Sushma Verma vs Garo Devi Alias Poli And Others
2022 Latest Caselaw 596 j&K

     HIGH COURT OF JAMMU AND KASHMIR AND LADAKH
                      AT JAMMU

                                                    Reserved on 14.02.2022
                                                    Pronounced on 11.04.2022


                                                   MA No. 253/2008(O&M)

Sushma Verma                                      .....Appellant(s)/Petitioner(s)


                     Through: Mr. Karan Sharma, Advocate
                vs
Garo Devi alias Poli and others                               ..... Respondent(s)
                     Through: Mr. Udhay Bhaskar, Advocate

Coram: HON'BLE MR. JUSTICE RAJNESH OSWAL, JUDGE
                                  JUDGMENT

1. This appeal was filed by the predecessor in interest of the appellants, who

was the owner of the offending vehicle, against the award dated

30.07.2008 passed by the Motor Accidents Claims Tribunal, Jammu in

claim petition bearing No. 457/Claim, tilted, Garo Devi and others vs

National Insurance Company Ltd and others by virtue of which

compensation of Rs. 8, 94,000/- lacs along with interest at the rate of

7.5% per annum from the date of filing of the petition has been awarded

to the claimants/respondent Nos. 1 to 3. The respondent No.4 was directed

to satisfy the award with liberty to recover from the owner of the

offending vehicle.

2. The appeal has been filed primarily on the ground that the learned

Tribunal has wrongly granted the liberty to the respondent No. 4 for

recovery of amount awarded in favour of the claimants/respondents, from

the Appellant(s). It is averred by the appellant(s) that it is not possible for

an owner to hold an enquiry that the driving license of the driver was fake

and further that no opportunity was granted to the appellant to lead

evidence in rebuttal as after the completion of summer holidays in the

court, the work of the court remained paralyzed due to strike by the

general public as well as by the advocates, as such, the appellant could not

keep track of the proceedings of the case and was not aware of the fate of

the application for leading its evidence due to constant strikes by the

transporters and imposition of curfew in the Jammu city. It is further

stated that the date of decision itself reveals that the said order has been

passed on 30.07.2008 at a time when there was a total strike in the Jammu

City and also by the Advocates, which continued till the end of August,

2008.

3. Mr. Karan Sharma, learned counsel for the appellant has vehemently

argued that the learned Tribunal has erred in granting the liberty to

recover the amount of compensation awarded in favour of the

respondents/claimants from the appellant-Insurance Company as the

original appellant had engaged the driver on the basis of license shown to

him by respondent No. 5 and it was not possible for the original appellant

to hold an enquiry so as to find out whether the license was fake or valid.

Mr. Karan Sharma, learned counsel for the appellant submitted that due to

Amarnath land agitation in the month of July, 2008, the deceased

appellant could not keep the track of his case and as such, his evidence

was closed.

4. Per contra, Mr. Udhay Bhaskar, learned counsel appearing for the

Insurance Company has vehemently submitted that once the driver of the

offending vehicle is not having a valid license, the Insurance Company

cannot be saddled with any responsibility for payment of compensation.

He further submitted that the liberty granted to the respondent No. 4 to

recover the amount from the appellant cannot be interfered with,

particularly when the license was proved to be fake.

5. Heard and perused the record.

6. The facts necessary for disposal of the present appeal are that the

respondent Nos. 1 to 3 filed a petition for grant of compensation on

account of death of Rashpal Chand, who was the husband of respondent

No. 1, father of respondent No. 2 and son of respondent No. 3. The said

Rashpal Chand died in a vehicular accident on 07.12.2001 at about 6.45

PM when the Maruti Van bearing registration No. JK02 0101 being rashly

and negligently driven by the driver, hit the deceased who was coming on

a scooter.

7. The predecessor in interest of appellants and respondent No. 4 filed their

response in which it was pleaded by the deceased-owner that before

engaging respondent No. 5, it was ascertained by the deceased appellant

that he was having a valid driving license and only after having satisfied

in this regard, the deceased appellant handed over the keys of the vehicle

from his bed side as he was having a hip fracture, to the respondent No. 5.

On the basis of the pleadings, following issues were framed:

"1. Whether an accident took place on 7.12.2001 at Guurah Morh NHW 1A due to rash and negligent driving of offending vehicle No. JK02 0101 by its driver /respondent No. 3 in which deceased rash Pal Chand has died? OPP

2. If issue No. 1 is proved in affirmative whether petitioners are entitled to the compensation, if so to what amount and from whom? OPP

3. Whether driver of offending vehicle at the time of accident was not holding a valid and effective driving licence? OPR

4. Relief. O.P.Parties.

8. The respondents/claimants, besides examining respondent No. 1,

examined PWs Madal Lal, Jagdish Lal and Vijay Kumar in support of

their case, whereas the respondent-Insurance Company examined PW

Jagdish Raj in its support. After considering the evidence, pleadings and

hearing the arguments, the learned Tribunal has passed the order

impugned.

9. Heard and perused the record.

10. The contention raised by the deceased appellants is that because of

continuous strike in the months of July and August, 2008, the deceased

appellant could not lead any evidence in rebuttal and the other contention

is that he had engaged the driver after the license was shown by the

respondent No. 5 to him. A perusal of the record reveals that vide order

dated 23.07.2008, the evidence of the deceased appellant was closed. A

perusal of the order dated 26.07.2008 reveals that the work was suspended

on 26.07.2008 and it is the case of the appellants that because of the

suspension of work, the deceased appellant could not keep the track of the

proceedings of the case.

11. It is settled law that the Insurance Company has a right to recover the

amount of compensation paid by the Insurance Company to the third party

if the license of the driver is found to be invalid but also it has to be

proved that the owner of the vehicle was aware that the driving license of

the driver employed by him was not valid. In the response, it was pleaded

by the deceased-owner that he engaged the respondent No. 5 as driver

after respondent No. 5 handed over the license to him. In the instant case,

the number of renewal of the license of the respondent No.5 has been

found to be in the name of one Karmesh Jamwal as per the statement

made by RW Jagdish Raj. There is no evidence on record that the

endorsement of renewal made on the license is forged as no official from

RTO office was examined by any of the parties to prove/disprove that the

endorsement of renewal was not made by the concerned official who was

responsible for renewal of licenses.

12. More so, the learned Tribunal has passed order dated 23.07.2008 thereby

closing the evidence of the predecessor in interest of the appellants on the

premise that the predecessor in interest of appellants and respondent No.4

have already led evidence where as the fact remains that the deceased

appellant had not led any evidence. This Court finds substance in the

contention of the appellants that because of strike predecessor in interest

of appellants could not keep track of his case as Mr. Sharma has

specifically argued that in the month of July, 2008 there was an agitation

due to Amarnath land dispute and because of this reason only, the

deceased appellant could not keep track of the case. The factum of strike

is substantiated from order dated 26.07.2008.

13. In view of the above, this Court is of the considered opinion that the

matter is required to be remanded back to the learned Tribunal for

deciding the issue No.3 afresh.

14. For the foregoing reasons, while maintaining the compensation awarded

to the respondent Nos. 1 to 3, the matter is remanded back only for the

purpose of determination of issue No. 3 afresh and that too after granting

opportunity to the appellants and respondent No.4 to lead evidence in

support of their respective claims. Thereafter, the tribunal shall pass a

fresh order with regard to the liberty granted to the Insurance Company

for recovery of the amount of compensation awarded by the learned

Tribunal to the respondents/claimants. Record of the tribunal be sent back

forthwith. The parties shall appear before the Tribunal on 20.04.2022.

15. Disposed of.

(Rajnesh Oswal) Judge JAMMU 11.04.2022 Rakesh Whether the order is speaking: Yes/No Whether the order is reportable: Yes/No