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2022 DIGILAW 161 (JK)

United India Insurance Co. Ltd. v. Kuldeep Singh

2022-04-13

TASHI RABSTAN

body2022
JUDGEMENT/ORDER : 1. The appellant-Insurance Company has filed the present appeal, challenging the award dated 19.03.2009 passed by the Motor Accidents Claims Tribunal, Jammu in File No. 573/Claim titled "Sachin Dhar v. Kuldeep Singh and anr." Brief facts 2. The respondent No. 2, namely, Sachin Dhar alias Billoji has filed a claim petition before the Motor Accidents Claims Tribunal, Jammu, wherein it was alleged that he is an adopted son of the deceased Jia Lal S/o Shankar Pandit, 78 years old bachelor, who was allegedly injured in a road accident which took place on 24.07.2006 near Mahesh Pura Chowk, Jammu due to rash and negligent driving of Mini Bus No. JK02T/8232, resultantly, the deceased died on 31.07.2006 and accordingly, the respondent No. 2 has filed the claim petition for grant of compensation to the tune of Rs. 10 Lakhs on account of death of the deceased Jia Lal. 3. It is narrated by the claimant before the Tribunal that on 24.07.2006 the deceased Jia Lal was on foot near Maheshpura Chowk and was waiting for a bus at about 3.30 pm, meanwhile the offending matador bearing No. JK02T 8232 being driven in a rash and negligent manner by the driver who could not keep control over the speed of the vehicle and thus hit the deceased, consequently causing grievous injuries to him and accordingly the deceased was shifted to Govt. Medical College Hospital, Jammu and remained under treatment upto 31.07.2006. It is alleged that the claimant being an adopted son of the deceased Jia Lal has spend an amount of Rs. 35,000/- on treatment of the deceased. It is further alleged that the deceased at the time of his death was of 65 years old and was doing tuition work, earning Rs. 4,000/- per month. 4. Objections have been filed by the appellant herein before the Tribunal. The Tribunal after considering the pleadings of the parties has framed the following issues:- "1. Whether an accident occurred on 24.07.2006 near Maheshwara Chowk Bakshi Nagar, Jammu by rash and negligent driving of offending vehicle No. JK02T 8232 being driven in the hands of erring driver in which deceased Jia Lal sustained fatal injuries? OPP 2. If issue No. 1 is proved in affirmative whether petitioner is entitled to the compensation; if so to what amount and from whom? OPP 3. OPP 2. If issue No. 1 is proved in affirmative whether petitioner is entitled to the compensation; if so to what amount and from whom? OPP 3. Whether driver of offending vehicle at the time of accident was not holding valid and effective driving license and drove the vehicle in violation of terms and conditions of insurance policy; if so how and what is its effect? OPR-2 4. Whether claim petition is bad for non-joinder of necessary parties; if so which are necessary parties and how? OPR-2 5. Relief. O.P. Parties" 5. The Tribunal, accordingly, directed the parties to lead evidence and the claimant besides himself has also examined PW Girdhari Lal and PW J.K. Raina in support of his claim petition. The respondent insurer/appellant herein has not examined even a single witness in rebuttal, though opportunities were afforded. 6. The claim petitioner in his statement deposed that the deceased Jia Lal was his father and was living with him. He is the only son of the deceased. It is also deposed that his father at the time of accident was 65 years old and was doing tuition and earning Rs. 8/9 thousands per month. The deceased was bearing the household expenses. In cross-examination it is stated that he is the adopted son of the deceased who was a bachelor. He further deposed that he does not remember his age at the time of adoption, though he is matric pass and he does not know the qualification of his father. 7. Witness Girdhari Lal has deposed in his statement that he knows the deceased. On 24.07.2006 at 8/8.15 hrs when the deceased was standing on the bank of the road at Maheshpura Chowk, a vehicle bearing No. JK02T 8232 hit the deceased, who fell down on the road and police came on the spot, took the deceased to the Govt. Medical College, Jammu where he died on 31.07.2006. The deceased was 64/65 years old. He also deposed that the accident occurred due to negligence of driver who was driving the vehicle in a rash and negligent manner. Petitioner is son of the deceased. He further deposed that the deceased used to impart tuition to children. In cross-examination the witness deposed that he was standing at a distance of 30/40 ft from the spot of accident. Petitioner is son of the deceased. He further deposed that the deceased used to impart tuition to children. In cross-examination the witness deposed that he was standing at a distance of 30/40 ft from the spot of accident. He does not remember the number of matador and he also does not know how many passengers were in the matador. He neither knows the name nor driver of matador. Though after 10/15 minutes police took the deceased to the hospital but, the police did not recorded the statement. He admitted that he knows the deceased prior to the accident and also deposed in cross-examination that the deceased had installed a Photostat machine but does not know when he used to sit on the shop. Today he has come to give evidence on asking of the claim petitioner. 8. Witness J.K. Raina has stated that he knows the petitioner and the deceased Jia Lal died in a road accident. It is deposed that the deceased had a Photostat machine and also imparting tuition to the students and was earning Rs. 10,000/- per month. He was putting up at Govt. quarter Muthi and the deceased was 60 years old. The petitioner is not married and does not do any work. In cross-examination the witness stated that the petitioner is not related to him but only know him because he used to go on Photostat shop. He told the age of the petitioner by guess but has not seen his age certificate. He does not know whether any person can run a shop at Government quarter. He also deposed that he does not know whether Photostat machine was owned by the deceased or not. The witness also deposed that he does not know whether the deceased was married or not and also does not know whether the petitioner is the real son of the deceased or not. 9. Girdhari Lal is stated to be an eye-witness of the occurrence who was present on the spot of accident and has identified the offending vehicle which caused the accident by hitting the deceased who was taken to the hospital by the police and ultimately succumbed to the injuries on 31.07.2006 in GMC, Jammu. An FIR under section 279/304-A RPC was immediately registered with the Police Station against the erring driver, namely, Hardit Singh S/o Kirpal Singh. An FIR under section 279/304-A RPC was immediately registered with the Police Station against the erring driver, namely, Hardit Singh S/o Kirpal Singh. The death of the deceased has been proved from the copy of the post-mortem report issued by the hospital authorities. 10. After proper trial and considering the evidence led by the parties and on the basis of the pleadings the Tribunal has come to the conclusion that the petitioner is entitled to compensation for the death of the deceased Jia Lal and awarded a sum of Rs. 1,59,999/- under the head "For loss of dependency" and Rs. 15,000/- under the head "for funeral expenses", total Rs. 1,75,000/- along with interest @ 7.5% per annum from the date of filing of claim petition till realization. 11. The sole ground of challenge taken by the appellant in the appeal is that the impugned award is against law and facts of the case because the same is factually incorrect and has been passed in utter disregard to the legal and factual position. Further, the impugned award has been passed by the learned Tribunal without application of judicial mind. It is also averred in the appeal that the Tribunal committed a grave error in law by holding Hardit Singh, driver of the Mini Bus guilty of rash and negligent driving and causing the so called accident. Though, the driver was not arrayed as a party to the claim petition, therefore, the award is contrary to the judgment passed by the Apex Court wherein it has been held that the driver is a necessary and proper party in a claim petition and award can only be passed against owner and insurer after holding the driver primarily responsible for payment of compensation being the primary tort feasor. It is contended that the Tribunal further committed patent error and illegality by not framing an issue to prove whether the petitioner is legally adopted son of the deceased. The said issue was more important and material issue for deciding the right of the respondent No. 2 to claim compensation on account of death of the deceased. Therefore, without deciding the issue of adoption, the award impugned is illegal and perverse. The claim petitioner/respondent No. 2 herein has neither produced any adoption deed executed by the deceased nor his matriculation certificate or state subject certificate etc. Therefore, without deciding the issue of adoption, the award impugned is illegal and perverse. The claim petitioner/respondent No. 2 herein has neither produced any adoption deed executed by the deceased nor his matriculation certificate or state subject certificate etc. from where the factum of adoption could have been even inferred. Since the claimant is seeking compensation being an adopted son of the deceased, therefore, the onus to prove the same was upon the claimant. It is further contended that the Tribunal also did not considered the fact that the respondent No. 2 had neither claimed economic dependency nor led any evidence to prove that he had no source of income of his own and was dependent upon the income of the deceased. Therefore, the learned counsel submits that the issues No. 2 and 5 have not properly been considered, the Tribunal rather granted huge amount of compensation in favour of the respondent No. 2 without he being dependent upon the deceased. He also averred that the Tribunal also failed in its duty to hold that the respondent No. 2 was neither the adopted son nor dependent upon the deceased. Law is well settled that even the sons and daughters like the respondent No. 2 who were major, well settled in life, earning handsome amount for themselves, could not be dependent and do not fall in the category of dependents and thus not entitled to any amount on account of dependency. It is further argued that the Tribunal after disbelieving the plea about the income of the deceased and after holding that the deceased had no income of his own committed a patent error by holding that the deceased being an elder member looking after household affair, as such, his contribution to the family can be taken by the Tribunal at Rs. 4,000/- per month. Though, it is argued that the deceased had no family, he was living alone. The respondent No. 2 was not living with the deceased as he was settled outside the State. 12. To buttress his arguments learned counsel for the appellant has relied upon the judgments passed by this Court in CIMA No. 194/2005 titled "New India Assurance Co. v. Ranjit Singh Manhas & Ors." and CIMA No. 130/2014 titled "ICICI Lombard General Ins. Co. Ltd. v. Sakina Bi & Ors." 13. 12. To buttress his arguments learned counsel for the appellant has relied upon the judgments passed by this Court in CIMA No. 194/2005 titled "New India Assurance Co. v. Ranjit Singh Manhas & Ors." and CIMA No. 130/2014 titled "ICICI Lombard General Ins. Co. Ltd. v. Sakina Bi & Ors." 13. Per contra, learned counsel for the respondents has, vehemently, argued that the appellant herein has failed to lead any evidence before the Tribunal, therefore, the arguments put forth by the appellant-insurance company cannot be accepted as the appellant has not opposed the claim of the petitioner on the ground of his being an adopted son. The claimant is the son of brother of the deceased besides being adopted son of the deceased. It is further argued by learned counsel that the claimant/respondent No. 2 has been adopted as per the local customs, therefore, there is no requirement to produce any adoption deed. Learned counsel for the respondents has submitted that the Tribunal has rightly awarded the compensation in favour of the respondent No. 2. In support of his arguments the respondents have relied upon the judgments passed by the Apex Court in case titled "Debi Prasad (Dead) by L.Rs v. Tribeni Devi & Ors" reported as 1970 SCC (1) 677 and case titled "Gujrat State Road Transport vs. Ramanbhai Prabhatbhai & Anr." reported as 1987 SCC (3) 234. 14. Heard learned counsel for the parties, perused the records and considered the matter. 15. The moot question raised by the appellant-Insurance Company has reference to the entitlement of the respondent No. 2/claimant as adopted son of the deceased, without establishing such adoption before the Tribunal. 16. The claimant has sought compensation on the ground of his being an adopted son of the deceased. The appellant herein has objected the grant of compensation in favour of the respondent No. 2 on the ground of his being an adopted son in their objections before the Tribunal. The claim petitioner/respondent No. 2 herein in addition to his own statement has also produced two witnesses, namely, Girdhari Lal and J.K. Raina in support of his claim petition before the Tribunal. The claim petitioner/respondent No. 2 herein in addition to his own statement has also produced two witnesses, namely, Girdhari Lal and J.K. Raina in support of his claim petition before the Tribunal. One of the witness has only stated that he heard that the claim petitioner is the adopted son of the deceased, but he failed to depose the date and year of adoption and he has also failed to produce anything to prove the legality of adoption of the petitioner, however, the Tribunal has awarded compensation in favour of the claimant on the basis of his being an adopted son of the deceased, that too without framing any issue or producing any document in this regard in terms of the provisions contained in Chapter-II of the J&K Hindu Adoption & Maintenance Act, 1956 (now repealed). The respondents in their objections have contended that the claim petition is not maintainable in absence of any proof of adoption. In the judgment passed by the Supreme Court in Civil Appeal No. 8814/2010 titled "M. Vanajavs. M. Sarla Devi" decided on 06.03.2020, it has been held that the appellant admitted in her evidence that she does not have the proof of the ceremony of giving and taking of her in adoption. Admittedly, there is no pleading in the plaint regarding the adoption being in accordance with the provisions of the Act. The mandate of the Act of 1956 is that no adoption shall be valid unless it has been made in compliance with the conditions mentioned in Chapter II of the Act of 1956. 17. On the one hand the petitioner is seeking compensation on account of death of the deceased on the basis of his being an adopted son and on the other hand he has produced a succession certificate being a legal representative of the deceased. A perusal of record of the Tribunal shows that no issue has been framed with regard to adoption of the respondent No. 2 by the deceased and also no document has been produced to prove the legality of the adoption. The Tribunal is duty bound to frame an issue that whether the petitioner is an adopted son of the deceased or not. 18. The Tribunal is duty bound to frame an issue that whether the petitioner is an adopted son of the deceased or not. 18. In view of above, the appeal is allowed and the impugned award dated 19.03.2009 passed by the Motor Accidents Claims Tribunal, Jammu in File No. 573/Claim titled "Sachin Dhar v. Kuldeep Singh & Anr." is set aside. Accordingly, this matter is remanded to the Tribunal to reconsider by framing an additional issue on the point that whether the claimant is legally adopted son of the deceased, namely, Jia Lal. Thereafter, the matter shall be considered afresh and appropriate orders be passed. It is made clear that the issues already framed need not be considered again. 19. Disposed of as above. A copy of this order along with the record be send down.