Extracted from the PDF above. The PDF is authoritative.
1 2026:HHC:31537-DB IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
FAO (MV) No. 198 of 2019 Reserved on : 03.07.2026
Decided on : 30.07.2026 Uploaded on : 30.07.2026 Oriental Insurance Company Ltd.
...Appellant Versus Narender Kumar & Others ...Respondents
Coram The Hon’ble Mr. Justice Virender Singh, Judge. Whether approved for reporting?1 Yes. For the appellant: Ms. Shilpa Sood, Advocate. For the respondents: Mr.
Pranshul
Sharma, Advocate, vice Mr. Vijay Sharma,
Advocate,
for respondent No. 1. Mr. Kishore Pundeer, Advocate, for respondents No. 2 and 3. Virender Singh, Judge AppellantOriental Insurance Company Ltd. has filed the present appeal, under Section 173 of the Motor Vehicles Act (hereinafter referred to as ‘the M.V. Act’), against 1 Whether the reporters of Local Papers may be allowed to see the judgment?
2 2026:HHC:31537-DB the award dated 07.09.2018, passed by learned Motor Accident Claims TribunalI, Solan, District Solan, H.P. (hereinafter referred to as ‘the Tribunal’), in MAC Petition No. 20S/2 of 2016, titled as ‘Narender Kumar Versus Anil Kumar & Others’.
2. By way of the award, dated 07.09.2018, the learned Tribunal has allowed the petition filed by respondent No. 1 and awarded a sum of Rs. 9,21,400/, along with interest at the rate of 6% per annum, from the date of filing of the petition, till the deposit of the awarded amount. The ultimate liability to pay the compensation has been fastened upon the appellantInsurance Company.
3. For the sake of convenience, the parties to the present lis, are, hereinafter referred to, in the same manner, as were, referred to, by the learned Tribunal.
STAND OF THE PETITIONERS BEFORE LEARNED TRIBUNAL:
4.
Brief facts, leading to filing of the present appeal, before this Court, as borne out from the record, may be summed up, as under:
3 2026:HHC:31537-DB 4.1 Petitioner Narender Kumar has filed the petition under Section 166 of M.V. Act, seeking compensation, on account of death of his brother Rakesh Kumar, in a motor vehicle accident, involving Mahindra Bolero, bearing No. HP162685 (hereinafter referred to as ‘the offending vehicle’), being driven by respondent No. 1, owned by respondent No. 2 and insured with respondent No. 3, which had taken place on 25.02.2011, at about 5:30 pm, near Petrol Pump Sanaur, District Sirmaur, H.P. 4.2 According to the petitioner, his brother was about 32 years of age, at the time of death and was carpenter by profession and was earning Rs. 15,000/ per month and also used to earn Rs. 1,00,000/ per annum from agriculture pursuits. 4.3 According to the petitioner, the accident took place due to the rash and negligent driving of respondent No. 1, as respondent No. 1 had hit the motor cycle being driven by Rakesh Kumar. The information regarding the accident was given to the police, upon which, FIR No. 10, dated
4 2026:HHC:31537-DB 26.02.2011, under Sections 279, 304A of IPC was registered with Police Station Rajgarh. 4.4 The petitioner has also pleaded about his bright past and bleak future. 4.5 Since, the accident in question had solely been attributed to rash and negligent driving of the driver of the offending vehicle, as such, the petitioner has sought amount of compensation of Rs. 20,00,000/, from the respondents. STAND OF THE RESPONDENTS BEFORE LEARNED TRIBUNAL:
5. When put to notice, the claim petition has been contested by the respondents. 5.1 Respondent No. 1 has filed his separate reply, by taking preliminary objections that the claim petition is not maintainable; the amount of compensation claimed is stated to be highly exaggerated; petition is bad for misjoinder and nonjoinder of necessary party, as the owner of the motorcycle bearing No. PB11X0376, as well as, the Insurance Company has not been impleaded, in the present case; and the claim petition is barred by principle of estoppel. 5 2026:HHC:31537-DB 5.2 On merits, the contents of the claim petition have been denied. The registration of the FIR has not been disputed.
According to him, the FIR has been registered without verifying the facts from any independent source by the police of Police Station Rajgarh. He has denied that he was driving the offending vehicle in rash and negligent manner. According to him, the accident had taken place due to rash and negligent act of deceased Rakesh Kumar, who was driving the motorcycle, without possessing valid driving license. Other contents have been denied. 5.3 In addition to this, it has also been pleaded by respondent No. 1 that vide judgment of acquittal dated 13.02.2013, he has been acquitted from the trial, arising out of FIR in question. All these facts have been pleaded to establish that respondent No. 1 was neither rash nor negligent. 5.4 Respondent No. 2, owner of the offending vehicle , had filed the separate reply, taking preliminary objections that the claim petition is not maintainable; the petitioner is not entitled for any compensation from respondent No. 2, as
6 2026:HHC:31537-DB the offending vehicle was insured with respondent No. 3; the amount of compensation claimed is highly exaggerated and without any legal basis; petition is bad for misjoinder and nonjoinder of necessary party, as the owner and insurer of the motorcycle, which was being driven by deceased, have not been impleaded as party. 5.5 On merits, the contents of the petition have been contested, as per the stand taken by respondent No. 1 in his reply. 5.6 Insurance companyrespondent No. 3 has filed the reply, taking preliminary objections, that the offending vehicle was being permitted to ply in violation of the terms and conditions of the insurance policy; vehicle was handed over to a person i.e. respondent No. 1, who was not holding any driving license to drive the same; there is fundamental breach of the conditions of the insurance policy; like respondents No. 1 and 2, respondent No. 3 has also pleaded that the accident in question had taken place due to the negligence of deceased himself while driving the motorcycle; petition is stated to be bad for nonjoinder and misjoinder of necessary parties. 7 2026:HHC:31537-DB 5.7 On merits, the contents of the claim petition have been denied. 5.8 Thus, the respondents have prayed for the dismissal of the claim petition.
PROCEEDINGS BEFORE LEARNED TRIBUNAL:
6. From the pleadings of the parties, the following issues were framed by the learned Tribunal on 07.12.2017:
1. Whether Rakesh Kumar died due to rash and negligent driving of vehicle No. HP162685 by respondent No. 1? OPP
2. If issue No. 1 is proved in affirmative, whether the petitioner is entitled to compensation. If so, to what amount and from whom? OPP
3. Whether the petition is not maintainable? OPR 1 & 2
4. Whether the petition is bad for misjoinder and non joinder of necessary parties? OPR 1 & 2. 5. Whether the driver of the offending vehicle in question was not holding valid and effective driving license at the time of accident. If so its effect? OPR 3
6. Whether the vehicle in question was being plied in violation of terms and conditions of the insurance policy without valid documents. If so its effect? OPR 3
7. Relief. 7. Thereafter, the parties to the lis were directed to adduce evidence. 8. After the closure of evidence and hearing the
learned counsel appearing for the parties, the learned Tribunal has allowed the petition, as referred to above, by
8 2026:HHC:31537-DB fastening the liability upon respondent No. 3Insurance Company.
STAND OF THE INSURANCE COMPANY BEFORE THIS COURT:
9. Feeling aggrieved from the award, the Insurance Company of the offending vehicle has preferred the present appeal, before this Court, on the ground that the learned Tribunal has not taken into consideration that deceased was younger brother of petitioner and he, as such, cannot be said to be dependent, whereas, the petitioner himself is able bodied person and earning his livelihood.
10. Findings have further been assailed on the ground that the documentary evidence produced by the petitioner has wrongly been relied upon. The learned Tribunal has wrongly conclued that the accident in question had taken place due to rash and negligent driving of respondent No. 1, whereas, it has been proved on record that driver of the offending vehicle has been acquitted from the trial, which has arisen out of the FIR in question, by the competent Court of law.
9 2026:HHC:31537-DB
11. The quantum of compensation, is also stated to be on higher side. As such, a prayer has been made by Ms. Shilpa Sood, Advocate, to allow the appeal and to reduce the awarded amount.
12. Per contra, Sh. Pranshul Sharma, Advocate, appearing for respondent No. 1 has prayed that the learned Tribunal has rightly decided the claim petition and prayer for dismissal of appeal has been made, however, the amount of compensation has been prayed to be enhanced, so the same could fall withn the definition of ‘just compensation’.
13. Mr. Kishore Pundeer, Advocate appearing for respondents No. 2 and 3 has also prayed that the appeal sans merits and the same may kindly be dismissed.
DISCUSSION & ANALYSIS:
14. In this case, the petitioner has pleaded that the accident in question had taken place due to rash and negligent driving of respondent No. 1, whereas, respondent No. 1, in his reply, although, has admitted the registration of the FIR, however, has further pleaded that he has been
10 2026:HHC:31537-DB acquitted from the said case, vide judgment dated 13.02.2013, passed by learned JMFC Rajgarh.
15. Similar stand has been taken by respondent No. 2. Respondent No. 1, in his examinationinchief, has reiterated the said fact and tendered the copy of judgment of acquittal, dated 13.02.2013, as Ext. RW1/E.
16. On the basis of above facts, it has been argued by
learned counsel for the Insurance Company that the sine qua non for seeking compensation, under the provisions of Section 166 of the M.V. Act, i.e. rash and negligent driving has not been proved in the present case. As such, a prayer to allow the appeal has been made. 17. The arguments of learned counsel of Insurance Company are devoid of merit, as, there is a mark difference between the proceedings under the M.V. Act and the proceedings in a criminal trial, in which, the guilt of the accused is to be proved by the prosecution beyond any shadow of doubt, whereas, the principle of preponderance of probabilities are applicable in the proceedings under Section 166 of M.V. Act, which are summary in nature. 11 2026:HHC:31537-DB
18. Registration of the FIR is prima facie proof of rash and negligent driving of respondent No. 1 and his acquittal, no where, leads to the conclusion that the accident in question had not taken place due to the rash and negligent driving of respondent No. 1. Even otherwise, the findings of the criminal Court are not binding upon the Tribunal. 19. In this case, it has also been argued that the petitioner being brother of Rakesh Kumar, is not entitled for the amount of compensation. The said arguments are also devoid of merit and liable to be negated, in view of the decision of Hon’ble Supreme Court in case titled “National Insurance Company Ltd. Versus Birender and others, (2020) 11 Supreme Court Cases 356”. Relevant paragraphs 10, 10.1, 10.2, 10.3, 14 and 17 of the judgment, are reproduced, as under:
“10. We have heard Mr. Amit Kumar Singh, learned counsel for the Insurance Company (appellant) and Ms Abha R. Sharma, learned counsel for Respondents 1 and 2. The principal issues which arise for our consideration are as follows: 10.1 (I) Whether the major sons of the deceased who are married and gainfully employed or earning, can claim compensation under the Motor Vehicles Act, 1988 (for short
“the Act”)? 10.2 (ii) Whether such legal representatives are entitled only for compensation under the conventional heads? 12 2026:HHC:31537-DB 10.3 (iii) Whether the amount receivable by the legal representatives of the deceased under the 2006 Rules is required to be deducted as a whole or only portion thereof? xxxx xxxxx xxxxxxx
14.
It is thus settled by now that the legal representatives of the deceased have a right to apply for compensation. Having said that, it must necessarily follow that even the major married and earning sons of the deceased being legal representatives have a right to apply for compensation and it would be the bounden duty of the Tribunal to consider the application irrespective of the fact whether the legal representative concerned was fully dependent on the deceased and not to limit the claim towards conventional heads only. The evidence on record in the present case would suggest that the claimants were working as agricultural labourers on contract basis and were earning meagre income between Rs. 1,00,000 and Rs. 1,50,000 per annum. In that sense, they were largely dependent on the earning of their mother and in fact, were staying with her, who met with an accident at the young age of 48 years. xxxx xxxxx xxxxx
17. The view so taken by the High Court is not the correct reading of the decision of threeJudge Bench of this Court in Reliance General Insurance Co. Ltd. Versus Shashi Sharma, (2016) 9 SCC 627, for more than one reason. First, this Court was conscious of the fact that under Rule 5(2) of the 2006 Rules, the family pension receivable by the family would be payable, however, only after the period, during which the financial assistance is received, is completed. In that context, in para 24 of the reported decision, the Court clearly noted that the amount towards family pension cannot be deducted from the claim amount for determination of a just compensation under the Act. Further, the High Court has erroneously assumed that the family of the deceased would be entitled for family pension amount immediately after the death of the deceased employee. That is in the teeth of the scheme of the 2006 Rules, in particular Rule 5(2) thereof.
The said Rules provide for financial assistance on compassionate grounds, as also, other benefits to the family members of the deceased employee and as a package thereof, Rule 5(2) stipulates that the family pension as per the normal rules would be payable to the family members
13 2026:HHC:31537-DB only after the period of delivery of financial assistance is completed. The validity of this provision is not put in issue. Suffice it to say that the view taken by the High Court in New India Assurance Co. Ltd. Versus Ajmero, 2017 SCC OnLine P&H 5370 is a departure from the scheme envisaged by the 2006 Rules, in particular, Rule 5(2). That cannot be countenanced.” (Self emphasis supplied)
20. Similar view has been taken by the Hon’ble Supreme Court in case titled “Seema Rani and others Versus Oriental Insurance Co. Ltd., 2025 ACJ 338”. Relevant paragraph 9 of the judgment, is reproduced, as under:
“9. We have heard the learned counsel for the appellants. We are unable to agree with the view taken by the Tribunal (sic High Court) on the dependants of the deceased. This court in National Insurance Co. Ltd. Versus Birender, 2020 SCJ 759 (SC), had expounded that major married and earning sons of the deceased, being legal representatives, have a right to apply for compensation, and the Tribunal must consider the application irrespective of whether the representatives are fully dependent on the deceased or not. The court went on to conclude that since the sons, in that case, were earning merely Rs. 1,50,000 per annum, they were largely dependent on the earnings of the deceased and were staying with her.” (Self emphasis supplied)
21. Being guided by the above discussion, this Court would now proceed further to determine whether the petitioner is entitled for the compensation on account of death of his brother Rakesh Kumar, who at the time of death, was 32 years and was bachelor and in para 24 of the claim
14 2026:HHC:31537-DB petition, it has specifically been pleaded that the petitioner was dependent upon him.
In this regard, he has relied upon the legal heirs certificate issued by the competent authority. Not only this, he has mentioned in his affidavit, which he has filed in his examinationinchief, Ext. PW2/A, that he and his brother were residing together and out of his earning, his brother used to bear the domestic expenses. As per the legal heirs certificate Ext. PW2/C, apart from the petitioner, deceased Rakesh Kumar left his sisters Rama Devi and Seema Devi as his legal heirs. 22. Being guided by the decision of Hon’ble Supreme Court in Birender’s case (supra), above two sisters are also entitled for the compensation. Admittedly, those sisters have not been impleaded as party, but exercising the power under
Order 1 Rule 10 C.P.C., the two sisters are ordered to be impleaded in the present case, as petitioners No. 2 and 3 and they are also held entitled for the compensation, on account of death of their brother. Registry is directed to make necessary correction, in the headnote of the appeal. 15 2026:HHC:31537-DB
23. Now, the next question, which arises for determination, before this Court, is as to whether the compensation, which has been awarded, in this case, falls within the definition of ‘just compensation’ or not. 24. As per the claim petition, deceased Rakesh Kumar was carpenter by profession and earning Rs. 15,000/ per month. The learned Tribunal has taken the income of deceased Rakesh Kumar, during his life time, as Rs. 6,000/ per month. 25. Petitioner No. 1, Narender Kumar, when appeared in the witness box as PW2 has deposed that his brother was carpenter and it has not been suggested to him that his brother was not working as carpenter. A simple suggestion was given that his brother was not earning Rs. 15,000/ by working as carpenter. He has denied the said suggestion. The factual position, which has been asserted by the witness in his examinationinchief, if not controverted, the same is deemed to have been admitted. Meaning thereby, the profession of deceased Rakesh Kumar as carpenter is not disputed. Considering the fact that deceased Rakesh Kumar
16 2026:HHC:31537-DB was working as carpenter, this Court is of the view that learned Tribunal has rightly taken his income as Rs. 6000/ per month. 26. In view of the law laid down by Hon’ble Supreme Court in “National Insurance Company Ltd. Versus Pranay Sethi & Others, (2017) 16 Supreme Court Cases 680”, 40% amount is liable to be added, on account of future prospects, had he been alive, as his age has rightly been taken by the learned Tribunal, as 32 years. Thus, his income comes to Rs. 6000 + 40% = Rs. 8,400/ per month. 27. Deceased Rakesh Kumar was bachelor and 50% is to be deducted from his income, towards his personal expenses, had he been alive. Deducting 50%, out of the income of the deceased, on account of his personal expenses, his contribution to his family, thus, comes to Rs. 8,400/ Rs. 4,200/ = Rs. 4,200/ per month. 28.
The learned Tribunal has applied the multiplier of ‘16’, which is appropriate multiplier to be applied in the present case, in view of the law laid down in “Sarla Verma Vs Delhi Transport Corportation, 2009 (6) SCC 121”. Thus,
17 2026:HHC:31537-DB the loss of dependency comes to Rs. 4,200/ x 12 x 16 = Rs. 8,06,400/. 29. In addition to this, the petitioner and his two sisters, who have been ordered to be impleaded as petitioners No. 2 and 3, are also entitled for the amount of compensation under the conventional heads i.e. loss of estate, loss of consortium and funeral expenses. 30. In view of the decision of Hon’ble Supreme Court in Magma General Insurance Company Limited versus Nanu Ram alias Chuhru Ram and others, reported in (2018) 18 Supreme Court Cases 130, all the petitioners are held entitled for the amount of loss of consortium. The relevant paras 21 to 24 of the judgment are reproduced, as under:
“21. A Constitution Bench of this Court in Pranay Sethi dealt with the various heads under which compensation is to be awarded in a death case. One of these heads is loss of consortium. In legal parlance, "consortium" is a compendious term which encompasses `spousal consortium', `parental consortium', and `filial consortium'. The right to consortium would include the company, care, help, comfort, guidance, solace and affection of the deceased, which is a loss to his family. With respect to a spouse, it would
18 2026:HHC:31537-DB include sexual relations with the deceased spouse:
21.1. Spousal consortium is generally defined as rights pertaining to the relationship of a husbandwife which allows compensation to the surviving spouse for loss of "company, society, cooperation, affection, and aid of the other in every conjugal relation”. 21.2. Parental consortium is granted to the child upon the premature death of a parent, for loss of
"parental aid, protection, affection, society, discipline, guidance and training."
21.3.
Filial consortium is the right of the parents to compensation in the case of an accidental death of a child. An accident leading to the death of a child causes great shock and agony to the parents and family of the deceased. The greatest agony for a parent is to lose their child during their lifetime. Children are valued for their love, affection, companionship and their role in the family unit. 22. Consortium is a special prism reflecting changing norms about the status and worth of actual relationships. Modern jurisdictions world over have recognized that the value of a child's consortium far exceeds the economic value of the compensation awarded in the case of the death of a child. Most jurisdictions therefore permit parents to be awarded compensation under loss of consortium on the death of a child. The amount awarded to the parents is a compensation for loss of the love, affection, care and companionship of the deceased child. 23. The Motor Vehicles Act is a beneficial legislation aimed at providing relief to the victims or their families, in cases of genuine claims. In case where a parent has lost their minor child, or unmarried son or daughter, the parents are entitled to be awarded loss of consortium under the head of filial consortium. Parental consortium is awarded to children who lose their parents in
19 2026:HHC:31537-DB motor vehicle accidents under the Act. A few High Courts have awarded compensation on this count. However, there was no clarity with respect to the principles on which compensation could be awarded on loss of filial consortium. 24. The amount of compensation to be awarded as consortium will be governed by the principles of awarding compensation under `loss of consortium' as laid down in Pranay Sethi (supra). In the present case, we deem it appropriate to award the father and the sister of the deceased, an amount of Rs. 40,000 each for loss of Filial Consortium.”
31.
In this case, the learned Tribunal has wrongly awarded a sum of Rs. 1,00,000/ under the head ‘loss of love and affection’. The findings to that extent are not sustainable in the eyes of law, and are accordingly set aside. 32. Thus, the entitlement of the petitioner, is adjudicated, as under:
1. Loss of income = Rs. 8,06,400/
2. Loss of consortium = Rs.1,20,000/ (Rs. 40,000/ x 3)
3. Loss of estate = Rs. 15,000/
4. Funeral Expenses = Rs. 15,000/ _________________________________________________________ Total = Rs. 9,56,400/ ________________________________________________________
20 2026:HHC:31537-DB
33. Thus, the entitlement of the petitioners, with a view to grant just compensation, thus, comes to Rs. 9,56,400/. 34. The learned Tribunal has awarded the rate of interest to the petitioners at the rate of 6% per annum, which has rightly been awarded by the learned Tribunal. 35. The learned Tribunal has rightly fastened the ultimate liability to pay the amount of compensation, along with uptodate interest, on the Insurance Company (respondent No.3), with whom, the offending vehicle was, admittedly, insured, at the time of accident. 36. No other point has been urged or argued. 37. Having glance of the above discussion, the appeal of the Insurance Company is liable to be dismissed and the amount of compensation is enhanced from Rs. 9,21,400/ to Rs. 9,56,400/, with interest at the rate of 6% per annum, from the date of filing of the petition, till the deposit of award amount. The amount of compensation shall be apportioned equally amongst all the three petitioners. 21 2026:HHC:31537-DB
38. Since, the sisters of the deceased were not initially parties to the lis, but, have been impleaded by this Court, while deciding the present appeal, as such, intimation be given to them by the learned Tribunal about the decision of this case and their share be kept separately. 39. Parties are left to bear their own costs. 40. Memo of costs be prepared accordingly. 41. Record be sent back. (Virender Singh) 30th July, 2026 Judge (Pramod Kumar)