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2023 DIGILAW 28 (JK)

Oriental Insurance Co. Ltd. v. Amarjeet Kour

2023-02-07

SANJEEV KUMAR

body2023
JUDGMENT : 1. These two appeals by the Oriental Insurance Company Ltd., the appellant herein, are directed against a composite award dated 31.12.2013 passed by the Motor Accident Claims Tribunal, Jammu ['the Tribunal'] in claim petitions No. 493/2011 and 494/2011, both titled Amarjeet Kour & Ors. v. Oriental Insurance Company & Ors. The Tribunal vide the impugned award has held respondents No. 1 and 2 entitled to total compensation of Rs. 3.00 lac along with pendente lite and future interest at the rate of 7.5% per annum on account of death of Ms Sania Preet Kour in claim petition No. 493/2011 and a compensation of Rs. 26,82,000/- on account of death of Sh. Bir Inder Singh. 2. Before adverting to the grounds of challenge urged by Mr. Amrit Sarin, learned counsel for the appellant/Insurance Company, a brief reference to the facts is necessitated. 3. On 23.09.2009, a vehicular accident involving a Truck bearing Registration No. JK02R-7673 ['the offending vehicle'] took place at Kunjwani Bye Pass Road near Vishal Mega Mart Jammu. The accident, which took place due to rash and negligent driving of driver of the offending vehicle, namely Harpal Singh, claimed the lives of two persons, namely Ms Sania Preet Kour, a student of 11th standard and Bir Inder Singh. Respondents No. 1 and 2 (hereinafer referred to as the 'claimants') are the mother and brother of deceased Sania Preet Kour and are wife and son of late Sh. Bir Inder Singh. The claimants fled two separate petitions in respect of death of Sania Preet Kour and Bir Inder Singh, who had died in the accident involving the aforesaid offending vehicle. 4. On being put on notice, the appellant/Insurance Company alone caused appearance and contested the claim petitions, whereas the owner and driver of the offending vehicle i.e respondent Nos. 3 and 4 chose not to appear despite service. On the basis of pleadings of the parties, the Tribunal framed the following issues. “(i). Whether an accident occurred on 23.09.2009 at Kunjwani Bye Pass Road near Vishal Mega Mart by rash and negligent driving of offending vehicle No. JK02R-7673 being driven by respondent No. 3 in which deceased Sania Preet Kour and Bir Inder Singh received fatal grievous injuries ? OPP (ii) If issue No.1 is proved in affirmative whether petitioners are entitled to the compensation; if so to what amount and from whom? OPP (ii) If issue No.1 is proved in affirmative whether petitioners are entitled to the compensation; if so to what amount and from whom? (iii) Whether driver of the offending vehicle was not holding valid and effective driving licence at the time of the accident and whether there was violation of terms and conditions of policy of insurance? 5. The aforesaid issues were common to both the claim petitions. So far as issue No. 1 is concerned, the same was conclusively proved in favour of the claimants and against the appellant/Insurance Company. It was amply proved that the deceased Sania Preet Kour and Bir Inder Singh had lost their lives in a vehicular accident that occurred due to rash and negligent driving of offending vehicle by its driver Harpal Singh. The offending vehicle was found to be owned by respondent Sudesh Kumari. Similarly, issue No. 3 was also held proved against the appellant/Insurance company. 6. The Tribunal found that the appellant/Insurance Company had failed to discharge the onus and prove that the driver of the offending vehicle was not holding a valid and efective driving licence or there was any violation of the terms and conditions of the policy of insurance. The Tribunal, afer having found both the issues i.e., issues No. 1 and 3 proved against the Insurance Company, proceeded to determine and assess the compensation payable to the claimants. Accordingly, the Tribunal, having regard to the law laid down by the Hon'ble Supreme Court found the claimants entitled to compensation of Rs. 3.00 with pendent lite and future interest at the rate of 7.5% per annum in claim petition 493/2011 which pertained to death of Sania Preet Kour. The Tribunal found the claimants in claim petition No. 494/2011 entitled to a sum of Rs. 26,82,000/- along with pendente lite and future interest at the rate of 7.5% per annum and, accordingly, passed the impugned award. 7. The appellant/Insurance Company is aggrieved of and has challenged the impugned award, inter alia, on the ground that the Tribunal has not correctly decided issue No. 3, in that, the Insurance Company had, by leading cogent evidence, proved beyond any reasonable doubt that the driver of the offending vehicle, namely Harpal Singh was not possessing a valid driving licence at the time of the accident. Strong reliance was placed by Mr. Strong reliance was placed by Mr. Sarin learned counsel for the appellant on the statement of RW Ratan Lal, the Record Keeper in the office of ARTO Udhampur; and, The impugned award, insofar as it relates to death of Bir Inder Singh (claim petition No. 494/2011) is also challenged on quantum. 8. Mr. Sarin learned counsel for the appellant/Insurance company submitted that, in view of the clear dictum of law laid down in National Insurance Co. Ltd v. Pranay Sethi, (2017) 16 SCC 680 , the Tribunal could not have granted a sum of Rs. 1.00 lac on account of loss of consortium. He also submitted that one of the legal heirs of the deceased i.e respondent No. 2 was major and, therefore, was not dependent upon the deceased. Thus, the Tribunal should have applied the deduction at the rate of one-half as against one-third applied in the instant case. 9. Having heard learned counsel for the appellant/Insurance Company and perused the material on record, I am of the opinion that, in view of the clear evidence on record, the Tribunal had no option, but to decide issue No. 3 in favour of the claimants and against the appellant/Insurance Company. 10. It is no doubt true that the appellant/Insurance Company had taken a specific objection before the Tribunal that the driver of the offending vehicle, namely Harpal Singh was not holding a valid and effective driving licence at the time of accident. The plea of the appellant Insurance Company before the Tribunal as also before this Court is that the driver of the offending vehicle, namely Harpal Singh was possessing a driving licence, but was not authorized to drive a Heavy Goods Vehicle (HGV) and at the time of accident, the Driver Harpal Singh was driving a Truck (HGV). Learned counsel for the appellant, therefore, submits that it was a case where the Tribunal should have applied the principle of “pay and recover”. 11. I find no substance in the submissions made by learned counsel for the appellant. The appellant has itself placed on record a copy of the driving licence issued by the Competent Authority in favour of driver Harpal Singh, a perusal whereof clearly indicates that, at the time of accident, the driver Harpal was holding a valid and effective driving licence which allowed him to drive the vehicles of the following descriptions throughout India. The appellant has itself placed on record a copy of the driving licence issued by the Competent Authority in favour of driver Harpal Singh, a perusal whereof clearly indicates that, at the time of accident, the driver Harpal was holding a valid and effective driving licence which allowed him to drive the vehicles of the following descriptions throughout India. (i) Light Motor Vehicle; (ii) Medium Goods Vehicle; and, (iii) Heavy Goods Vehicle 12. That apart, the Competent Authority has also made a specific endorsement of HGV in the licence issued in favour of the driver Harpal Singh. There is placed on record a certificate issued by the licensing authority giving the particulars of the licence held by the Driver Harpal Singh which apart from others, indicates that the licence issued in favour of driver Harpal Singh was valid for invalid carriage, light motor vehicle, and transport vehicle. 13. From comparing the actual licence issued in favour of driver of the offending vehicle, namely Harpal Singh and the certificate issued by the Licensing Authority, there appears to be discrepancy, but when the driving licence actually issued in favour of Harpal Singh is read in the light of statement of Record Keeper, it becomes abundantly clear that the driver Harpal Singh was authorized to drive HGV on the date the fateful accident occurred. The categoric statement made by the Record Keeper that the licensee was authorized to drive heavy and medium goods vehicle and, therefore, was competent to drive the offending Truck has gone un-rebuted. 14. In view of the preponderance of evidence on record, particularly the driving licence of Harpal Singh placed on record by the appellant itself, I have no doubt in my mind that, on the date of occurrence of accident, the driver of the offending vehicle, namely Harpal Singh was possessing a valid and effective driving licence. 15. The plea of Mr. Sarin, learned counsel for the appellant that issue No. 3 has not been correctly decided by the Tribunal is beref of any merit and the same is, accordingly, rejected. 16. Mr. Sarin has, though disputed the quantum of compensation paid in claim No. 494/2011 in respect of death of Bir Inder Singh, but has shown his satisfaction with regard to amount of compensation awarded in claim petition No. 493/2011 in respect of deceased Sania Preet Kour. 16. Mr. Sarin has, though disputed the quantum of compensation paid in claim No. 494/2011 in respect of death of Bir Inder Singh, but has shown his satisfaction with regard to amount of compensation awarded in claim petition No. 493/2011 in respect of deceased Sania Preet Kour. I have given my thoughtful consideration to the submissions made by Mr. Sarin. I may tend to agree with Mr. Sarin that the Tribunal should not have awarded Rs.1.00 lac on account of loss of consortium as the Hon'ble Supreme Court, while laying down law in Pranay Sethi's case (supra) has clearly provided that an amount of Rs. 40,000/- alone can be given on account of loss of consortium. Insofar as plea of Mr. Sarin that that one of the claimants i.e son of deceased Bir Inder Singh was major at the time of accident and, therefore, the Tribunal should have applied deduction at the rate of one-half, is also not worthy of acceptance for the reason that there is nothing on record that the son of the deceased was not dependent upon the income of his father i.e the deceased Bir Inder Singh. 17. For the foregoing reasons, MA No. 108/2014 arising out of claim petition No. 493/2011 is dismissed. MA No. 107/2014 arising out of claim petition No. 494/2011 is partially accepted and the claimants are held entitled to a sum of Rs. 40,000 on account of loss of consortium instead of Rs.1.00 lac. This will make the total amount of compensation awarded in favour of the claimants as Rs. 26,22,000/-, of course, with pendente lite and future interest @ 7.5% per annum. 18. Registrar Judicial shall release the amount deposited by the appellant-Insurance Company in each appeal in favour of the claimant(s) as per the award made in the claim petitions, in terms of this judgment, if not already released, on their proper identification. The excess amount, if any, shall be released in favour of the appellant-company along with interest accrued thereon.