National Insurance Co. Ltd vs Malavi Devi And Others on 11 August, 2023

[Cites 3, Cited by 0]

Jammu & Kashmir High Court

National Insurance Co. Ltd vs Malavi Devi And Others on 11 August, 2023

01. The appellant-National Insurance Co. Ltd. ("NIC" in short) has maintained this appeal under section 173 of the Motor Vehicles Act, 1988 being aggrieved of an award dated 18.03.2010 passed by the Motor Accident Claims Tribunal, Kathua ("MACT, Kathua" in short) in terms whereof four (04) claim petitions born out of same accident came to be disposed of and one of the claim petitions on file no. 190/2005 was by the respondent nos. 1 to 4 in this appeal.

02. The motor vehicle accident in reference is of 26.06.2005 when a car bearing Registration no. JK08A-5860 on its way from 2 MA No. 508/2010 c/w MA No. 513/2010 MA No. 514/2010 village Chhaper to Chhaper Morh got in collision with a moving train at an unmanned railway crossing leaving four (04) persons namely Taro Devi, Kaka Ram, Santosh Kumari and Chanchla Devi sitting outside said car dead. The registered owner of the said car was Buti Lal and the appellant-NIC was the insurer. The respondent nos. 1 to 4 suffered loss of Kaka Ram who was the husband of the respondent no. 1-Malavi Devi and father of the respondent nos. 2 to 4 - Sarban Kumar, Naresh Kumar & Bodh Raj.

03. The MACT, Kathua came to hold the respondent no. 1- Malavi Devi, the widow of the accident victim deceased Kaka Ram entitled to compensation of an amount of Rs. 1,51,000/- comprised of compensation under the following heads:-

1. Loss of dependency Rs. 1,26,000/-

2. Loss of consortium Rs. 10,000/-

3. Loss of estate Rs. 10,000/-

4. Funeral expenses Rs. 5,000/-

Total Rs. 1,51,000/-

This compensation is made payable @ 7.5% p.a. from the date of filing of the claim petition that being 26.07.2005 till its actual realization.

04. In coming to award said compensation in favour of the respondent no. 1 to the exclusion of the respondent nos. 2 to 4, the 3 MA No. 508/2010 c/w MA No. 513/2010 MA No. 514/2010 MACT, Kathua came to hold that the ill-fated vehicle Baleno car bearing Registration no. JK08A-5860 which was then being driven by its owner - Buti Lal, who is the respondent no. 5 in the present appeal, met the accident with the moving train by an act of negligence and carelessness on the part of its driver-Buti Lal, the respondent no. 1 who ought to have taken due care and caution while on railway crossing and that he in missing to see a moving train on the track it was an act of sheer negligence and lack of proper care and caution.

05. The MACT, Kathua, thus, came to hold the negligence on the part of the offending car's owner-cum-driver Buti Lal- respondent no. 5 in the appeal. The MACT, Kathua came to hold that the offending car being insured with the appellant-NIC for a period from 15.06.2005 to 14.06.2005 under Policy no. 9137543 and was thus on the date of the accident being an insured vehicle.

06. The MACT, Kathua came to hold that the appellant-NIC had failed to prove that the respondent no. 5-Buti Lal, the owner- cum-driver was not having valid driving licence and, therefore, came to hold the insured and insurer responsible for payment of compensation in the case to the amount of Rs.1,51,000/-. The MACT, Kathua reckoned the deceased Kaka Ram to be as a gratuitous passenger and, therefore, getting covered by third party 4 MA No. 508/2010 c/w MA No. 513/2010 MA No. 514/2010 risk insurance coverage so as to hold the appellant-NIC liable for payment of the compensation.

07. The appellant in its memo of appeal has chosen to plead and exploit a fact that the negligence in driving the offending vehicle was not pleaded proved and without that factor the liability of the appellant-NIC for payment of compensation could not have been held arisen and fastened on the owner and resultantly shifted to the appellant-NIC. The appellant-NIC is also seeking to find fault with the grant of compensation in the case by the MACT, Kathua on the plea that the Railway Department and the driver of the train involved in the accident were not named as the party respondents in the claim petition. Lastly, the appellant-NIC is meaning to upset the passing of an award in favour of the respondent on the ground that as the additional premium of PA Cover for four (04) persons had been availed by the owner of the said offending car, as such, the respondent no. 1 ought to have taken benefit under the said coverage by approaching the consumer protection jurisdiction and not under the Motor Vehicles Act, 1988.

08. The appellant-NIC is meaning to question even the quantum of compensation so given in favour of the respondent no. 1 by the MACT, Kathua. A bare perusal of the impugned award would show that the appellant-NIC was contesting it and the issues of 5 MA No. 508/2010 c/w MA No. 513/2010 MA No. 514/2010 facts were framed to its very notice and the issues so framed are as under:-

"1. Whether on 26.06.2005 car Baleno bearing registration No. JK08A-5860 plied by its owner- respondent No. 1 from Chhaper to Chapper Morh met in collision with a train at unmanned railway crossing thereby causing multiple grievous injuries to all the occupants of the car including deceased Taro Devi, Kaka Ram, Santosh Kumari and Chanchla Devi who later succumbed to their injuries? OPP

2. Whether the vehicle was insured with the respondent No. 2 at the time of accident? OPP

3. If the issues No. 1& 2 are answered in affirmative, what amount of compensation the petitioners are entitled to in each claim petition and from whom? OPP

4. Whether the respondent no. 1 was plying with vehicle without holding a valid driving licence on the date of accident and as such, the respondent no. 2 is not liable to indemnify the respondent no. 1? OPR-2

5. Whether Railway Department and Driver of the train involved in the collision are necessary parties to petitions? If so, whether the petitions are not maintainable for non-joinder of necessary parties? OPR

6. Relief."

09. None of the points of objection which the appellant-NIC is meaning to raise other than the non-impleadment of the Railway Department and the driver of the train involved in the accident are reflected in the said issues and, therefore, this Court is not inclined to drive itself on those aspects raised in the appeal which are alien to those issues. The appellant-NIC failed in discharge of onus with 6 MA No. 508/2010 c/w MA No. 513/2010 MA No. 514/2010 respect to the issue no. 4 involving the driving licence status of the respondent no. 5- Buti Lal.

10. The MACT, Kathua came to hold that in view of the finding given on issue no. 1 about the cause of the accident being act of negligence and carelessness on the part of the driver of the offending car there was no scope for impleadment of the Railway Department and the driver of the train involved in the accident.

11. In view of the aforesaid, the expectation on the part of the appellant-NIC from this Court to upset the award of compensation of an amount of Rs.1,51,000/- (one lac fifty one thousand only) in favour of the respondent no. 1- Malavi Devi as being the widow of the deceased Kaka Ram is nothing but an act of sheer insensitivity at the end of the authorities concerned in the appellant-NIC. In fact, the respondent no. 1 at the time of suffering loss of her husband was fifty eight (58) years old and for that less quantum of compensation paid to her for loss of consortium is nothing but a poor solace. In fact it is the respondent no. 1 who ought to have felt aggrieved of the meager compensation so awarded in her favour by the MACT, Kathua but to the good luck of the appellant-NIC the respondent no. 1-Malavi Devi has reconciled with whatsoever compensation as awarded by the MACT, Kathua.

7 MA No. 508/2010

c/w MA No. 513/2010 MA No. 514/2010

12. In view of the aforesaid, this Court sees no merit in the appeal of the appellant-National Insurance Co. Ltd. to upset the award, therefore, dismisses the appeal qua the grant of compensation on File no. 190/2005 in favour of the respondent no. 1- Malavi Devi, widow of deceased Kaka Ram.

MA No. 513/2010

13. The appellant-National Insurance Co. Ltd. ("NIC" in short) has maintained this appeal under section 173 of the Motor Vehicles Act, 1988 being aggrieved of an award dated 18.03.2010 passed by the Motor Accident Claims Tribunal, Kathua ("MACT, Kathua" in short) in terms whereof four (04) claim petitions born out of same accident came to be disposed of and one of the claim petitions on file no. 188/2005 was by the respondent nos. 1 to 4 in the present appeal.

14. The motor vehicle accident in reference is of 26.06.2005 when a car bearing Registration no. JK08A-5860 on its way from village Chhaper to Chhaper Morh got in collision with a moving train at an unmanned railway crossing leaving four (04) persons namely Taro Devi, Kaka Ram, Santosh Kumari and Chanchla Devi sitting in said car dead. The registered owner of the said car was Buti Lal and the appellant-NIC was the insurer. The respondent no. 1 suffered 8 MA No. 508/2010 c/w MA No. 513/2010 MA No. 514/2010 loss of Taro Devi who was wife of the respondent no. 1-Jeet Raj and mother of the respondent nos. 2 to 4 - Balbir Chand, Kushal Kumar & Neeru Bala.

15. The MACT, Kathua came to hold the respondent no. 1, the husband (widower) & respondent nos. 2 to 4 as children of the accident victim deceased Taro Devi, entitled to compensation of an amount of Rs.3,27,000/- comprised of compensation under the following heads:-

1. Loss of dependency Rs. 3,12,000/-

2. Loss of consortium Rs. 10,000/-

3. Funeral expenses Rs. 5,000/-

Total Rs. 3,27,000/-

The compensation is made payable @ 7.5% p.a. from the date of filing of the claim petition that being 27.07.2005 till its actual realization.

16. In coming to award said compensation in favour of the respondent no. 1 to 4, the MACT, Kathua came to hold that the ill- fated vehicle Baleno car bearing Registration no. JK08A-5860 which was then being driven by its owner - Buti Lal, who is the respondent no. 5 in the present appeal, met the accident with the moving train by an act of negligence and carelessness on the part of its driver- Buti Lal, the respondent no. 1 who ought to have taken due care 9 MA No. 508/2010 c/w MA No. 513/2010 MA No. 514/2010 and caution while on railway crossing and that he in missing to see a moving train on the track it was an act of sheer negligence and lack of proper care and caution.

17. The MACT, Kathua, thus, came to hold the negligence on the part of the offending car's owner-cum-driver Buti Lal- respondent no. 5 in the appeal. The MACT, Kathua came to hold that the offending car being insured with the appellant-NIC for a period from 15.06.2005 to 14.06.2005 under Policy no. 9137543 and was, thus, on the date of the accident being a insured vehicle.

18. The MACT, Kathua came to hold that the appellant-NIC had failed to prove that the respondent no. 5-Buti Lal, the owner- cum-driver was not having valid driving licence and, therefore, came to hold the insured and insurer responsible for payment of compensation in the case to the amount of Rs. 3,27,000/-. The MACT, Kathua reckoned the deceased Taro Devi to be as a gratuitous passenger and, therefore, getting covered by third party risk insurance coverage so as to hold the appellant-NIC liable for payment of the compensation.

19. The appellant in its memo of appeal has chosen to plead and exploit a fact that the negligence in driving the offending vehicle was not pleaded and proved and without that factor the liability of 10 MA No. 508/2010 c/w MA No. 513/2010 MA No. 514/2010 the appellant-NIC for payment of compensation could not have been held arisen and fastened on the owner and resultantly shifted to the appellant-NIC. The appellant-NIC is also seeking to find fault with the grant of compensation in the case by the MACT, Kathua on the plea that the Railway Department and the driver of the train involved in the accident were not named as the party respondents in the claim petition. Lastly, the appellant-NIC is meaning to upset the passing of an award in favour of the respondent on the ground that as the additional premium of PA Cover for four (04) persons had been availed by the owner of the said offending car, as such, the respondent no. 1 ought to have taken benefit under the said coverage by approaching the consumer protection jurisdiction and not under the Motor Vehicle Act, 1988.

20. The appellant-NIC is meaning to question even the quantum of compensation so given in favour of the respondent no. 1 by the MACT, Kathua. A bare perusal of the impugned award would show that the appellant-NIC was contesting it and the issues of facts were framed to its very notice and the issues so framed are as under:-

"1. Whether on 26.06.2005 car Baleno bearing registration No. JK08A-5860 plied by its owner- respondent No. 1 from Chhaper to Chapper Morh met in collision with a train at unmanned railway crossing thereby causing multiple grievous injuries to all the occupants of the car including 11 MA No. 508/2010 c/w MA No. 513/2010 MA No. 514/2010 deceased Taro Devi, Kaka Ram, Santosh Kumari and Chanchla Devi who later succumbed to their injuries? OPP

2. Whether the vehicle was insured with the respondent No. 2 at the time of accident? OPP

3. If the issues No. 1& 2 are answered in affirmative, what amount of compensation the petitioners are entitled to in each claim petition and from whom? OPP

4. Whether the respondent no. 1 was plying with vehicle without holding a valid driving licence on the date of accident and as such, the respondent no. 2 is not liable to indemnify the respondent no. 1? OPR-2

5. Whether Railway Department and Driver of the train involved in the collision are necessary parties to petitions? If so, whether the petitions are not maintainable for non-joinder of necessary parties? OPR

6. Relief."

21. None of the points of objection which the appellant-NIC is meaning to raise other than the non-impleadment of the Railway Department and the driver of the train involved in the accident are reflected in the said issues and, therefore, this Court is not inclined to drive itself on those aspects raised in the appeal which are alien to those issues. The appellant-NIC failed in discharge of onus with respect to the issue no. 4 involving the driving licence of the status of the respondent no. 5- Buti Lal.

22. The MACT, Kathua came to hold that in view of the finding given on issue no. 1 about the cause of the accident being act of negligence and carelessness on the part of the driver of the 12 MA No. 508/2010 c/w MA No. 513/2010 MA No. 514/2010 offending car there was no scope for impleadment of the Railway Department and the driver of the train involved in the accident.

23. In view of the aforesaid, the expectation on the part of the appellant-NIC from this Court to upset the award of compensation of an amount of Rs.3,27,000/- (three lac twenty seven thousand) in favour of the respondent no. 1 to 4 Jeet Raj as being husband and children of the deceased Taro Devi is nothing but an act of sheer insensitivity at the end of the authorities concerned in the appellant-NIC. In fact, the respondent no. 1 at the time of suffering loss of his wife was fifty (50) years old left with two minor children and for that less quantum of compensation paid to him for loss of consortium is nothing but a poor solace. In fact it is the respondent no. 1 who ought to have felt aggrieved of the meager compensation so awarded in his favour by the MACT, Kathua but to the good luck of the appellant-NIC the respondent no. 1-Jeet Raj has reconciled with whatsoever compensation as awarded by the MACT, Kathua.

24. In view of the aforesaid, this Court sees no merit in the appeal of the appellant-National Insurance Co. Ltd. to upset the award, therefore, dismisses the appeal qua the grant of compensation on File no. 188/2005 in favour of the respondent no. 1 to 4 as being husband and children of deceased Taro Devi. 13 MA No. 508/2010

c/w MA No. 513/2010 MA No. 514/2010 MA No. 514/2010

25. The appellant-National Insurance Co. Ltd. ("NIC" in short) has maintained this appeal under section 173 of the Motor Vehicles Act, 1988 being aggrieved of an award dated 18.03.2010 passed by the Motor Accident Claims Tribunal, Kathua ("MACT, Kathua" in short) in terms whereof four (04) claim petitions born out of same accident came to be disposed of and one of the claim petitions on file no. 189/2005 was by the respondent nos. 1 to 4.

26. The motor vehicle accident in reference is of 26.06.2005 when a car bearing Registration no. JK08A-5860 on its way from village Chhaper to Chhaper Morh got in collision with a moving train at an unmanned railway crossing leaving four (04) persons namely Taro Devi, Kaka Ram, Santosh Kumari and Chanchla Devi sitting in said car dead. The registered owner of the said car was Buti Lal and the appellant-NIC was the insurer. The respondent no. 1 suffered loss of Chanchla Devi who was wife of the respondent no. 1-Sarban Kumar and mother of the respondent nos. 2 to 4 - Gulshan Kumar, Pooja Devi & Arti Devi.

27. The MACT, Kathua came to hold the respondent no. 1 the husband (widower) and the respondents 2 to 4 as children of the accident victim deceased Chanchla Devi entitled to compensation of 14 MA No. 508/2010 c/w MA No. 513/2010 MA No. 514/2010 an amount of Rs.3,99,000/- comprised of compensation under the following heads:-

1. Loss of dependency Rs. 3,84,000/-

2. Loss of consortium Rs. 10,000/-

3. Funeral expenses Rs. 5,000/-

Total Rs. 3,99,000/--

This compensation is made payable @ 7.5% p.a. from the date of filing of the claim petition that being 26.07.2005 till its actual realization.

28. In coming to award said compensation in favour of the respondent nos. 1 to 4, the MACT, Kathua came to hold that the ill- fated vehicle Baleno car bearing Registration no. JK08A-5860 which was then being driven by its owner - Buti Lal, who is the respondent no. 5 in the present appeal, met the accident with the moving train by an act of negligence and carelessness on the part of its driver- Buti Lal, the respondent no. 1 who ought to have taken due care and caution while on railway crossing and that he in missing to see a moving train on the track was an act of sheer negligence and lack of proper care and caution.

29. The MACT, Kathua, thus, came to hold the negligence on the part of the offending car's owner-cum-driver Buti Lal- respondent no. 5 in the appeal. The MACT, Kathua came to hold 15 MA No. 508/2010 c/w MA No. 513/2010 MA No. 514/2010 that the offending car being insured with the appellant-NIC for a period from 15.06.2005 to 14.06.2005 under Policy no. 9137543 and was, thus, on the date of the accident being a insured vehicle.

30. The MACT, Kathua came to hold that the appellant-NIC had failed to prove that the respondent no. 5-Buti Lal, the owner- cum-driver was not having valid driving licence and, therefore, came to hold the insured and insurer responsible for payment of compensation in the case to the amount of Rs.3,99,000/-. The MACT, Kathua reckoned the deceased Chanchla Devi to be as a gratuitous passenger and, therefore, getting covered by third party risk insurance coverage so as to hold the appellant-NIC liable for payment of the compensation.

31. The appellant in its memo of appeal has chosen to plead and exploit the fact that the negligence in driving of the offending vehicle was not pleaded and proved and without that factor the liability of the appellant-NIC to payment of compensation could not have been fastened on the owner and resultantly shifted to the appellant-NIC. The appellant-NIC is also seeking to find fault with the grant of compensation in the case by the MACT, Kathua on the plea that the Railway Department and the driver of the train involved in the accident were not named as the party respondents in the claim petition. Lastly, the appellant-NIC is meaning to upset the 16 MA No. 508/2010 c/w MA No. 513/2010 MA No. 514/2010 passing of an award in favour of the respondent on the ground that as the additional premium of PA Cover for four (04) persons had been availed by the owner of the said offending car, as such, the respondent no. 1 ought to have taken benefit under the said coverage by approaching the consumer protection jurisdiction and not under the Motor Vehicle Act, 1988.

32. The appellant-NIC is meaning to question even the quantum of compensation so given in favour of the respondent no. 1 by the MACT, Kathua. A bare perusal of the impugned award would show that the appellant-NIC was contesting it and the issues of facts were framed to its very notice and the issues so framed are as under:-

"1. Whether on 26.06.2005 car Baleno bearing registration No. JK08A-5860 plied by its owner- respondent No. 1 from Chhaper to Chapper Morh met in collision with a train at unmanned railway crossing thereby causing multiple grievous injuries to all the occupants of the car including deceased Taro Devi, Kaka Ram, Santosh Kumari and Chanchla Devi who later succumbed to their injuries? OPP

2. Whether the vehicle was insured with the respondent No. 2 at the time of accident? OPP

3. If the issues No. 1& 2 are answered in affirmative, what amount of compensation the petitioners are entitled to in each claim petition and from whom? OPP

4. Whether the respondent no. 1 was plying with vehicle without holding a valid driving licence on the date of accident and as such, the respondent no. 2 is not liable to indemnify the respondent no. 1? OPR-2 17 MA No. 508/2010 c/w MA No. 513/2010 MA No. 514/2010

5. Whether Railway Department and Driver of the train involved in the collision are necessary parties to petitions? If so, whether the petitions are not maintainable for non-joinder of necessary parties? OPR

6. Relief."

33. None of the points of objection which the appellant-NIC is meaning to raise other than the non-impleadment of the Railway Department and the driver of the train involved in the accident are reflected in the said issues and, therefore, this Court is not inclined to drive itself on those aspects raised in the appeal which are alien to those issues. The appellant-NIC failed in discharge of onus with respect to the issue no. 4 involving the driving licence of the status of the respondent no. 5- Buti Lal.

34. The MACT, Kathua came to hold that in view of the finding given on issue no. 1 about the cause of the accident being act of negligence and carelessness on the part of the driver of the offending car there was no scope for impleadment of the Railway Department and the driver of the train involved in the accident.

35. In view of the aforesaid, the expectation on the part of the appellant-NIC from this Court to upset the award of compensation of an amount of Rs.3,99,000/- in favour of the respondent no. 1- Sarban Kumar, as being the husband, and the respondents 2 to 4 as being children of the deceased Chanchla Devi is nothing but an 18 MA No. 508/2010 c/w MA No. 513/2010 MA No. 514/2010 act of sheer insensitivity at the end of the authorities concerned in the appellant-NIC. In fact, the respondent no. 1 at the time of suffering loss of his wife was thirty seven (37) years old and for that less quantum of compensation paid to him for loss of consortium is nothing but a poor solace. In fact it is the respondent no. 1 who ought to have felt aggrieved of the meager compensation so awarded in his favour by the MACT, Kathua but to the good luck of the appellant-NIC the respondent no. 1-Sarban Kumar has reconciled with whatsoever compensation as awarded by the MACT, Kathua.

36. In view of the aforesaid, this Court sees no merit in the appeal of the appellant-National Insurance Co. Ltd. to upset the award, therefore, dismisses the appeal qua the grant of compensation on File no. 188/2005 in favour of the respondent no. 1- Sarban Kumar, widow of deceased Chanchla Devi.

37. In fact, out of the impugned award disposing of four (04) claim petitions, the appellant-NIC came to maintain four (04) appeals including the one being dealt herein. An appeal MA no. 512/2010 titled "National Insurance Co. Ltd. Vs Premchand and others" was a time barred appeal for which condonation of delay was sought through CM no. 246/2010 but which came to be dismissed in terms of an order dated 10.12.2019 and that dismissal tantamounts to the fact that this Court is being persuaded by the 19 MA No. 508/2010 c/w MA No. 513/2010 MA No. 514/2010 appellant-NIC to deal with the present appeal to undo an award whereas the same very award in the dismissed Appeal no. 512/2010 is sustaining itself. This fact in itself is sufficient enough to warrant dismissal of present appeals.

38. All amounts of compensation, if any deposited, by the appellant in the aforesaid three appeals before the Registry of this Court shall be released in favour of the claimants/respondents 1 to 4 in all the aforesaid appeals by the Registrar Judicial of this Court along with the interest having accrued thereupon.

Disposed of accordingly.

(Rahul Bharti) Judge Jammu 11.08.2023 Muneesh Whether the order is reportable: Yes / No Whether the order is speaking : Yes / No

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