Jammu & Kashmir High Court

Polli Devi And Others vs Oriental Insurance Co. Ltd. And Anr on 2 May, 2025

Author: Rajnesh Oswal

Bench: Rajnesh Oswal

     HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                                 AT JAMMU


MA No. 218/2018 c/w CCROS No. 03/2016

                                                 Reserved on:       05.03.2025
                                               Pronounced on:       02.05.2025

Polli Devi and others                           .....Appellant(s)/Petitioner(s)
                        Through: Mr. V. B. Gupta, Advocate with
                                 Mr. Rahul Aggarwal, Advocate in
                                 CCROS No. 03/2016
                                 Mr. Amrit Sarin, Advocate in
                                 MA No. 218/2018
                vs
Oriental Insurance Co. Ltd. and anr.                       ..... Respondent(s)
                        Through: Mr. Amrit Sarin, Advocate in
                                 CCROS No. 03/2016
                                 Mr. V. B. Gupta, Advocate with
                                 Mr. Rahul Aggarwal, Advocate in MA No.
                                 218/2018

Coram: HON'BLE MR. JUSTICE RAJNESH OSWAL, JUDGE
                                 JUDGMENT

1. In MA No. 218/218/2018, the appellant/Insurance Company has

impugned the award dated 29.05.2015 passed by the Motor Accident

Claims Tribunal, Kathua (hereinafter to be referred as "the Tribunal"),

whereby a compensation of Rs. 12,95,000/- has been awarded in favour

of the claimant Nos. 1 to 4 and the appellant/Insurance Company has

been directed to indemnify the owner of the offending vehicle i.e.

respondent No. 5. The claimants have also filed Cross-Appeal bearing

C Cross No. 03/2016 against the same award.

2. The appellant/Insurance Company has impugned the award on the

ground that the accident took place because of the contributory

negligence on the part of the driver of the vehicle No. HR38C-9013,

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which is substantiated by the closure report filed by the Investigating

Officer, wherein an observation has been made that the accident took

place due to negligence of both the drivers. Further that excess

compensation has been awarded by learned Tribunal by taking the

salary of the deceased driver as Rs. 10,000/- per month, whereas in

those days, when the accident took place, the drivers were not being

paid Rs. 10,000/- per month as salary. It has been further submitted by

appellant/Insurance Company that the appellant had deposited the diet

expenses for summoning of witnesses but without summoning those

witnesses, the evidence of the appellant was closed.

3. The appellants-claimants have sought enhancement of the

compensation on the ground that age of the deceased driver has not

been rightly considered by the learned Tribunal, as the learned Tribunal

has considered the age of the deceased as 45, but the deceased was 38

years of age, when the accident took place and accordingly the wrong

multiplier was applied while assessing the loss of dependency. In

nutshell, the grievance of the appellants/claimants is that just

compensation has not been awarded in their favour.

4. Mr. Amrit Sarin, learned counsel for the appellant/Insurance Company

has argued that the learned Tribunal has not considered the fact that

accident took place because of the contributory negligence of the driver

of the vehicle No. HR38C-9013 also, as such, the liability of the

appellant/Insurance Company was limited to the extent of 50% only.

He has further argued that the learned Tribunal has not rightly

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determined the monthly income of the deceased as Rs. 10,000/- and

further excess compensation under the heads "loss of consortium" and

"funeral expenses" has been granted.

5. Per contra, Mr. Ved Bhushan Gupta, learned counsel for the

appellants/claimants has argued that the learned Tribunal has not rightly

considered the age of the deceased for the purpose of awarding

compensation in favour of the claimants as at the time of accident the

deceased was 38 years of age and not 45 years and further that just

compensation has not been awarded.

6. Heard learned counsel for the parties and perused the record.

7. A perusal of the record reveals that the claimants filed a claim petition

before the Tribunal for grant of compensation on account of death of

one Karan Singh S/o Dharam Singh on 08.09.2011. As claimed by the

claimants, the deceased had suffered injuries on account of rash and

negligent driving of the offending truck bearing registration No. JK02A

2717 by its driver, namely, Dalbir Singh. The owner, driver of the

offending vehicle bearing registration No. JK02AA 2717 and Insurance

Company-appellant herein, were put to notice but the respondent No. 1

and 2 in the claim petition i.e. owner and driver did not choose to

contest the claim petition because of which, they were set ex-parte. The

appellant/Insurance Company, however, contested the claim petition

and it was stated that the deceased was a driver of the truck bearing No.

HR38C-9013, who was also involved in the alleged occurrence. It was

stated that road where the accident took place was very broad and any

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prudent person could have avoided such accident unless such person

himself was grossly negligent. It was the stand of the

appellant/Insurance Company that the possibility of the accident having

occurred due to rash and negligent driver of the truck No. HR38C-9013

being driven by the deceased cannot be ruled out.

8. Out of the pleadings, the following issues were framed in the claim

petition:

1. Whether the accident took place on 08.09.2011, at about 2.00 A.M

near SSM College Dina Nagar, Punjab due to the rash and negligent

driving by the driver of the offending vehicle bearing No. JK02AA-

2717, causing the death of the deceased, named Karan Singh/OPP

2. In case issue No. 1 is proved in affirmative, whether the petitioners

are entitled to any compensation, and if so, from whom/? OPP.

3. Whether the driver of the offending vehicle was not holding a valid

and effective driving licence and the vehicle was being plied at the

relevant time in violation of the terms and conditions of the

insurance policy/OPR

4. Relief.

9. The claimants examined claimant Poli Devi, PW Karan Singh and PW

Kishan Singh in support of their claim, whereas the appellant/Insurance

Company did not produce any evidence in rebuttal.

10. The first contention raised by the appellant/Insurance Company is that

it was because of the contributory negligence of the driver of vehicle

No. HR38C-9013 that the accident took place and in the objections

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filed by appellant, it was the stand of the Insurance Company that the

accident took place due to rash and negligent driving of the Vehicle No.

HR38C-9013 being driven by the deceased and the vehicle bearing No.

JK02AA-2717 was not involved in any accident as averred in the para

22 of the objections. In the appeal preferred by the appellant/Insurance

Company, it is categorically stated that both the drivers died on spot

and Balwan Singh, on whose statement FIR was lodged, was also the

nephew of Karan Singh (driver of Truck No. HR38C-9013) and had

himself disclosed that both the trucks had dashed against each other

because headlights of the both the trucks flashed in the eyes of both the

drivers.

11. The appellant/Insurance Company has contended that it had deposited

the diet expenses, but the witnesses were not summoned. A perusal of

the record of learned Tribunal would reveal that an application was

filed by the appellant/Insurance company to summon the Investigating

Officer, Harsharan Singh alongwith the challan, Investigator of the

Insurance Company and concerned official of the Insurance Company.

But the Insurance Company had deposited the diet expenses for

summoning I.O-Harsharan Singh only. The evidence of the claimants

was closed on 25.10.2014. The counsel for the appellant/Insurance

Company was directed to get dasti notices, however, the dasti notices

were never procured by the appellant/Insurance Company despite

repeated orders dated 28.11.2014, 29.12.2014 and 24.04.2015.

Thereafter, the learned Tribunal vide order dated 26.05.2015 after

c/w

recording that dasti notices were given to the appellant/Insurance

Company for producing the evidence but the witnesses have not been

produced and accordingly, closed the evidence of the

appellant/Insurance Company. Thus, it is evident that ample

opportunities were given to the appellant/Insurance Company to lead

evidence and despite providing of opportunities for effecting service of

the witness, no evidence was produced by the appellant/ Insurance

Company. It needs to be mentioned here that only Investigating Officer

was being sought to be summoned and appellant/Insurance Company

never sought assistance of the Court to produce any eye witness to the

alleged accident.

12. The appellants/claimants have examined PW Karan Singh and PW

Kishan Singh in support of their case, who have categorically stated

that the accident took place because the vehicle bearing registration No.

JK02AA-2717 was being driven rashly and negligently by its driver

Dalbir Singh. They have also admitted that drivers of both the vehicles

died in the accident. In view of the positive evidence led by the

appellants/claimants that the accident took place due to rash and

negligent driving of the vehicle bearing registration No. JK02AA-2717,

it cannot be said that there was any contributory negligence on the part

of the deceased driver of the vehicle No. HR38C-9013. Had the

Investigating Officer been examined by the appellant/Insurance

Company, still it would not have made any difference on merits of the

claim of the appellant/claimants, as no eye witness was sought to be

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summoned by the appellant/Insurance Company to prove the

contributory negligence. In view of the above, there is no merit in the

contention of the appellant/Insurance Company that the accident took

place because of the contributory negligence on the part of predecessor-

in-interest of the claimants, namely, Karan Singh, who was driving the

vehicle No. HR38C-9013, as such the same is rejected.

13. The other contention of the appellant/Insurance Company is that the

compensation is excessive as the learned tribunal has wrongly

determined the monthly income of the deceased as Rs.10,000/- and

further that excess compensation has been awarded to the claimants. On

the contrary, contention of the appellants/claimants is that the deceased

was 38 years of age, but the learned Tribunal has considered the age of

the deceased as 45 years. A perusal of the claim petition filed by the

claimants reveals that the claimants have mentioned age of the

deceased as 38 years, however, the learned Tribunal considered the age

of the deceased as 45 years, as mentioned in the post-mortem report. In

absence of any documentary evidence placed on record by the

appellants/claimants contrary to the age of the deceased as mentioned

in the post-mortem, this Court does not find any illegality on part of the

Tribunal in considering the age of the deceased as 45 years. Therefore,

this Court does not find any substance in the submission of the

appellants/claimants so far as age of the deceased is concerned.

14. So far as the contention of the appellant/Insurance Company that excess

compensation has been awarded, is concerned, this Court finds that

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though compensation of Rs. 1 lac on account of loss of consortium has

been awarded in favour of the widow but in terms of the

pronouncement of the Hon‟ble Supreme Court of India in case titled

„National Insurance Company Limited v Pranay Sethi and others,

(2017) 16 SCC 680, the amount of compensation payable under the

head of loss of consortium is Rs. 40,000/. There is substance in this

contention of the appellant/ Insurance Company as an amount of

Rs.1.00 lac has been awarded on account of loss of consortium to the

widow. In 'Rojalini Nayak v. Ajit Sahoo, (2024) 8 SCC 239, the

Hon‟ble Supreme Court awarded consortium to all the four claimants at

enhanced rate, by observing that "Under the heads of loss of estate, loss

of consortium and funeral expenses, this Court awarded Rs 15,000, Rs

40,000 and Rs 15,000, respectively. It was further directed that the

amount so quantified should be enhanced by 10% every three years. By

that metric, with the amount standing at Rs 40,000 in the year 2017,

today it would be Rs 48,400 (the amount having been enhanced by 10%

twice). Hence, 48,400 × 4 = Rs 1,93,600". Thus, the four claimants are

held entitled to Rs. 40,000/ each as compensation on account of loss of

consortium. The compensation on account of "funeral expenses" has

been awarded as Rs. 25,000/- but no compensation on account of "loss

of estate" has been awarded. In terms of Pranay Sethi's case (supra)

Rs.15,000/- each is required to be awarded as compensation under

heads "funeral expenses" and "loss of estate".

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15. During the financial year 2011-12, no income tax was payable upto the

income of Rs. 1,80,000/-. So far as the present case is concerned, there

were four dependents on the deceased and an amount of Rs. 10,000/-

per month as income of the deceased determined by the learned

Tribunal cannot be termed as excessive, particularly when the claimant

No. 1 and her witness, namely, Kishan Singh has stated that the

deceased was earning somewhere around between Rs. 25,000/- to Rs.

30,000/-. The learned tribunal has deducted 1/4 of total monthly income

of the deceased on account of personal expenses of the deceased, which

is in accordance with the judgment of the Hon‟ble Supreme Court of

India in case of 'Sarla Verma v. DTC, (2009) 6 SCC 121'. Further, it

is found that future prospects of enhancement in income of the

deceased have not been taken into consideration while passing the

award. As the deceased was self-employed and was 45 years of age,

multiplier of 14 was required to be applied, whereas the learned

Tribunal has applied the multiplier of 13. The income was required to

be enhanced by 25%, therefore, the compensation payable under the

head of „Loss of Dependency‟ would be Rs.15,75,000/.

16. In view of the above, the amount of compensation awarded by the learned

Tribunal is modified as under:

           Loss of dependency             Rs. 15,75,000/-
           Consortium                     Rs.1,60,000/-
           Funeral expenses               Rs. 15,000/-
           Loss of estate                 Rs. 15,000/-
           Total                          Rs.17,65,000/-



                                                                           c/w

17. Award is modified to the aforesaid extent. The interest component shall

remain the same. The enhanced amount be deposited by the appellant-

Insurance Company within the period of one month with the Registry and

thereafter, the same be released in favour of claimants after due

identification by their counsel.

18. Both the appeals are accordingly, disposed of.

19. The record of the Tribunal be sent back.

(RAJNESH OSWAL) JUDGE

Jammu: