National Insurance Co. Ltd. vs Kartaroo Devi and Others

Mansoor Ahmad Mir, J.—This Civil Miscellaneous Appeal is directed against the judgment and award dated 22.2.2003 passed by the

Motor Accidents Claims Tribunal, Jammu in claim petition No. l7/claims, (for short hereinafter impugned award), whereby an amount of Rs.

4,20,440/- with 9% interest came to be granted in favour of claimants-respondents 1 to 5.

The claimants-respondents 1 to 5 being the victims of vehicular accident filed a claim petition before the Motor Accidents Claims Tribunal,

Jammu on the ground that respondent No. 7, namely, Raju while driving the offending Bus, bearing registration No. 4175/JKU, rashly and

negligently could not control his speed at Rasli Gaderan Majoruri, Tehsil Ramnagar and as a result of which it turned turtle and the deceased,

namely, Krishan Chand, who was traveling in the said vehicle, sustained injuries and succumbed to the injuries on-spot. The deceased was 50

years of age at the time of accident and was drawing Rs. 3653/-as monthly salary. The owner and driver of the offending vehicle did not cause

appearance before the Tribunal and, accordingly, they were proceeded against exparte.

The appellant-insurer resisted the claim petition by means of objections and following four issues came to be framed:

Whether accident involving death of the deceased Krishan Chand was caused because of rash and negligent driving by the driver of the

offending vehicle bearing registration No. JKU/4175 on 31.12.1998? OPP

In case Issue No. 1 is proved, what compensation the petitioners are entitled to?

Whether there has been violation of terms and conditions of Insurance Policy and, therefore, respondent No. 1 is not liable to indemnify the

owner of the vehicle? OPR-1.

Relief. O.P. Parties.

The claimants examined Jagdish Chander and Dev Raj as their witnesses. The statement of petitioner-Baldev Chand also came to be recorded.

The insurer did not lead evidence in rebuttal. Thus, the evidence of claimants has remained un-rebutted.

It is worthwhile to mention here that the appellant-insurer had filed an application before the learned Tribunal in terms of Section 170 of Motor

Vehicles Act for grant of permission to contest the claim petition on the grounds available to the owner and driver of the offending vehicle and the

permission came to be granted vide order dated 14.2.2000. However, despite that the insurer did not lead any evidence.

In terms of mandate of Section 149 of Motor Vehicles Act, the insurer has limited defence available in its armoury. It cannot contest the claim

petition on any other ground, but it can do so provided permission is sought and is granted in terms of mandate of Section 170 of Motor Vehicles

Act.

There is ample un-rebutted evidence on the file led by the claimants that the driver, namely, Raju drove the offending vehicle rashly and

negligently on the date of accident, i.e., 31.12.1998 at Rasli Gaderan Majoruri, Tehsil Ramnagar. The deceased was traveling in the said bus as a

passenger, who sustained injuries and succumbed to the injuries. Thus, the finding returned by the Tribunal vis-a-vis Issue No. 1 needs no

interference and, accordingly, the same is upheld.

Appellant-insurer has failed to prove Issue No. 3, the onus of which was on insurer, which it has failed to discharge. Accordingly, the same

came to be rightly decided in favour of claimants and against the appellant-insurer. Therefore, the finding returned by the Tribunal on the said issue

needs no interference.

It is worthwhile to mention herein that even the learned Counsel for appellant has not challenged the findings returned by the Tribunal on issues 1

and 3, but he contested the impugned award only on the ground that the compensation awarded is on higher side and claimants-respondents 2 and

3 were not dependants and, thus, were not entitled to compensation.

The claimants have pleaded and proved that the deceased was a Government employee and was drawing Rs. 3653/- as salary per month and

was 50 years of age at the time of accident. The Tribunal has applied unit system while assessing the compensation. I am of the view that the

Tribunal has not committed any error while applying the unit system.

Now dealing with the second point advanced by the learned Counsel for appellant that claimants 2 and 3 were major and were not dependant

upon the deceased.

The age shown in the claim petition was 22 and 19 years respectively. The appellant has not led any evidence nor established that claimants 2

and 3 were not dependants and were established and settled. Thus how can it be said and held that an unmarried son of 22 or 19 years is not a

dependant. Even otherwise, they are the heirs of the deceased and are entitled to succeed his estate.

Learned Counsel for appellant has relied on judgments of Apex Court in a case, entitled, B.S. Goraya Vs. U.T. of Chandigarh, , and of

Bombay High Court in a case, entitled, Sakharibai Hasanali Makani v. Girish Kumar Rupchand Gadia 1997 ACJ 95, but are not supporting his

case for the reasons discussed hereinabove. I am hastened to add at the cost of repetition that the appellant-insurer, as discussed hereinabove, has

not led any evidence to prove that claimants 2 and 3 were not dependants and were settled in their lives.

Having glance of the discussion, I am of the considered view that the compensation awarded is not in any way exorbitant or excessive and

cannot be termed as a bone in disguise or a booty.

In view of the above, there is no merit in the appeal and the same is, accordingly, dismissed and the impugned award is upheld.

Record of this case along with a copy of the judgment be sent back.