Jammu & Kashmir High Court
New India Assurance Co. Ltd vs Zarinabegum(35 Years) W/O. Mohd on 9 October, 2024
Author: Rajnesh Oswal
Bench: Rajnesh Oswal
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
Reserved on 13.08.2024
Pronounced on 09.10.2024
MA No. 6/2014(O&M)
New India Assurance Co. Ltd. .....Appellant(s)/Petitioner(s)
Through its Manager,
Sh. R. S. Negi Aged 52 years
T. P. Legal Claims-HUB,
Aquaf Market, Gandhi Nagar,
Jammu
Through: Mr.Rupinder Singh, Adv. and
Ms. Damini Singh Chauhan, Adv.
Vs
1. ZarinaBegum(35 years) W/o. Mohd. ..... Respondent(s)
ShariefParihar
2. Tariq Ahmed(25 years) S/o. Mohd.
ShariefParihar
3. Arif Ahmad (18 years) S/o. Mohd.
ShariefParihar
4. Shada Begum (16 years) D/o. Mohd.
ShariefParihar
5. RehanaBano (16 years) D/o. Mohd.
ShariefParihar
6. SahiraBano (14 years) D/o. Mohd.
ShariefParihar
7. ShabnamBano (12 years) D/o. Mohd.
ShariefParihar
Respondents No. 4 to 7 are minors
through their mother Zarina Begum
all R/o. Pernote, Ramban
8. LalitPargal, W/o. Yog Raj Pargal,
R/o. Batote, Tehsil and District
Ramban(Owner)
9. Sanjay Singh S/o Durga Ram, R/o.
Batote Tehsil and District
Ramban(Driver)
Through: Mr. R. K. S. Thakur, Adv.
Coram: HON'BLE MR. JUSTICE RAJNESH OSWAL, JUDGE
JUDGMENT
1. The appellant-Insurance Company has impugned the award dated
10.10.2013 passed by the Motor Accident Claims Tribunal, Ramban
(J&K) (for short „the Tribunal‟) in a claim petition, titled, „Zarina Begum
and others vs. the New India Insurance Co. Ltd and others‟, whereby the
appellant has been directed to satisfy the award for an amount of Rs.
17,43,000/- along with pendent lite and future interest @ 7.5% per annum
throughout till realization, on the following grounds:
(i) That the appellant could not have been fastened upon the liability to
satisfy the award as the deceased was travelling in the offending
vehicle as a gratuitous passenger.
(ii) That an exorbitant amount of compensation has been awarded in
favour of respondent Nos. 1 to 7.
2. Learned counsel for the appellant has vehemently argued that the deceased
was travelling in an offending vehicle as a gratuitous passenger and as
such the appellant/insurance company could not have been made liable to
satisfy the award. He further argued that the amount of compensation
awarded in favour of the respondents 1 to 7/claimants, is on higher side.
He has relied upon the judgment of the Hon‟ble Supreme Court of India in
'National Insurance Co. Ltd. v. CholletiBharatamma', (2008) 1 SCC
423.
3. Learned counsel for the respondents 1 to 7 has vehemently argued that
though the compensation awarded on account of funeral expenses, loss of
estate and loss of consortium is not in accordance with law, but the
claimants are satisfied about the quantum of compensation awarded by the
learned Tribunal.
4. Heard and perused the record.
5. Respondent Nos. 1 to 7 had filed a claim petition for grant of
compensation on account of death of one Sh. Mohd. Sharief Parihar in a
vehicular accident on 29.11.2012 caused by an offending vehicle bearing
registration No. JK02AC 9564 at Assar which was being driven in rash
and negligent manner by the respondent No. 9.
6. The appellant and respondent Nos. 8 and 9 were put to notice but
respondent Nos. 8 and 9 did not choose to contest the claim petition and as
such, they were preceded ex parte.
7. The appellant/insurance company objected to the claim petition by
denying the factum of an accident and it was stated by the appellant that
the vehicle was being driven by respondent No. 9 contrary to the
provisions of the Motor Vehicles Act and in contravention of the terms &
conditions and limitations to the use of vehicle prescribed in the policy.
8. Out of the pleadings of the contesting parties, the following issues were
framed:
(i) Whether the deceased Mohd. Sharief died as a result of injuries
received in a vehicular accident on 20.11.2012 involving vehicle
No. JK02AC 9564 at Assar driven by its driver in a rash and
negligent manner? (OPP)
(ii) Whether the petitioners are entitled to receive any compensation
under Motor Vehicle Act, if so to what extent? (OPP)
(iii) Whether offending vehicle was being driven in contravention of
Insurance Policy and the respondent insurance company is not
liable to pay any compensation to the petitioners? (OPR)
(iv) Relief?
9. Besides examining respondent No. 1, the respondent Nos. 1-7 also
examined PWs Mustaq Ahmed and Shamim Ahmed in support of their
claim, whereas the appellant/insurance company did not choose to lead
any evidence. Learned Tribunal after examining the pleadings of the
parties and the evidence led by the respondent Nos. 1 to 7, disposed of the
claim petition vide award dated 10.10.2013 and directed the owner of the
vehicle to pay an amount of compensation of Rs. 17,43,000/- to
respondent Nos. 1 to 7 and further directed the appellant/insurance
company to satisfy the award.
10. The first contention raised by the appellant is that the deceased was
travelling in an offending vehicle as a gratuitous passenger and as such,
the appellant/insurance company could not have been made liable to
satisfy the award.
11. A perusal of the objections filed by the appellant/insurance company
before the learned Tribunal reveals that a traditional objection was raised
by the appellant that the offending vehicle was being driven contrary to
the provisions contained in the Motor Vehicles Act and the insurance
policy, and no specific plea was taken by the insurance company that the
deceased was travelling in the offending vehicle as a gratuitous passenger.
Learned counsel for the appellant tried to persuade this Court that though
no specific plea in respect of the deceased being a gratuitous passenger
was raised in the objections, but the issue No. 3 framed by the learned
Tribunal was comprehensive enough to include that objection as well.
Even if for the sake of argument, this Court accepts the submission made
by the learned counsel for the appellant, still the appellant did not choose
to lead any evidence in respect of its contention that the deceased was
travelling in an offending vehicle as a gratuitous passenger and even
during the course of arguments, no such plea was raised and now at the
appellate stage, it is too late for the appellant to raise such plea. Therefore,
this Court does not find any infirmity in the finding returned by the
learned Tribunal that the appellant/insurance company has failed to
discharge the burden to prove the issue No.3. In the judgment relied upon
by the learned counsel for the appellant in case of 'National Insurance
Co. Ltd. v. CholletiBharatamma', (2008) 1 SCC 423, the specific plea
was raised before the learned Tribunal that the claimants were
unauthorised passengers in the goods carrier, which is not the case in the
instant matter.
12. The Division Bench of this Court in case tilted, New India Assurance
Co. Ltd. vs Farida Begum and others, 2006(1) JKJ[HC] 603, has held
as under:
"14. That apart, even if, one were to consider the plea of
the appellant, in that event also, it would have been
difficult to accept the plea of the appellant because the
plea that passenger being a gratuitous passenger in a goods
carrier, is a plea of fact, which, unless supported by
evidence, cannot be taken into consideration. The
Insurance Company having failed to lead any evidence
before the Tribunal to prove that the deceased was a
gratuitous passenger, cannot be said to have proved that
the deceased was a gratuitous passenger. We further find
that the Insurance Company, had neither proved the terms
and conditions of the Insurance policy before the Tribunal
through its evidence nor had it projected any specific term
or condition of the Insurance policy on the basis whereof,
it could be urged that the Insurance Company, would
avoid its liability to indemnify the owner against the
compensation awarded in favour of the claimants.
15. Plea of status of the passenger being gratuitous and the
Insurance Company not liable on that account to pay the
awarded amount to the claimants, cannot be adjudicated
upon unless factual basis thereof is laid by the Insurance
Company for canvassing such a plea."
13. This Court has also considered this issue in United India Insurance Co.
Ltd. vs Naseema Begum and others, 2022(6) JKJ[HC] 317 and has
taken a similar view.
14. The other contention raised by the appellant/insurance company is that the
compensation awarded in favour of respondent Nos. 1 to 7 is on higher
side. From the statement of respondent No. 1 as well as PWs Mushtaq
Ahmed and Shamim Ahmed, it is evident that the deceased was working
as a Supervisor and was getting a monthly salary of Rs. 25,000/- but no
effort was made by the claimants to prove the salary certificate. The
learned Tribunal considered Rs. 12,000/- per month as earnings of the
deceased. It needs to be noted that the deceased was maintaining a family
of 7 persons and as such, an amount of Rs. 12,000/ per month determined
as the earnings of the deceased cannot be termed as excessive or
exorbitant. This Court does not find any infirmity in the approach adopted
by the learned Tribunal. The learned Tribunal after considering the salary
of the deceased as Rs. 12,000/- per month, deducted one-fifth of his
income on account of his personal expenses and as the deceased was 38
years of age, by adopting the multiplier of 15 determined the loss of
dependence for an amount of Rs. 17,28,000/- and further awarded Rs.
5,000/- each on account of funeral expenses, loss of estate and loss of
consortium to the wife.
15. Further, the future prospect of enhancement of the earnings of the
deceased has also not been taken into consideration by the learned
Tribunal while determining the compensation. The compensation would
be much higher than the one awarded by the learned Tribunal, if the same
is calculated in accordance with the mandate of judgments of the Hon‟ble
Supreme Court of India in „National Insurance Co. ltd. vs. Pranay Sethi
and anr.' reported in (2017) 16 SCC 680 and 'Magma General
Insurance Co. Ltd. Vs. Nanu Ram and others' reported in (2018) 18
SCC 130, but the learned counsel for the claimants has submitted that the
claimants are satisfied with the quantum of compensation awarded to
them.
16. In view of the above discussion, the appeal is found to be without merits
and the same is dismissed. Amount deposited be released in favour of the
claimants in terms of the award dated 10.10.2013.
17. Record of the Tribunal be sent back forthwith.
(RAJNESH OSWAL)
JUDGE
Jammu:
09.10.2024
Rakesh PS
Whether the order is speaking: Yes/No.
Whether the order is reportable: Yes/No.
