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2005 DIGILAW 331 (JK)

New India Assurance Co. Ltd. v. Farida Begum

2005-11-30

B.A.KHAN, J.P.SINGH

body2005
PER J. P. SINGH -J. 1. This Letters Patent Appeal is directed against judgment dated 21.11.2002 of learned Single Judge in CIMA No. 259/2002, whereby while dismissing the appeal of New India Assurance Company Limited, the learned Single Judge, upheld the award dated 23.10.2001 of Motor Accidents Claims Tribunal, Bhaderwah. 2. The facts giving rise to this appeal may be summarized thus. S/Sh. Irshad Ahmed and Nissar Ahmed, were travelling in a mini load carrier bearing registration No. JKS-4851, when it rolled down river Chenab causing instantaneous death of the persons named above. 3. Farida Begum, the widow and Asaf Irshad minor son of the deceased, filed Claim Petition No. 32/MACT before Motor Accidents Claims Tribunal, Bhaderwah. 4. The claim was contested by driver and Insurance Company. The owner of the vehicle did cause his appearance in the Court but thereafter he was proceeded exparte. 5. Mir Baz Naik and Fatima Begum, father and mother of the deceased, too were arrayed as petitioners/claimants, during the currency of the proceedings before the Tribunal. 6. The Motor Accidents Claims Tribunal, Bhaderwah, framed the following issues; - 1. Whether on 19.3.1996 the deceased Irshad Ahmed died due to an accident caused by rash and negligent driving of vehicle No.4851-JKS by respondent No.3 at Napli near pul Doda? OPP 2. In case the issue No.1 is proved in affirmative to what amount of compensation the petitioners are entitled to, from whom and in what proportion? OPP 3. Whether the claim petition is not in accordance with law, if not what is its effect on the claim petition? OPR-I 4. Whether the offending vehicle was being driven by an unauthorized person not holding a valid driving licence? OPR-I 5. Whether the alleged offending vehicle was a truck i.e Goods carrier and the deceased was travelling as a gratuitous passenger, as such respondent No.1 has no liability to pay compensation? OPR-I 6. Relief. 7. In case issue No.1 is proved in affirmative to what amount of compensation petitioners who are Farida Begum and Asif Arshad the widow and the son of deceased and Mirbag Naik and Fatima Begum who are the parents of deceased are entitled and in what proportion and from whom? OPP. 7. The claimants being the legal heirs of the deceased Irshad Ahmed, produced evidence in support of the issues, onus of proof whereof lay on them. 8. OPP. 7. The claimants being the legal heirs of the deceased Irshad Ahmed, produced evidence in support of the issues, onus of proof whereof lay on them. 8. The Insurance Company and the driver did not produce any evidence. The claim petition of the claimants, was tried with another similar claim petition filed by the legal representatives of the deceased Nissar Ahmed. Both these claim petitions were decided by a common judgment. 9. After appreciating the evidence led by the petitioners, the Tribunal decided all the issues in favour of the claimants and against the contesting respondents including the Insurance Company. 10. The Tribunal awarded an amount of Rs. 1.50 lac (Rupees one lakh fifty thousand) to the parents, Rs. 1.85 lac (Rupees one lakh eighty five thousand) to the minor son. No amount was awarded to the widow because she had remarried after the death of her husband. 11. New India Assurance Company Limited preferred CIMA No. 259/2002. The only point which appears to have been urged before the Tribunal by the Insurance Company was regarding the quantum of compensation. The issue that deceased being a gratuitous passenger does not appear to have been urged before the learned Single Judge. Learned Single Judge, thus, while repelling the submission of Insurance Company dismissed the appeal and upheld the award vide judgment dated 21.11.2002. 12. At the time of hearing of this appeal, Sh. R. K. Gupta, learned counsel appearing for the Insurance Company, urged that first appellate Court has not dealt with the plea raised by the Insurance Company regarding the finding of the Tribunal on Issue No.5. Although the appellant has made a grievance in the memo of the appeal that the learned Single Judge did not return any finding, though the question was urged at the time of hearing, yet we find that the plea raised by the appellant, is neither supported by any affidavit of the learned counsel, who urged the plea nor by any affidavit of any officer of the Insurance Company in whose presence this plea was raised before learned Single Judge. 13. Had the appellant, urged any such point, before the learned Single Judge, it should have approached the learned Single Judge by an appropriate application, seeking review of the judgment. This, however, does not appear to have happened. 13. Had the appellant, urged any such point, before the learned Single Judge, it should have approached the learned Single Judge by an appropriate application, seeking review of the judgment. This, however, does not appear to have happened. There is nothing on records to accept this bald statement of the appellant in the memo of the appeal, which we are not inclined to believe in view of the judicial records, which do not support the plea of the appellant having urged any such plea before the learned Single Judge. This plea of learned counsel for the appellant is, thus, without any basis and is, accordingly, rejected. 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. 16. In this view of the matter, we are not inclined to go into a question which appears to have been left out before the learned Single Judge obviously as not pressed. 17. Learned counsel for the appellant tried to satisfy us that the first appellate court had erred in assessing the monthly income of a teacher as Rs. 10,000/- (Rupees ten thousand). We have considered the submission of learned counsel but do not find any force in the submission because of two reasons. 1. 17. Learned counsel for the appellant tried to satisfy us that the first appellate court had erred in assessing the monthly income of a teacher as Rs. 10,000/- (Rupees ten thousand). We have considered the submission of learned counsel but do not find any force in the submission because of two reasons. 1. The Insurance Company cannot object to the quantum of compensation, is a position under law, which is well established and does not call for any further discussion. 2. Learned Single Judge has taken into consideration the pay scales and further increments which would have accrued to the teachers and after calculating the same, it has upheld the finding of the Tribunal. The finding of both the Courts on this plea is well reasoned and there is no scope for any contrary view in this behalf. The evidence of the two Courts on facts is, thus, affirmed. 18. CHAPTER XII of the Motor Vehicles Act, 1988, envisages special procedure to be followed by the Claims Tribunal and appellate authorities, so as to ensure speedy adjudication of claims and payment of amount of claims to those who are held entitled thereto. The Parliament had not intended any delay in providing relief to the victims of the vehicular accidents. 19. Compulsory insurance is a condition precedent as such in the Motor Vehicles Act, for the motor vehicles to come on the road. The only rationale, which appears to be behind all this, is to provide immediate relief to the claimants from the insurer. The Law makers had not contemplated a pedantic approach from the insurer of the motor vehicles. What is intended by the Insurance law is that the insurer must reach the claimants at the earliest, so that citizens and sufferers of the accident do not suffer at the hands of the owner, in not recovering the amount to which they are entitled because of the injury or death in a motor vehicle accident. 20. What we find from the present case is that there is no total betrayal of the confidence, which the Law framers contemplated in the attitude of the Insurance Company. It is high time that the Insurance Companies rise above all technicalities to devise such ways and means, which may help to achieve that real purpose of insurance and requisite compensation reaches to those who are in dire and urgent need thereof. 21. It is high time that the Insurance Companies rise above all technicalities to devise such ways and means, which may help to achieve that real purpose of insurance and requisite compensation reaches to those who are in dire and urgent need thereof. 21. We find that a mere amount of Rs. 3.35 lacs (Rupees three lakhs thirty five thousand), awarded by the Tribunal to the claimants, is contested by the Insurance Company, right up to the higher Court of the State. 22. In order to do complete justice with the claimants, we are constrained to award costs (litigation expenses) to the claimants, so that the agony, inconvenience and mental torture, which must have been caused to them during the pendency of the litigation in recovering the amount of compensation is appropriately compensated. 23. We accordingly, while dismissing the appeal, burden the insurance company to pay an amount of Rs. 20,000/- (Rupees twenty thousand) as costs (litigation expenses), which may serve as a heeling touch to the the claimants and an eye opener for the Insurance Companies. 24. Accordingly, we direct that the Insurance Company shall pay an additional amount of Rs. 20,000/- (Rupees twenty thousand) to the claimants as costs (litigation expenses). This appeal is, accordingly, dismissed with costs as indicated above.