Jammu & Kashmir High Court
Pehyush Gupta vs Ashwani Kumar And Ors on 25 August, 2023
Author: Rajnesh Oswal
Bench: Rajnesh Oswal
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
Reserved on: 17.08.2023
Pronounced on: 25.08.2023
MA No. 159/2018
CM No. 7752/2019
IA No. 1/2018
c/w
CCROS No. 19/2018
Pehyush Gupta .....Appellant(s)/Petitioner(s)
Through: Mr. Raghu Mehta, Advocate and
Q
Mr. Nigam Mehta, Advocate
Vs
Ashwani Kumar and ors. ..... Respondent(s)
Through: Mr. R. K. Bhatia, Advocate for R-1 to 3
Mr. C. S. Gupta, Advocate for R-4
Coram: HON‟BLE MR. JUSTICE RAJNESH OSWAL, JUDGE
JUDGMENT
1. The appellant i.e. the owner of the offending vehicle and also the claimants/respondent Nos. 1 to 3 (claimants in CCROS No. 19/2018) have impugned the award dated 28.03.2018 passed by the Motor Accident Claims Tribunal, Samba (hereinafter to be referred as „the Tribunal‟), whereby respondent No. 4-Insurance Company has been directed to satisfy the award passed in favour of the claimants with liberty to recover the awarded amount from the appellant.
2. The appellant-owner has impugned the award that the liberty granted to the respondent No. 4 to recover the compensation from the appellant, after paying to the claimants/respondent Nos. 1 to 3, is not in accordance with law. The appellant-owner has also impugned the award on the ground that the findings of the criminal investigation are not binding on the Tribunal MA No. 159/2018 c/w CCROS No. 19/2018 2 and are not sufficient to prove the negligence of the driver in the claim proceedings and the Insurance Company is under legal obligation to prove the negligence and breach of the policy by the owner to absolve itself from its statutory liability to satisfy the award. The appellant has also urged that the compensation under certain heads vis-a-vis „Loss of Love and Affection‟ and „Non-pecuniary‟ could not have been awarded by the Tribunal.
3. The claimants/respondent Nos. 1 to 3 have impugned the award only on the ground that just compensation has not been awarded to the claimants/respondent Nos. 1 to 3.
4. Mr. Raghu Mehta, learned counsel for the appellant-owner would submit that the learned Tribunal has simply relied upon the charge sheet produced against the respondent No. 5 and has returned a finding that the vehicle was being driven by the driver, who was not holding a valid and effective driving license at the time of alleged occurrence. He would further submit that respondent No. 4 has not led any evidence in order to prove the issue Nos. 2 and 3. Mr. Mehta vehemently argued that once the claimants had sought compensation on the basis of notional income of the deceased, no further enhancement can be sought by them. He lastly submits that respondent No. 5 stands acquitted, as such, alleged negligence of the respondent No. 5 stands disproved by the criminal court and the offences under section 279/304-A RPC r/w section 3/181 MV Act were not proved against the respondent No. 5.
5. Per contra, Mr. R. K. Bhatia, learned counsel for the claimants/respondent Nos. 1 to 3 has placed reliance upon the judgment passed by the Hon‟ble MA No. 159/2018 c/w CCROS No. 19/2018 3 Apex Court in case titled, „Kajal v. Jagdish Chand and others‟ reported in AIR 2020 Supreme Court 776, to substantiate his contention that notional income as mentioned in the judgment was required to be considered for the purpose of determining the compensation.
6. Mr. C. S. Gupta, learned counsel for respondent No. 4 has also placed reliance upon the judgments passed by the Hon‟ble Supreme Court in case titled, „Pappu and others vs. Vinod Kumar Lamba and another‟ reported in (2018) 3 SC 208 and „Rishi Pal Singh vs. New India Assurance Co. Ltd. & Ors.‟ reported in 2022 ACJ 1868.
7. Heard learned counsels for the parties and perused the record.
8. Respondent No. 1 being father, respondent No. 2 being mother and respondent No. 3 being brother of the deceased, namely, Ashutosh Sharma, who was 12 years of age and died in a motor vehicular accident on 30.09.2010, filed a claim petition for grant of compensation. In the claim petition, it was pleaded by the claimants that the monthly income of the deceased be considered as Rs. 15000/- per annum as per schedule of the Motor Vehicle Act. Notice was issued to the appellant/owner and to respondent Nos. 4 and 5. The appellant and the respondent Nos. 4 & 5 filed the objections to the claim petition.
9. On the basis of pleadings of the parties, the learned Tribunal has framed the following issues:-
1. Whether deceased Ashutosh Sharma s/o Ashwani Sharma R/o Smailpur Tehsil & Distt. Samba was injured in an accident on 30-09-2010 at 9 pm near Chowdhary Karyana Store, Link Road Bishnah, Bari Brahmana, Tehsil & Distt. Samba due to rash and negligent driving of offending vehicle no. JK02T-4882 (Maruti Van) by respondent No. 1 when the deceased was hit by said vehicle and died on 01-10-2010 at GMC Jammu? OPP
2. Whether the respondent no. 1 was not holding a valid driving license at the time of accident? OPR3 MA No. 159/2018 c/w CCROS No. 19/2018 4
3. Whether the respondent no. 3 is not liable to pay any compensation as the offending vehicle was driven in contravention of the terms and conditions of the insurance policy? OPR3
4. In case issue no. 1 is proved affirmative whether petitioners are entitled to any compensation and if so, from whom and to what extent? OPP
5. Relief?
10. The claimants/respondent Nos. 1 to 3 examined respondent No. 1 and PW Vimal Kumar in support of their claim, whereas the appellant examined witnesses, namely, Banarsi Dass and Sobit Kumar in support of his contention. The learned Tribunal after considering the evidence of the parties, awarded the compensation under the following heads:-
1. As per Schedule: ₹ 15000 x 15 = ₹ 2,25,000/-
2. Non pecuniary : = ₹ 1,75,000/-
3. Loss of love & affection: = ₹ 40,000/-
4. Loss of estate: = ₹ 15,000/-
5. Funeral expenses: = ₹ 15,000/-
Total Award = ₹ 4,70,000/-
11. The first contention raised by the appellant-owner is that the learned Tribunal has simply relied upon the charge sheet in order to arrive at the conclusion that the driver of the offending vehicle was not having a valid license at the time of the accident. In this context, it is appropriate to take note of the judgment of the Hon‟ble Apex Court in case titled, „Rishi Pal Singh vs. New India Assurance Co. Ltd. & Ors. and „Pappu and others vs. Vinod Kumar Lamba and another‟ (supra). In view of the judgments passed by the Hon‟ble Supreme Court, it is clear that the Insurance Company is entitled to take a defence that the offending vehicle was driven by an unauthorized person or the person driving the vehicle did not have a valid driving license and the onus would shift on the Insurance Company only after the owner of the offending vehicle pleads and proves the basic facts within his knowledge that the driver of the offending vehicle was MA No. 159/2018 c/w CCROS No. 19/2018 5 authorized by him to drive the vehicle and was having a valid driving license at the relevant time. In the instant case, the appellant, who happens to be a father of respondent No. 5, never appeared as a witness and also the respondent No. 5 did not appear as a witness before the Tribunal to prove that the respondent No. 5 was having a valid driving license. In view of the above, this Court does not find any illegality in the finding returned by the Tribunal that the offending vehicle was being driven by the driver, without having a valid driving license.
12. The other contention raised by the appellant is that the respondent No. 5 stands acquitted, as such, alleged negligence of respondent No. 5 stands disproved by the criminal court. A perusal of the statements of the claimant/respondent No. 1, namely, Ashwani Sharma and the witness of the claimants, namely-Vimal Kumar reveals that on 30.09.2010 at 9:00 pm, the respondent No. 1 had gone to take his son, who opened the door of his Maruti car and in the meanwhile, a Maruti van bearing registration No. JK02T-4882 being driven rashly and negligently at a speed of 100-200 kms, hit him, as a result of which, his son got injured and subsequently died. To the same extent, respondent No. 1 to 3/claimants‟ witness, namely, Vimal Kumar has deposed that the offending vehicle was being driven by its driver, namely, Sushant Jandayal in a rash and negligent manner. The learned Tribunal after taking note of the statements of respondent No. 1 and his witness, has returned a finding that the accident was caused due to rash and negligent driving of the offending vehicle by the respondent No. 5. The contention of the learned counsel for the appellant-owner that the respondent No. 5 stands acquitted and as such, the appellant cannot be held MA No. 159/2018 c/w CCROS No. 19/2018 6 liable for payment of compensation is misconceived. The acquittal of the driver in an accident would not have any bearing upon the finding returned by the Tribunal in respect of accident caused by respondent No. 5. The Hon‟ble Supreme Court in case titled, „Janabai v. ICICI Lambord Insurance Co. Ltd., (2022) 10 SCC 512 has held as under:-
"11.We find that the rule of evidence to prove charges in a criminal trial cannot be used while deciding an application under Section 166 of the Motor Vehicles Act, 1988 which is summary in nature. There is no reason to doubt the veracity of the statement of Appellant 1 who suffered injuries in the accident. The application under the Act has to be decided on the basis of evidence led before it and not on the basis of evidence which should have been or could have been led in a criminal trial. We find that the entire approach of the High Court is clearly not sustainable."
(emphasis added)
13. Further, the Hon‟ble Supreme Court in case titled, „Mangla Ram v.
Oriental Insurance Co. Ltd., (2018) 5 SCC 656has held as under:-
"27. Another reason which weighed with the High Court to interfere in the first appeal filed by Respondents 2 & 3, was absence of finding by the Tribunal about the factum of negligence of the driver of the subject jeep. Factually, this view is untenable. Our understanding of the analysis done by the Tribunal is to hold that Jeep No. RST 4701 was driven rashly and negligently by Respondent 2 when it collided with the motorcycle of the appellant leading to the accident. This can be discerned from the evidence of witnesses and the contents of the charge-sheet filed by the police, naming Respondent 2. This Court in a recent decision in Dulcina Fernandes [Dulcina Fernandes v. Joaquim Xavier Cruz, (2013) 10 SCC 646] , noted that the key of negligence on the part of the driver of the offending vehicle as set up by the claimants was required to be decided by the Tribunal on the touchstone of preponderance of probability and certainly not by standard of proof beyond reasonable doubt. Suffice it to observe that the exposition in the judgments already adverted to by us, filing of charge-sheet against Respondent 2 prima facie points towards his complicity in driving the vehicle negligently and rashly. Further, even when the accused were to be acquitted in the criminal case, this Court opined that the same may be of no effect on the assessment of the liability required in respect of motor accident cases by the Tribunal."
(emphasis added) MA No. 159/2018 c/w CCROS No. 19/2018 7
14. The third contention raised by the appellant and the respondent Nos. 1 to 3/claimants is in respect of quantum of compensation.
15. A perusal of the award impugned reveals that the learned Tribunal has awarded an amount of Rs. 40,000/- on account of Loss of Love and Affection and Rs. 1,75,000/- has been awarded under the head-Non pecuniary. The compensation awarded under these heads is not permissible. However, the learned Tribunal has considered the notional income of the deceased as Rs. 15000/- per annum while determining the compensation payable to the respondent Nos. 1 to 3. In „Kajal v. Jagdish Chand and others‟, in respect of the injuries suffered by the girl of 12 years, the Hon‟ble Supreme Court has held that taking notional income to be Rs. 15000/- is not at all justified and Rs. 4846/- is the minimum amount, which should be considered. The judgment relied upon by Mr. R. K. Bhatia, Advocate is not applicable in the present facts and circumstances of the case, as the instant case is a death case and not injury case. The judgment in Kajal‟s case was taken note of by the Hon‟ble Supreme Court in case titled, Rajendra Singh v. National Insurance Co. Ltd., (2020) 7 SCC 256 but was not applied in the said case on the same ground that the claim arose in respect of injuries suffered by the victim. The notional income fixed by the Tribunal as Rs. 15000/- per annum is not in accordance with the judgment passed by the Hon‟ble Apex Court in „Kurvan Ansari v. Shyam Kishore Murmu, (2022) 1 SCC 317‟. The Hon‟ble Apex Court has held that Rs. 25,000/- per annum is required to be considered as notional income.
16. Accordingly, in view of the law laid down by the Hon‟ble Apex Court in case titled, „Kurvan Ansari vs. Shyam Kishore Murmu‟, the notional MA No. 159/2018 c/w CCROS No. 19/2018 8 income of the deceased is required to be considered as Rs. 25000/- per annum. Further no compensation could have been paid on account of Loss of Estate to the respondent Nos. 1 and 2. Accordingly, the compensation payable to the respondent Nos. 1 to 3/claimants is under the following heads:-
1. Loss of dependency: Rs. 25000 x 15= Rs. 3,75,000/-
2. Filial consortium: Rs. 80,000/- (to respondent Nos. 1 & 2)
3. Funeral Expenses: Rs. 15,000/-
Total: Rs. 4,70,000/-
(Rupees Four Lacs Seventy Thousand only)
17. As this Court has also arrived at the same amount of compensation which has been granted by the learned Tribunal, however under wrong heads, therefore, the appeals filed by the appellant as well as the claimants/respondent Nos. 1 to 3 are dismissed. The award passed by the Tribunal, if deposited, be released in favour of the respondent Nos. 1 to 3/claimants after due verification by their counsel.
18. Record of the Tribunal be sent back.
(RAJNESH OSWAL) JUDGE Jammu 25.08.2023 Neha-II Whether the order is speaking: Yes Whether the order is reportable: Yes