Bajaj Allianz Insurance Co. Ltd vs Ishtiyaq Ahmad Sheikh And Others
2021 Latest Caselaw 586 j&K/2

             HIGH COURT OF JAMMU AND KASHMIR
                         AT SRINAGAR
                               ....
                 MA no. 25/2019 [Mac. App. 17/2019]
                       c/w MA no. 26/2019

                                                     Reserved on: 27.04.2021
                                                  Pronounced on: 25.05.2021

Bajaj Allianz Insurance Co. Ltd.
                                                           ......... Appellant(s)

                             Through: Mr. Imtiyaz Ahmad, Advocate

                          Versus

Ishtiyaq Ahmad Sheikh and others
                                                         ..........Respondent(s)

                            Through: Mr. Mohammad Altaf Khan, Advocate

CORAM:
    HON'BLE MR. JUSTICE VINOD CHATTERJI KOUL, JUDGE

                                JUDGMENT

1. Appeals on hand have been, by Order dated 18th September 2020, directed to be listed together as these arise out of same accident having taken place on 21.04.2014 at Lawaypora, Baramulla.

2. Let me first take up and decide Appeal - MA. No.25/2019. MA no.25/2019

3. Impugned in this Appeal is Award dated 31.07.2018 passed by Motor Accident Claims Tribunal, Srinagar (for short "Tribunal") on a Claim petition (File no. 96 of 2013) titled as Ishtiyaq Ahmad Sheikh and others v. Bashir Ahmad Dar and others, directing appellant Insurance Company to pay compensation in the amount of Rs.4,60,000/- along with 6.5% interest per annum from the date of institution of claim till realization, on the grounds made mention of therein.

4. A claim petition, as is discernible from perusal of the file, was filed by respondents 1 to 6 before the Tribunal on 11.05.2013, averring therein that deceased Mohammad Subhan Sheikh aged 59 years, died in an accident, which took place on 21.4.2013 at Lawaypora, Baramulla,

MA no. 25/2019 c/w MA no. 26/2019

NHM due to rash and negligent driving of driver of offending vehicle (Xylo Cab), bearing Registration no. JK05B/4106 which was insured with appellant Insurance Company.

5. Appellant Insurance Company resisted the claim before the Tribunal. Driver and owner of offending vehicle did not appear in the matter and, therefore, were set ex parte by the Tribunal.

6. The Tribunal, in view of pleadings of parties, framed following Issues for determination, which are:

a) Whether on 21.04.2013 a vehicle (Xylo) bearing regd. No.JK05B- 4106 being driven by respondent no. 4 very rashly and negligently and on reaching Lawaypora, Baramulla NHW, the driver lost control over his vehicle and has struck again pedestrian namely Mohammad Subhan Sheikh (hereinafter deceased) who was walking on the correct side of the road, causing thereby multiple fatal grievous injuries to the deceased and later-on he succumbed to the injuries in the SKIMS Hospital, Bemina? (OPP)

b) Whether the owner of the offending vehicle insured has permitted the driver respondent no. 4 to ply the said vehicle without valid, effective D/L and other vehicular documents 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? (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?

7. Claimants produced and examined besides petitioner no. 1, two witnesses before the Tribunal; besides claimants/respondent no.03. Appellant Insurance Company produced one witness, namely, Jahangir Hussain, Law Officer, in support of its stand.

8. By impugned Award, the Tribunal found claimants/respondents entitled to receive compensation of Rs.4,60,000/- along with 6.5% interest per annum.

9. Heard and considered.

10.Learned counsel for appellant Insurance Company has stated that the Tribunal erred in passing impugned Award. The vehement ground urged during the course of argument by learned counsel for appellant Insurance Company is that driver of offending vehicle was not holding driving licence, which fact was proved by appellant-Insurance Company, but the Tribunal has wrongly held that appellant was to

MA no. 25/2019 c/w MA no. 26/2019

produce evidence which it had failed to prove that driver was not holding the licence. It is contended that evidence produced by Insurance Company was sufficient to prove that driver was not holding licence inasmuch as charge sheet produced against accused-driver also charged him with offence punishable under Section 3/181 of the Motor Vehicle Act, and, therefore, it was for driver and owner of offending vehicle to have produced licence before the Tribunal. It is contended that driver was not holding driving licence because of the fact that driver and owner of offending vehicle did not contest the claim and did not produce any evidence showing that driver engaged by owner to drive offending vehicle was having valid licence. Insurance company by producing official witness, Law Manager, Jahangir Hussain of the Insurance Company, who stated that driver was not having licence as charge sheet filed against him, charged him with offence punishable under Section 3/181 of M. V. Act, which was sufficient to discharge the onus and it was owner and driver to establish the same. It is also averred that since there is no evidence produced by the Owner or Driver nor any document produced by them, as such, Tribunal was wrong in holding that Insurance Company has failed to prove that driver was holding valid driving licence.

11.Above contentions of appellant Insurance Company are to be analysed in close proximity to the contents of impugned Award. Whether driver of offending vehicle was possessed of effective and valid driving licence when accident took place, was an Issue, being Issue no.2, framed by the Tribunal. Let me go through impugned Award, particularly pertinent excerpt thereof, where Issue no.2 the Tribunal has discussed and adjudicated upon, aiming at squaring off the argument qua validity of driving licence and setting at rest controversy in hand.

12.It is true that the onus to prove Issue no.2 was upon appellant Insurance Company. Appellant discharged its onus by producing witness, Jahangir Hussain, Law Officer, whose statement recorded before the Tribunal, is that driver of offending vehicle was not holding driving licence at the time of accident. The said statement, the witness based

MA no. 25/2019 c/w MA no. 26/2019

upon the fact that driver of offending vehicle was charge sheeted by police for accident in question and in the report of investigation, offences punishable under Section 3/181 of Motor Vehicles Act, were established. The report of investigation also shows that driver was driving the vehicle at that time without licence. This statement of witness produced by appellant Insurance Company remained unrebutted and was, thus, sufficient to discharge the onus. It was for owner as well as driver of offending vehicle, who have chosen not to contest the claim, to produce driving licence and prove that driver was holding valid and effective driving licence to drive the vehicle. By remaining absent and not contesting the claim of Insurance Company, it stands proved that driver was not holding licence at the time of accident. The appreciation of evidence by the Tribunal is against the rule of evidence because once the onus was discharged by Insurance Company, the onus shifts to driver/owner of offending vehicle but they failed to discharge the said onus. The finding on Issue no.2 is, accordingly reversed and is decided in favour of appellant Insurance Company and against owner of offending vehicle. However, at the first instance, appellant Insurance Company shall pay award amount with a right to recover the same from owner of offending vehicle.

13.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 reiterated 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

MA no. 25/2019 c/w MA no. 26/2019

decisions on the point, held that there was no reason to deviate from the said well-settled principle.

14.For the foregoing reasons, the Appeal on hand is allowed and the Award dated 31.07.2018 passed by Motor Accident Claims Tribunal, Srinagar on a Claim petition (File no. 96 of 2013) titled as Ishtiyaq Ahmad Sheikh and others v. Bashir Ahmad Dar and others, is set-aside to the extent of Issue No.2 (viz. whether the owner of the offending vehicle insured has permitted the driver respondent no.4 to ply the said vehicle without valid, effective DL and other vehicular documents which is violation of policy condition, 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). Appellant Insurance Company shall pay, if not already paid,

award amount along with interest as given by the Tribunal, to claimants/respondents. However, appellant Insurance Company shall have a right to recover the same from owner of offending vehicle.

15.Disposed of in terms of above.

MA no.26/2019

16.Challenge in this Appeal is thrown to Award dated 31.07.2018, passed by the Tribunal, on a claim petition, bearing File no.178 of 2013 titled Mst Maymoona Alias Mahie v. Bashir Ahmad Dar and others, by which appellant Insurance Company has been fastened with the liability of making payment of compensation in the amount of Rs.58,700/- along with 6.5% interest to claimant/respondent, on the grounds mentioned therein.

17.In this Appeal, the same grounds, averments and assertions have been taken as had been taken in above appeal (MA no.25/2019), so need not be ingeminated here again.

18.Thus, for the reasons discussed herein before, the Appeal on hand is allowed and the Award dated 31.07.2018 passed by Motor Accident Claims Tribunal, Srinagar on a Claim petition (File no.178 of 2013) titled as Mst Maymoona Alias Mahie v. Bashir Ahmad Dar and others, is set-aside to the extent of Issue No.2 (viz. whether the respondent no.4 driver was permitted b y respondent no.1 owner knowingly to ply the vehicle with invalid and ineffective D/L along with other vehicular documents on the material

MA no. 25/2019 c/w MA no. 26/2019

date of accident, if yes, the insured has committed breach of policy stipulations absolved the respondent company from its liability on account of petitioner's claim). Appellant Insurance Company shall pay, if not already paid,

award amount along with interest as given by the Tribunal, to claimant/ respondent. However, appellant Insurance Company shall have a right to recover the same from owner of offending vehicle.

19.Disposed of as above.

20.Record of the Tribunal be sent down along with copy of this judgement.

(VINOD CHATTERJI KOUL) JUDGE Srinagar 25.05.2021 Imtiyaz Whether approved for reporting? Yes/No.

IMTIYAZ UL GANI 2021.05.27 00:01 I attest to the accuracy and integrity of this document