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2018 DIGILAW 778 (JK)

Renu Aggarwal v. Rajinder Singh Samyal

2018-10-04

SANJEEV KUMAR

body2018
JUDGMENT : 1. This is an appeal by the legal representatives/dependents of deceased-Madhu Aggarwal against the award dated 30.11.2004 passed by the Motor Accident Claims Tribunal, Jammu (hereinafter referred to as “the Tribunal”) in File No.590 (Claims) titled Ashok Kumar Aggarwal and ors. v. National Insurance Company Ltd. and others. 2. Briefly stated, the facts, as gatherable from the impugned award, are that on the fateful day of 01.07.1997, one Sh. Ashok Kumar Aggarwal who was driving his Maruti Car No.JK02B/7379 and was going from Jammu to Amritsar met with an accident near Chadwal. The car driven by Sh. Ashok Aggarwal rammed into a bus bearing registration No.JK08-257. It was claimed that the driver of the offending bus abruptly applied the brakes as a result whereof, the car driven by Ashok Aggarwal rammed into rear of the bus. The occupants of the car including deceased Madhu Aggarwal, sister of Ashok Aggarwal, namely, Sunita Aggarwal and his niece Baby Nidhi Aggarwal sustained injuries. Madhu Aggarwal and Baby Nidhi Aggarwal succumbed to the injuries. 3. Asserting that the accident had occurred due to rash and negligent driving by the driver of the offending bus, Ashok Aggarwal along his two minor daughters, namely Reena and Sweta Aggarwal and a minor son, namely, Sunny Aggarwal filed a claim petition for grant of compensation to the tune of Rs.20.00 lakh under various heads mentioned in the claim petition. The insurer of the offending bus i.e. National Insurance Company Limited was also arrayed as party respondent being liable under law to indemnify the insured. 4. It may be noted that two other claim petitions, one by parents of deceased Nidhi Aggarwal and the other by Sunita Aggarwal, were also filed. In the claim petition filed by Sunita Aggarwal, not only the Insurance Company with which the offending bus was insured was impleaded as party respondents, but the Insurance Company with which the car involved in the accident driven by Ashok Aggarwal too was arrayed as party respondent No.2. All the three claim petitions were tried together. On the basis of the pleadings of the parties, common issues were framed in all the three claim petitioners on 21.08.1998. The issues so framed by the Tribunal are reproduced hereunder:- “1. Whether accident involving death of Mrs. All the three claim petitions were tried together. On the basis of the pleadings of the parties, common issues were framed in all the three claim petitioners on 21.08.1998. The issues so framed by the Tribunal are reproduced hereunder:- “1. Whether accident involving death of Mrs. Madhu Aggarwal, Baby Nidhi and injuries to Sunita aggarwal has occurred due to rash and negligent driving of the bus No.JK08/257 by respondent No.3 on 1.7.1997? OPP 2. In case issue No.1 is proved in affirmative, what is the amount of compensation payable to the petitioners and by whom? OPP 3. Whether the offending vehicle was being plied in contravention of the terms and conditions of the insurance policy and its effect on the claim petitions? OPR-3 4. Relief. O.P. Parties.” 5. The learned Tribunal did not hold the issue No.1 fully proved in favour of the claimants and returned a finding that the accident had occurred due to the composite negligence of both the vehicles i.e. bus and the car. The Tribunal, on the basis of the evidence on record, apportioned the blame of the accident between the driver of the car and the driver of bus in the ratio of 75:25 and accordingly, held that the award of compensation is to be shouldered by the insurers in the aforesaid manner. Having held thus, the Tribunal held the claimants entitled to a compensation of Rs.4,79,500/- along with interest @ 9% p.a. on the amount other than the loss of income. The Tribunal held the claimants entitled to 25% of the compensation on the ground that the accident had occurred due to the negligent of the claimant-Ashok Aggarwal, who himself had contributed to the accident to the extent of 75%. However, in other two claim petitions, both the insurer of the offending bus and the car were held liable to compensate the claimants in the ratio of 25:75 respectively. 6. The claimants before this Court are the two daughters and son of the deceased-Madhu Aggarwal. The husband of the deceased, namely, Ashok Aggarwal, who was driving the offending car, has, however, not joined the other claimants in this appeal. The only ground of challenge to the impugned award raised by the learned counsel for the claimants is that it may be true that Sh. The husband of the deceased, namely, Ashok Aggarwal, who was driving the offending car, has, however, not joined the other claimants in this appeal. The only ground of challenge to the impugned award raised by the learned counsel for the claimants is that it may be true that Sh. Ashok Aggarwal, who was driving offending car too has contributed to the accident to the extent of 75% and therefore, may not be entitled to 75% of the total compensation payable to him on the ground that he cannot be compensated for his own negligence but the same principle cannot be applied to the other legal heirs of the deceased-Madhu Aggarwal. It is, thus, contended that daughters and son who were deprived of their mother because of the accident had not contributed towards the negligence nor the negligence, if any, committed by their father could be attributed to them. It is, therefore, urged that the Tribunal fell in serious error in not paying the full compensation to the appellants. 7. Per contra, learned counsel for the Insurance Company submits that this appeal on behalf of the two claimants, namely, Renu Aggarwal and Sweta Aggarwal, who are stated to be deaf and dumb, is not maintainable unless their next friend is appointed by the Court. Reference in this regard was invited to the provisions of Order-32 Rule 15 to contend that unless an enquiry into the physical status of these persons under disability is held by the Court and a next friend is appointed, Sh. Vinay Aggarwal claiming to be uncle of the children cannot be held to be competent to file appeal on their behalf. It was next contended by the learned counsel for the Insurance Company that since Ashok Aggarwal had contributed to the accident by his negligence to the extent of 75%, therefore, was rightly held entitled to only 25% of the compensation payable to him on account of the accident. The further contention of the learned counsel for the Insurance Company is that in the absence of the driver of the offending car and its insurer being party respondents in the claim petition, no liability can be fastened on the insurer on account of accident occurred due to the negligence of the driver of the offending car. 8. Heard learned counsel for the parties and perused the record. 9. The facts are not in dispute. 8. Heard learned counsel for the parties and perused the record. 9. The facts are not in dispute. The deceased-Madhu Aggarwal died in the accident, which occurred due to the ramming of the offending car into the offending bus. The Tribunal has already apportioned the blame between the car driver and the bus driver to the extent of 75:25. That being the position, the insurer of both the vehicles, i.e. car and the bus, are liable to compensate the victims of the accident to the extent of 75:25 respectively. There could also be no exception to the view of the learned Tribunal that Sh. Ashok Aggarwal being himself the driver of the offending car and having contributed to the accident to the extent of 75% is only entitled to 25% of the compensation but the same principle cannot be applied to the other claimants i.e. son and daughters of the deceased-Madhu Aggarwal. Neither Madhu Aggarwal nor the aforesaid claimants have, in any manner, contributed to the negligence which resulted into fatal accident at Chadwal on 01.07.1997. They cannot be deprived of the full compensation payable to them. The contention of the learned counsel for the Insurance Company that in the absence of the driver and insurer of the offending car being the party respondents in the claim petition, liability to the extent of 75% cannot be fastened on the respondent-Company. 10. I have carefully perused the pleadings and find that in all the claim petitions the National Insurance Company Limited is impleaded as party respondent. In the other two claim petitions, the insurers of both the offending vehicles are party respondents. Since all the three petitions have been tried and decided together, as such, no prejudice has been caused to the respondent-Insurance Company on account of it not being a specific party in the claim petition filed by the appellants. I am not in agreement with the learned counsel for the Insurance Company that the uncle i.e. brother of their father cannot file the appeal as next friend against the award impugned. It may be noted that the appellants under disability had filed the claim petition through their father, who for some reasons has not come forward to represent them in the appeal. It may be noted that the appellants under disability had filed the claim petition through their father, who for some reasons has not come forward to represent them in the appeal. 10.1 Be that as it may, with a view to protect the interest of the minors, whose guardian has either been removed or has abandoned the suit or proceedings, the Court are competent to appoint their next friend to continue with the proceedings. Accordingly, uncle of the appellants under disability, who has filed this appeal on their behalf, shall be deemed to have been appointed as their next friend by this Court. 11. In view of the totality of the circumstances, taken note of herein above, this appeal is allowed and the claimants are held entitled to full compensation to be shared by the insurer of the offending car and the bus in the ratio of 75:25. The amount payable to the claimants would be as under:- Loss of income - Rs.18,48,000/- Loss of love and affection - Rs.25,000/- Shock and agony - Rs.25,000/- Funeral expenses - Rs.5,000/- Total - Rs.19,03,000/- The claimants are held entitled to the aforesaid amount along with interest as has been awarded by the Tribunal. Therefore, allowing the appeal, the award of the Tribunal qua the appellants is, accordingly, modified.