Iffco Tokio General Insurance Co. ... vs Om Parkash
2023 Latest Caselaw 348 j&K

      HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                      AT JAMMU


                                      Reserved on: 09.02.2023
                                      Pronounced on: 23.02.2023

                                      Mac App No. 57/2021 c/w
                                      Mac App No. 58/2021
                                      Mac App No. 59/2021
                                      Mac App No. 60/2021
                                      Mac App No. 61/2021
                                      Mac App No. 62/2021


IFFCO TOKIO General Insurance Co. Ltd.               ...Appellant(s)


                           Through:- Mr. Vipan Gandotra Advocate
                     V/s

Om Parkash                       ...Respondent(s)

                           Through:- Mr. A.S.Azad, Advocate


Coram: HON'BLE MR. JUSTICE SANJAY DHAR JUDGE

                           JUDGMENT

1. By this common judgment/order, the afore-titled six connected

appeals arising out of a common award dated 24.12.2020 passed by the

Motor Accident Claims Tribunal, Jammu (hereinafter referred to as the

„Tribunal‟) are proposed to be disposed of.

2 It appears that deceased Malkiyat Singh, Shanker Singh,

Balwant Raj and injured Om Parkash, Anuradha and Sunil Kumar were

travelling in a Eco Car bearing No. JK-11-A/4856 from Badkot Uttar Kashi

towards Jammu. On 26.02.2015 at about 11 pm, when the vehicle in

question reached Hathyari, Uttrakhand, it suffered an accident as a result of

which it fell into a deep gorge. Due to the said accident, the deceased as well

a/w connected matters.

as the injured above named, who were travelling in the vehicle in question,

suffered grievous injuries which led to the death of the deceased and

permanent disablement of the injured. The accident also resulted in death of

the owner cum driver of the vehicle in question.

3 The legal heirs/dependents of the deceased as also the injured

filed as many as six different claim petitions before the Tribunal claiming

compensation from the appellant-Insurance Company and the owner of the

offending vehicle. During pendency of the said claim petitions, the name of

owner was deleted from the array of parties as he had died in the same

accident which was subject matter of the claim petitions.

4 The claim petitions were contested by the appellant-Insurance

Company by filing reply thereto. In its reply, it was contended by the

appellant-Insurance Company that the driver of the vehicle in question was

not holding a valid and effective driving licence at the relevant time and

even the documents of the vehicle were not valid. Although the accident was

not specifically denied by the appellant-Insurance Company, but it was

pleaded that the claimants should be put to strict proof with regard to the

alleged occurrence. The appellant-Insurance Company, inter alia, sought to

take up all defences available to it under the policy of insurance as also

those defences that are available to the owner in terms of Section 170 of the

Motor Vehicles Act, 1988 (for short „the Act of 1988‟). In fact, an

application under Section 170 of the Act was also made by the appellant-

Insurance Company before the Tribunal. Having regard to the manner in

which the appellant-Insurance Company was allowed to cross-examine the

witnesses on the aspect relating to quantum of compensation, it appears that

a/w connected matters.

the appellant-Insurance company was permitted to plead and take up all

defences as are available to an owner of the insured vehicle.

5 On the basis of pleadings of the parties, the following issues

came to be framed by the Tribunal:

"(i) Whether an accident took place on 26.02.2015 at Hathyari, Bhadwala, Juddo Road District Dehradoon involving offending vehicle bearing registration No. JK11- A/4856 as a result of which deceased Malkiyat Singh, Shanker Singh and Balwant Raj suffered fatal injuries and petitioners namely Om Parkash, Anuradha and Sunil Kumar received grievous injuries ?OPP

(ii) If issue No.1 is proved in affirmative, whether petitioner is entitled to compensation ? If so, to what amount and from whom ?

(iii) Whether there was any violation of terms and conditions of insurance policy with respect to the vehicle No. JK11- A/4856 on the date of occurrence, if yes, what is its effect?"

6 The claimants led evidence in support of their case, whereas no

evidence was led by the appellant-Insurance Company before the Tribunal.

7 The Tribunal vide the impugned award held that the accident

had occurred due to rashness and negligence of the deceased driver. So far

as the violation of terms of the policy of insurance is concerned, the same

was not proved because no evidence was led by the appellant-Insurance

Company before the Tribunal. The Tribunal awarded a sum of Rs.8,06,400/-

as compensation in favour of claimant Om Parkash who had suffered

injuries due to the accident, a sum of Rs.6,56,000/- was awarded as

compensation in favour of injured claimant Sunil Kumar, a sum of

Rs.25,000/- was awarded as compensation in favour of injured claimant

Anuradha, a sum of Rs.33,37,160/- was awarded in favour of dependents of

the deceased Balwant Raj, a sum of Rs.23,96,162/- was awarded as

compensation in favour of dependents of the deceased Shanker Singh and a

a/w connected matters.

sum of Rs. 8,66,800/- was awarded as compensation in favour of dependents

of the deceased Malkiyat Singh.

8 The appellant-Insurance Company has challenged the

impugned award on the grounds that the claimants have not impleaded the

legal heirs of owner of the offending vehicle as parties to the claim petitions

and, as such, the claim petitions are not maintainable. It has also been

contended that, in the instant case, no FIR relating to the accident was

registered by the concerned Police Station, as such, the accident is not

established. Lastly, it has been argued that, in the case of claim petition

arising out of death of deceased Balwant Raj, who was working as a Sub

Inspector in J&K Police, the Tribunal while assessing compensation has not

taken into consideration the fact that as per the Service Rules applicable to

the deceased, his widow is entitled to full pension up to a period of 7 years

from the date of his death and the same was required to be deducted while

assessing the compensation. In this regard, reliance has been placed upon a

judgment of this Court in the case of New India Assurance Co. Ltd vs.

Usha Baloria and others (MA No. 291/2012 and connected matters,

decided on 24.07.2020).

9 I have heard learned counsel for the parties and perused the

record of the case.

10 The first ground that has been urged by learned counsel for the

appellant-Insurance Company is that, without impleading the legal heirs of

the deceased insured, the claim petitions are not maintainable. It has been

submitted that owner cum driver of the offending vehicle had died in the

same accident and the claimants, after deleting him from array of the parties,

a/w connected matters.

did not take steps to implead his LRs thereby rendering the claim petitions

incompetent.

11. In the above context, it would be appropriate to refer to the

provisions contained in Section 155 of the Act of 1988 which provides for

effect of death on the cause of action. It reads as under:

"155. Effect of death on certain causes of action: Notwithstanding anything contained in section 306 of the Indian Succession Act, 1925 (39 of 1925), the death of a person in whose favour a certificate of insurance had been issued, if it occurs after the happening of an event which has given rise to a claim under the provisions of this Chapter, shall not be a bar to the survival of any cause of action arising out of the said event against his estate or against the insurer".

12 From a bare perusal of the aforesaid provision, it is clear that if

death of an insured has occurred after the happening of accident which has

given rise to a claim, the same would continue to survive against the estate

of the insured or against the insurer. The question that arises for

consideration is that whether, in the face of aforesaid provision, the present

claim petitions without impleading the LRs of the deceased owner as

parties, are maintainable.

13 A Division Bench of the Karnatka High Court in the case of

New India Assurance Co. Ltd vs. H. Siddalinga Naika and others, 1985

ACJ 1989, has dealt with a similar issue as has been raised in the present

case. In the said case, a grievance was projected by the insurance company

that owner of the vehicle had died during the pendency of the claim petition

before the Tribunal and since his legal heirs were not brought on record, the

Tribunal could not have passed the award against the Insurance company.

The Division Bench rejected the contention and observed as under:

a/w connected matters.

"There is no substance in the contention so raised because section 102, Motor Vehicles Act,states:

"Notwithstanding anything contained in section 306, Succession Act, 1925, the death of person in whose favour a certificate of insurance had been issued, if it occurs after the happening of an event which has given rise to a claim under the provisions of this Chapter, shall not be a bar to the survival of any cause of action arising out of the said event against his estate or against the insurer."

In this case, the claim petition was already filed before the Tribunal and insurance company had issued the policy. That being so, the fact that the owner of the lorry dies, makes no difference. The Tribunal has rightly passed award against the insurer. Hence, there is no substance in this appeal and it is liable to be dismissed. Accordingly it is dismissed. No costs in the appeal"

14 Again in Natha Singh vs. Gurdial Singh and others, AIR

1982 Punjab and Haryana 38, a similar issue was raised before Punjab and

Haryana High Court. In the said case, an objection was raised by the

insurance company that it was not liable to satisfy the claim for

compensation because the legal representatives of the insured, who died

during the pendency of the proceedings, were not brought on record. The

objection was rejected by the Punjab and Haryana High Court with the

following observations:

"Section 96 of the Act provides for the duty of the insures to satisfy judgments against persons insured in respect of third party risks. It also provides that the insurance company or the insurer to whom the notice of the bringing of any such proceedings is given, shall be entitled to be made a party thereto and to defend the action on any of the grounds given therein. Section 102 of the Act provides,-

"Notwithstanding anything contained in Section 306 of the Indian Succession Act, 1925 (XXXIX of 1925), the death of a person in whose favour a certificate of insurance had been issued, if it occurs after the happening of an event which has given rise to a claim under the provisions of this Chapter, shall not be a bar to the survival of any cause of action arising out of the said event against his estate or against the insurer." In view of these provisions of the Act, it cannot be said that the insurance company is not liable to satisfy the claim for

a/w connected matters.

compensation to be awarded in the claim application simply because the legal representatives of Amrit Lal Gupta insured who died during the pendency of the proceedings, were not brought on the record. It is particularly so because in the insurance policy, Exhibit R-11, it has been provided inter alia vide Cl. (4) of Section II, thereof that the company may, on its own option, undertake the defence of proceedings in any Court of law in respect of any act or alleged offence causing or relating to any event which may be the subject of indemnity under that section. It was because of this term of the policy that the insurance company took a specific plea in paragraph 3 of their additional grounds that it had taken over the defence of the claim petition in the name of the insured to contest the claim, as they had reserved the right under the policy of insurance. As observed earlier, this claim was accepted by the Tribunal and on that account, it was allowed to cross-examine the witnesses, on merits, as well. Under the circumstances, the ratio of the decision in Norati Devi's case, (AIR 1978 Punj. & Har 113) (supra), is most relevant. It has been held therein (at p. 114):-

"Section 96 only clarifies that if an award is made, it would be the duty of the insurance company to meet the claim. It nowhere lays down that if the insurance company is allowed to contest the liability in the absence of the insurer, it should not be held liable. Therefore, it cannot be contended that an insurance company can never be held liable so long as the insured is not impleaded as a party to the proceedings, or having been impleaded his name is ordered to be struck off from the array of the respondents on the basis that he enjoys diplomatic immunity from being sued in a Court."

In view of the abovesaid decision of this Court, the claim application of Natha Singh, appellant, could not be dismissed on the ground that the legal representatives of Amrit Lal Gupta, deceased, were not brought on the record."

15 A Coordinate Bench of this Court in the case of Bajaj Allianz

General. Insurance. Co. Ltd. vs. Naresh Kumar and another, (MA No.

18/2016, decided on 25.10.2021), has also observed that Section 155 of the

Act of 1988 clearly states that the death of the person, in whose favour a

certificate of insurance had been issued, after the happening of the accident,

which gave rise to filing of claim petition, is no bar to the proceedings and,

therefore, proceedings do not abate.

a/w connected matters.

16 From the foregoing enunciation of law on the subject, it is clear

that if death of the insured takes place after the cause of action for filing the

claim petition has arisen in favour of the claimant, the claim petition cannot

be thrown out merely because the legal heirs of the insured have not been

impleaded as parties to the claim petition.

17 Learned counsel for the appellant-Insurance Company has

submitted that, in the instant case, the insured has died in the same accident

which was the subject matter of the claim petitions, as such, Section 155 of

the Act of 1988 would not come to the rescue of claimants. The argument

raised by learned counsel for the appellant-Insurance Company is

misconceived for the reason that, in section 155 of the Act, the expression

used is "if it occurs after the happening of an event which has given rise to a

claim" meaning thereby that if death of the insured has taken place after the

accident which gives rise to cause of action for filing a claim petition, the

petition can survive against the insurer without impleading the legal heirs of

the owner.

18 In the instant case, no doubt, death of the insured has taken

place in the same accident which has given rise to cause of action in favour

of the claimants, but it cannot be stated that death of the owner had taken

place prior to the accident. His death certainly took place after the

occurrence of the accident and not prior to that, so, at the time of the

accident, the certificate of insurance issued by the appellant-Insurance

company in favour of the deceased owner was in force. Therefore,

provisions of Section 155 of the Act would certainly save the claim petitions

filed by the claimants in the instant case. In this regard, I am supported by

the judgment of High Court of Karnataka in the case of Regional Manager

a/w connected matters.

vs CR lolakshi (Misc. Appeal No. 47, decided on 17.03.2016). In the said

case, in a similar situation where death of the insured had taken place in the

same accident that had given rise to cause of action in favour of the

claimants, the High Court of Karnataka observed that even if insured had

expired in the said accident, the claimants are entitled to submit a claim

petition against the insurer. Accordingly, the contention raised by the insurer

was held to be not acceptable.

19 Even otherwise, in the instant case, as already noted, the

appellant-Insurance company has taken up all the defences before the

Tribunal that are available to an owner/insured which is clear from the

pleadings of the appellant-Insurance Company as also from the manner in

which it has been allowed to cross-examine the witnesses of the claimants.

Thus, non-impleadment of legal heirs of the deceased owner has not made

any adverse impact on the merits of the case. Therefore, the insurer cannot

escape its liability to pay compensation to the claimants on the ground that

the legal heirs of the deceased owner were not made parties to the claim

petitions.

20 The next argument raised by learned counsel for the appellant-

Insurance Company is that the claimants have not placed on record the FIR

relating to the accident so as to prove the occurrence. The argument is

without any merit for that the reason that no FIR in the instant case has been

registered by the police and instead the police has conducted the inquest

proceedings under Section 174 of Cr.P.C and concluded that the cause of

death of the deceased and injuries to the injured has arisen out of use of

motor vehicle and the person responsible for the accident has also died.

Even otherwise, three injured, namely Sunil Kumar, Anuradha and Om

a/w connected matters.

Parkash, who were travelling in the vehicle in question, have clearly stated

that, due to mechanical defect, the driver of the vehicle could not control the

same and it fell into a deep gorge. They have further stated that the accident

was caused due to the carelessness and negligence of driver of the

offending driver. In this view of the matter, merely because FIR was not

registered, but only inquest proceedings were conducted by the police, it

cannot be stated that the occurrence has not been proved . The contention of

learned counsel for the appellant-insurance company is without any merit.

21 Lastly, it has been argued that, while calculating the

compensation in the claim petition arising out of death of deceased Balwant

Raj, the Tribunal has not deducted the amount of full pension that his

widow/claimant Anuradha would have got in terms of the Service Rules. As

already noted, reliance in this regard has been placed on a judgment of this

Court in the case of Usha Baloria (supra) wherein this Court has held that

the actual amount of family pension equivalent to the salary of the deceased

employee for a period of seven years or till the date of superannuation, as

the case may be, if received by the family of the deceased, will be

deductible from the amount of compensation assessed . The said ratio has

been laid down by this Court on the basis of Rule 20(ii)(aaa) of Jammu and

Kashmir Family Pension-cum-Gratuity Rules, 1964 according to which if a

Government servant dies while in service after having rendered not less than

7 years continuous service, the rate of family pension admissible to the

beneficiary of the deceased shall be equal to the pay last drawn by the

deceased officer before his death.

22 In the instant case, there is nothing on record to show that the

claimant Anuradha, the widow of the deceased Balwant Raj, has, at any

a/w connected matters.

stage, received full pension in terms of the aforesaid Rule. Not even a

suggestion has been made to her by the counsel for the insurer during her

cross-examination before the Tribunal. Even otherwise, the aforesaid Rule,

which is the basis of ratio laid down by this Court in Usha Baloria's case

(supra) has been amended vide SRO 94 dated 15.04.2009 and now a widow

of an employee, who dies in harness is entitled to family pension only @

50% of the past pay drawn. The death of the deceased Balwant Raj has

taken place on 26.02.2015 when the said Rule had been amended.

Obviously, there was no occasion for the widow of deceased Balwant Raj to

receive the full pension for a period of seven years in terms of the aforesaid

Rule. Thus, ratio laid down in Usha Baloria's case (supra) is otherwise not

applicable to the instant case. The argument advanced by learned is,

therefore, without any merit.

23 For the foregoing reasons I do not find any merit in any of the

aforesaid appeals. The same are, accordingly, dismissed and the impugned

award passed by the Tribunal is upheld. Registrar Judicial is directed to

release the amount deposited by the appellant-insurance company, if any, in

favour of the claimants as per the terms of the impugned award.

(Sanjay Dhar) Judge

JAMMU 23.02.2023 Karam Chand Whether the order is speaking: Yes/No Whether the order is reportable: Yes/No