Claim

Tribunal, Jammu came to award compensation of an amount of

Rs. 2,40,000/- for the loss of life of one and half year old son of

the respondents no. 1 and 2 whereas with respect to injury

related claim of the respondent no. 1-Sunila Sharma, the Motor

Accidents Claim Tribunal, Jammu came to award an amount of

Rs. 6 lakhs in favour of the respondent no. 1-Sunila Sharma.

5. In the aforesaid two appeals, the appellant-National Insurance

Co. Ltd is meaning to find fault with grant of compensation of

Rs. 2,40,000/- with respect to death of one and half year old son

of the respondent no. 1-Sunila Sharma and respondent no. 2-

Lekh Raj. If left to the appellant-National Insurance Company

Limited for the loss of life of their one and half years old son, the

respondents no. 1 and 2, as being the aggrieved parents, ought

not to have been given any compensation except funeral

expenses and nothing else as life of one and half year old son was

of no other value to the respondents no. 1 and 2.

6. The grievance of the appellant-National Insurance Company

Limited in the present two appeals is that it was not afforded 4 MA nos. 461/2010 & 459/2010

proper opportunity to contest the claim petitions inasmuch as

the appellant's effort to summon the respondent no. 3- owner of

the offending vehicle, the respondent no. 4-the driver of the

offending vehicle and concerned clerk from RTO Bathinda

(Punjab) along with record of driving licence was not

accommodated by the Motor Accidents Claim Tribunal, Jammu

by the manner in which the right to lead evidence of the

appellant came to be closed given the fact that the diet expenses

for summoning the witnesses cited by the appellant had been

deposited.

7. The appellant has further agitated the point that to the best

possible extent it had placed on record a certificate in original

issued by RTO Bathinda (Punjab) to prove the fact that the driver

of the offending vehicle was not holding an effective driving

licence at the time of the alleged accident but the said document

came to be ignored by the Motor Accidents Claim Tribunal,

Jammu. The appellant is seeking to draw support from the fact

that the driver of the offending vehicle despite his appearance in

the claim petition defaulted in examining himself which points

out the fact that it was an admission of a sort by the driver of the

offending vehicle about his non-holding of a valid driving licence.

8. The appellant is also cribbing about the long pendency of the

claim petition for a period of more than nine (09) years in which 5 MA nos. 461/2010 & 459/2010

the grant of interest has burdened the appellant qua the

compensation awarded.

9. In the Motor Accidents Claim Tribunal, Jammu, the owner and

driver of the offending vehicle had come forward to submit their

objections in both the claim petitions wherein they denied the

involvement of the offending vehicle bearing registration no.

JK02H-7998 in the accident. The insurance of the said offending

vehicle with the appellant-National Insurance Company Limited

was admitted.

10. The appellant, in its objections to the claim petition, came to

admit the fact of insurance of the offending vehicle (Tractor) vide

policy no. 420806/2002/6300516 w.e.f., 01.05.2002 to

30.04.2003 but came to dispute the fact that the insured tractor

was not the one which was involved in the accident and

therefore, it was not covered under the policy. This plea was put

up by reference to the engine number and chasis number of the

offending vehicle as against the insured vehicle but not disputing

the name of the owner and the insured as being Sain Dass s/o

Chajju Ram R/o Village Shama Chak, tehsil Malpur district

Jammu.

11. The appellant, in its objections, went to the extent of attributing

the accident to the negligence of the respondent no. 2-Lekh Raj

driving the scooter no. JK02R-6826. The appellant came to

make a passing reference to the fact that the driver of the 6 MA nos. 461/2010 & 459/2010

offending vehicle was not having a valid and effective driving

licence and that it was being plied in violation of the policy of

insurance.

12. The objections of the appellant were in general in nature using

every possible ground of objection without any specific details.

13. The appellant-National Insurance Company Limited came up

with an application for amendment of the objections so

submitted by it in the case. In its objections to the claim

petitions, the appellant had averred that a tractor bearing engine

no. 229122, chasis no. 3312620 model 1995 was insured with it

vide policy no. 120806/2002/6300516 whereas the offending

tractor was having engine no. 229127 and model of 1996.

14. In an application for seeking amendment of its objections, the

appellant came forward with the version that the tractor involved

vide policy no. 120806/2002/6300596 was with respect to

engine no. 229122, chasis no. 3312620 model no. 1995. The

appellant, however, did not dispute the fact that the name of the

insured qua the vehicle was Sain Dass.

15. In its objections, the appellant-National Insurance Company

Limited referred to policy no. 420806/2002/6300516 and in its

application for amendment, it came to refer policy no.

120806/2002/6300516.

7 MA nos. 461/2010 & 459/2010

16. The appellant is caught in a contradiction of its own reference.

While in its objections to the claim petitions, the appellant-

National Insurance Company Limited did not refer to any driving

licence of the respondent no. 4-Romesh Kumar-the driver of the

offending vehicle but when it came to the matter of seeking

summoning of the witnesses by issuance of process of the Motor

Accidents Claim Tribunal, Jammu, the appellant came to cite

concerned clerk of District Transport Authority Bathinda

(Punjab) along with record of driving licence no. 132/MDL/9192

with validity from 13.07.2002 to 12.07.2007. From where this

driving licence reference came to be fetched by the appellant is

not gatherable from anything on the record of the file.

17. In its application for seeking summoning of the witnesses along

with the owner and driver of the offending vehicle, the appellant

did not anywhere whisper as to how come it came to co-relate the

cited licence number with that of the respondent no. 4-Romesh

Kumar being the driver of the offending vehicle.

18. Surely, in its appeal, the appellant has not pressed into service

the ground of challenge that the passing of the award should

have been subject to pay and recovery principle for any violation

of terms and conditions of the insurance policy. The only

grievance of the appellant is that it has not been afforded due

opportunity to contest the claim petition of the aggrieved 8 MA nos. 461/2010 & 459/2010

respondents no. 1 and 2 who had lost their one and half year old

son and suffered personal injuries in the accident.

19. Even if for the sake of assumption, this Court were to hold in the

year 2023 that the appellant-National Insurance Company

Limited was prejudiced by non-affording of opportunity to

present its defence in a proper manner by the Motor Accidents

Claim Tribunal, Jammu, even then for this Court in August,

2023 to undo the award passed by the Motor Accidents Claim

Tribunal, Jammu for grant of compensation in favour of the

respondents no. 1 and 2 for loss of their child and personal

injury would be nothing but to revive for the respondents no. 1

and 2 the pain and suffering which must have, in the course of

last ten years, been reconciled by them into depth of their

memory.

20. In the light of this, this Court does not find that the Motor

Accidents Claim Tribunal, Jammu prejudiced the right of the

appellant to prove its case and as such the appeals filed by the

appellant-National Insurance Company Limited against the

common judgment dated 29.01.2010 are held to be misconceived

being without merit and are, accordingly, dismissed along with

connected applications.

21. Any amount, if deposited, with respect to award of compensation

in terms of the impugned award before this Court shall be

released in favour of the respondent no. 1-Sunila Sharma and 9 MA nos. 461/2010 & 459/2010

respondent no. 2-Lekh Raj in case if the same has not been

withdrawn earlier.

(Rahul Bharti) Judge JAMMU 10.08.2023 Naresh, Secy.

                 Whether the order is speaking:     Yes/No
                 Whether the order is reportable:   Yes/No