HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT JAMMU M A No. 387/2009 Reserved on:- 10.08.2023 Pronounced on:- 23.08.2023 New India Assurance Co. Ltd. ….Petitioner (s) Through :- Mr. Udhay Bhaskar, Advocate V/s Tej Krishan and ors. ….Respondent(s) Through :- Mr. Suneel Malhotra, Advocate Coram: HON’BLE MR. JUSTICE WASIM SADIQ NARGAL, JUDGE JUDGMENT 23.08.2023 BRIEF FACTS 1. The appellant has preferred the civil miscellaneous appeal under Section 173 of the Motor Vehicles Act (hereinafter referred to as “the Act”) against the judgment/award dated 15.04.2009 passed by the Motor Accident Claims Tribunal, Jammu (hereinafter referred to as “the Tribunal”) in claim petition No. 375/Claim titled “Tej Krishan Raina and ors. Vs. New India Assurance Co. Ltd. and anr.” whereby respondent Nos. 1, 2 & 3 have been held entitled to a compensation of Rs. 4,11,000/- along with interest @ 7.5 % per annum. 2. The brief facts leading to the filing of the present appeal are that the respondent Nos. 1 to 3 have preferred a claim petition before the Tribunal for grant of compensation on account of death of one Meena Raina, who had succumbed to the injuries in road accident on 22.04.2005 while travelling in matador bearing registration No. Sr.No. 113 2 M A No. 387/2009 JK02P-4249 near Hotel Asia, Gandhi Nagar, Jammu when as per the appellant, the offending matador fell down after hitting with another vehicle. The respondent Nos. 4 & 5 being the owner and driver of the offending vehicle were also impleaded as respondents in the claim petition by respondent Nos. 1 to 3 before the Tribunal along with the appellant company being the insurer of the offending vehicle. As per the stand of the appellant, the appellant company after its service filed objections to the claim petition by taking various defences available to it and denied its liability to pay any compensation to the claimants in the instant case. 3. The Tribunal vide its judgment dated 15.04.2009 rejected the plea raised by the appellant company and passed the award to the tune of Rs. 4,11,000/- along with interest @ 7.5 % per annum from the date of filing of claim petition till liquidation in favour of respondent Nos. 1 to 3 and against the appellant company. The appellant, feeling aggrieved of the aforesaid award challenges the same inter-alia on following grounds:- “a) That the judgment/award impugned is ex facie bad, contrary to the facts of the case and law on the point and the same therefore, deserves to be set aside. b) That as submitted above, the appellant company in its objections raised a plea that the claim petition is not maintainable for non-joinder of the necessary parties. It was further averred in the objections that as per the FIR and challan both the drivers of the two matadors involved in the accident were found guilty and challan against them has been presented in the court of law. In order to prove the plea of contributory negligence, the appellant company summoned driver Kashmir Gill as witness in the case. Kashmir Gill while deposing in the case stated that his matador was hit by a rash and negligently driven matador bearing registration no. JKO2P-4879 on the side of his 3 M A No. 387/2009 window, as a result whereof the matador driven by him had a jerk and struck against the maruti car which turned turtle resulting injuries to the deceased. The witness further stated that after this occurrence, it was he who went to the police station to register the FIR against matador no. JKO2P-4879. Police arrested both the drivers of the two matadors. Further, it was stated by the witness that there was no negligence on his part, however, the challan has been produced by the police in the court of law against him and Raju Bakshi, the driver of the other matador. Despite the aforesaid statement of the witness Kashmir Gill produced by the appellant company, the Tribunal held that the accident has been caused by the rash and negligent driving of matador no. JKO2P-4249 by its driver Kashmir Gill. To come to such a finding, the Tribunal held that the vehicle was also rash and negligent as a result of which it went out of control and turned turtle. This finding of the Tribunal is totally erroneous and contradictory. When the Tribunal held that the driver was also rash and negligent then it apparently becomes a case of contributory negligence where the other vehicle is equally rash and negligent. The presentation of the challan by the police after conducting investigation into the case and after concluding that both the drivers of the two matadors involved in the accident were negligent in causing the accident, was a conclusive evidence of contributory negligence of the two vehicles before the Tribunal below. The challan presented by the police is itself admissible in evidence. It is pointed out that there was no contrary version / evidence to the statement made by the witness Kashmir Gill. In the absence of any contrary evidence, the finding of the Tribunal below that the accident has been caused by the rash and negligent driving of the matador no. JKO2P-4249 by its driver Kashmir Gill is factually and legally in correct and the same being unsustainable in the eyes of law deserves to be set aside. Further, it is submitted that while deciding the issue no. 4, the Tribunal below held that there is nothing on the record which could established that there was any contributory negligence on the part of other matador as well as the maruti car. This finding of the Tribunal is self contradictory as the copy of the challan clearly establishes the negligence of the 4 M A No. 387/2009 driver of the other matador as well, a copy whereof is annexed herewith and marked as ANNEXURE — B. The award on this score is liable to be set aside. c) That the award of Rs. 4. 11 lac passed by the Tribunal below in the case is excessive and does not conform to the guidelines by the Hon’ble Supreme Court and various High Courts and therefore, being not sustainable in the eyes of law deserves to be set aside. d) That the Tribunal erred in assessing the monthly income of the deceased. No documentary or any other cogent evidence was led by the claimants to prove the income of the deceased. fie is submitted here that in para no. 4 of the claim petition, the deceased had been shown as house wife, however, in para no. 6 of the claim petition, it was averred that primarily the deceased was a house wife but was also doing needle and stitching work and earning Rs. 5,000/per month. However, the respondent no. 1 while deposing in the case stated that deceased was tailor master and earning Rs. 7,000/per month. Thus, from the contradictory version, it is established that the deceased was simply a house wife and not doing any work. Under these circumstances, the monthly income of the deceased could not have taken Rs. 3,000/per month. The award thus on the face of it suffers from serious infirmity and deserves to be set aside on this score alone e) That the Tribunal below again erred in applying the multiplier in the case. As per the post mortem report, the age of the deceased was shown as 50 years. No documentary evidence was produced by the claimants to prove that the deceased was 44 years of age at the time of accident as pleaded in the petition. Therefore, the multiplier applicable in the case in the age group of 50 to 55 is 11 and the same was required to be scaled down to 9 for awarding compensation in the case. The multiplier thus applied in the case is also on the higher side and not as per the law laid down by the Hon'ble Supreme Court and other Courts of the Country and on this score also, the award is bad in the eyes of law and requires to be set aside. ARGUMENTS ON BEHALF OF THE APPELLANT 5 M A No. 387/2009 4. It is the specific case of the appellant that the accident has been caused by the contributory negligence of the two vehicles. The stand of the appellant is that the respondent Nos. 4 & 5 despite their service, chose not to appear in the claim petition and contest the same on merits. 5. Further case of the appellant is that the appellant filed an application under Section 170 of the Act seeking permission to defend the claim petition on the defences available to owner/driver of the offending vehicle and the Tribunal vide its order dated 16.02.2006 was pleased to allow the said application and permitted the appellant to take defences as available to owner/driver. From the pleadings of the parties, the following issues came to be framed by the Tribunal:- “1. Whether an accident occurred on 22.04.2005 near Asia Hotel, Jammu by rash and negligent driving of the offending vehicle No. JK02P 4249 in the hands of erring driver in which deceased Meena Raina received fatal injuries? OPP. 2. If issue No. 1 is proved in affirmative whether petitioners are entitled to the compensation, if so to what amount and from whom? OPP 3.Whether driver of the offending vehicle at the time of accident was not holding valid and effective driving license if so what is its effect and drove the offending vehicle in violation of terms and conditions of the insurance policy and without valid route permit etc? OPR3 4. Whether accident occurred due to the contributory negligence of driver of the Maruti Car No. JK08 7200 involved in the accident if so how and what is its effect? OPR3 5. Whether claim petition is not maintainable for non-joinder of parties; if so how and what is its effect? OPR3 6. Relief. O.P. Parties” 6. From the perusal of the order sheet, it is apparent that notices have been issued to the respondent Nos. 4 & 5 under registered covers on 6 M A No. 387/2009 27.03.2023 which have not been received back, however, served or otherwise and also no one has caused appearance on their behalf and, accordingly, they were set ex-parte as the statutory period has since expired. ARGUMENTS ON BEHALF OF THE RESPONDENTS 7. Mr. Suneel Malhotra, learned counsel for respondent Nos. 1 to 3 submits that the deceased started her journey along with her husband from Jewel Chowk and had to go to Satwari. Respondent No. 5 who was driving the offending vehicle bearing registration No. JK02P- 4249 in a rash, negligent and careless manner when reached at Petrol Pump near Hotel Asia, the offending vehicle struck against a parked Maruti Car. The deceased Meena who was seated just near the window in the said matador was thrown out by the impact of force of hitting the parked Maruti Car. He further submits that the offending vehicle was in race with another matador bearing No. JK02P-4879 and the deceased at the time of death was 45 years old and was a housewife besides was doing needle and stitching work. The petitioner while filing the claim petition has prayed for the grant of compensation to the tune of Rs. 20 lacs against the respondents. Mr. Suneel Malhotra, learned counsel for respondent Nos. 1 to 3 fairly submits that although he has filed the cross-appeal which has been registered as Cr. Obj No. 21/2019 titled Tej Krishan Raina Vs. New India Assurance Co. Ltd. and ors. and the same has been dismissed by Coordinate Bench of this Court vide order dated 30.05.2023 on the ground of delay, yet, this Court is still within its rights to consider the aspect of grant of just compensation in the light of the law laid 7 M A No. 387/2009 down by the Hon’ble Supreme Court in catena of judgments which he has referred and also the judgment passed by the Coordinate Bench of this Court in case titled “United India Insurance Co. Ltd. Vs. Ayodhya Devi and ors.” decided on 18.09.2020. 8. Mr. Suneel Malhotra further submits that the Tribunal has awarded the compensation on only two counts i.e. for loss of dependency and for funeral expenses and the compensation which has been awarded by the Tribunal was on the lower side and accordingly, submits that this Court is well within its right to grant just compensation in the light of the law laid down by the Hon’ble Supreme Court and this Court as well. He further submits that the correct multiplier has also not been applied in the light of the law laid down by the Constitution Bench of the Hon’ble Supreme Court in the case titled National Insurance Company Ltd. Vs. Pranay Sethi and ors.; AIR 2017 SC 5157. 9. The Hon’ble Apex Court of the Country in the aforesaid judgment has recorded the aforesaid conclusion which, according to learned for the respondent Nos. 1 to 3 is applicable to the instant case and, accordingly, prays for enhancement of the compensation by applying the correct multiplier and the formula laid down in the aforesaid Constitution Bench judgment. 10. Mr. Suneel Malhotra, learned counsel further submits that the Tribunal, on the basis of pleadings of the parties, has framed the issues and he further refers to the issue No. 4 which has been decided against respondent No. 3. He further submits that the issue No. 4 was specific to the extent that whether the accident occurred due to the 8 M A No. 387/2009 contributory negligence of driver of the Maruti Car No. JK08-7200 involved in the accident if so, how and what is its effect. The onus to prove the aforesaid issue was on respondent No. 3, however, respondent No. 3 has failed to produce the driver of Maruti Car bearing No. JK08 7200 who was most relevant and reliable witness and accordingly, could not establish that it was a negligence on the part of other matador or the Maruti Car. 11. Accordingly, issue No. 4 was decided against the appellant-Insurance Company and in favour of the petitioner in the claim petition. The learned counsel submits that once the issue No. 4 has been decided against the insurance company because the appellant-Insurance Company has failed to produce the driver of the Maruti Car and in the light of the aforesaid, the plea of the appellant company that it was a case of contributory negligence on the part of other matador and Maruti Car does not hold good and it is not tenable in the eyes of law. Thus, reliance placed by Mr. Udhay Bhaskar, learned counsel for the appellant on the judgment passed by the Hon’ble Apex Court in the judgment titled Khenyei Vs. New India Assurance Co. Ltd. and ors.; 2015 (5) Supreme 429 is misplaced as it is not a case of contributory negligence. REBUTTAL:- 12. In rebuttal, Mr. Udhay Bhaskar, learned counsel for the appellant further submits that the reliance placed by Mr. Suneel Malhotra, learned counsel for respondent Nos. 1 to 3 on the judgment passed by the Apex Court and Coordinate Bench of this Court is not applicable to the instant case as the claims have already preferred and cross- 9 M A No. 387/2009 appeal has been dismissed on delay. Thus, the law laid down in the aforesaid judgments is not applicable to the instant case. He further submits that once the claimants have taken a chance and filed a cross appeal which has been dismissed, in that eventuality, the finding and the principles which have been laid down by the Apex Court and Coordinate Bench of this Court is not applicable to the case in hand. 13. Lastly, Mr. Udhay Bhaskar, learned counsel for the appellant submits that the appellant-Insurance Company has tried to carve out a case before the Tribunal as well as this Court on the basis of the FIR and the challan in which the name of both the drivers have been mentioned as an accused. However, as per the finding recorded by the Tribunal that since the respondents have failed to produce the relevant record of the police where it could establish that it was the fault of other matador which has caused the accident, issue No. 1 was decided in favour of the petitioners/respondent Nos. 1 to 3 herein and against the appellant-Insurance Company. The Insurance Company has miserably failed to produce the relevant record of the police before the Tribunal which could have established that it was the fault of the other matador which has caused the accident. The Insurance Company has failed to produce the driver of Maruti Car with a view to establish that it was negligence on the part of other matador or Maruti Car and since there was nothing on record which could establish that there was any contributory negligence on the part of the matador as well as Maruti Car even the issue No. 4 to the extent whether the accident occurred due to contributory negligence of driver of Maruti Car No. JK08-7200 involved in the accident was 10 M A No. 387/2009 also decided against the appellant Insurance Company and in favour of the petitioners/respondent Nos. 1 to 3 herein. LEGAL ANALYSIS 14. Heard learned counsel for the parties and perused the record. 15. The appellant-company being aggrieved of the award dated 14-04- 2009 has challenged its legality, validity and correctness. Learned counsel for the appellant has limited his arguments to the point that the finding of the Tribunal is totally erroneous and contradictory for non-joinder of the necessary parties, because as per the FIR and Challan, both the drivers of the two matadors involved in the accident were found guilty and presentation of the challan by the police after conducting thorough investigation into the case concluded that both the drivers of the two matadors involved in the accident were negligent in causing the accident, was a conclusive evidence of contributory negligence of the two vehicles before the Tribunal below. To counter this argument learned counsel for the respondents has drawn the attention of the court to the issue no. 1 and 4 in the impugned award, which are reproduced again as under: a) Issue no. 1 Whether acident occurred no 12-4-2005 near Asia Hotel Jammu by rash and negligent driving of the offending vehicle No.JK02P 4249 in the hands offering driver in which deceased Meena Raina received fatal injuries? OPP b) Issue no. 4 “Weather accident occurred due to the contributory negligence of the driver of the Maruti car number JK08 7200 involved in the accident. If so, how and what is its effect? OPR3 16. The tribunal in the light of evidence led by the claimants has held 11 M A No. 387/2009 issue no.1 in favour of the claimants. The tribunal concluded that it was on account of sheer negligence on the part of the driver Mr. Kashmir Gill, that the accident in question occurred in which deceased lost her life and the respondents have failed to produce the relevant record of the police. Therefore, it could not be established that it was the fault of the other matador which has caused the accident. 17. As is evident, the burden of proof of issue no. 4 was placed on insurance company . The tribunal held issue number 4 in favour of the claimants and concluded that the insurance company failed to produce the driver of the Maruti car no. JK08-7200, who was the most relevant and reliable witness and could establish that it was the negligence on the part of the matador or the Maruti car. There is nothing on record, which could establish that there was any contributory negligence on the part of the other matador as well as the Maruti Car. 18. Mr. Udhay Bhaskar, learned counsel for the insurer could not point out anything contrary to record, which would persuade this court to take a view different from the one taken by the tribunal. The findings of the tribunal on issue No. 1 is in accordance with evidence on record and, therefore, stands affirmed. 19. The appellant in order to challenge the award has taken a ground that the Tribunal has erred in applying the multiplier in the present case because as per the post-mortem report, the age of the deceased was shown as 50 years. However, there is no satisfactory evidence on record with regard to the age of the deceased. In that view of the 12 M A No. 387/2009 matter, the Tribunal has correctly taken the age of the deceased to be 45 years. 20. On the asking of the court, learned counsel for the appellant fairly conceded and admitted the fact that no evidence was led in support of the fact that establishes there was any contributory negligence on the part of the other matador well as the Maruti Car. As far as issue no. 4 is concerned, the onus whereof, was on the insurer has not been proved by the insurer by leading any evidence. To cement his submissions, learned counsel for the appellant has placed reliance on the judgment Khenyei Vs New India Assurance, Co. Ltd. & Ors, however, the said judgment does not apply to the facts of the present case. 21. The argument of Mr. Suneel Malhotra, learned counsel for the claimants is that notwithstanding that the claimants have filed or not filed any appeal for enhancement or cross-objections, this Court is well within its powers to grant compensation which is just and fair. However, in the instant case, the cross-appeal filed by the claimants which was registered as Cr. Obj No. 21/2019 has been dismissed vide order/judgment dated 30.05.2023 on condonation of delay and once, the cross appeal has been dismissed by this Court, compensation cannot be enhanced. Accordingly, I am of the firm view that this Court is precluded from granting just compensation by enhancing the award which, if be done, would tantamount to reviving the cross-appeal which stood dismissed and the same is not permissible under law. 22. Accordingly, I hold that in the peculiar facts and circumstances of 13 M A No. 387/2009 the case, this Court cannot enhance the award which was the subject matter of the cross-appeal filed by the claimants which stood dismissed by this Court. 23. Having gone through the impugned award in its entirety and evidence on record, I find no illegality in the order passed by the Tribunal and the same is well reasoned and no fault can be founded with the same. Accordingly, the award passed by the Tribunal is upheld. As a necessary corollary, appeal filed by the appellant is dismissed. (WASIM SADIQ NARGAL) JUDGE Jammu: 23.08.2023 Tarun Whether the order is speaking? Yes/No Whether the order is reportable? Yes/No