Jammu & Kashmir High Court - Srinagar Bench
Bajaj Allianz General Insurance ... vs Bashir Ahmad Mir And Others on 20 May, 2021
HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
....
MA No. 32/2018
Reserved on: 22.3.2021
Pronounced on:20.05.2021
Bajaj Allianz General Insurance Co.
....... Appellant(s)
Through: Mr. Imtiyaz Ahmad, Advocate
Versus
Bashir Ahmad Mir and others
........ Respondent(s)
Through: Mr M. Altaf Khan, Advocate
Mr Bilal A. Malla, Advocate
CORAM:
HON'BLE MR. JUSTICE VINOD CHATTERJI KOUL, JUDGE
JUDGMENT
1. Impugned in this Appeal is Award dated 03.02.2018, passed by Motor
Accident Claims Tribunal, Srinagar (for short "Tribunal") on a Claim
Petition, being File no. 98 of 2012, titled as Bashir Ahmad Mir and
another v. Ghulam Hassan Dar and others, directing appellant
Insurance Company to pay compensation in the amount of
Rs.39,94,411/- along with 6% 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&2 before the Tribunal on. 27.04.2012, averring therein
that deceased Sajad Bashir Mir aged 26 years, died in an accident,
which took place on 18.01.2012 at Bemina Byepass Crossing, due to
rash and negligent driving of driver of offending vehicle, bearing
MA no.32/2018
Registration no.JK03B/3642, which was insured with appellant
Insurance Company. Claimants/Respondents sought compensation to
the tune of Rs. 54,00,000/-.
3. Appellant Insurance Company resisted the claim before the Tribunal.
4. The Tribunal, in view of pleadings of parties, framed Issues for
determination, which are:
a) Whether on 18.01.2012 a vehicle (Truck) bearing regd. No.
JK03B/3642 being driven by respondent No. 2 rashly and negligently
and on reaching near Bemina Bye Pass Crossing, the driver of the
offending vehicle lost control over his vehicle and struck against an
Alto Car which was coming from Tatoo Ground towards Parimpora,
with the result the deceased namely Sajad Bashir Mir, who was
travelling in the said Alto Car sustained multiple fatal injuries on
various parts of his body and later-on succumbed to the injuries.?
(OPP)
b) Whether the owner of the offending vehicle, insured has permitted
the driver to ply the said vehicle without valid, effective D/L and other
vehicular documents and any special endorsement for carrying
passengers which is violation of policy conditions, if yes, the insured
has committed the breach of insurance contract absolved respondent
No. 3-Insruance Company from its liability on account of petitioners
claim ? (OPR-3)
c) In case the issue No. 1 is proved in affirmative, to what amount of
compensation the petitioners are entitled to, from whom and in what
proportion.? OPP
d) Relief?
5. Claimants produced and examined four witnesses before the Tribunal;
besides claimants/respondent no.3. Appellant Insurance Company also
produced one witness in support of its stand.
6. By impugned Award, the Tribunal found claimants/respondents
entitled to receive compensation of Rs.39,94,411/- along with 6.5%
interest per annum to be paid by appellant Insurance Company.
7. Heard and considered. The Tribunal record has been gone through.
8. Learned counsel for appellant Insurance Company, to buttress the case
set up in Appeal on hand, has averred that the Tribunal has erred in
passing impugned Award since offending vehicle was driven by
MA no.32/2018
respondent-driver, having learner's licence at the time of accident,
which was in contravention to Rule 3 of Central Motor Vehicle Rules
and Motor Vehicles Act inasmuch as the same expressly makes it
necessary for owners of vehicles to allow the vehicle to be driven by a
driver possessing a valid and effective driving licence and non-
existence of valid and effective driving licence has the effect of vitiating
the terms and conditions of policy contract which goes to the root of
insurance contract and, therefore, liability on account of such breach
has to be borne by the owner. It is also contended that the Tribunal
while passing impugned award has not appreciated the law correctly.
Possession of invalid driving licence by driver of offending vehicle at
the time of accident is a breach of policy conditions and against
provisions of the Motor Vehicle Act.
Above submission of learned counsel for appellant has been
vehemently controverted by learned counsels for respondents as
according to them contention qua Learner's Licence had neither been
taken by appellant Insurance Company before the Tribunal nor any
evidence led by it to suggest that there was no 'L' sign on offending
vehicle or nobody accompanied driver of offending vehicle. It is
strenuous averment of learned counsel for respondent that driver of
offending vehicle was holding an effective and valid driving licence.
Though there is substance in the contention of learned counsels
for respondents, yet the Tribunal was required to deliberate upon,
discuss and decide Issue no.2 vis-à-vis valid and effective driving
licence of driver of offending vehicle, in detail, which, however, is
MA no.32/2018
missing in the present case. So, the Tribunal is required to discuss
comprehensively Issue no.2 and come up with lucid finding thereabout.
To this extent impugned Award is liable to be set-aside.
9. Another contention of learned counsel for appellant is that quantum of
compensation awarded by the Tribunal is exorbitant, arbitrary and
unjust. The multiplier is stated to have not been applied properly. It is
also his submission that in case of death of bachelor, the multiplier of
parent is to be applied. The award of compensation is not within the
four corners of law and the schedule contained in the Motor Vehicle
Act.
Above submission of learned counsel for appellant Insurance
Company is misconceived. 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 relied
upon the judgment rendered by the Supreme Court in Sarla Verma v.
Delhi Transport Corporation, ACJ 2009 1298, and National Insurance
Company v. Pranay Sethi, AIR 2017 SC 5157 and only thereafter
granted compensation in the amount of Rs.39,94,411/-. In that view of
matter, impugned Award to the extent of compensation does not
warrant any interference.
12. For the foregoing reasons, the Appeal on hand is partly allowed and the
Award dated 03.02.2018, passed by Motor Accident Claims Tribunal,
Srinagar on a Claim Petition, being File no. 98 of 2012, titled as Bashir
Ahmad Mir and another v. Ghulam Hassan Dar and others, is set-aside
to the extent of Issue No.2 (viz. whether owner of the offending vehicle,
MA no.32/2018
insured has permitted driver to ply the said vehicle without valid, effective D/L and
other vehicular documents and any special endorsement for carrying passengers
which is violation of policy conditions, if yes, the insured has committed the breach
of insurance contract absolved respondent no.3 - insurance company from its
liability on account of petitioners claim). The matter is remanded back to the
Tribunal to decide afresh the claim petition with reference to validity
of driving licence of driver of offending vehicle (i.e., Issue no.2) after
considering all aspects of the matter and after taking all steps that may
be warranted therefor, including summoning of witnesses. Obviously,
outcome thereof shall also decide payment of compensation either to
be made by Insurance Company or owner of offending vehicle and to
this extent the Issue, framed by Tribunal, is also to be decided by the
Tribunal.
13. Disposed of in terms of above.
14. Record of the Tribunal be sent down along with copy of this judgement.
15. Parties shall appear before the Tribunal on 21st June 2021.
(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
