Pehyush Gupta vs Ashwani Kumar And Ors
2023 Latest Caselaw 1760 j&K

     HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                     AT JAMMU

                                           Reserved on:        17.08.2023
                                           Pronounced on:      25.08.2023

                                           MA No. 159/2018
                                           CM No. 7752/2019
                                           IA No. 1/2018
                                           c/w
                                           CCROS No. 19/2018
Pehyush Gupta                                  .....Appellant(s)/Petitioner(s)
                     Through: Mr. Raghu Mehta, Advocate and
Q
                              Mr. Nigam Mehta, Advocate
                Vs
Ashwani Kumar and ors.                                   ..... Respondent(s)
                     Through: Mr. R. K. Bhatia, Advocate for R-1 to 3
                              Mr. C. S. Gupta, Advocate for R-4
Coram: HON‟BLE MR. JUSTICE RAJNESH OSWAL, JUDGE

                              JUDGMENT

1. The appellant i.e. the owner of the offending vehicle and also the

claimants/respondent Nos. 1 to 3 (claimants in CCROS No. 19/2018) have

impugned the award dated 28.03.2018 passed by the Motor Accident

Claims Tribunal, Samba (hereinafter to be referred as „the Tribunal‟),

whereby respondent No. 4-Insurance Company has been directed to satisfy

the award passed in favour of the claimants with liberty to recover the

awarded amount from the appellant.

2. The appellant-owner has impugned the award that the liberty granted to the

respondent No. 4 to recover the compensation from the appellant, after

paying to the claimants/respondent Nos. 1 to 3, is not in accordance with

law. The appellant-owner has also impugned the award on the ground that

the findings of the criminal investigation are not binding on the Tribunal MA No. 159/2018 c/w

and are not sufficient to prove the negligence of the driver in the claim

proceedings and the Insurance Company is under legal obligation to prove

the negligence and breach of the policy by the owner to absolve itself from

its statutory liability to satisfy the award. The appellant has also urged that

the compensation under certain heads vis-a-vis „Loss of Love and

Affection‟ and „Non-pecuniary‟ could not have been awarded by the

Tribunal.

3. The claimants/respondent Nos. 1 to 3 have impugned the award only on the

ground that just compensation has not been awarded to the

claimants/respondent Nos. 1 to 3.

4. Mr. Raghu Mehta, learned counsel for the appellant-owner would submit

that the learned Tribunal has simply relied upon the charge sheet produced

against the respondent No. 5 and has returned a finding that the vehicle was

being driven by the driver, who was not holding a valid and effective

driving license at the time of alleged occurrence. He would further submit

that respondent No. 4 has not led any evidence in order to prove the issue

Nos. 2 and 3. Mr. Mehta vehemently argued that once the claimants had

sought compensation on the basis of notional income of the deceased, no

further enhancement can be sought by them. He lastly submits that

respondent No. 5 stands acquitted, as such, alleged negligence of the

respondent No. 5 stands disproved by the criminal court and the offences

under section 279/304-A RPC r/w section 3/181 MV Act were not proved

against the respondent No. 5.

5. Per contra, Mr. R. K. Bhatia, learned counsel for the claimants/respondent

Nos. 1 to 3 has placed reliance upon the judgment passed by the Hon‟ble MA No. 159/2018 c/w

Apex Court in case titled, „Kajal v. Jagdish Chand and others‟ reported

in AIR 2020 Supreme Court 776, to substantiate his contention that

notional income as mentioned in the judgment was required to be

considered for the purpose of determining the compensation.

6. Mr. C. S. Gupta, learned counsel for respondent No. 4 has also placed

reliance upon the judgments passed by the Hon‟ble Supreme Court in case

titled, „Pappu and others vs. Vinod Kumar Lamba and another‟

reported in (2018) 3 SC 208 and „Rishi Pal Singh vs. New India

Assurance Co. Ltd. & Ors.‟ reported in 2022 ACJ 1868.

7. Heard learned counsels for the parties and perused the record.

8. Respondent No. 1 being father, respondent No. 2 being mother and

respondent No. 3 being brother of the deceased, namely, Ashutosh Sharma,

who was 12 years of age and died in a motor vehicular accident on

30.09.2010, filed a claim petition for grant of compensation. In the claim

petition, it was pleaded by the claimants that the monthly income of the

deceased be considered as Rs. 15000/- per annum as per schedule of the

Motor Vehicle Act. Notice was issued to the appellant/owner and to

respondent Nos. 4 and 5. The appellant and the respondent Nos. 4 & 5 filed

the objections to the claim petition.

9. On the basis of pleadings of the parties, the learned Tribunal has framed the

following issues:-

1. Whether deceased Ashutosh Sharma s/o Ashwani Sharma R/o Smailpur Tehsil & Distt. Samba was injured in an accident on 30-09-2010 at 9 pm near Chowdhary Karyana Store, Link Road Bishnah, Bari Brahmana, Tehsil & Distt. Samba due to rash and negligent driving of offending vehicle no. JK02T-4882 (Maruti Van) by respondent No. 1 when the deceased was hit by said vehicle and died on 01-10-2010 at GMC Jammu? OPP

2. Whether the respondent no. 1 was not holding a valid driving license at the time of accident? OPR3 MA No. 159/2018 c/w

3. Whether the respondent no. 3 is not liable to pay any compensation as the offending vehicle was driven in contravention of the terms and conditions of the insurance policy? OPR3

4. In case issue no. 1 is proved affirmative whether petitioners are entitled to any compensation and if so, from whom and to what extent? OPP

5. Relief?

10. The claimants/respondent Nos. 1 to 3 examined respondent No. 1 and PW

Vimal Kumar in support of their claim, whereas the appellant examined

witnesses, namely, Banarsi Dass and Sobit Kumar in support of his

contention. The learned Tribunal after considering the evidence of the

parties, awarded the compensation under the following heads:-

                    1. As per Schedule: ₹ 15000 x 15               =      ₹ 2,25,000/-
                    2. Non pecuniary :                             =      ₹ 1,75,000/-
                    3. Loss of love & affection:                   =      ₹ 40,000/-
                    4. Loss of estate:                             =      ₹ 15,000/-
                    5. Funeral expenses:                           =      ₹ 15,000/-
                       Total Award                                 =      ₹ 4,70,000/-

11. The first contention raised by the appellant-owner is that the learned

Tribunal has simply relied upon the charge sheet in order to arrive at the

conclusion that the driver of the offending vehicle was not having a valid

license at the time of the accident. In this context, it is appropriate to take

note of the judgment of the Hon‟ble Apex Court in case titled, „Rishi Pal

Singh vs. New India Assurance Co. Ltd. & Ors. and „Pappu and others

vs. Vinod Kumar Lamba and another‟ (supra). In view of the judgments

passed by the Hon‟ble Supreme Court, it is clear that the Insurance

Company is entitled to take a defence that the offending vehicle was driven

by an unauthorized person or the person driving the vehicle did not have a

valid driving license and the onus would shift on the Insurance Company

only after the owner of the offending vehicle pleads and proves the basic

facts within his knowledge that the driver of the offending vehicle was MA No. 159/2018 c/w

authorized by him to drive the vehicle and was having a valid driving

license at the relevant time. In the instant case, the appellant, who happens

to be a father of respondent No. 5, never appeared as a witness and also the

respondent No. 5 did not appear as a witness before the Tribunal to prove

that the respondent No. 5 was having a valid driving license. In view of the

above, this Court does not find any illegality in the finding returned by the

Tribunal that the offending vehicle was being driven by the driver, without

having a valid driving license.

12. The other contention raised by the appellant is that the respondent No. 5

stands acquitted, as such, alleged negligence of respondent No. 5 stands

disproved by the criminal court. A perusal of the statements of the

claimant/respondent No. 1, namely, Ashwani Sharma and the witness of the

claimants, namely-Vimal Kumar reveals that on 30.09.2010 at 9:00 pm, the

respondent No. 1 had gone to take his son, who opened the door of his

Maruti car and in the meanwhile, a Maruti van bearing registration No.

JK02T-4882 being driven rashly and negligently at a speed of 100-200

kms, hit him, as a result of which, his son got injured and subsequently

died. To the same extent, respondent No. 1 to 3/claimants‟ witness, namely,

Vimal Kumar has deposed that the offending vehicle was being driven by

its driver, namely, Sushant Jandayal in a rash and negligent manner. The

learned Tribunal after taking note of the statements of respondent No. 1 and

his witness, has returned a finding that the accident was caused due to rash

and negligent driving of the offending vehicle by the respondent No. 5. The

contention of the learned counsel for the appellant-owner that the

respondent No. 5 stands acquitted and as such, the appellant cannot be held MA No. 159/2018 c/w

liable for payment of compensation is misconceived. The acquittal of the

driver in an accident would not have any bearing upon the finding returned

by the Tribunal in respect of accident caused by respondent No. 5. The

Hon‟ble Supreme Court in case titled, „Janabai v. ICICI Lambord

Insurance Co. Ltd., (2022) 10 SCC 512 has held as under:-

"11.We find that the rule of evidence to prove charges in a criminal trial cannot be used while deciding an application under Section 166 of the Motor Vehicles Act, 1988 which is summary in nature. There is no reason to doubt the veracity of the statement of Appellant 1 who suffered injuries in the accident. The application under the Act has to be decided on the basis of evidence led before it and not on the basis of evidence which should have been or could have been led in a criminal trial. We find that the entire approach of the High Court is clearly not sustainable."

(emphasis added)

13. Further, the Hon‟ble Supreme Court in case titled, „Mangla Ram v.

Oriental Insurance Co. Ltd., (2018) 5 SCC 656has held as under:-

"27. Another reason which weighed with the High Court to interfere in the first appeal filed by Respondents 2 & 3, was absence of finding by the Tribunal about the factum of negligence of the driver of the subject jeep. Factually, this view is untenable. Our understanding of the analysis done by the Tribunal is to hold that Jeep No. RST 4701 was driven rashly and negligently by Respondent 2 when it collided with the motorcycle of the appellant leading to the accident. This can be discerned from the evidence of witnesses and the contents of the charge-sheet filed by the police, naming Respondent 2. This Court in a recent decision in Dulcina Fernandes [Dulcina Fernandes v. Joaquim Xavier Cruz, (2013) 10 SCC 646] , noted that the key of negligence on the part of the driver of the offending vehicle as set up by the claimants was required to be decided by the Tribunal on the touchstone of preponderance of probability and certainly not by standard of proof beyond reasonable doubt. Suffice it to observe that the exposition in the judgments already adverted to by us, filing of charge-sheet against Respondent 2 prima facie points towards his complicity in driving the vehicle negligently and rashly. Further, even when the accused were to be acquitted in the criminal case, this Court opined that the same may be of no effect on the assessment of the liability required in respect of motor accident cases by the Tribunal."

(emphasis added) MA No. 159/2018 c/w

14. The third contention raised by the appellant and the respondent Nos. 1 to

3/claimants is in respect of quantum of compensation.

15. A perusal of the award impugned reveals that the learned Tribunal has

awarded an amount of Rs. 40,000/- on account of Loss of Love and

Affection and Rs. 1,75,000/- has been awarded under the head-Non

pecuniary. The compensation awarded under these heads is not permissible.

However, the learned Tribunal has considered the notional income of the

deceased as Rs. 15000/- per annum while determining the compensation

payable to the respondent Nos. 1 to 3. In „Kajal v. Jagdish Chand and

others‟, in respect of the injuries suffered by the girl of 12 years, the

Hon‟ble Supreme Court has held that taking notional income to be Rs.

15000/- is not at all justified and Rs. 4846/- is the minimum amount, which

should be considered. The judgment relied upon by Mr. R. K. Bhatia,

Advocate is not applicable in the present facts and circumstances of the

case, as the instant case is a death case and not injury case. The judgment in

Kajal‟s case was taken note of by the Hon‟ble Supreme Court in case titled,

Rajendra Singh v. National Insurance Co. Ltd., (2020) 7 SCC 256 but

was not applied in the said case on the same ground that the claim arose in

respect of injuries suffered by the victim. The notional income fixed by the

Tribunal as Rs. 15000/- per annum is not in accordance with the judgment

passed by the Hon‟ble Apex Court in „Kurvan Ansari v. Shyam Kishore

Murmu, (2022) 1 SCC 317‟. The Hon‟ble Apex Court has held that Rs.

25,000/- per annum is required to be considered as notional income.

16. Accordingly, in view of the law laid down by the Hon‟ble Apex Court in

case titled, „Kurvan Ansari vs. Shyam Kishore Murmu‟, the notional MA No. 159/2018 c/w

income of the deceased is required to be considered as Rs. 25000/- per

annum. Further no compensation could have been paid on account of Loss

of Estate to the respondent Nos. 1 and 2. Accordingly, the compensation

payable to the respondent Nos. 1 to 3/claimants is under the following

heads:-

1. Loss of dependency: Rs. 25000 x 15= Rs. 3,75,000/-

       2. Filial consortium:               Rs. 80,000/- (to respondent Nos. 1 & 2)
       3. Funeral Expenses:                Rs. 15,000/-
           Total:                          Rs. 4,70,000/-
                                           (Rupees Four Lacs Seventy Thousand only)

17. As this Court has also arrived at the same amount of compensation which

has been granted by the learned Tribunal, however under wrong heads,

therefore, the appeals filed by the appellant as well as the

claimants/respondent Nos. 1 to 3 are dismissed. The award passed by the

Tribunal, if deposited, be released in favour of the respondent Nos. 1 to

3/claimants after due verification by their counsel.

18. Record of the Tribunal be sent back.

(RAJNESH OSWAL) JUDGE

Jammu 25.08.2023 Neha-II Whether the order is speaking: Yes Whether the order is reportable: Yes