The Oriental Insurance Co. Ltd; vs Sham Singh
2024 Latest Caselaw 182 j&K

Jammu & Kashmir High Court

The Oriental Insurance Co. Ltd; vs Sham Singh on 20 February, 2024

     HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                                                                               10
                     AT JAMMU

Case: MA No. 483/2009
                                                Reserved on- 15.02.2024
                                                Pronounced on- 20.02.2024



The Oriental Insurance Co. Ltd;
Divisional Office No. I, Town Hall
Building, Jammu through its
Sr. Divisional Manager, Dr. R Dupper                         ...Appellant

q
                          Through: Mr. Amrit Sarin, Advocate.
                     vs
01.       Sham Singh,        02. Harnam Singh
03.       Shamsher Singh, 04. Kamal Singh
05.       Surinder Singh, 06. Opinder Singh
          (All sons of late Rashpal Singh
           residents of Sarore, Jammu)
06.       Chanchal Kumar S/O Gian Chand
          R/O Keri, Tehsil and District Jammu
                                                             ....Respondents
                          Through: Mr. K.L. Bhat, Advocate for R-1 to 6
                                   Nemo for R-7.
CORAM: HON'BLE MR. JUSTICE MA CHOWDHARY, JUDGE

                                       JUDGMENT

01. Appellant-Insurer, through the medium of this appeal has challenged the

award dated 27.08.2009 passed by the Motor Accident Claims Tribunal, Jammu

(hereinafter called as "the Tribunal") in claim petition titled "Sham Singh & Ors.

Vs. Oriental insurance Co. & Another"., whereby an amount of Rs. 2,17,500/-

along with interest @ 7.5% per annum, payable by the appellant has been granted.

02. Facts emanating from the pleadings are that one Raj Kumari died in a road

accident on 29.09.2006, while she was walking on a road on being hit by vehicle

No. JK02/1531 allegedly driven in a rash and negligent manner by its driver.

Respondents 1 to 6, claiming as legal heirs of the deceased Raj Kumari filed a

claim petition on 11.04.2007 before the Tribunal claiming compensation in terms

of Section 166 of Motor Vehicle Act. Respondent no. 1 insurer of the vehicle

responded to the notice issued by the Tribunal and filed objections, whereas

respondent no. 2 Chanchal Kumar, owner/driver of the offending vehicle did not

respond to the notice and was proceeded ex parte. The respondent insurer

(appellant herein), while resisting the claim petition, pleaded that the driver of the

offending vehicle did not possess a driving licence at the relevant time of the

accident. As the driving licence had no requisite PSV endorsement, as such, the

vehicle was being driven at the time of accident in violation to the terms and

conditions of the policy, as such, the insurer was not liable to indemnify the

insured owner as per the terms and conditions of the policy. Insurer, however,

admitted the ownership and the currency of the policy and prayed for dismissal of

the claim petition.

03. On the basis of the pleadings of the parties, the following issues were raised

by the Tribunal:-

i) Whether an accident occurred on 29.09.2006 at Akalpur Sarore due to rash and negligent driving of offending vehicle No. JK02 1531 in the hands of erring driver in which deceased Raj Kumari sustained fatal injuries?

ii) If issue No. 1 is proved in affirmative whether petitioners are entitled to the compensation if so to what amount and from whom?

iii) Whether driver of offending vehicle at the time of accident was not holding valid and effective driving license, route permit, fitness and drove the vehicle in violation of terms and conditions of insurance policy; if so what is its effect?

iv) Relief?

04. The Tribunal, after evidence being led by the parties, passed the impugned

award granting compensation of an amount of Rs. 2,17,500/- for the death of the

deceased Raj Kumari in favour of one of the claimant no. 6 along with interest @

7.5% per annum from the date of filing of the claim petition till liquidation and the

other claimants no. 1 to 5 being government officials being not dependent on the

income of the deceased were held not entitled to get any compensation.

05. The impugned award has been assailed by the appellant on the ground that

the offending vehicle, as on date of accident, was being driven by an unlicensed

driver and that the appellant as respondent before the Tribunal had sought

assistance of the Tribunal for summoning the driver/owner of the vehicle to prove

the same fact, whereas the Tribunal, instead of issuing warrants against the

driver/owner who despite service had not appeared, closed the right of the

appellant Insurance company stating it company had not produced any evidence in

support of its contention; that there being no valid driving license was a major

ground of violation of terms and conditions of the insurance policy and the

appellant insurance company should have been exonerated from the liability under

the contract of insurance but the Tribunal while deciding the claim petition found

it not appropriate to give opportunity of being heard to the appellant and closed its

right despite the fact that the witnesses sought to be summoned were witnesses of

the Court itself and the necessary steps of depositing diet expenses had been taken

by the appellant insurance company, therefore, the Tribunal unmindful of the

consequences of closing of the right of one of the parties had committed illegality

which attracts setting-aside of the award impugned; that the Tribunal has also

committed a mistake by treating the age of the deceased as 55 years instead of 63

years and had the age of the deceased been taken as 63 years, the compensation

would have come to around Rs. 1,12,500/- only whereas the Tribunal had awarded

an amount of Rs. 2,02,500/-, which was neither just nor fair compensation; that

the claimants were major and married sons of the deceased and it cannot be

perceived that they were dependent on their old mother, except for love and

affection and finally it was prayed that the impugned award be set-aside in the

interest of justice.

06. Mr. Amrit Sarin, leanred counsel for the appellant has argued that the award

has been passed by the Tribunal without dealing with application of the insurance

company to call respondent driver as a witness with regard to driving license and

it has been wrongly observed by the Tribunal that despite direction, it failed to

lead evidence. He has also submitted that the appellant applied before the Tribunal

for summoning the respondent owner/driver and deposited an amount of Rs.

2,00/- as witness expenses vide GR dated 14.03.2009, therefore, it was incumbent

upon the Tribunal to have summoned the respondent Chanchal Kumar as a

witness. However, the Tribunal had ignored the application without assigning any

reason and did not summon the said witness as the appellant as respondent insurer

wanted to prove that the respondent driver/owner was driving the vehicle at the

time of accident when he was not holding any valid and effective driving license.

He has also argued that the Tribunal had treated the age of the deceased as 55

years, whereas the fact of the matter is that claimant no. 1 had himself stated that

the deceased had been married at the age of 30 years and that he is now of the age

of 43 years old. Petitioner no. 1 being oldest child and by this calculation, the

deceased would have been of the age of 63 years at the time of her death. He

further argued that granting of compensation by application of a wrong multiplier

makes the difference.

07. Mr. K.L. Bhat, learned counsel for the respondents 1 to 6, ex adverso,

would argue that the appellant has failed to place on record any application

whereby it had prayed the Tribunal for summoning the respondent Chanchal

Kumar as a witness with regard to proof that he was driving the vehicle without a

valid and effective driving license. He has also argued that the Tribunal had

granted sufficient time to the appellant for leading evidence but the appellant had

miserably failed to do so. He also argued that the Tribunal while calculating the

compensation had slashed the multipler from 11 to 9, therefore, the plea of the

appellant with regard to wrong use of multiplier is uncalled for and requires to be

overruled with regard to quantum of the compensation. He has finally prayed that

the award be upheld and the appeal be dismissed.

08. Heard learned counsel for both the sides, perused the record and considered

the matter.

09. The appellant as respondent insurer before the Tribunal had taken a plea

that the offending vehicle was being driven by the driver at the time of accident

without requisite documents including not holding a valid and effective driving

license and the Tribunal had framed issue no. 3 in this behalf, placing onus to

prove the same on it as to whether driver of the offending vehicle at the time of

accident was not holding valid and effective driving license, route permit,

fitness certificate and drove the vehicle in violation of terms and conditions of

the insurance policy and it so what is its effect. The appellant as respondent

insurer did not lead any evidence before the Tribunal. The appellant as respondent

insurer could have examined some official from the Licensing/Registering

Authority to prove as to what kind of license had been issued in favour of the

respondent/driver and as to whether he was competent to drive the offending

vehicle or not and also weather there were other documents of the vehicle. The

appellant appears to have moved an application for summoning respondent

Chanchal Kumar and deposited an amount of Rs. 200/- as his diet expenses on

14.03.2009 and the Tribunal had issued notice to the said Chanchal Kumar to

appear in the Court on 20.07.2009 along with documents, however, as indicated in

the report of the process server, he was not found on the given address and could

not be served without being identified. Since the proceedings before the Tribunal

were summary in nature, it was incumbent upon the appellant to get the notice

served on the said person for the examination as a witness which the appellant

insurer had not done.

10. As indicated in the interim order dated 16.11.2023, this Court had directed

the learned counsel for the appellant to apprise the Court vide earlier interim order

dated 01.12.2022, as to whether the respondent-driver was having an effective

driving license at the relevant point of time or not and despite four dates having

elapsed, the needful had not been done and final opportunity had been granted to

apprise this Court about the said aspect of the matter, however, the appellant

despite directions to apprise this Court with regard to validity or otherwise of the

driving license, had failed to apprise the Court despite numerous opportunities,

therefore, presumption has to be drawn that the appellant had not document in its

possession, so as to say that the driving license or any other document was not

valid and in absence of such document, there was no need to confront the

driver/owner, with regard to validity of the driving license.

11. Even during the pendency of this appeal, the appellant had not moved any

application for leading any leading any evidence at the appellate stage in terms of

Order 41 Rule 27 of CPC. So much so that even the appellant despite clear

directions to apprise the Court with regard to the driving license had failed to do

the needful. The appellant, in the considered opinion of this Court, as respondent

insurer had miserably failed to discharge the burden placed on it and the Tribunal

had rightly decided the issue no. III, not having been proved by it with regard to

validity of the documents including the driving license. The contention of learned

counsel for the appellant with regard to this plea is thus untenable and is rejected.

12. Adverting to the question of quantum, it is observed that the Tribunal had

not applied the multiplier of 11 which is applicable at the age bracket of the

deceased from 50 to 55 years but slashed the same to 9 which shows that even if

the age of the petitioner was required to be taken up and accepted as argued by

learned counsel for the appellant, the multiplier of 9 would have been proper.

13. Since the Tribunal has not granted compensation in favour of the claimants

no. 1 to 5, though they were the legal heirs of the deceased and were entitled to

the compensation, which was granted only in favour of the petitioner no. 6 that too

for an amount of Rs.2,17,500/- on account of loss to dependency and for funeral

expenses and had not granted compensation on other counts like loss of estate,

loss of love and affection, consortium etc., therefore, even granting of an amount

of Rs. 2,17,500/- for the death of a woman of more than 60 years cannot be stated

to have been on a very higher side which may require to be slashed down by this

Court.

14. Having regard to the afore-stated discussion and observations made

hereinabove, it is held that the Tribunal has passed the impugned award legally

which does not call for any interference by this Court, while exercising appellate

jurisdiction. Viewed thus, the appeal is accordingly dismissed and the amount of

compensation, if deposited with the Registry is directed to be released in favour of

the claimant no. 6, in accordance with the terms and conditions of the Award.

15. Tribunal Record, be returned forthwith along with a copy of this judgment

for information and record.

(MA Chowdhary) Judge

Jammu 20.02.2024 Abinash Whether the order is speaking? Yes

Whether the judgment is reportable? Yes