HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT JAMMU MA No. 218/2018 c/w CCROS No. 03/2016 Reserved on: 05.03.2025 Pronounced on: 02.05.2025 Polli Devi and others …..Appellant(s)/Petitioner(s) Through: Mr. V. B. Gupta, Advocate with Mr. Rahul Aggarwal, Advocate in CCROS No. 03/2016 Mr. Amrit Sarin, Advocate in MA No. 218/2018 vs Oriental Insurance Co. Ltd. and anr. .…. Respondent(s) Through: Mr. Amrit Sarin, Advocate in CCROS No. 03/2016 Mr. V. B. Gupta, Advocate with Mr. Rahul Aggarwal, Advocate in MA No. 218/2018 Coram: HON’BLE MR. JUSTICE RAJNESH OSWAL, JUDGE JUDGMENT 1. In MA No. 218/218/2018, the appellant/Insurance Company has impugned the award dated 29.05.2015 passed by the Motor Accident Claims Tribunal, Kathua (hereinafter to be referred as “the Tribunal”), whereby a compensation of Rs. 12,95,000/- has been awarded in favour of the claimant Nos. 1 to 4 and the appellant/Insurance Company has been directed to indemnify the owner of the offending vehicle i.e. respondent No. 5. The claimants have also filed Cross-Appeal bearing C Cross No. 03/2016 against the same award. 2. The appellant/Insurance Company has impugned the award on the ground that the accident took place because of the contributory negligence on the part of the driver of the vehicle No. HR38C-9013, 2 CCROS No. 03/2016 c/w MA No. 218/2018 which is substantiated by the closure report filed by the Investigating Officer, wherein an observation has been made that the accident took place due to negligence of both the drivers. Further that excess compensation has been awarded by learned Tribunal by taking the salary of the deceased driver as Rs. 10,000/- per month, whereas in those days, when the accident took place, the drivers were not being paid Rs. 10,000/- per month as salary. It has been further submitted by appellant/Insurance Company that the appellant had deposited the diet expenses for summoning of witnesses but without summoning those witnesses, the evidence of the appellant was closed. 3. The appellants-claimants have sought enhancement of the compensation on the ground that age of the deceased driver has not been rightly considered by the learned Tribunal, as the learned Tribunal has considered the age of the deceased as 45, but the deceased was 38 years of age, when the accident took place and accordingly the wrong multiplier was applied while assessing the loss of dependency. In nutshell, the grievance of the appellants/claimants is that just compensation has not been awarded in their favour. 4. Mr. Amrit Sarin, learned counsel for the appellant/Insurance Company has argued that the learned Tribunal has not considered the fact that accident took place because of the contributory negligence of the driver of the vehicle No. HR38C-9013 also, as such, the liability of the appellant/Insurance Company was limited to the extent of 50% only. He has further argued that the learned Tribunal has not rightly 3 CCROS No. 03/2016 c/w MA No. 218/2018 determined the monthly income of the deceased as Rs. 10,000/- and further excess compensation under the heads “loss of consortium” and “funeral expenses” has been granted. 5. Per contra, Mr. Ved Bhushan Gupta, learned counsel for the appellants/claimants has argued that the learned Tribunal has not rightly considered the age of the deceased for the purpose of awarding compensation in favour of the claimants as at the time of accident the deceased was 38 years of age and not 45 years and further that just compensation has not been awarded. 6. Heard learned counsel for the parties and perused the record. 7. A perusal of the record reveals that the claimants filed a claim petition before the Tribunal for grant of compensation on account of death of one Karan Singh S/o Dharam Singh on 08.09.2011. As claimed by the claimants, the deceased had suffered injuries on account of rash and negligent driving of the offending truck bearing registration No. JK02A 2717 by its driver, namely, Dalbir Singh. The owner, driver of the offending vehicle bearing registration No. JK02AA 2717 and Insurance Company-appellant herein, were put to notice but the respondent No. 1 and 2 in the claim petition i.e. owner and driver did not choose to contest the claim petition because of which, they were set ex-parte. The appellant/Insurance Company, however, contested the claim petition and it was stated that the deceased was a driver of the truck bearing No. HR38C-9013, who was also involved in the alleged occurrence. It was stated that road where the accident took place was very broad and any 4 CCROS No. 03/2016 c/w MA No. 218/2018 prudent person could have avoided such accident unless such person himself was grossly negligent. It was the stand of the appellant/Insurance Company that the possibility of the accident having occurred due to rash and negligent driver of the truck No. HR38C-9013 being driven by the deceased cannot be ruled out. 8. Out of the pleadings, the following issues were framed in the claim petition: 1. Whether the accident took place on 08.09.2011, at about 2.00 A.M near SSM College Dina Nagar, Punjab due to the rash and negligent driving by the driver of the offending vehicle bearing No. JK02AA- 2717, causing the death of the deceased, named Karan Singh/OPP 2. In case issue No. 1 is proved in affirmative, whether the petitioners are entitled to any compensation, and if so, from whom/? OPP. 3. Whether the driver of the offending vehicle was not holding a valid and effective driving licence and the vehicle was being plied at the relevant time in violation of the terms and conditions of the insurance policy/OPR 4. Relief. 9. The claimants examined claimant Poli Devi, PW Karan Singh and PW Kishan Singh in support of their claim, whereas the appellant/Insurance Company did not produce any evidence in rebuttal. 10. The first contention raised by the appellant/Insurance Company is that it was because of the contributory negligence of the driver of vehicle No. HR38C-9013 that the accident took place and in the objections 5 CCROS No. 03/2016 c/w MA No. 218/2018 filed by appellant, it was the stand of the Insurance Company that the accident took place due to rash and negligent driving of the Vehicle No. HR38C-9013 being driven by the deceased and the vehicle bearing No. JK02AA-2717 was not involved in any accident as averred in the para 22 of the objections. In the appeal preferred by the appellant/Insurance Company, it is categorically stated that both the drivers died on spot and Balwan Singh, on whose statement FIR was lodged, was also the nephew of Karan Singh (driver of Truck No. HR38C-9013) and had himself disclosed that both the trucks had dashed against each other because headlights of the both the trucks flashed in the eyes of both the drivers. 11. The appellant/Insurance Company has contended that it had deposited the diet expenses, but the witnesses were not summoned. A perusal of the record of learned Tribunal would reveal that an application was filed by the appellant/Insurance company to summon the Investigating Officer, Harsharan Singh alongwith the challan, Investigator of the Insurance Company and concerned official of the Insurance Company. But the Insurance Company had deposited the diet expenses for summoning I.O-Harsharan Singh only. The evidence of the claimants was closed on 25.10.2014. The counsel for the appellant/Insurance Company was directed to get dasti notices, however, the dasti notices were never procured by the appellant/Insurance Company despite repeated orders dated 28.11.2014, 29.12.2014 and 24.04.2015. Thereafter, the learned Tribunal vide order dated 26.05.2015 after 6 CCROS No. 03/2016 c/w MA No. 218/2018 recording that dasti notices were given to the appellant/Insurance Company for producing the evidence but the witnesses have not been produced and accordingly, closed the evidence of the appellant/Insurance Company. Thus, it is evident that ample opportunities were given to the appellant/Insurance Company to lead evidence and despite providing of opportunities for effecting service of the witness, no evidence was produced by the appellant/ Insurance Company. It needs to be mentioned here that only Investigating Officer was being sought to be summoned and appellant/Insurance Company never sought assistance of the Court to produce any eye witness to the alleged accident. 12. The appellants/claimants have examined PW Karan Singh and PW Kishan Singh in support of their case, who have categorically stated that the accident took place because the vehicle bearing registration No. JK02AA-2717 was being driven rashly and negligently by its driver Dalbir Singh. They have also admitted that drivers of both the vehicles died in the accident. In view of the positive evidence led by the appellants/claimants that the accident took place due to rash and negligent driving of the vehicle bearing registration No. JK02AA-2717, it cannot be said that there was any contributory negligence on the part of the deceased driver of the vehicle No. HR38C-9013. Had the Investigating Officer been examined by the appellant/Insurance Company, still it would not have made any difference on merits of the claim of the appellant/claimants, as no eye witness was sought to be 7 CCROS No. 03/2016 c/w MA No. 218/2018 summoned by the appellant/Insurance Company to prove the contributory negligence. In view of the above, there is no merit in the contention of the appellant/Insurance Company that the accident took place because of the contributory negligence on the part of predecessor- in-interest of the claimants, namely, Karan Singh, who was driving the vehicle No. HR38C-9013, as such the same is rejected. 13. The other contention of the appellant/Insurance Company is that the compensation is excessive as the learned tribunal has wrongly determined the monthly income of the deceased as Rs.10,000/- and further that excess compensation has been awarded to the claimants. On the contrary, contention of the appellants/claimants is that the deceased was 38 years of age, but the learned Tribunal has considered the age of the deceased as 45 years. A perusal of the claim petition filed by the claimants reveals that the claimants have mentioned age of the deceased as 38 years, however, the learned Tribunal considered the age of the deceased as 45 years, as mentioned in the post-mortem report. In absence of any documentary evidence placed on record by the appellants/claimants contrary to the age of the deceased as mentioned in the post-mortem, this Court does not find any illegality on part of the Tribunal in considering the age of the deceased as 45 years. Therefore, this Court does not find any substance in the submission of the appellants/claimants so far as age of the deceased is concerned. 14. So far as the contention of the appellant/Insurance Company that excess compensation has been awarded, is concerned, this Court finds that 8 CCROS No. 03/2016 c/w MA No. 218/2018 though compensation of Rs. 1 lac on account of loss of consortium has been awarded in favour of the widow but in terms of the pronouncement of the Hon‟ble Supreme Court of India in case titled „National Insurance Company Limited v Pranay Sethi and others, (2017) 16 SCC 680, the amount of compensation payable under the head of loss of consortium is Rs. 40,000/. There is substance in this contention of the appellant/ Insurance Company as an amount of Rs.1.00 lac has been awarded on account of loss of consortium to the widow. In ‘Rojalini Nayak v. Ajit Sahoo, (2024) 8 SCC 239, the Hon‟ble Supreme Court awarded consortium to all the four claimants at enhanced rate, by observing that “Under the heads of loss of estate, loss of consortium and funeral expenses, this Court awarded Rs 15,000, Rs 40,000 and Rs 15,000, respectively. It was further directed that the amount so quantified should be enhanced by 10% every three years. By that metric, with the amount standing at Rs 40,000 in the year 2017, today it would be Rs 48,400 (the amount having been enhanced by 10% twice). Hence, 48,400 × 4 = Rs 1,93,600”. Thus, the four claimants are held entitled to Rs. 40,000/ each as compensation on account of loss of consortium. The compensation on account of “funeral expenses” has been awarded as Rs. 25,000/- but no compensation on account of “loss of estate” has been awarded. In terms of Pranay Sethi’s case (supra) Rs.15,000/- each is required to be awarded as compensation under heads “funeral expenses” and “loss of estate”. 9 CCROS No. 03/2016 c/w MA No. 218/2018 15. During the financial year 2011-12, no income tax was payable upto the income of Rs. 1,80,000/-. So far as the present case is concerned, there were four dependents on the deceased and an amount of Rs. 10,000/- per month as income of the deceased determined by the learned Tribunal cannot be termed as excessive, particularly when the claimant No. 1 and her witness, namely, Kishan Singh has stated that the deceased was earning somewhere around between Rs. 25,000/- to Rs. 30,000/-. The learned tribunal has deducted 1/4 of total monthly income of the deceased on account of personal expenses of the deceased, which is in accordance with the judgment of the Hon‟ble Supreme Court of India in case of ‘Sarla Verma v. DTC, (2009) 6 SCC 121’. Further, it is found that future prospects of enhancement in income of the deceased have not been taken into consideration while passing the award. As the deceased was self-employed and was 45 years of age, multiplier of 14 was required to be applied, whereas the learned Tribunal has applied the multiplier of 13. The income was required to be enhanced by 25%, therefore, the compensation payable under the head of „Loss of Dependency‟ would be Rs.15,75,000/. 16. In view of the above, the amount of compensation awarded by the learned Tribunal is modified as under: Loss of dependency Rs. 15,75,000/- Consortium Rs.1,60,000/- Funeral expenses Rs. 15,000/- Loss of estate Rs. 15,000/- Total Rs.17,65,000/- 10 CCROS No. 03/2016 c/w MA No. 218/2018 17. Award is modified to the aforesaid extent. The interest component shall remain the same. The enhanced amount be deposited by the appellant- Insurance Company within the period of one month with the Registry and thereafter, the same be released in favour of claimants after due identification by their counsel. 18. Both the appeals are accordingly, disposed of. 19. The record of the Tribunal be sent back. (RAJNESH OSWAL) JUDGE Jammu: 02.05.2025 Karam Chand/Secy. Whether the order is speaking: Yes/No Whether the order is reportable: Yes/No KARAM CHAND 2025.05.03 09:45 I attest to the accuracy and integrity of this document