THE ORIENTAL INSURANCE COMPANY LIMITED vs SMT. NAINTARA RAI
- Court
- Uttarakhand High Court
UKHC010018322013
UKHC010018322013
2026:UHC:9854
Reserved on 17.09.2026
Delivered on 29.10.2026
HIGH COURT OF UTTARAKHAND AT NAINITAL
Appeal From Order No. 350 of 2013
The Oriental Insurance Company Limited
--Appellant
Versus
Smt. Naintara Rai and Others
--Respondents
With
Appeal From Order No. 351 of 2013
The Oriental Insurance Company Limited
--Appellant
Versus
Smt. Nirmla and Others
--Respondents
--------------------------------------------------------------------------
Presence:-
Mr. I.P. Kohli, learned counsel or the appellant/Insurance
Company.
Mr. D.N. Sharma, learned counsel for the claimants.
Mr. Ashish Joshi, learned counsel for Uttarakhand Transport
Corporation/respondent no.4.
-------------------------------------------------------------------------
Per: Hon’ble Mr. Alok Mahra, J.
By means of the present appeals, preferred
under Section 173 of the Motor Vehicles Act, 1988
(hereinafter referred to as “the M.V. Act”), the
appellant–Insurance Company has challenged the
common judgment and award dated 09.07.2013
passed by the learned Motor Accident Claims
1
UKHC010018322013
UKHC010018322013
2026:UHC:9854
Tribunal, Udham Singh Nagar (hereinafter referred
to as “the Tribunal”), in Motor Accident Claim
Petition Nos. 68 of 2011 and 67 of 2011. By the
impugned judgment and award, compensation of
₹ 3,26,000/- and ₹ 4,34,000/-, respectively, has been
awarded in favour of the claimants in the two claim
petitions arising out of the same motor vehicle
accident.
2. Since both appeals arise out of the same
accident and involve common questions of fact and
law, they are being decided by this common
judgment. For the sake of convenience, the facts of
Appeal No. 351 of 2013 are being taken into
consideration.
3. The case of the claimants, in brief, is that
on 01.02.2011, the deceased persons, along with
their friends, Vijay Jaiswal and Vishal Giri, were
standing by the roadside on Nainital Road,
Haldwani, approximately three kilometres before
Bailbaba Temple. At about 11:00 a.m., bus No. UK-
04-PA-0226, allegedly being driven rashly and
negligently, struck them, resulting in grievous
injuries. The injured persons succumbed to their
injuries while being taken to the hospital. An FIR
was subsequently registered in connection with the
accident, and the claimants instituted separate claim
petitions seeking compensation on account of the
death of their respective sons.
2
UKHC010018322013
UKHC010018322013
2026:UHC:9854
4. The Uttarakhand Transport Corporation
contested the claim petitions, contending that the
accident had occurred due to the negligence of the
motorcyclist, who, while overtaking a truck,
approached the bus from the opposite direction at a
high speed and collided with it. The appellant–
Insurance Company also contested the claim
petitions, inter alia, on the grounds that the driver of
the bus did not possess a valid driving licence and
that the vehicle was being operated without a valid
route permit. On the basis of the pleadings of the
parties, the Tribunal framed issues concerning the
manner in which the accident occurred, the alleged
contributory negligence of the deceased, the validity
of the driving licence and route permit, and the
entitlement of the claimants to compensation.
5. The parties adduced oral and documentary
evidence in support of their respective cases. Upon
consideration of the pleadings and the evidence
brought on record, the Tribunal decided the material
issues in favour of the claimants and awarded
compensation of ₹ 3,26,000/- in one claim petition
and ₹ 4,34,000/- in the other. Aggrieved by the
findings recorded by the Tribunal and the quantum
of compensation awarded, the appellant–Insurance
Company has preferred the present appeals.
6. Learned counsel appearing for the
appellant–Insurance Company would submit that
3
UKHC010018322013
UKHC010018322013
2026:UHC:9854
the findings recorded by the Tribunal are contrary to
the evidence available on record. Referring to the
statement of DW-1, Satish Gupta, learned counsel
would contend that the motorcyclist approached the
bus from the opposite direction while overtaking a
truck and that the accident occurred due to the
negligence of the motorcyclist. It is further submitted
that the owner of the bus failed to produce a valid
route permit and that the vehicle was, therefore,
being operated in breach of the statutory
requirements of the M.V. Act and the conditions of
the insurance policy. Learned counsel would also
contend that the Tribunal erroneously applied a
multiplier of 18 and deducted only one-third of the
income towards personal and living expenses,
although the deceased were unmarried. On these
grounds, it is prayed that the impugned awards be
set aside or, in the alternative, suitably reduced.
7. Per contra, learned counsel appearing for
the Uttarakhand Transport Corporation would
submit that the bus was being operated on a notified
route and that, under the applicable statutory
scheme, the Corporation was not required to obtain
a separate permit for each individual bus. It is
further submitted that the accident occurred due to
the negligence of the motorcyclist and that the
findings recorded by the Tribunal do not suffer from
any illegality or perversity warranting interference by
4
UKHC010018322013
UKHC010018322013
2026:UHC:9854
this Court.
8. Learned counsel appearing for the
claimants would submit that the compensation
awarded by the Tribunal does not represent just
compensation, as the Tribunal failed to take future
prospects into consideration and did not award
appropriate amounts under the conventional heads,
including filial consortium, loss of estate and funeral
expenses. It is, therefore, contended that the
compensation requires reconsideration in
accordance with the principles laid down by the
Supreme Court.
9. In response, learned counsel for the
appellant–Insurance Company would submit that
the claimants have neither preferred independent
appeals nor filed cross-objections seeking
enhancement of compensation. It is contended that,
in appeals instituted by the Insurance Company for
reduction of the compensation awarded by the
Tribunal, the claimants cannot seek enhancement
merely by raising additional grounds in support of
their claim petitions.
10. Having heard learned counsel for the
parties and upon perusal of the material available on
record, the questions arise for determination: (i)
Whether the findings recorded by the Tribunal
regarding negligence and contributory negligence
warrant interference by this Court? (ii) Whether the
5
UKHC010018322013
UKHC010018322013
2026:UHC:9854
appellant–Insurance Company has established any
breach of the statutory requirements or the terms of
the insurance policy so as to avoid or limit its
liability in accordance with law? (iii) Whether the
compensation awarded by the Tribunal has been
determined in accordance with the principles laid
down by the Supreme Court for computation of
compensation in motor accident death claims? (iv)
Whether, and to what extent, the compensation can
be enhanced in the absence of an appeal or cross-
objections by the claimants?
11. The first question for consideration is
whether the Tribunal committed any error in
determining the issue of negligence and rejecting, if
so found, the plea of contributory negligence raised
by the Uttarakhand Transport Corporation. In a
claim arising out of a motor vehicle accident, the
Tribunal is required to assess the entire evidence
available on record to determine the manner in
which the accident occurred. A mere allegation that
a vehicle was being driven at a high speed or that its
driver was overtaking another vehicle is not, by itself,
sufficient to establish negligence. The surrounding
circumstances, the site plan, the nature and location
of the impact, the statements of the witnesses and
other contemporaneous material must be considered
together.
12. The burden of establishing contributory
6
UKHC010018322013
UKHC010018322013
2026:UHC:9854
negligence rests upon the party asserting it. The fact
that the deceased was involved in the accident does
not, by itself, establish that the deceased contributed
to its occurrence. There must be material
demonstrating that the conduct of the deceased also
contributed to the accident. Unless such
contribution is established from the evidence, the
compensation payable to the claimants cannot be
reduced merely on the basis of an allegation made by
the driver or conductor of the offending vehicle.
13. In the present case, the appellant–
Insurance Company has placed substantial reliance
upon the statement of DW-1, Satish Gupta, to
contend that the accident occurred due to the
negligence of the motorcyclist. However, the
evidentiary value of this statement is required to be
assessed in conjunction with the other evidence on
record. A finding recorded by the Tribunal on a
question of fact ordinarily does not call for
interference in appeal unless it is shown to be
contrary to the evidence, perverse or otherwise
legally unsustainable. The possibility of another view
being taken on the same evidence would not, by
itself, justify interference. Accordingly, the question
of negligence must be determined on the basis of the
evidence actually adduced before the Tribunal and
the reasons recorded in the impugned award. If the
Tribunal has considered the relevant evidence and
7
UKHC010018322013
UKHC010018322013
2026:UHC:9854
its finding is supported by the record, the appellant's
challenge on this ground cannot succeed merely
because the appellant seeks a different appreciation
of the evidence. On the contrary, if the finding
overlooks material evidence or is demonstrably
inconsistent with the record, interference would be
warranted to the extent justified by the evidence.
14. The next question concerns the alleged
absence of a valid route permit. Learned counsel for
the appellant–Insurance Company has contended
that the owner of the bus failed to produce a valid
permit and that such failure establishes a breach of
the statutory requirements and the insurance policy.
On the other hand, the Uttarakhand Transport
Corporation has contended that the bus was
operating on a notified route and was covered by the
applicable statutory scheme.
15. The mere non-production of a route permit
before the Tribunal does not, in every case,
conclusively establish that the vehicle was being
operated without lawful authority. Equally, the fact
that the vehicle belongs to a public transport
undertaking does not, by itself, establish that it was
exempt from the requirement of obtaining a permit.
The relevant statutory provisions, the nature of the
transport undertaking, the applicable notification or
scheme, and the terms of the insurance policy must
be examined to determine whether a permit was
8
UKHC010018322013
UKHC010018322013
2026:UHC:9854
required in the circumstances of the case.
16. It is well settled that the liability of an
insurer must be determined in accordance with the
provisions of the M.V. Act and the principles
governing the defences available to an insurer. The
existence of an alleged breach and the legal
consequence flowing from that breach are distinct
questions. The insurer must establish the statutory
defence on which it seeks to rely, and the
consequence of any established breach must be
determined in accordance with the applicable law.
Therefore, the liability of the appellant–Insurance
Company cannot be avoided merely on the basis of
an unsupported allegation regarding the absence of a
route permit.
17. In the present case, the plea of the
appellant–Insurance Company must be examined in
the light of the material relating to the route on
which the bus was being operated, the applicability
of any statutory exemption or notified scheme, and
the relevant insurance policy. Unless the evidence
establishes that the vehicle was required to possess
a permit and that a legally sustainable defence is
available to the insurer on account of its absence,
the insurer cannot be absolved of liability solely
because a permit was not produced. The ultimate
finding on this issue must, therefore, rest upon the
evidence and the applicable statutory provisions.
9
UKHC010018322013
UKHC010018322013
2026:UHC:9854
18. The next question relates to the
computation of compensation. The object of
awarding compensation under the M.V. Act is to
provide just and reasonable compensation to the
dependants of a person who has died in a motor
vehicle accident. Such compensation must be
determined by applying the settled principles
governing the assessment of income, future
prospects, personal and living expenses, the
appropriate multiplier and compensation under the
conventional heads. The computation must be fair,
consistent and supported by the evidence available
on record.
19. In Sarla Verma v. Delhi Transport
Corporation, (2009) 6 SCC 121, the Supreme Court
laid down the principles governing the selection of
the multiplier and the deduction towards personal
and living expenses. Subsequently, in National
Insurance Co. Ltd. v. Pranay Sethi, (2017) 16 SCC
680, the Supreme Court clarified the principles
governing the addition of future prospects and the
amounts payable under the conventional heads.
These principles are required to be applied while
determining the compensation payable in the
present cases, subject to the evidence concerning the
income, age and dependants of each deceased.
20. From the particulars set out in the draft of
the impugned awards, it appears that the annual
10
UKHC010018322013
UKHC010018322013
2026:UHC:9854
income of each deceased was assessed at ₹ 36,000/-
and that the deceased were unmarried and
approximately 21 and 22 years of age, respectively.
These particulars, however, must be verified from the
original awards and the evidence on record before
the compensation is finally determined.
21. In the case of an unmarried deceased, the
deduction towards personal and living expenses
would ordinarily be 50%, in accordance with the
principles laid down in Sarla Verma (supra), subject
to the facts and circumstances of the case. Where
the deceased falls within the relevant age bracket, a
multiplier of 18 would ordinarily be applicable.
Further, in accordance with Pranay Sethi (supra), an
addition of 40% towards future prospects is
ordinarily applicable where the deceased was below
40 years of age and was self-employed or earning a
fixed salary, subject to the applicable legal principles
and the evidence establishing the income. On the
assumption that the annual income of each deceased
was ₹ 36,000/-, the addition towards future
prospects at the rate of 40% would amount to
₹ 14,400/-. The annual income, inclusive of future
prospects, would accordingly be ₹ 50,400/-. After
deducting 50% towards personal and living
expenses, the annual contribution to the dependants
would be ₹ 25,200/-. Applying a multiplier of 18, the
loss of dependency would work out to ₹ 4,53,600/- in
11
UKHC010018322013
UKHC010018322013
2026:UHC:9854
respect of each deceased. The computation is set out
below:
Particulars Calculation Amount
Annual income — ₹ 36,000/-
Addition towards future prospects at 40% ₹ 36,000 × 40% ₹ 14,400/-
₹ 36,000 +
Annual income including future prospects
₹ 50,400/-
₹ 14,400
Deduction towards personal and living
₹ 50,400 × 50% ₹ 25,200/-
expenses at 50%
₹ 50,400 −
Annual contribution to dependants
₹ 25,200/-
₹ 25,200
Applicable multiplier — 18
Loss of dependency ₹ 25,200 × 18 ₹ 4,53,600/-
22. The aforesaid calculation is subject to
verification of the income and age of each deceased
from the original record and to the evidence
supporting the addition towards future prospects. It
is also necessary to determine the amount payable
under the conventional heads in accordance with the
binding principles applicable to the case.
23. In Pranay Sethi (supra), the Supreme
Court standardised the amounts payable towards
loss of estate, funeral expenses and loss of
consortium. The base amounts prescribed therein
₹ ₹
were 15,000/- towards loss of estate, 15,000/-
towards funeral expenses and ₹ 40,000/- towards
loss of consortium, subject to enhancement at the
rate of 10% every three years in accordance with the
judgment. The applicable amounts must be
determined by reference to the governing precedent
and the legally relevant date, rather than merely the
date on which the appeal is decided. In the case of
12
UKHC010018322013
UKHC010018322013
2026:UHC:9854
an unmarried deceased, the parents may be entitled
to filial consortium in accordance with Magma
General Insurance Co. Ltd. v. Nanu Ram, (2018) 18
SCC 130, subject to the facts of the case and the
eligibility of the claimants. The entitlement must be
determined with reference to the persons claiming
compensation and the applicable legal principles.
Consortium cannot be awarded to a person merely
because that person's name appears in the cause
title; the relationship and entitlement must be
established from the record.
24. For the purpose of illustrating the
computation, and assuming that both parents of
each deceased are eligible for filial consortium, the
conventional heads, at the base amounts stated
above, would be calculated as follows:
Particulars Calculation Amount
₹ ₹
Filial consortium to the mother 40,000 × 1 40,000/-
Filial consortium to the father ₹ 40,000 × 1 ₹ 40,000/-
Loss of estate — ₹ 15,000/-
Funeral expenses — ₹ 15,000/-
Total under conventional heads ₹ 1,10,000/-
25. On the aforesaid assumptions, the
illustrative computation of compensation in respect
of each deceased would be as follows:
Particulars Amount
Loss of dependency ₹ 4,53,600/-
₹ 1,10,000/-
Compensation under conventional heads
Total compensation ₹ 5,63,600/-
13
UKHC010018322013
UKHC010018322013
2026:UHC:9854
26. It is clarified that the aforesaid
computation represents the amount arrived at on the
stated assumptions. Before the amount is adopted
as the final compensation, the Tribunal's findings
concerning the income, age and dependency of each
deceased, the number of eligible claimants, the
amounts already awarded under the conventional
heads, and the applicable enhancement of those
amounts must be verified from the original record.
The same head of compensation cannot be awarded
twice, and any amount already granted under a
particular head must be duly accounted for.
27. Learned counsel for the appellant–
Insurance Company has relied upon Ranjana
Prakash v. Divisional Manager, (2011) 14 SCC 639,
to contend that the claimants cannot obtain
enhancement of compensation in the absence of an
independent appeal or cross-objections. The
submission requires consideration in the light of the
principles governing the powers of an appellate court
in appeals against motor accident compensation
awards. In Ranjana Prakash (supra), the Supreme
Court explained the distinction between permitting a
respondent to support an award on grounds other
than those relied upon by the Tribunal and
permitting the respondent to obtain an amount
higher than that awarded. Where the owner or
insurer challenges the quantum of compensation,
14
UKHC010018322013
UKHC010018322013
2026:UHC:9854
the claimants may ordinarily defend the award by
advancing grounds which support the amount
already granted. However, in the absence of an
appeal or cross-objections, they cannot ordinarily
seek an increase in the amount of compensation
merely by raising additional grounds in opposition to
the appeal.
28. At the same time, the jurisdiction of the
appellate court to determine just compensation must
be considered in the context of the statutory scheme
and the binding principles governing motor accident
claims. The beneficial object of the M.V. Act does
not, by itself, dispense with the procedural
requirements governing appellate relief. The Court
must determine whether the case warrants exercise
of any legally available appellate power to grant relief
beyond the specific prayer made by the claimants
and must record reasons for doing so.
29. Having considered the submissions
advanced by learned counsel for the parties and the
material available on record, this Court is of the view
that the challenge raised by the appellant–Insurance
Company requires consideration only to the extent of
determining whether the Tribunal has correctly
assessed the compensation payable to the claimants.
So far as the findings regarding negligence and
contributory negligence are concerned, no
interference is warranted unless the appellant
15
UKHC010018322013
UKHC010018322013
2026:UHC:9854
establishes that such findings are contrary to the
evidence on record or suffer from any perversity or
legal infirmity. Similarly, the plea regarding the
absence of a valid route permit cannot, by itself,
absolve the appellant–Insurance Company of its
liability unless the requirement of such permit, the
breach thereof and the legal consequences flowing
from such breach are established in accordance with
law.
30. As regards the quantum of compensation,
the Tribunal was required to assess the loss of
dependency by applying the principles laid down by
the Supreme Court in Sarla Verma v. Delhi
Transport Corporation, (2009) 6 SCC 121, and
National Insurance Co. Ltd. v. Pranay Sethi, (2017)
16 SCC 680. As per the particulars available in the
impugned awards, the annual income of each
deceased was assessed at ₹ 36,000/-, and their ages
were approximately 21 and 22 years, respectively. If
these particulars are confirmed from the original
record, the addition of 40% towards future
prospects, deduction of 50% towards personal and
living expenses, and application of a multiplier of 18
would result in a loss of dependency of ₹ 4,53,600/-
in respect of each deceased. The amount payable
under the conventional heads, including filial
consortium, loss of estate and funeral expenses,
would be governed by the applicable judgments of
16
UKHC010018322013
UKHC010018322013
2026:UHC:9854
the Supreme Court and the eligibility of the
claimants concerned.
31. The contention raised by learned counsel
for the appellant–Insurance Company that the
claimants have not preferred independent appeals or
cross-objections also requires consideration. In
Ranjana Prakash v. Divisional Manager, (2011) 14
SCC 639, the Supreme Court has explained that, in
the absence of an appeal or cross-objections, a
respondent may support the award on grounds other
than those accepted by the Tribunal.
32. In view of the foregoing discussion, both
appeals are partly allowed to the extent indicated
hereinabove. The challenge to the findings regarding
negligence and contributory negligence is rejected,
and the findings of the Tribunal on these issues are
maintained. The plea of the appellant–Insurance
Company regarding the absence of a valid route
permit is also rejected to the extent that no legally
sustainable ground has been established for
absolving the insurer of its liability.
33. The appellant–Insurance Company shall
deposit the amount payable under the modified
awards, after adjusting the amount, if any, already
deposited or paid, within a period of eight weeks
from the date of production of a certified copy of this
judgment before the Tribunal. Upon deposit, the
Tribunal shall disburse the amount to the eligible
17
UKHC010018322013
UKHC010018322013
2026:UHC:9854
claimants in accordance with law, after due
verification of their entitlement and identity. The
amount already deposited or paid to the claimants
shall be given due credit while calculating the
balance payable.
34. The record of both appeals shall be
consigned accordingly.
35. There shall be no order as to costs.
36. The statutory amount if any remitted back
to the learned Tribunal.
(ALOK MAHRA,J.)
29.10.2026
Mamta
18