Research › Search › Judgment

J&K High Court · body

2005 DIGILAW 370 (JK)

Oriental Insurance Co. Ltd. v. Sakina Begum

2005-12-20

B.A.KHAN, J.P.SINGH

body2005
Per: J.P. Singh-J: 1. One Ghulam Hassan Shah, S/o Sh. Sumunder Shah, R/o Manzmoh, was traveling in vehicle No. HR-29A-7692, as a labourer for taking care of the sheep, which his employer owner had loaded in the truck. The truck was being driven by Sohan Singh, in a rash and negligent manner when it met with an accident at Hiranagar Morh. This accident, resulted in the death of Ghulam Hassan Shah and some sheep too died on spot. FIR No. 86/1996 was registered at Police Station, Hiranagar, under Sections 279, 337 and 304-AR.P.C, on 31.5.1996, the date of accident. A Claim Petition, being File No. 22/claim, was instituted by one Akbar Shah claiming to be the adoptive father of the deceased Ghulam Hassan Shah and Mst. Zulikha, Widow of deceased Ghulam Hassan Shah. One Mst. Sakina Begum, mother of the deceased, sought her impleadment in the petition, which was allowed vide order dated 23.9.1997. 2. The original claimants stated that they were deprived of the earnings of the deceased, who was earning an amount of Rs. 6,000/- to 7,000/- per month, besides an amount of Rs. 1200/- per trip. 3. The Oriental Insurance Company Limited was arrayed as respondent No. 1 in the claim petition, besides the driver and owner of the vehicle. 4. On the pleadings of the parties, following issues were framed: - 1. Whether the death of Ghulam Hassain was caused at place near Heeranagar at National Highway on 31.5.1996 because of rash and negligent driving of one truck No. HR-29A-7692 by its driver Sohan Singh respondent No. 3 who was under the employment of respondent No.2 and the vehicle was insured with respondent No. I? OPP 2. On proof of issue No.1 to what amount of compensation the petitioners are entitled to and from whom? OPP 3. In what proportion the petitioners and respondent No.4 are entitled to compensation? OPP 4. Whether the deceased was a gratuitous passenger and had not paid the fare thus Insurance Company is not liable to pay compensation? OPR-1 5. Relief, To what the parties are entitled to? " 5. OPP 3. In what proportion the petitioners and respondent No.4 are entitled to compensation? OPP 4. Whether the deceased was a gratuitous passenger and had not paid the fare thus Insurance Company is not liable to pay compensation? OPR-1 5. Relief, To what the parties are entitled to? " 5. Samounder Shah, father of the deceased too was added as party respondent on 28.7.1998 which has led to the raising of an additional issue being issue No. 3(A), which reads thus: - Who among petitioners Akbar Shah uncle of deceased, Zulikha the widow of deceased, Sakina Begum the mother of deceased and Samounder Shah father of deceased is entitled to the amount of compensation and in what proportion?� The claimants led oral as well as documentary evidence in support of their plea that the accident has been caused by driver of the vehicle by driving the vehicle in rash and negligent manner. 6. Evidence was led by the claimants as regards their, inter-se, entitlement to the amount of compensation. 7. Appellant, Insurance Company, was afforded opportunities to lead evidence, but despite having availed opportunities in this behalf, it did not opt to lead any evidence, which was closed by the Tribunal vide its order dated 23.3.1999. 8. After appreciating the evidence led by the parties, the Tribunal concluded as follows: - From the parole evidence and documentary evidence referred to herein above, it is established that death of Ghulam Hassan S/o Samounder Shah has been caused in a Motor Vehicle Accident on 31.5.1996 at place Hiranagar involving vehicle No. HR-29A-7692 and the accident has occurred because of rash and negligent driving of the vehicle by driver respondent No. 3. It is also established that deceased was traveling in the vehicle as a labourer of the owner of goods. Thus a case for compensation under the provisions of Motor Vehicle Act in terms of Section 165 was made out.� 9. So far as, inter-se, entitlement of the claimants was concerned, the Tribunal proceeded to decide as under: - In the above circumstances when there are conflicting stands and no documentary evidence is there to prove and establish as to who among Sakina, Samounder Shah, Akbar Shah were the dependants of deceased, as Zulikha the widow of deceased admittedly has remarried and Akbar Shah and Samounder Shah being brothers happened to be uncle and father of deceased are also putting up together. Since Sakina has taken 2/3rd amount of interim compensation i.e. 173rd in her own capacity and 173rd of Zuliklia on the basis of Power of Attorney executed by Zulikha in her favour, I deem it a fit case wherein the interim compensation of Rs. 50,000/- (Rupees fifty thousand only) granted by this Tribunal u/s 140 M.V. Act is considered as just and fair compensation to which the petitioners and respondents 4 and 5 are entitled to in peculiar circumstances of the case. The l/3rd share from the interim compensation lying with this Tribunal is hereby ordered to be given to Samounder Shah respondent No.5 father of deceased.� 10. From the perusal of the aforementioned extracted findings of the Motor Accidents Claims Tribunal, it may be concluded that an amount of Rs 50,000/- (Rupees fifty thousand) was awarded as just and fair compensation against the Insurance Company. 11. The Oriental Insurance Company Limited, the appellant, remained satisfied with this finding and did not opt to question this finding and award in any appeal under Section 173 of the Motor Vehicles Act, 1988. 12. Aggrieved by the quantum of compensation awarded by the Tribunal to be inadequate, Mst. Sakina Begum preferred an appeal in the High Court, which was registered as CIMA No. 44/2001. Oriental Insurance Company Limited was arrayed as respondent No.4 in the appeal. None other than the Oriental Insurance Company Limited contested the appeal of Mst. Sakina Begum. The Learned Single Judge of this Court, while allowing the appeal, assessed Rs. 4,20,000/- (Rupees four lakh twenty thousand), as just compensation by fixing the annual dependency of the deceased at Rs. 30.000/- (Rupees thirty thousand) and applied 14 as a multiplier for assessing the compensation. 13. The appellant submits that on CMP No. 797/2002, the judgment was modified by Learned Single Judge and the rate of interest was modified as 9 % per annum. Compensation was ordered to be deposited within two months from 7.2.2003. 14. Learned Single Judge held Mst. Sakina Begum, widow of the deceased, entitled to l/4th of the amount of compensation awarded by the Court. Rest of the amount was held payable to the mother of the deceased. 15. The Oriental Insurance Company Limited is aggrieved by this Judgment of Learned Single Judge. 16. Sh. 14. Learned Single Judge held Mst. Sakina Begum, widow of the deceased, entitled to l/4th of the amount of compensation awarded by the Court. Rest of the amount was held payable to the mother of the deceased. 15. The Oriental Insurance Company Limited is aggrieved by this Judgment of Learned Single Judge. 16. Sh. Baldev Singh, learned counsel appearing for the appellant, urged that the deceased was a gratuitous passenger in a goods vehicle and, as such, the Insurance Company is absolved of its liability to indemnify the owner and pay compensation awarded by the Court to the claimants. 17. Sh. Baldev Singh added that appeal before the first appellate Court was not maintainable because appeal against the award made under Section 140 of M.V. Act, is not contemplated by Section 173 of M.V. Act. 18. Sh. MR. Qureshi, learned counsel appearing for claimants/respondents, submitted that the appeal of the appellant is misconceived because the finding of fact recorded by the Tribunal and affirmed by the Learned Single Judge, cannot be questioned by the appellant in Letters Patent Appeal, where only questions of law can be permitted to be raised. We have considered the submissions of the learned counsel appearing for the parties. We will first deal with the second submission of Sh. Baldev Singh, learned counsel appearing for the appellant, regarding non-maintainability of appeal before learned Single Judge. 19. We have considered the Judgment of the Motor Accidents Claims Tribunal, Ramban, wherefrom we find that what has been allowed by the Tribunal is the application of the claimants under Section 166 M.V. Act and not the application under Section 140 M.V. Act, which contemplates a claim on the basis of ˜NO FAULT LIABILITY™. The Tribunal has specifically recorded in its finding that the amount of interim compensation, awarded by it, on an earlier occasion, is adjudged as just and fair compensation. Not only this, the Tribunal has recorded categoric finding on the basis of parol and documentary evidence that Ghulam Hassan Shah had died in a motor vehicle accident on 31.5.1996 and the accident had occurred because of rash and negligent driving of the vehicle by its driver respondent No.3, Sohan Singh. 20. Disposal of an application, under Section 140 M.V. Act, does not contemplate any such finding, as is referred hereinabove. 20. Disposal of an application, under Section 140 M.V. Act, does not contemplate any such finding, as is referred hereinabove. In awarding a claim on the basis of ˜NO FAULT LIABILITY™ contemplated under Section 140 of M.V. Act, no such finding, as is recorded by the Tribunal, was necessary. The Tribunal has, in unequivocal terms, held the death of Ghulam Hassan Shah, as a result of accident caused by a vehicle, which was being driven in a rash and negligent manner by its driver and for which the just and fair compensation had been assessed at Rs. 50,000/- (Rupees fifty thousand), which compensation was later on enhanced by the Learned Single Judge. 21. Plea raised by Sh. Baldev Singh, is thus, misconceived, which is, accordingly, rejected. 22. The first plea raised by Sh. Baldev Singh that the deceased was a gratuitous passenger and. as such, Insurance Company is not liable to pay compensation, may now be examined. 23. In order to sustain a plea that the Insurance Company is not liable to pay compensation for a gratuitous passenger, what is required to be proved is the terms of the Insurance policy, which absolves the Insurance Company from such liability. Requisite facts, based on parol or documentary evidence, which go to prove that the person in the goods vehicle, was a gratuitous passenger and not a labourer engaged for taking care of the goods loaded in the goods carrier, are required to be proved, as such, Insurance Company is further required to prove the relevant terms and conditions of the Insurance contract which absolve it from its liability to indemnify the owner. 24. The plea raised by Sh. Baldev Singh being factual in nature was required to be proved as a fact. The Insurance Company has, however, opted for the reasons best known to it, not to lead any evidence in this direction. Nothing has been brought to our notice as to how the Insurance Company was absolved of its liability to pay compensation to the claimants. The plea raised by the learned counsel appearing for appellant Insurance Company, is not a pure question of law, which could be decided as an abstract question of law. 25. In the absence of any evidence or material on records, we are unable to accept the submission of Sh. Baldev Singh, that Insurance Company claim avoidance of its liability to compensate the claimants. 26. 25. In the absence of any evidence or material on records, we are unable to accept the submission of Sh. Baldev Singh, that Insurance Company claim avoidance of its liability to compensate the claimants. 26. Even if, we were to accept the abstract proposition of law projected by Shri Baldev Singh, the result, which we propose in this appeal, would be the same. This is so because of the reason that reliance of Shri Baldev Singh on M7s. National Insurance Co. Ltd. Vs. Baljit Kaur and others, reported as AIR 2004 SC 1340, does not help the appellant, because Hon™ble Supreme Court of India has held in para 21 of the judgment (supra) that the judgment would have prospective effect and would not be applicable to the cases, which had been decided prior to the coming into force of the judgment. This judgment is a case of prospective overruling, and in that view of the matter, even if the Tribunal and the learned Single Judge of this Court had taken a view, on the basis of judgments, which stand overruled after the date of those judgments, no benefit can be derived by the appellant on the basis of case law cited by learned counsel. It would be advantageous to refer to para 21 of the judgment, which directs prospective overruling of the earlier judgment in New India Assurance Company Vs. Satpal Singh and others, reported as 2001(1) SCC 237: 21. The upshot of the aforementioned discussions is that instead and in place of the insurer the owner of the vehicle shall be liable to satisfy the decree. The question, however, would be as to whether keeping in view the fact that the law was not clear so long such a direction would be fair and equitable. We do not think so. We, therefore, clarify the legal position which shall have prospective effect. The Tribunal as also the High Court had proceeded in terms of the decisions of this Court in Satpal Singh (supra). The said decision has been overruled only in Asha Rani (supra). We, therefore, are of the opinion that the interest of justice will be sub-served if the appellant herein is directed to satisfy the awarded amount in favour of the claimant if not already satisfied and recover the same from the owner of the vehicle......." The submission of Sh. The said decision has been overruled only in Asha Rani (supra). We, therefore, are of the opinion that the interest of justice will be sub-served if the appellant herein is directed to satisfy the awarded amount in favour of the claimant if not already satisfied and recover the same from the owner of the vehicle......." The submission of Sh. Baldev Singh is, thus, without any basis, which is, accordingly, rejected. Sh. M.R. Qureshi, learned counsel appearing for claimants, is right in contending that the finding of fact, recorded by the Tribunal, against Insurance Company, holding it liable to pay compensation to the claimants, has remained unchallenged by the Insurance Company which finding as regards the liability of the Insurance Company to pay compensation to the claimants, has, thus, attained finality and which finding cannot be questioned in the present Letters Patent Appeal, on the plea that the predecessor in interest of the claimants, was a gratuitous passenger. Pica, that deceased was a gratuitous passenger, having been rejected by the Tribunal, and attained finality comes in the way of the Insurance Company, to question the finding in the present Letters Patent Appeal. The liability of the Insurance Company to pay compensation amount cannot, thus, be agitated by the Insurance Company in the present Letters Patent Appeal. That apart, quantum of compensation, awarded by the appellate Court, cannot be permitted to be questioned by the Insurance Company because Insurance Company has not been given any right under the Motor Vehicles Act, 1988, to question the quantum of compensation awarded to the claimants. We thus, do not see any reason to disturb the finding of fact, recorded by the two Courts, and the enhancement in the amount of compensation ordered by learned Single Judge of this Court. All the submissions raised by the learned counsel appearing for the appellant, having failed, this Letters Patent Appeal is, according, dismissed.