IN THE HIGH COURT OF JAMMU AND KASHMIR AT JAMMU
Sanjeev Kumar, J.
Oriental Insurance Company Ltd. – Appellant
Versus
Lata Kumari and Ors. – Respondents
MA No. 132 of 2016, IA No. 1 of 2016 and CCROS No. 16 of 2018
Decided On : 12-03-2019
Jammu and Kashmir Civil Service Regulations, 1956 - Article 249-M(A) (a) - Motor Vehicles Act – Motor vehicle accident – Compensation claim - Husband of respondent and father of respondent while travelling on his Scooty/Moped was hit by offending vehicle - It was a fatal accident caused due to rash and negligent driving of vehicle by its driver in which deceased – One sustained grievous injuries on his head and other parts of body - He was admitted in Command Hospital for treatment but he succumbed to the injuries - Widow, respondent and two daughters of deceased, respondent Nos. 2 and 3 filed a claim petition before the Tribunal claiming different amounts on different heads as indicated in the claim petition - This appeal by Oriental Insurance Company Ltd. is directed against award passed by the Motor Accident Claims Tribunal in file Claim titled Lata Kumari and others v. Baldev Singh and others, whereby Tribunal has awarded a sum as compensation to respondent in equal shares - Respondents/claimants have also been held entitled to simple interest @ 7.5% per annum from date of claim petition till realization of amount - Referring to the provision of Article 249-M(A) (a) of Jammu and Kashmir Civil Service Regulations, 1956, it is urged that Tribunal committed a serious error in not deducting family pension payable to family of deceased government employee equivalent to last pay drawn for a period of seven years from date following date of death or for the period up to date of the deceased government would have attained age of superannuation - Applicability of multiplier of 13 instead of 11 has also been disputed on ground that the same runs contrary to prescription contained in the case of Sarla Verma (supra) - Whether petitioners are entitled to compensation, if so to what effect – Held, From aforesaid discussion and position of law elaborately explained by Supreme Court in Shashi Sharma's case (supra), following conclusions can be drawn:- (i) pecuniary advantage received by the legal heirs of the deceased employee which has no correlation to the accidental death is not deductible from computation of compensation under the Motor Vehicles Act - Insofar as, findings of Tribunal on issue No. 3 are concerned, same are tentative and Tribunal has not been able to come to a definite conclusion – Court have gone through the record and find that plea that respondent-driver was not holding valid and effective driving license has not been sufficiently proved and issue No. 3, shall be deemed to have been decided against appellant-Insurance company - Accordingly, cross objections filed by the respondent No. 4/owner are allowed - That being so, Insurance Company is liable to indemnify owner and shall have no right to make any recovery from the owner of the offending vehicle - Award of the Tribunal stands modified to the above extent - Claimants shall be entitled to above said amount along with interest as has been awarded by Tribunal - Appeal of the appellant-Insurance is disposed of.
ORDER :
Sanjeev Kumar, J.
1. This appeal by the Oriental Insurance Company Ltd. is directed against the award dated 15th April, 2015 passed by the Motor Accident Claims Tribunal, Udhampur (hereinafter referred to as "the Tribunal") in file No. 227/Claim titled Lata Kumari and others v. Baldev Singh and others, whereby the Tribunal has awarded a sum of Rs. 36,57,000/- as compensation to the respondent Nos. 1 to 3 in equal shares. The respondents/claimants have also been held entitled to simple interest @ 7.5% per annum from the date of claim petition till realization of the amount. The impugned award has been assailed on the ground that the assessment of compensation made by the Tribunal is not just and fair, inasmuch as while computing the compensation the Tribunal has overlooked the law laid down in the case of Sarla Verma and others v. Delhi Transport Corporation and another, (2009) 6 SCC 121 and also on the ground that for the purposes of working out the loss of dependency the Tribunal has erroneously taken into consideration the gross salary of the deceased employee instead of net salary. Referring to the provision of Article 249-M(A) (a) of the Jammu and Kashmir Civil Service Regulations, 1956, it is urged that the Tribunal committed a serious error in not deducting the family pension payable to the family of the deceased government employee equivalent to the last pay drawn for a period of seven years from the date following the date of death or for the period upto the date of the deceased government would have attained the age of superannuation. The applicability of multiplier of 13 instead of 11 has also been disputed on the ground that the same runs contrary to the prescription contained in the case of Sarla Verma (supra).
2. Before appreciating the grounds of challenge taken by the appellant to assail the impugned order, it would be advantageous to refer few facts relevant for the disposal of the instant appeal as well as the cross objections preferred by respondent No. 4/owner of the offending vehicle.
3. On 1st March, 2011, Vijay Kumar, husband of respondent No. 1 and father of respondent Nos. 2 and 3 while travelling on his Scooty/Moped was hit by the offending vehicle bearing registration No. 0629/HP 48 at Wali Nallah near Udhampur. It was a fatal accident caused due to rash and negligent driving of the vehicle by its driver in which the deceased -Vijay Kumar sustained grievous injuries on his head and other parts of the body. He was admitted in the Command Hospital, Udhampur for treatment but he succumbed to the injuries on 11th March, 2011. Widow, respondent No. 1 and two daughters of the deceased, respondent Nos. 2 and 3 filed a claim petition before the Tribunal claiming different amounts on different heads as indicated in the claim petition. The claim was contested by the appellant-Insurance Company only whereas the driver and owner were proceeded ex-parte. On the basis of the pleadings of the parties, the Tribunal framed the following issues :-
2. If issue No. 1 is proved in affirmative, whether petitioners are entitled to compensation, if so to what effect? OPP
3. Whether the driver respondent No. 1 was driving the offending vehicle in violation of the terms and conditions of the insurance and was not holding a valid and effective driving license at the time of alleged accident and the vehicle was being plied without valid documents in violation of terms and conditions of insurance policy, if so to what? OPR-3
4. Relief. OP parties."
4. So far as issue Nos. 1 and 3 are concerned, there is no dispute raised by the appellant-Insurance Company. The appellant-Insurance Company is aggrieved of the manner in which
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