ORIENTAL INSURANCE COMPANY vs NARINDER KUMAR

High Court of H.P.
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.
1
Whether approved for reporting?   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?
::: Downloaded on - 30/07/2026 16:07:57 :::CIS

High Court of H.P.
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:
::: Downloaded on - 30/07/2026 16:07:57 :::CIS

High Court of H.P.
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
::: Downloaded on - 30/07/2026 16:07:57 :::CIS

High Court of H.P.
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.
::: Downloaded on - 30/07/2026 16:07:57 :::CIS

High Court of H.P.
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
::: Downloaded on - 30/07/2026 16:07:57 :::CIS

High Court of H.P.
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.
::: Downloaded on - 30/07/2026 16:07:57 :::CIS

High Court of H.P.
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
::: Downloaded on - 30/07/2026 16:07:57 :::CIS

High Court of H.P.
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.
::: Downloaded on - 30/07/2026 16:07:57 :::CIS

High Court of H.P.
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
::: Downloaded on - 30/07/2026 16:07:57 :::CIS

High Court of H.P.
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.
::: Downloaded on - 30/07/2026 16:07:57 :::CIS

High Court of H.P.
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?
::: Downloaded on - 30/07/2026 16:07:57 :::CIS

High Court of H.P.
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
::: Downloaded on - 30/07/2026 16:07:57 :::CIS

High Court of H.P.
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
::: Downloaded on - 30/07/2026 16:07:57 :::CIS

High Court of H.P.
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 case (supra), above two sisters are also
Birender’s
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.
::: Downloaded on - 30/07/2026 16:07:57 :::CIS

High Court of H.P.
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
::: Downloaded on - 30/07/2026 16:07:57 :::CIS

High Court of H.P.
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
”. Thus,
Delhi Transport Corportation, 2009 (6) SCC 121
::: Downloaded on - 30/07/2026 16:07:57 :::CIS

High Court of H.P.
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
::: Downloaded on - 30/07/2026 16:07:57 :::CIS

High Court of H.P.
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
::: Downloaded on - 30/07/2026 16:07:57 :::CIS

High Court of H.P.
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/
     ________________________________________________________
::: Downloaded on - 30/07/2026 16:07:57 :::CIS

High Court of H.P.
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.
::: Downloaded on - 30/07/2026 16:07:57 :::CIS

High Court of H.P.
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)
th
30 July, 2026 Judge
(Pramod Kumar)

::: Downloaded on - 30/07/2026 16:07:57 :::CIS