Jammu and Kashmir High Court
MA/33/2018 of THE NEW INDIA ASSURANCE CO. LTD. Vs ASHA RANI AND ORS. on 31 December 2019
09 HIGH COURT OF JAMMU AND KASHMIR AT JAMMU MA No. 33/2018 IA No. 01/2018 The New India Assurance Co. Ltd. …Appellant(s) Through :- Mr. Amrit Sarin, Advocate v/s Asha Rani and others …Respondent (s) Through :-Mr. Sahil Bhardwaj, Advocate for R-1 to 3. Mr. Manuj Mahajan, Advocate for
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Arguments
HIGH COURT OF JAMMU AND KASHMIR AT JAMMU
MA No. 33/2018 IA No. 01/2018
…Appellant(s)
The New India Assurance Co. Ltd.
Through :- Mr. Amrit Sarin,
Advocate
Asha Rani and others
v/s
…Respondent (s)
Through :-Mr. Sahil Bhardwaj, Advocate for R-1 to 3. Mr. Manuj Mahajan, Advocate for R-4
Coram: HON’BLE MR. JUSTICE SANJEEV KUMAR, JUDGE ORDER
1. This appeal by the New India Assurance Company Limited (hereinafter referred to as “the Insurer”) is directed against the award dated 17.10.2017 passed by the Motor Accident Claims Tribunal, Jammu (hereinafter referred to as “the Tribunal”) in file No. 287/C titled Asha Rani and others Vs. New India Assurance Co. Ltd. and others, whereby respondent Nos. 1 to 3 (hereinafter referred to as “the claimants”) have been held entitled to a compensation of Rs. 41,41,860/- on account of death of their predecessor in interest in a motor vehicular accident occurred on 03.01.2013 near Dak Bunglow, Pandorian, due to rash and negligent driving of the offending vehicle by its driver.
2. The deceased, namely, Ganesh Parsad was a Constable working in Central Police Reserved Force and as per the salary certificate issued by the employer, he was receiving a salary of Rs. 21,177/-. The claimants filed a claim petition seeking compensation against the owner and driver of the 2MA No. 33/2018
offending vehicle and also arrayed the Insurer as party respondents, which by virtue of contract of insurance, was liable to indemnify the owner and pay compensation to the claimants.
3. Before the Tribunal, the claim petition was contested by the appellant and on the basis of pleadings of the parties, three issues were framed by the Tribunal, which for facility of reference, are reproduced hereunder:-
1. Whether an accident took place on 03.01.2013 at about 5.00 p.m at near Dak Bungalow, Pandorian by rash and negligent driving of the vehicle bearing No. JK02L-4125 (Tipper) by its driver as a result of which deceased-Ganesh Parsad received fatal injuries and petitioner-Tanish Saini suffered grievous injuries? …OPP2.If issue No. 1 is proved in affirmative, whether the petitioners are entitled to compensation, if yes, to what amount and from whom? …OPP.
3. Whether the offending vehicle was being driven at the time of the accident in violation of terms and conditions of policy of insurance and respondent insurance company is not liable?
…OPR-1.
4. While the findings of the Tribunal on issue Nos. 1 and 3 are not disputed seriously by the appellant before this Court. However, the Insurer disputes the sums awarded to the claimants on account of Loss of Consortium and Loss of Love and Affection. It is submitted by Mr. Amrit Sarin, learned counsel for the appellant that while computing the compensation payable to the claimants, the Tribunal committed serious error by not following the law laid down in the Constitutional Bench Judgment rendered in the case of National Insurance Company Limited Vs. Pranay Sethi and others; 2017 (16) SCC 680.
3MA No. 33/2018
5.
5. Per contra, learned counsel for the claimants fairly conceded that the parameters for computing the compensation under Motor Vehicle Act, as laid down by the Supreme Court in the case of Pranay Sethi (supra) are required to be followed in the instant case and he will have no objection if the award is suitably modified to make it in consonance with the law laid down in the case of Pranay Sethi (supra).
6. Having heard learned counsel for the parties and perused the record, I am of the view that the compensation awarded by the Tribunal under conventional heads is not in consonance with the law laid down in the Constitutional Bench judgment of the Supreme Court in the case of Pranay Sethi (supra) and is, accordingly, modified in the following manner :-
7. However, in view of the amount awarded under the head „ Loss of Consortium‟, there would be no amount payable under the head „loss of love and affection to the children‟ for the amount paid under „Loss of Consortium‟ also takes care of this head. Total amount payable would, thus, be Rs. 39,61,860/-.
8. The appeal of the Insurance Company is, thus, allowed to the aforesaid extent and the award of the Tribunal is modified accordingly. Rest 4MA No. 33/2018
of the terms and conditions of the award as contained in the impugned award, however, shall remain unaltered.
9. Award amount, if any, deposited in the Registry, shall be released in favour of the claimants as per the terms of the award and subject to proper identification and verification of the parties and the amount in excess, if any, shall be refunded to the Insurer.
(Sanjeev Kumar)
Judge
Jammu 31.12.2019 Tarun
Whether the order is speaking? Whether the order is reportable?
Whether the order is speaking? Yes/No Whether the order is reportable? Yes/No .