New India Assurance Co. Ltd @APPELLANT@Hash Balkara Ram And Ors

1 The New India Assurance Company Ltd. is in appeal against the award of Motor Accident Claims Tribunal, Jammu (for short ‘Tribunal’)

dated 04.12.2015 passed in Claim Petition No. 355 titled Balkara Ram and ors vs Ajay Kumar and ors. The Tribunal has awarded a sum of

Rs.17,75,500/- along with interest @ 7.5% per annum. During the pendency of this appeal, respondent No.1 Balkara Ram expired and was substituted

by his legal heirs i.e wife and daughter.Â

2 Facts, leading to the filing of this appeal, briefly stated are that on 03.06.2013, the deceased Dharam Chand, who was travelling in a Load Carrier

bearing Registration No. JK02AL-5630 for bringing vegetables from the Mandi for his shop, suffered grievous injuries on account of accident caused

due to rash and negligent driving of its driver i.e respondent No.5 who was driving the vehicle with excessive speed and could not control the vehicle

which turned turtle. The deceased, it is claimed, later on succumbed to injuries. Respondent No.1 (now expired) and respondent Nos. 2 to 4 filed claim

petition being legal heirs of deceased Dharam Chand. At the time of filing of the claim petition, respondent Nos. 3 and 4 were minor. The appellant-

Assurance Company contested the claim petition by filing objections. On the basis of the pleadings of the parties, the Tribunal framed the following

issues.

“1 Whether an accident took place on 03.06.2013 at about 4.30 am near Military Hospital Satwari by rash and negligent driving of the vehicle

bearing registration No. JK02AL-5630 (Load Carrier) by its driver as a result of which deceased Dharam Paul received fatal injuries? OPP

2 If issue No.1 is proved in affirmative whether petitioners are entitled to compensation, if so to what amount and from whom ? OPP

3 Whether the offending vehicle was being driven at the time of the accident in violation of terms and conditions of policy of insurance and insurance

company is not liable ?

3 Issue No.1 was held proved in favour of the claimants and it was established that the deceased had suffered injuries due to motor vehicular accident

occurred due to rash and negligent driving of the offending vehicle by respondent No.5. The deceased, later on, succumbed to injuries. Respondent

No.6 being the owner of the vehicle was held vicariously liable for the negligent act of respondent No.5 and the appellant-Assurance Company having

insured the vehicle against any such loss was held liable to meet the claim. On issue No.2, learned Tribunal, after referring to the evidence that had

come on record and the legal position, awarded the compensation in the following manner:

1 Loss of Dependency:Â Â Rs.13.45,500/-

2 Funeral expenses:Â Â Rs.25,000/-

3 Loss of estate:Â Â Â Rs.5,000/-

4 Loss of love and affection Rs.4,00,000/-

 Total:    Rs.17,75,500/-

4 Aggrieved, the Assurance Company is in appeal and has challenged the award impugned, inter aliaon the ground that the deceased was travelling in

the Load Carrier (goods vehicle) having seating capacity of only one i.e driver and, therefore, was a gratuitous passenger sitting in the vehicle

unauthorisedly and this aspect, though specifically raised, was not correctly appreciated by the Tribunal. It is also urged that two of legal heirs of the

deceased were major having their independent source of income and, therefore, were not dependent upon the deceased. It is stated that they have

been wrongly awarded the compensation. There are other grounds of challenge also in the memo of appeal but the same were not seriously pressed.

5 Learned Tribunal considered all these aspects but did not find any merit therein. As rightly held by the Tribunal, the legal heirs of the deceased

whether minor or major are entitled to file application under Section 166 of MV Act. It is, however, true that for claiming compensation under Section

166 of MV Act, proof of loss of dependency is a sine-quo-non. If the legal heirs of the deceased have an independent income and were not dependent

upon the deceased, he may not be entitled to any compensation except to the extent of liability referable to Section140 of MV Act.

6 I have carefully gone through the award impugned and the evidence that has come on record. The plea of the major claimants that they too were

dependent upon the earnings of the deceased has not been rebutted by the appellant by leading any contrary evidence. In the absence of any contrary

evidence led by the appellant, the assertion of the claimants Balkara Ram and Dara Chand who were major at the time of death of the deceased

that they were dependent upon the earnings of the deceased cannot be disputed or doubted. Learned Tribunal has correctly rejected the contention of

the appellant that the claimants being major were not entitled to any compensation.

7 The plea of the appellant that the deceased was a gratuitous passenger and was sitting in the Load Carrier, though it had only seating capacity of

one person and was, therefore, not entitled to any compensation from the appellant-Assurance Company, is a plea cannot be permitted to be taken at

this stage.Â

8 I have gone through the objections filed by the appellant-Insurance Company before the Tribunal and could not find that any such plea was ever

taken. It is because of this reason there is no such specific issue struck by the Tribunal. The appellant-Assurance Company had taken the specific

plea that the offending vehicle at the time of accident was being driven by its driver who was not holding valid and effective offending vehicle at the

time of accident. This plea, however, was not proved and substantiated by the appellant-Assurance company by leading any cogent evidence. The

Tribunal has discussed the aforesaid issue raised by the appellant-Assurance company, but has decided the same against it for want of evidence.Â

9 The plea that the deceased was a gratuitous passenger is clearly an afterthought taken for the first time in this appeal. Such plea being a plea of

fact was required to be pleaded and proved before the Tribunal and, therefore, it cannot be allowed to be raised for the first time in the appeal. The

appellantAssurance company has not challenged the quantum of compensation awarded on any other count, at least, none is pressed before this

Court.Â

10 In view of the aforesaid, I do not find any ground to interfere with the award of the Tribunal. The same is accordingly upheld. Consequently, the

appeal is dismissed.