Partly allowed

National Insurance Company Limited v. Ghulam Hassan Sheikh and Ors.

J&K HC1 Apr 2021MA/28/2019

Case brief

AI extract

What is this about?

In an appeal against a Motor Accident Claims Tribunal award, the High Court dismissed the appeal regarding the entitlement of dependent legal representatives. The award was partly allowed, with quantum modified for dependency, estate, consortium, funeral expenses, and interest reduced to 6%.

What did the court decide?

Award modified to Rs. 17,73,296/06% interest per annum.

National Insurance Company Limited Vs Ghulam Hassan Sheikh… — Motor Accident Claims | J&K HC (2021)

¶1

HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR

¶2

MA No. 28/2019

¶3

Reserved on: 18.12.2020

¶4

Pronounced on: 01.04.2021

¶5

National Insurance Company Limited

¶6

……...Appellant(s)

¶7

Through: Mr. N. A. Dendroo, Advocate

¶8

V/s

¶9

Ghulam Hassan Sheikh and others

¶10

……... Respondent(s)

¶11

Through: Mr. Ajaz Ahmad Katoo, Advocate

¶12

Coram:

¶13

HON’BLE MR. JUSTICE VINOD CHATTERJI KOUL, JUDGE

¶14

JUDGEMENT

¶15

Impugned in this Appeal is Award dated 18^th January 2019, passed by Motor Accident Claims Tribunal, Anantnag (for short “Tribunal” ) on a Claim Petition bearing File no. 116/CP titled Ghulam Hassan Sheikh and Ors. v. Abid Hussain Sheikh and Ors. , directing appellant Insurance Company to pay compensation in the amount of Rs. 18,23,296/- along with 7.5% interest per annum from the date of institution of claim till realization, on the grounds made mention of therein.

¶16

A claim petition, as is discernible from perusal of the file, was filed by respondents 1 to 4/claimants, before the Tribunal on 2^nd July 2014, averring therein that deceased, Mst. Zeba, aged 52 years, died in an accident, which took place on 10^th March 2014 at Jadipora Anantnag, due to rash and negligent driving of driver of offending vehicle, bearing Registration no.JK03-4720, which was insured with appellant Insurance Company. Claimants/Respondent nos. 1 to 4, sought compensation to the tune of Rs. 35,00,000/-.

¶17

Appellant Insurance Company resisted the claim petition before the Tribunal on the ground that the driver of offending vehicle was driving

¶18

¶19

MA No. 28/2019

¶20

vehicle without any valid and effective driving licence and, therefore, appellant Insurance Company was not liable to indemnify the insured respondent no.2 as terms and conditions of insurance policy were violated by respondent no.2 consciously. It was further pleaded that offending vehicle was sold by respondent no.2 of the claim petition to respondent no.1 without intimation to answering respondent no.3 and without valid transfer from concerned Regional Transport Officer.

¶21

The Tribunal, in view of pleadings of parties, framed four Issues for determination, which are:

¶22

Whether an accident took place on 10^th March 2014 at KP Chowk Anantnag, by rash and negligent driving of the vehicle bearing registration No. JK03-4720 by its driver, as a result of which deceased Zeba received fatal injuries and later on died? OPP.

¶23

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

¶24

Whether the offending vehicle was being driven at the time of the accident in violation of terms and conditions of policy of insurance company is not liable to indemnify the owner? OPR-3.

¶25

Relief? OP Parties.

¶26

Claimants produced and examined four witnesses before the Tribunal; besides claimants/respondent no.1. Appellant Insurance Company also produced two witnesses.

¶27

By impugned Award, the Tribunal found claimants/respondents entitled to receive compensation of Rs. 18,23,296/-, along with 7.5% interest per annum.

¶28

Heard and considered.

¶29

Learned counsel for appellant Insurance Company has stated that the Tribunal has framed four issues in claim petition and appellant Insurance Company does not raise any dispute regarding findings given by the Tribunal on Issues 1,3&4, as appellant calls in question Issue no.2. He has insisted that the Tribunal has decided Issue no.2 without appreciating the law laid down under the Motor Vehicles Act. It has come in the evidence led by respondents 1 to 4 during trial of claim petition before the Tribunal that respondents 2&4 were married and were living with their own families and this fact clearly suggests that respondents 2&4 were not dependent upon deceased. It is contended that respondent no.1 had died during pendency of claim petition. It has

¶30

¶31

MA No. 28/2019

¶32

also come in evidence that respondent no.1/deceased was a retired sweeper and respondents 2 & 4 were not dependent upon income of deceased. Respondents 2&4 cannot be deemed to have suffered loss on account of dependency and they for all practical purposes were/are not dependent upon the income of the deceased Mst. Zeba and, therefore, dependency of respondents 2&4 upon deceased is also incorrect in view of the fact that respondents 2&4 were earning themselves and maintaining their own families.

¶33

The above submission of appellant Insurance Company has no substance in view of law laid down by the Supreme Court in National Insurance Company Limited v. Birender and others, (2020) 11 SCC 356 . In the said case, the Supreme Court, after discussing the judgement rendered by it in the case of Manjuri Bera (Smt) v. Oriental Insurance Co. Ltd. and another, (2007) 10 SCC 643 , has held that it is settled that legal representatives of deceased have a right to apply for compensation and it must necessarily follow that even major married and earning sons of deceased being legal representatives have a right to apply for compensation and it would be bounden duty of the Tribunal to consider the application irrespective of the fact whether concerned legal representative was fully dependent on deceased and not to limit the claim towards conventional heads only. In that view of matter, Appeal on hand is liable to be dismissed.

¶34

Learned counsel for appellant Insurance Company has also stated that grant of compensation for loss of consortium is bad in law and respondents 2 & 4 at the best could be held entitled to loss of love and affection and funeral expenses, for which the slab compensation under these heads has been fixed by the Supreme Court. The compensation on account of transportation of dead body and funeral expenses, according to him, is also on higher side.

¶35

There is substance in the submission of learned counsel for appellant Insurance Company as regards compensation on account of “ Loss of Consortium ”, “ Funeral Expenses ” and “ Loss of Estate ” and the same need to be modified, given the law laid down by the Supreme Court in

¶36

¶37

MA No. 28/2019

¶38

National Insurance Company Limited v. Pranay Sethi and others, AIR 2017 SC 5157 . Insofar as compensation on account of other heads is concerned, the same need not be changed.

¶39

Thus, compensation on account of Loss of Consortium is reduced to Rs.40,000/- Funeral Expenses to Rs.15,000/-, and Loss of Estate to Rs.15,000/-

¶40

10.Insofar as interest part is concerned, there is sum and substance in submission of learned counsel for appellant. The Tribunal has wrongly applied 7.5% interest. There shall be interest of 6% per annum. To that extent impugned Award is also liable to be modified.

¶41

For the reasons discussed above, the Appeal as regards dependency of respondents/claimants is dismissed. However, the Appeal is partly allowed and impugned Award dated 18^th January 2019 is modified qua compensation on account of “ Loss of Estate ”, “ Loss of Consortium ” and

¶42

“ Funeral Expenses ” as also “ Interest” as indicated herein below:

¶43

Loss of dependency	: Rs. 16,93,296.00
Loss of Estate	: Rs. 15,000.00
Loss of Consortium	: Rs. 40,000.00
Transportation of dead body	: Rs. 10,000.00
Funeral Expenses	: Rs. 15,000.00
Total	: Rs. 17,73,296.00