National Insurance Company ... vs Azmat Begum And Others
2021 Latest Caselaw 1041 j&K

      HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                      AT JAMMU
                                                   APCIV No.32/2017
                                                   IA Nos.1/2017 & 1/2018


National Insurance Company Limited              ...Appellant/Non-applicant(s)


                            Through:- Mr. Rajesh Kumar, Advocate


V/s


Azmat Begum and others                             ...Respondent/applicant(s)


                           Through:- Mr. R.K.Bhatia Advocate for R-8 & 9


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


                                   ORDER

1. Respondent Nos. 8 and 9 have filed the instant application seeking

re-hearing of the appeal (CIMA No.535/2010), which has been decided by

this Court in terms of judgment and order dated 21.12.2016.

2. Before coming to the merits of the instant application, let me give a

brief background of the facts leading to the filing of this application.

3. It appears that the claimants/respondent Nos. 1 to 7 herein filed a

claim petition against the appellant-Insurance Company and respondent

Nos. 8 & 9, applicants herein, before the Motor Accident Claims Tribunal,

Jammu claiming therein compensation on account of death of their kin,

namely, Mohd.Faiz Khan, who died in a road traffic accident, which took

place on 02.05.2004. At the relevant time, the offending vehicle bearing

Regd. No. JK13-1339, was being driven by applicant Mohd. Yousaf

whereas applicant Mohd. Yaqoob happened to be its owner. The vehicle in

question was insured with the appellant-Insurance Company at the relevant

time.

4. The applicants herein i.e. owner and driver of the offending vehicle

did not contest the claim petition and after the trial of the claim petition, the

Tribunal awarded compensation in the amount of Rs.3,39,000/- along with

interest @7.5% per annum in favour of the claimants to be payable by the

appellant-Insurance Company.

5. The aforesaid award dated 29.01.2010 passed by the Tribunal came

to be challenged by the appellant-Insurance Company before this Court by

way of an appeal registered as CIMA No.535/2010. A Single Judge of this

Court decided the said appeal vide judgment and order dated 21.12.2016.

The appeal was partly allowed and while upholding the quantum of

compensation awarded by the Tribunal in favour of the claimants, this

Court came to the conclusion that the driver of the offending vehicle was

not holding a valid and effective driving licence at the time of the accident

and as such, appellant-Insurance Company was entitled to recover the

awarded sum from the owner of the vehicle i.e. respondent No.8/applicant.

It is in these circumstances that the applicants have moved this application

seeking recall of the aforesaid order and judgment.

6. I have heard learned counsel for the parties and perused the record of

the case.

7. Learned counsel for the applicants has placed on record a copy of the

driving license of applicant-Mohd. Yousaf, which reflects that he was

authorized to drive a transport vehicle at the time of the accident and that

his driving licence was valid and effective. He has also placed on record

certificate of verification issued by the Assistant Regional Transport

Officer, Baramulla verifying the authenticity of the driving license of

applicant Mohd. Yousaf.

8. Thus, prima facie, it appears that the driver of the offending vehicle

was having a valid and effective driving licence as on the date of the

accident, but because the applicants did not put up their case either before

the Tribunal or before the appellate Court, as such, they were prevented

from placing these documents on record in order to establish that the driver

of the offending vehicle was holding a valid and effective driving licence at

the relevant time.

9. In the aforesaid circumstances, interests of justice demand that the

order dated 21.12.2016 passed by this Court to the extent it allows the right

of recovery to the appellant-Insurance Company against the applicant-

owner is recalled and a chance is given to him to establish before the

Tribunal that the driver of the offending vehicle was holding a valid and

effective driving licence as on the date of the accident.

10. Accordingly, the application is allowed to the aforesaid extent and

the case is remanded to the Motor Accident Claims Tribunal, Jammu with a

direction to afford an opportunity to the applicant/owner and the appellant-

Insurance Company to lead evidence in support of their respective

contentions as regards issue No.3 framed by the Tribunal, whereafter the

Tribunal shall, on the basis of evidence that may be led before it, pass a

fresh finding on the aforesaid issue and decide the claim petition

accordingly.

(Sanjay Dhar) Judge Jammu 06.09.2021 Vinod.

Whether the order is speaking :Yes Whether the order is reportable: Yes