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2018 DIGILAW 402 (JK)

Onkar Pathania v. United India Ins. Co. Ltd.

2018-06-06

TASHI RABSTAN

body2018
JUDGMENT 1. The appellant namely Onkar Pathania has filed seven claim petitions being Nos. 443, 444, 445, 446, 447, 448 and 449 before the Motor Accidents Claims Tribunal, Jammu and some other claim petitions were also filed by some other claimants. The Tribunal has disposed of the claim petitions by passing a common judgment/award dated 07.05.2011. Out of these, the claimant/appellant has preferred appeals against file Nos. 446, 447, 448 and 449 and the Insurance Company has also filed Cross Appeals against the appeals filed by the appellant. I propose to dispose of these appeals and cross objections enlisted above being involve identical facts, arising out of same accident and same parties against common judgment dated 07.05.2011. 2. The facts giving rise to filing of these appeals briefly stated are that the appellant has filed a claim petition before the Motor Accidents Claims Tribunal, Jammu on account of death of deceased in an accident which took place at Bagyal Morh, Kathua on 03.11.2009 and the Motor Accidents Claims Tribunal, Jammu vide its order dated 07.05.2011 passed an award of Rs. 25,000/- in addition to amount granted under no fault liability. It is submitted by the appellant that the Tribunal has not considered that the deceased were members of joint Hindu family and deceased Ashok Kumar was contributing all his income in the joint family nucleus. Deceased Anita Devi was a house wife and her services as a house wife were also not taken into consideration by the Tribunal. Deceased Ankit Kumar was of 17 years of age and was earning Rs. 3,000/- per month by doing work of a private tutor and the Tribunal has also not considered compensation with regard to deceased Vishav Pathania. It is further submitted that compensation for Loss of future income, loss of love and affection and loss of estate has not been granted to the appellant. 3. Cross objections have been filed by the Insurance Company in all the appeals briefly stated that the respondent has filed petition under Section 166 of M.V. Act on account of death of Ashok Kumar, Anita Devi, Ankit Kumar and Vishav Pathania in an accident on 03.11.2009 and the respondent was awarded Rs. 75,000/- each in claim petition Nos. 446, 447, 448 and 449. 75,000/- each in claim petition Nos. 446, 447, 448 and 449. The company in its objections had disputed the entitlement/right of the claimant/respondent to maintain petition, he being neither legal heir, legal representative nor dependent upon the deceased. 4. The Tribunal after considering the claim petition as well as written statement filed by the respondents framed the following issues:- “1. Whether an accident occurred on 03.11.2009 at Bagyal Morh NHW near Kathua by the rash and negligent driving of offending vehicle bearing No. RJ-07P-4588 in the hands of erring driver in which deceased deceased Campa Devi, Banu Kumar, Romesh Chander, Rano Devi, Sansar Chand, Suman, Ankit Kumar, Vishav Pathania, Anita Devi and Ashok Kumar sustained fatal injuries and petitioners Ridham alias Janno and Atual Pathania sustained grievous injuries? OPP 2. If issue No. 1 is proved in affirmative whether petitioners in each claim petition are entitled to the compensation, if so, to what extent and from whom? 3. Whether driver of offending vehicle at the time of accident was not holding a valid and effective driving license and plied the vehicle in violation of terms and conditions of insurance policy? OPR-1. 4. Relief.” 5. Thereafter, parties lead evidence in support of their respective claims. The claimant/appellant herein, besides examining himself as a witness also produced witnesses namely Raj Singh, Sat Paul, Narain Singh and Dr. Sham Jurangal in support of claim of the petitioners. Besides them, petitioners Atul Sharma and Somi Raj also appeared as their own witnesses. The Insurance Company also examined the witnesses in rebuttal. The Tribunal on examination of the witnesses decided the issue Nos. 1 and 3 in favour of the claimants/appellants herein and against the Insurance Company. 6. Further observed that since, both these issues i.e. issue Nos. 2 and 4 are co-related and inter-connected is a reason a joint finding is being returned because the result of one issue is going to effect the result of other issue. Issue No. 1 has been proved in affirmative and the driver of the offending Bus has been held guilty of rash and negligent driving. The respondent No. 1/Insurance Company has admitted the currency of the Insurance Policy interceding the period of the accident. The respondent Nos. 2 and 3 are the owner and driver who were set ex-parte. Issue No. 1 has been proved in affirmative and the driver of the offending Bus has been held guilty of rash and negligent driving. The respondent No. 1/Insurance Company has admitted the currency of the Insurance Policy interceding the period of the accident. The respondent Nos. 2 and 3 are the owner and driver who were set ex-parte. By the import of section 149 of M.V. Act, the respondents are hereby required for liquidation of all the claims whatever is granted by the Tribunal. Since issue No. 3 has been decided against the Insurance Company, so there is no doubt left now to presume that it is the respondent No. 1 i.e. Insurance company who has to satisfy the award ultimately. 7. Mr. R.K. Bhatia, learned counsel for the appellant vehemently argued that the learned Tribunal without appreciating the evidence, observed that the claimant is not dependent to the deceased. Though, the witnesses have deposed that the deceased were jointly residing with the claimants as joint family and the deceased were contributing their income in the joint family. Therefore, the claimants being dependents upon the income of the deceased were entitled to grant the compensation under the head “Loss of dependency”. It is also contended by the counsel for the appellant that the compensation awarded by the Tribunal in the said heads is very meager which is required to be enhanced. 8. The judgments referred by the appellant are distinguishable to the facts and circumstances of the case, therefore, the said judgments are not applicable. 9. Mr. Vishnu Gupta appeared for the company argued that the petitioner/appellant herein is not dependent upon the deceased who consisted of separate family. The petitioner/appellant admittedly is working as a Manager in Upkar Transport Company and receiving monthly salary of Rs.6, 000/-, as such, he cannot be equated as dependent of the deceased Ashok Kumar, Anita Devi, Master Ankit Kumar and Master Vishnu Pathania. To buttress his submission, he relied on the judgments passed by our own High Court in the cases titled National Ins. Company Ltd. vs Jeeto Devi and ors decided on 09.05.2018, case titled National Insurance Co. Ltd.vs Harpreet Singh {2014(I)SLJ}, case titled United India Insurance Co. Ltd. vs. Manju Bala and ors decided on 04.05.2016, case titled United India Insurance Co. Ltd. vs. Bashir Ahmed Khan and ors decided on 03.03.2000 and case titled New India Assurance Co. Company Ltd. vs Jeeto Devi and ors decided on 09.05.2018, case titled National Insurance Co. Ltd.vs Harpreet Singh {2014(I)SLJ}, case titled United India Insurance Co. Ltd. vs. Manju Bala and ors decided on 04.05.2016, case titled United India Insurance Co. Ltd. vs. Bashir Ahmed Khan and ors decided on 03.03.2000 and case titled New India Assurance Co. vs. Ranjit Singh Manhas and others {2008(1) SLJ}. 10. Issue invoked in the case is well settled by the law laid down by the Supreme Court in case titled Reshma Kumari and Ors Versus Madan Mohan and Anr, ( 2013 SCC 234 ) the relevant para is as under:- “Where the deceased was a bachelor and the claimants are the parents, the deduction follows a different principle. In regard to bachelors, normally, 50% is deducted as personal and living expenses, because it is assumed that a bachelor would tend to spend more on himself. Even otherwise, there is also the possibility of his getting married in a short time, in which event the contribution to the parent(s) and siblings is likely to be cut drastically. Further, subject to evidence to the contrary, the father is likely to have his own income and will not be considered as a dependent and the mother alone will be considered as a dependent. In the absence of evidence to the contrary, brothers and sisters will not be considered as dependents, because they will either be independent and earning, or married, or be dependent on the father.” In case titled Smt. Manjuri Bera versus The Oriental Insurance Company Ltd. and Anr ( 2007(3) Supreme 620 ), the relevant para is as under:- 16. Judged in that background where a legal representative who is not dependent files an application for compensation, the quantum cannot be less than the liability referable to Section 140 of the Act. Therefore, even if there is no loss of dependency the claimant if he or she is a legal representative will be entitled to compensation, the quantum of which shall be not less than liability flowing from Section 140 of the Act. The appeal is allowed to the aforesaid extent. There will be no order as to costs. We record our appreciation for the able assistance rendered by Shri Jayant Bhushan, the learned Amicus Curiae. 20. The appeal is allowed to the aforesaid extent. There will be no order as to costs. We record our appreciation for the able assistance rendered by Shri Jayant Bhushan, the learned Amicus Curiae. 20. In the impugned judgment the High Court has correctly drawn a distinction between “right to apply for compensation” and “entitlement to compensation”. The High Court has rightly held that even a married daughter is a legal representative and she is certainly entitled to claim compensation. It has further held, on the facts of the present case, that the married daughter was not dependent on her father. She was living with her husband in her husband’s house. Therefore, she was not entitled to claim statutory compensation. According to the High Court, the claimant was not dependent on her father’s income. Hence, she was not entitled to claim compensation based on “No Fault Liability”. 11. It is undisputed that the appellant/petitioner herein is the brother of the deceased Ashok Kumar who consisted of his own family. Petitioner is working as a Manager in Upkar Transport Company and getting salary, therefore, the petitioner cannot be said to be dependent on the deceased. The learned Tribunal after examining the statements of the witnesses and relying the judgments passed by the Hon’ble Supreme Court as well as various High Courts come to the conclusion that deceased Ashok Kumar consists of his own self, wife, Late Anita Devi, Master Ankit Kumar and Master Vishav Pathania, who were separate unit and given the fact that the claimant/appellant Onkar Pathania was major, having own source of income, cannot be said to have been dependent on the contribution made by the deceased Ashok Kumar and his family towards requirement of the claimant/appellant. While assessing compensation, the multiplier system is applied because of depravation of dependency. The learned Tribunal come to the conclusion that the claimant/appellant herein was not dependent upon the deceased Ashok Kumar and thus, cannot be held entitled for compensation under the head “Loss of dependency”, though, the claimant/appellant herein has right to apply for compensation, therefore, the Tribunal has granted compensation only on account of aforesaid head mentioned above. 12. The learned Tribunal come to the conclusion that the claimant/appellant herein was not dependent upon the deceased Ashok Kumar and thus, cannot be held entitled for compensation under the head “Loss of dependency”, though, the claimant/appellant herein has right to apply for compensation, therefore, the Tribunal has granted compensation only on account of aforesaid head mentioned above. 12. After carefully analyzed the evidence both oral and documentary available on record and considered the submission made by learned counsel appearing on behalf of the parties and in view of the judgment discussed herein above, I am of the opinion that the learned Tribunal has not committed any error in deciding the claim petitions filed by the petitioner before Motor Accidents Claims Tribunal, Jammu and findings given by the Tribunal cannot consider to be baseless and perverse. On the contrary, Tribunal has decided the claim petitioners on the basis of legal evidence. Therefore, no interference is required by this Court. Hence there is no substance in present appeals, the impugned award is upheld and all the appeals and cross objections are dismissed. The Insurance Company is directed to satisfy the award in terms of the condition laid therein. Registry to send down the record of learned Tribunal along with a copy of this judgment.