Oriental Insurance Co. Ltd vs Parkasho Devi And Others

Rajnesh Oswal, J

Through the medium of the present appeal, the appellant/insurance company has impugned the award dated 11.04.2012 passed in claim petition, titled, “Parkasho Devi vs. Permanand and others” by the Motor Accidents Claims Tribunal, Jammu (hereinafter to be referred as “the Tribunal”), whereby the appellant/insurance company has been directed to pay an amount of Rs.3,39,000/ to respondent No. 1 along with interest at the rate of 7.5% from the date of institution of the claim petition till its realization.

The award has been impugned only on the ground that respondent No. 1 is the wife of respondent No. 2 i.e. owner of the offending vehicle, both were the legal representatives of the deceased-Varinder Singh and once the respondent No. 2 could not have filed the claim petition, the respondent No. 1 also could not have filed the claim petition.

Mr. Vishnu Gupta, learned counsel for the appellant/insurance company vehemently argued that the award is liable to be set aside as the claim petition filed by respondent No. 1 against her husband was not maintainable as both respondent Nos. 1 and 2 were legal representatives of the deceased.

On the contrary, Mr. Karan Sharma learned counsel for respondent No. 1 vehemently argued that the claim petition filed by the mother of the deceased was maintainable notwithstanding the fact that the offending vehicle was owned by her husband.

Heard and perused the record.

The facts necessary for disposal of the present appeal are that the respondent No. 1 filed a claim petition against her husband/owner, driver and the appellant/insurance company for grant of compensation on account of death of her son, namely, Varinder Singh in a motor vehicle accident on 06.07.2009. The notice was issued to the appellant and respondent Nos. 2 and 3. The appellant/insurance company filed the response that the owner of the vehicle was father of the deceased and claimant/respondent No. 1 was the mother of the deceased, therefore, the claim petition was in fact a collusive petition between the respondent No. 1 and respondent No. 2. It was also pleaded by the appellant that the driver of the vehicle was not holding a valid and effective driving license at the time of accident. After considering the pleadings of the parties, the learned Tribunal framed the following issues:

“Whether an accident occurred on 06.07.2009 near Bhadwani Samba NHW by the rash and negligent driving of the offending vehicle No. JK02E-3195in the hands of erring driver as a result of which deceased Varinder Singh suffered fatal injuries?....OPP

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

Whether at the time of accident the driver of the offending vehicle was not holding valid and effecting DL and drove the vehicle in violation of terms and conditions of the insurance policy? OPR-3.

Whether the petition is not maintainable and petitioner is not entitled to claim compensation as the driver of the offending vehicle is the father of the deceased? OPR-3

Relief? ........O. P. Parties”

The respondent No. 1 besides examining herself, also examined Karan Singh and Parshotam Singh. The appellant/insurance company did not lead any evidence and after considering the evidence of the parties, the learned Tribunal passed the impugned award.

The sole question that has been raised by the appellant is as to whether the respondent No. 1 being legal representative of the deceased could have filed the claim petition against respondent No. 2 i.e. her husband, who is the owner of the offending vehicle because both respondent Nos. 1 and 2 were the legal representatives of the deceased-son, namely, Varinder Singh.

Mr. Vishnu Gupta, learned counsel for the appellant has relied upon the judgment of this Court in New India Assurance Company Ltd. vs. Dr. Sandeep Dhar and others, 2008 ACJ 2189 and the judgment of the Apex Court in New India Assurance Insurance Company Ltd. v Sadanand Mukhi, 2009(1) Supreme 447.

This is an admitted fact that both respondent Nos. 1 and 2 are the legal representatives of their deceased-son. The judgment relied upon by Mr. Gupta in Sadanand Mukhi’s case (supra) is not applicable in the present facts and circumstances of the case as in that case, the deceased was a son of the insured and the deceased himself was driving the offending vehicle at the time of accident. The offending vehicle in that case was a motorcycle and the deceased was the son of the driver-owner of the offending vehicle and the insurance policy was only statutory policy. It would be profitable to take note of the observation of the Apex Court as reproduced in Dr. Sandeep Dhar’s case (supra), which is reproduced as under:

“20. The Apex Court while interpreting the provision of section 166 of the Act in Smt. Manjuri Bera v. The Oriental Insurance Company Limited and Anr. reported in 2007(3) Supreme 620, has held as under:

In terms of Clause (c) of Sub section (1) of Section 166 of the Act in case of death, all or any of the legal representatives of the deceased become entitled to compensation and any such legal representative can file a claim petition. The proviso to said sub section makes the position clear that where all the legal representatives had not joined, then application can be made on behalf of the legal representatives of the deceased by impleading those legal representatives as respondents. Therefore, the High Court was justified in its view that the appellant could maintain a claim petition in terms of Section 166 of the Act.”

Thus, it is clear that when all the legal representatives have not joined for filing the claim petition, then a petition for compensation can be made by impleading those legal representatives of the deceased, who have not joined in filing the claim petition, as respondents.

In fact in the present case, the appellant-insurance company intended to defeat the claim of the respondent No.1 on the ground of collusion between her husband and herself. No evidence was led by the appellant/insurance company that the claim petition was filed in collusion by the respondent Nos. 1 & 2. Merely taking the plea in the response that the claim petition has been filed in collusion is not sufficient proof of the collusion between the respondents. In the instant case, the respondent No. 1 filed a claim petition against her husband in respect of death of her son because of the tortious act of respondent No. 3 i.e. the driver employed by respondent No. 2. The respondent No. 1 filed a claim petition being the legal representative of her deceased-son and there is no bar that the wife cannot file a claim petition against her husband for grant of compensation in respect of the death of her son due to rash and negligent driving by the driver employed by her husband.

This Court has examined the award passed by the learned Tribunal and this Court finds that issue No. 4 was not properly framed as in the issue, the respondent No. 2 has been mentioned as the driver of the offending vehicle. The issue should have been framed as under:

“Whether the petition is not maintainable and the petitioner is not entitled to claim compensation as the owner of the offending vehicle is the father of the deceased.”

The defect in the issue is not of such nature that warrants the indulgence of this Court as the learned Tribunal has determined the controversy rightly by observing that the deceased happened to be the son of the owner of the offending vehicle. As such, this Court does not find any illegality in the award impugned. Accordingly, the award passed by the learned Tribunal is upheld and the present appeal is dismissed. The compensation, if not released, be released in favour of the respondent No.1 after proper identification.

Record of the Tribunal be sent back.