Jammu & Kashmir High Court - Srinagar Bench
Reserved On: 26.03.202 vs Habibullah Dar And Others on 20 May, 2021
HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
....
CMAM no. 72/2013
Reserved on: 26.03.2021
Pronounced on: 20.05.2021
Oriental Insurance Co. Ltd.
....... Petitioner(s)
Through: Mr. N. H. Khuroo, Advocate
Versus
Habibullah Dar and others
........ Respondent(s)
Through: Mr. G. N. Sofi, Advocate
CORAM:
HON'BLE MR. JUSTICE VINOD CHATTERJI KOUL, JUDGE
JUDGMENT
1. Impugned in this Appeal is Award dated 21.01.2013, passed by Motor
Accident Claims Tribunal, Anantang (for short "Tribunal") on a Claim
petition bearing File no. 84/Claim Petition titled Habibullah Dar and
others v. Zahoor Ahmad Wagay and others, directing appellant
Insurance Company to pay compensation in the amount of
Rs.6,42,000/- along with 7.5% interest per annum from the date of
institution of claim till realization, on the grounds made mention of
therein.
2. A claim petition, as is discernible from perusal of the file, was filed by
respondents 1 to 5 before the Tribunal on 23.10.2009, averring therein
that one Nazir Ahmad Dar, aged 25 years, died in an accident, which
took place on 20.06.2006 near Akingam due to rash and negligent
driving of driver of offending vehicle (Bus), bearing Registration
no.JKE/3043, which was insured with appellant Insurance Company,
CMAM no.72/2013
Claimants/Respondent no. 3 sought compensation to the tune of
Rs.43,50,000/-.
3. Appellant Insurance Company resisted the claim before the Tribunal on
the ground that driver of offending vehicle had no valid licence at the
time of accident.
4. The Tribunal, in view of pleadings of parties, framed Issues for
determination, which are:
1) Whether on 20.06.2006 the respondent no.1 was driving vehicle bearing
Registration No. JKE-3043 rashly and negligently and because of such
rash and negligent driving, death of Nazir Ahmad Dar S/o Habibullah
took place? ...OPP
2) Whether the respondent no.1 was driving the said vehicle in violation of
the terms and conditions of insurance policy and was driving the same
without valid driving license? ...OPR3
3) Whether the petitioners are entitled to compensation on account of death
of deceased Nazir Ahmad Dar, if so to what extent and from whom?
...OPP
4) Relief.
5. Claimants produced and examined six witnesses before the Tribunal;
besides claimants/respondent no.3. Appellant Insurance Company did
not produce any witness in opposition to the claim petition.
6. By impugned Award, the Tribunal found claimants/respondents
entitled to receive compensation of Rs.6,42,000/- along with 7.5%
interest per annum.
7. Heard and considered.
8. Learned counsel for appellant Insurance Company has stated that the
Tribunal has erred not only in facts but also in law in directing the
company under the impugned award to pay awarded amount to
claimants/respondents 1 to 5 and thereafter seek recovery of paid
amount from respondent no.7, owner of the offending vehicle, as it has
been established by sufficient evidence that driver, respondent no.6,
was not holding a driving licence at the time of accident.
CMAM no.72/2013
As regards above submissions, Issue no.2 has been framed,
discussed and decided by the Tribunal. The Tribunal has in clear cut
terms observed that Insurance Company has proved through
documentary evidence that driver of offending vehicle was not in
possession of valid and effective driving licence at the time of accident
and accordingly right of recovery of awarded amount has been reserved
in favour of Insurance Company in appropriate proceedings.
9. The question, whether Insurance Company can be and ought to be
directed to pay claim amount, with liberty to recover the same from the
owner/driver of the vehicle, has been answered by the Supreme Court
in National Insurance Company Ltd v. Swaran Singh and others
(2004) 3 SCC 297, and recapitulated in Pappu and others v. Vinod
Kumar Lamba and others, (2018) 3 SCC 208. On the contention of
Insurance Company that once the defence taken by insurer is accepted
by Tribunal, it is bound to discharge insurer and fix liability only on
owner and/or driver of vehicle, the Supreme Court held that even if
insurer succeeded in establishing its defence, the Tribunal or the Court
could direct insurance Company to pay the award amount to claimant(s)
and, in turn, recover the same from owner of vehicle. The three-Judge
Bench of the Supreme Court in Swaran Singh (supra), after analysing
earlier decisions on the point, held that there was no reason to deviate
from the said well-settled principle. Having said that, impugned Award
does not warrant any interference and as a corollary thereof, Appeal on
hand is liable to be dismissed.
10.Next assertions of learned counsel for appellant Insurance Company is
that the tribunal has erred in facts as well as in law in awarding a
CMAM no.72/2013
compensation of Rs.6,42,000/- with interest at the rate of 7.5% in
favour of respondents 1 to 5 as the same is excessive keeping in view
the status of the deceased and those of claimants in the claim petition.
Above submission of learned counsel for appellant Insurance
Company has no force. The reason being that the Tribunal, while
deciding Issue no.3 qua computation of compensation, has
comprehensively discussed all facets of the matter. The Tribunal, while
computing compensation, relied upon the judgments passed in Sarla
Verma v. Delhi Transport Corporation, AIR 2009 SC 3104 , and only
thereafter granted compensation in the amount of Rs.6,42,000/-. In that
view of matter, impugned Award to the extent of compensation also
does not warrant any interference.
11.For the reasons discussed above, the Appeal on hand is dismissed with
connected CM(s). Interim direction, if any, shall stand vacated.
12.Record of the Tribunal, if summoned/received, be sent down along with
copy of this judgement.
(VINOD CHATTERJI KOUL)
JUDGE
Srinagar
20.05.2021
Imtiyaz
Whether approved for reporting? No
IMTIYAZ UL GANI
2021.05.21 00:13
I attest to the accuracy and
integrity of this document
