United India Insurance Co. Ltd vs Farooq Ahmad Ahanger And Others
2021 Latest Caselaw 1243 j&K/2

               HIGH COURT OF JAMMU AND KASHMIR
                         AT SRINAGAR
                              ....
                             CMAM no.155/2017

United India Insurance Co. Ltd.
                                                              ....... Appellant(s)

                                  Through: Mr. Shabir A. Kanth, Advocate

                          Versus

Farooq Ahmad Ahanger and others
                                                            ........ Respondent(s)

                                  Through: None

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

                                   ORDER

06.10.2021

1. Challenge in this Appeal is thrown to the Award dated 25.11.2016, passed by

Motor Accident Claims Tribunal, Srinagar (for short "Tribunal") on a Claim

petition, bearing File no.168, titled Farooq Ahmad Ahanger v. United India

Insurance Company and others, directing appellant Insurance Company to

pay compensation in the amount of Rs.1,30,000/- along with 6% interest per

annum from the date of institution of claim petition till realization, on the

grounds made mention of therein.

2. A claim petition, as is discernible from perusal of the file, was filed by

respondent no.1 before the Tribunal on 27.09.2008, averring therein that on

25.07.2008, driver of offending vehicle while driving the vehicle from Tral

and going towards Satura in a rash, negligent and carless manner tried to run

away from a check post to avoid paying tax, as a result whereof, he got hit by

police of the check post and fell down, leaving him critically injured and that

Page 1 CMAM No.155/2017 due to accident he got disabled and is not in a position to do his routine work.

Claimant/Respondent no. 1 sought compensation in the amount of

Rs.13,40,000/-.

3. Appellant Insurance Company resisted the claim before the Tribunal on the

ground that driver of offending vehicle had no valid driving licence at the

time of accident and offending vehicle was being driven against terms and

conditions of insurance company.

4. The Tribunal, in view of pleadings of parties, framed following Issues for

determination, which are:

1) Whether on 25.07.2008, the petitioner travelling in bus no.JK13/1413 from Tral to Satura on reaching near check post in order to avoid the payment of toll tax drove the vehicle rashly and negligently with the result hit the pole of the check post due to which the roof of the offending bus fell on the petitioner? OPP

2) Whether the respondent insured engaged respondent driver with invalid/ ineffective DL and other vehicular documents knowingly which fundamentally contributed to the cause of accident, if yet, the insured has violated the insurance contract absolving the insurer from its liability? OPR-Company

3) Whether the petitioner was travelling unauthorizedly on the roof of the offending vehicle, if yes, the insurer has not received any premium covering the passengers travelling on the roof top of the offending vehicle, there insurer is not liable to indemnify the insured owner? OPR-Company

4) In case issue No.1 is proved in affirmative, to what amount of compensation the petitioner is entitled to, from whom and in what proportion? OPP

5) Relief

5. Claimant/respondent no.1 produced and examined two witnesses before the

Tribunal besides himself. Appellant Insurance Company produced and

examined two witnesses.

6. By impugned Award, the Tribunal found claimant/respondent no.1 entitled

to receive compensation of Rs.1,30,000/- along with 6% interest.

7. I have heard learned counsel for appellant. I have gone through the memo of

Appeal as also Tribunal record and considered the matter.

Page 2 CMAM No.155/2017

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 Insurance

Company to pay the awarded amount to claimant/respondent no.1 as the

evidence led by it unambiguously demonstrated that PSV endorsement was

not made in driving licence and driving licence was valid from 19.11.1984 to

18.11.1987 and was not renewed on the alleged date of accident. 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.

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 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. 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.4

qua computation of compensation, has comprehensively discussed all facets

of the matter. The Tribunal relied upon the judgment rendered by the

Page 3 CMAM No.155/2017 Supreme Court in Raj Kumar v. Ajay Kumar (2011) 1 SCC 343 and only

thereafter granted compensation in the amount of Rs.1,30,000/-. 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 25.11.2016, passed by Motor Accident Claims Tribunal,

Srinagar on a Claim Petition, being File no.168, titled as Farooq Ahmad

Ahanger v. United India Insurance Company Limited and others, is set-aside

to the extent of Issue No.2 (viz. whether the respondent insured engaged respondent

driver with invalid/ineffective DL and other vehicular documents knowingly which

fundamentally contributed to the cause of accident, if yes, the insured has violated the

insurance contract absolving the insurer from its liability). 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 24th November 2021.

(Vinod Chatterji Koul) Judge Srinagar 06.10.2021 "Imtiyaz"

Whether approved for reporting? Yes/No

Page 4 IMTIYAZ UL GANI CMAM No.155/2017 2021.11.08 14:14 I attest to the accuracy and integrity of this document