United India Insurance Co. Ltd vs Mohammad Subhan Bhat & Ors
2021 Latest Caselaw 1327 j&K/2

                                                                               Sr. No.9 - 10
                                                                               Advance List


                                 HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                                                 AT SRINAGAR

                                        CM No.3008/2021 in CMAM No.34/2014
                                        CM No.2170/2021 in CMAM No.35/2014


                           United India Insurance Co. Ltd.                  ...APPELLANT(S)

                           Through: - Mr. N. A. Dandru, Advocate.

                           Vs.

                           Mohammad Subhan Bhat & Ors.                    ...RESPONDENT(S)
                           Through: - Mr. Z. A. Shah, Sr. Adv. with
                                      Mr. Syed Musaib, Advocate.


                           CORAM:      HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE


                                                              ORDER

27.10.2021

1) Applicants Ms. Zahida and Ghulam Nabi Bhat have filed above

numbered two separate applications seeking modification/recall of

judgment and order dated 02.07.2020 passed by this Court in CMAM

No.34/2014 and CMAM No.35/2014, to the extent the appellant-

insurance company has been given right to recover the awarded sum

from the legal heirs of Fayaz Ahmad Bhat, applicants herein, after its

payment to the claimants.

2) Briefly stated the facts giving rise to the filing of these

applications are that two claim petitions came to be filed by

dependents/legal heirs of two deceased, namely, Mohammad Ayoub MOHAMMAD ALTAF BHAT 2021.11.02 17:04 I attest to the accuracy and integrity of this document

Bhat and Shakeel Ahmad Baba who were travelling in a Maruti car

bearing No.CH-01-V/1342 that was being driven by Fayaz Ahmad Bhat

at the time of the occurrence. These claim petitions were allowed by

the Motor Accident Claims Tribunal, Srinagar ( for short 'the Tribunal')

vide a common award dated 08.10.2013 and compensation in the

amount of Rs.15,60,816/ along with interest @6% was awarded in

favour of dependents/legal heirs of deceased Mohammad Ayoub Bhat

whereas a sum of Rs.13,37,904/ along with interest @6% was awarded

in favour of dependents/legal heirs of deceased Shakeel Ahmad Baba.

3) The aforesaid award of Tribunal came to be challenged by way

of two separate appeals before this Court by the insurance company.

The two appeals were decided by a common judgment passed by this

Court on 02.07.2020. While upholding the quantum of compensation

awarded by the Tribunal in favour of the claimants, this Court observed

that there has been a breach of policy conditions on the part of the

insured and, as such, the appellant-insurance company, after

reimbursing the awarded sum to the claimants, has a right to recover

the same from the legal heirs of the deceased owner.

4) In the instant case, the applicants, who happened to be

respondents No.7 and 8 in the appeal(s), have contended that the vehicle

in question did not belong to their predecessor-in-interest i.e., Fayaz

Ahmad Bhat but the same was registered in the name of M/S

Endowment Plantations Ltd. SCO 423-424 Sector 35-C, Chandigarh.

According to the applicants, it is only the registered owner who is MOHAMMAD ALTAF BHAT 2021.11.02 17:04 I attest to the accuracy and integrity of this document

legally obliged to pay compensation to the claimants and not someone

else who is not the owner of the offending vehicle. To buttress the

contention that the vehicle is registered in the name of M/S Endowment

Plantations Ltd., the applicants have placed on record a photocopy of

the registration certificate of the vehicle in question.

5) I have heard learned counsel for the parties and perused the

record of the case.

6) A perusal of the record shows that before the Tribunal as well as

before the Appellate Court, respondents No.7 and 8/the applicants

herein, were impleaded as parties to the proceedings in their capacity

of legal heirs of owner of the vehicle. These respondents/applicants did

not contest the claim petitions nor did they contest the appeals and they

were set exparte. In the face of the fact that there was no rebuttal to the

contention that the respondents/applicants happen to be the legal heirs

of deceased owner, namely, Fayaz Ahmad Bhat, both the Tribunal as

well as this Court in appeal presumed that Fayaz Ahmad Bhat was the

owner of the vehicle in question and the applicants represented his

estate.

7) The applicants have now placed on record a copy of the

Registration Certificate of the vehicle that was involved in the accident.

This document, as already noted, reveals that the vehicle in question is

registered in the name of M/S Endowment Plantations Ltd. Copy of the

insurance policy which was also on record of the Tribunal reveals the

MOHAMMAD ALTAF BHAT 2021.11.02 17:04 I attest to the accuracy and integrity of this document

name of the insured as Endowment Plantations C/o Fayaz Ahmad Bhat.

These documents, prima facie, show that the vehicle in question was

registered in the name of Endowment Plantations Ltd. Mere writing of

C/O Fayaz Ahmad Bhat may not be enough to presume that he was

registered owner of the vehicle unless it is shown that the said Fayaz

Ahmad Bhat was the Director or some other functionary of the

company M/S Endowment Plantations Ltd. In order to ascertain this

fact and to determine the merits of contention of the applicant that Late

Fayaz Ahmad Bhat had nothing to do with M/S Endowment Plantations

Ltd., an enquiry is required to be held by the Tribunal. If after holding

such enquiry, it is shown that M/S Endowment Plantations Ltd., was

the actual registered owner at the time when the occurrence took place,

the said company has to be afforded an opportunity of hearing before

saddling it with liability to reimburse the insurance company.

8) In view of what has been discussed hereinabove, the case is

remanded back to the Tribunal to the limited extent of holding an

enquiry as to who was the registered owner of the vehicle in question

at the time of the occurrence and in case it is found that the registered

owner of the vehicle was any person other than the predecessor-in-

interest of the applicants, he/it shall be afforded an opportunity of

hearing to contest the claim petition to the limited extent of establishing

that there was no breach of policy conditions in the instant case.

9) Upon holding the aforesaid enquiry, the Tribunal shall be free to

pass appropriate orders as regards the liability to reimburse the MOHAMMAD ALTAF BHAT 2021.11.02 17:04 I attest to the accuracy and integrity of this document

insurance company. Till such time enquiry is completed by the Tribunal

and a finding as to the liability is recorded by it, no recovery of the

amount of compensation paid by the insurance company to the

claimants shall be made from the applicants herein. The judgment and

order 02.07.2020 passed by this Court in the aforesaid appeals shall

stand modified to the aforesaid extent.

10) A copy of this order be sent to the Tribunal for information and

compliance.

(Sanjay Dhar) Judge

Srinagar 27.10.2021 "Bhat Altaf, PS"

                                              Whether the order is speaking:       Yes/No
                                              Whether the order is reportable:     Yes/No




MOHAMMAD ALTAF BHAT
2021.11.02 17:04
I attest to the accuracy and
integrity of this document