HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT JAMMU Reserved on 03.03.2025 Pronounced on 02.05.2025 Mac App No. 76/2023 United India Insurance Co. Ltd. …..Appellant(s)/Petitioner(s) Through: Mr. D. S. Chouhan, Adv. vs Anjani Sharma and others .…. Respondent(s) Through: Mr. Intikhab Shah, Adv. for Nos. 1 to 4 Coram: HON’BLE MR. JUSTICE RAJNESH OSWAL, JUDGE JUDGMETNT 1. This appeal is directed against the award dated 06.06.2023 passed by the Presiding Officer Motor Accidents Claim Tribunal, Samba (for short „the Tribunal‟) in claim petition, titled, „Anjani Sharma vs. United India Insurance Company and another‟, whereby the learned Tribunal has awarded compensation of Rs. 42,34,195/- in favour of the claimants/respondents along with interest at the rate of 7.5% per annum from the date of institution of the claim petition till realization of the award amount and the appellant-Insurance Company has been directed to satisfy the award mentioned above. 2. The award has been impugned on the grounds inter alia that the learned Tribunal has not rightly granted the compensation under the head „loss of consortium‟ as lump sum amount of Rs. 40,000/- was required to be 2 MA No. 76/2023 awarded under that head, whereas the learned Tribunal has awarded Rs. 40,000/- each to four claimants and further that the learned Tribunal has not taken into consideration that the claimant/respondents 1 to 4 would get full salary for seven years after the death of deceased, who was a government employee. 3. Mr. Dinesh Singh Chouhan, learned counsel for the appellant has argued that the approach of learned Tribunal in awarding Rs. 40,000/- each to the four claimants is not correct in view of the judgment passed by the Hon‟ble Supreme Court of India in „Shriram General Insurance Ltd v Bhagat Singh Rawat and others’, 2023(2) TAC 713 and further that the claimants would get salary of the deceased for seven long years after the demise of the deceased-Raj Kumar, who was permanent employee of the Police Department but the learned Tribunal has not taken into consideration this material fact. 4. Heard learned counsel for the parties and perused the record including the record of the Tribunal. 5. The deceased, who was the husband of respondent No. 1, father of respondent Nos.2 and 3 and son of respondent No. 4, had met with a motor vehicle accident on 11.02.2017 when he was hit by a truck bearing, registration No. JK02AB 3557 being driven by respondent No. 6 and thereafter the claimants/respondents 1 to 4 filed a claim petition for grant of compensation. The appellant filed its response to the claim petition before the learned Tribunal, whereas respondent Nos. 5 and 6 did not 3 MA No. 76/2023 choose to contest the claim petition. The learned Tribunal framed the following issues: 1. Whether on 11.02.2017, the deceased Raj Kumar was hit by a vehicle(truck) bearing No. JK02AB-3557 being driven by the R-3 in a rash and negligent manner, at SIDCO Chowk NHW Bari Brahamana causing serious injuries resulting in death of deceased on spot? OPP 2. If issue no. 1 is proved in affirmative, to what amount of compensation the petitioners are entitled to and from whom? OPP 3. Whether the offending vehicle was being driven in violation of terms and conditions of insurance policy, if so, what is its effect on the claim petition? OPR-I 4. Whether the offending vehicle was being driven by a person who did not possess valid and effective driving license, if so, what is its effect on the claim petition? OPR-1 5. Relief. 6. The claimants 1 to 4/respondents besides examining respondent No. 1, also examined PW Ramesh Chander and PW Ankit Thappa in support of their claim, whereas the appellant insurance company did not choose to lead any evidence. 7. The learned Tribunal after examining the evidence led by the claimants/respondent Nos.1 to 4, passed the award under the following heads: S. No. Head Amount of compensation 1. Loss of dependency Rs. 40,44,195/- 2. Spousal consortium to petitioner No. 1 Rs. 40,000 3. Parental consortium to petitioner Nos. 2 and 3 Rs. 80,000/- (Rs. 40,000 each) 4. Filial consortium to petitioner No. 4 Rs. 40,000/- 5. Loss of estate Rs. 15,000/- 6. Funeral expenses Rs. 15,000/- Total Rs. 42,34,195/- 4 MA No. 76/2023 8. The award has been impugned only on two grounds. The first contention of the appellant is that the deceased was a Government employee and after his demise, the claimants/respondent Nos. 1 to 4 would get salary of the deceased for seven long years, but the learned Tribunal has not taken this fact into consideration while awarding the compensation in favour of the respondent Nos. 1 to 4. The record depicts that the appellant had filed the objections to the claim petition filed by the respondents 1 to 4/claimants and in their response, no such plea was taken by the appellant that the deceased was a Government employee and the claimants/respondent Nos. 1 to 4 would get salary for seven years. Even during arguments before the Tribunal, no such plea was raised by the appellant/insurance company. Once the appellant/insurance company has not laid the factual foundation of its defence before the learned Tribunal, the appellant cannot raise the same before this Court in appeal. Therefore, this Court does not find any substance in this contention raised by the appellant, as such, the same is rejected. 9. Next it was contended that the learned Tribunal has awarded Rs. 40,000/- each to claimants/respondent Nos. 1 to 4 i.e. total Rs. 1,60,000/- as spousal consortium, parental consortium and filial consortium to respondent Nos. 1, 2, 3 and 4 respectively, which is contrary to judgment of the Apex Court in Bhagat Singh Rawat’s case(supra). This is true that in Bhagat Singh Rawat’s case (supra), the sum of Rs. 40,000/ has been awarded in lump sum to the claimants but in ‘Rojalini Nayak v. Ajit Sahoo, (2024) 8 SCC 239, the Hon‟ble Supreme Court awarded 5 MA No. 76/2023 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”. But the Apex Court in the case of Bibi Giri v National Insurance Company Ltd, decided on 06.09.2022 has not granted the compensation on account of loss of filial consortium to the mother of the deceased whose major son had died in a road accident. 10. Accordingly, the instant appeal is partly allowed and the award is modified to the extent that the amount of Rs. 40,000/- awarded to respondent No. 4 is deducted from the total compensation of Rs. 42,34,195/-. Modified amount of compensation be released in favour of the claimants after their due identification by the counsel, and the balance amount of Rs. 40,000/- along with interest be refunded to the appellant. 11. Record, if received in original, be sent back. (RAJNESH OSWAL) JUDGE Jammu: 02.05.2025 Rakesh 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