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2020 Supreme(J&K) 277
HIGH COURT OF JAMMU AND KASHMIR AT JAMMU
Sanjeev Kumar, J.
Oriental Insurance Company Limited
Versus
Santosh Kumari and Ors.
MA No.261/2014 and CM No.4011/2020
Decided on 15-10-2020
For the Appellant(s):Mr. Suneel Malhotra, Advocate
For the Respondent(s):Mr. J.P. Gandhi, Advocate for legal heirs of deceased-claimant Anil Kumar and None for other respondents
Headnote:
Constitution Of India,1950 - Amount of compensation - Motor Accident Claim - Motor vehicle accident With a view to appreciate grounds of challenge urged by insurer to assail impugned award a brief reference to factual matrix would be advantageous claimant- Now deceased suffered a motor vehicle accident when motor cycle he was riding had a head on collision with Matador bearing offending vehicle aforesaid Anil Kumar suffered grievous injuries and as per doctor attending him he suffered permanent disablement to extent claimant-Anil Kumar filed a claim petition before Tribunal seeking a compensation for injuries disablement suffered by him- claim petition as is apparent from impugned award was contested only by insurer- owner and driver despite service did not appear and chose not to contest claim petition- Tribunal based on pleadings of contesting parties –Held, Tribunal in impugned award - Which has been placed on record with regard to occurrence is not disputed by insurer and if that be position even if insurer is provided opportunity to record statement of driver and owner of offending vehicle factual position is not likely to be changed- From perusal of objections filed by insurer before Tribunal it is abundantly clear that insurer has not disputed possession of driving license by driver of offending vehicle but its objection is that he was not possessing a valid and effective driving license- Even it is not suggested or asserted as to how driving license possessed by driver of offending vehicle was not valid and effective authorizing him to drive offending vehicle cause of action for personal injuries being founded on tort injured person’s claim for damages based on such tort cannot on death of such person survive for prosecution by his legal representatives- It is thus trite law that a claim by a person for compensation for personal injuries pending before claim Tribunal does not survive on such person’s death not caused as a consequence of personal injuries his legal representatives except and insofar as it pertains to loss to estate of deceased- position however would be different if claim such person for compensation has resulted in award by Tribunal before his death and in that eventuality award or decree of Claims Tribunal would be estate of deceased inheritable by his legal representatives on his death - In such a situation and eventuality legal representatives of deceased would be entitled to seek execution of award or contest appeal before appellate forum - Appeal dismissed
Judgment
Sanjeev Kumar, J.—The Oriental Insurance Company Limited [“the insurer”] is in appeal against the award dated 29.03.2014 passed by the Motor Accident Claims Tribunal, Jammu [“the Tribunal”] in claim No.02/2010 entitled Anil Kumar v. Sanjay Kumar and others, whereby the injured-Anil Kumar, now deceased, has been awarded a compensation of Rs. 11,94,000/- along with pendente lite and future interest @ 7.5% per annum for the permanent disablement suffered by him in the motor vehicle accident.
2. With a view to appreciate the grounds of challenge urged by the insurer to assail the impugned award, a brief reference to the factual matrix would be advantageous.
3. The claimant-Anil Kumar (now deceased) suffered a motor vehicle accident on 13th May, 2006, when the motor cycle he was riding had a head on collision with Matador bearing Regd. No.JK02G-2147 (offending vehicle). The aforesaid Anil Kumar suffered grievous injuries and as per the doctor attending him, he suffered permanent disablement to the extent of 75%. The claimant-Anil Kumar filed a claim petition before the Tribunal seeking a compensation of Rs.37,00,000/-for the injuries and 75% disablement suffered by him. The claim petition, as is apparent from the impugned award, was contested only by the insurer. The owner and driver despite service did not appear and chose not to contest the claim petition. The Tribunal, based on the pleadings of the contesting parties, framed following issues:-
“I. Whether an accident took place on 13-05-2006 at Tubewell near Gurha by rash and negligent driving of the vehicle bearing registration No.JK02G-2147 by its driver Respondent No.1, as a result of which Petitioner Anil Kumar received grievous injuries? OPP
II. If issue No.1 is proved in affirmative, whether petitioner is entitled to compensation, if so to what amount and from whom? OPP
III. Whether the driver of offending vehicle was not holding a valid and effective driving license at the time of accident and whether there has been violation of terms and conditions of policy of insurance? If so to what effect? OPR-3
IV. Whether the accident was caused due to the contributory negligence of petitioner? If so to what effect? OPR-3
V. Relief? O.P. Parties”
4. The injured-claimant, who had filed the claim petition through his mother, got the statement of his mother-Santosh Kumari and three witnesses, namely, Haqiqat Raj, Subash Chander and Dr. Rakesh Gupta, recorded before the Tribunal. The insurer examined one Roshan Lal, the owner of the offending vehicle as its sole witness.
5. The Tribunal, on the basis of the evidence led, determined all the issues and held issue Nos. I and II proved in favour of the claimant and against the insurer. The issue Nos.III and IV, onus whereof was on the insurer, were, however, held not proved and were, accordingly, decided against the insurer. Having regard to the age of the injured and the nature of permanent disablement suffered by him, the Tribunal awarded a sum of Rs.11,94,000/- along with interest in favour of the claimant.
6. The insurer is aggrieved and has challenged the impugned award primarily on two issues:-
i) The impugned award is exorbitant and does not represent just and fair compensation, in that, the Tribunal has determined the loss of earning capacity of the claimant as 100%, though he had suffered permanent disablement only to the extent of 75%.
ii) The Tribunal failed to enforce the attendance of the witnesses of the insurer through coercive means and, thus, decided issue Nos. III and IV against the insurer.
7. Mr. Suneel Malhotra, learned counsel appearing for the insurer, submits that the insurer had deposited the requisite witnesses expenses for seeking assistance of the Tribunal to summon the witnesses, who were none other than the driver and owner of the offending vehicle, but the Tribunal failed to perform its duty and enforce the attendance of the aforesaid witnesses. It is submitted that pursuant to the summons issued by
