National Insurance Co. Ltd vs Neelam Devi & Ors
2023 Latest Caselaw 1058 j&K

                                                                         Sr.No. 12


                 HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                               AT JAMMU


                                                   MA No. 324/2010


National Insurance Co. Ltd.                            .... Appellant(s)/ Petitioner(s)

                   Through :- Mr. Baldev Singh, Advocate assisted by
                              Ms. Damini Singh Chauhan, Advocate
          V/s

Neelam Devi & Ors                                                   ....Respondent(s)
                   Through :- Mr. V Bharat Singh, Advocate for R-1 to 4
                              Mr. Rakesh Pandita, Advocate for 6 and 7
Coram: HON'BLE MR. JUSTICE JAVED IQBAL WANI, JUDGE
                         JUDGMENT

23.05.2023

(ORAL)

1. Through the medium of instant appeal filed under Section 173 of the

Motor Vehicle Act, 1988, the appellant-Insurance Company has thrown

challenge to award dated 26.12.2010 (for short 'the impugned award') passed

by the Motor Accident Claims Tribunal, Jammu (for short 'the Tribunal') in

Claim Petition titled as "Neelam Devi & Ors vs Chaman Lal & Anr".

2. According to the counsel for the appellant, after issues came to be framed

by the Tribunal on 25.04.2006, the claimants came to be directed by the

Tribunal to lead evidence and same was subsequently closed on 27.11.2009 and

that prior to the closer of the said evidence of the claimants, the appellant-

Insurance Company herein filed two applications on 24th February 2009 and 2nd

September 2009 seeking therein assistance of the Tribunal for summoning of

the witnesses, namely, Chaman Lal-owner of the offending vehicle, the clerk of

the Regional Transport Officer, Jammu along with record pertaining to Driving

Licence of the driver of the offending vehicle as also for summoning of Karan

Singh being the driver of the offending vehicle named in the FIR.

3. Learned counsel for the appellant would contend that the Tribunal

without adverting to the said applications closed the evidence of the respondent

Insurance Company-appellant herein on 18.11.2009 though the Tribunal

summoned the owner of the vehicle, namely, Chaman Lal who on the date of

service of notice was found to have died on 8th September 2009.

4. Learned counsel for the appellant would further contend that the Tribunal

even did not take coercive measures for securing presence of the witnesses

sought to be produced through intervention of the Tribunal by the Insurance

Company appellant herein and in the process caused substantial miscarriage of

justice to it besides having caused serious prejudice to the right and interest of

the Insurance Company while fastening liability on it for indemnifying the

insured.

5. Learned counsel for the appellant would lastly contend that despite the

report of death of the owner of the vehicle, namely, Chaman Lal, the claimants

did not take any steps to bringing on record the legal heirs of the deceased

before the Tribunal.

6. On the contrary, the appearing counsel for the respondents being the

legal heirs of deceased Chaman Lal as also the claimants 1 to 4 would resist

and oppose the submissions made by counsel for the appellant and would

contend that the appeal is not maintainable as no ground worth the name has

been urged in the memo of appeal against the award under challenge.

Heard learned counsel for the parties and perused the record.

7. Perusal of the record indisputedly reveals the appellant-Insurance

Company filed two applications on 2nd February 2009 and 24th September 2009

for summoning of deceased Chaman Lal, the owner of the vehicle along with

the clerk of the office of Regional Transport Officer, Jammu and Karan Singh,

the driver of the offending vehicle respectively before the closure of the

evidence of the claimants.

8. Perusal of the record would further reveal that the Tribunal have had

issued a notice for appearance to the witness Chaman Lal, owner of the vehicle

on 2nd September 2009, however, on the date of service of the notice, it came

to be reported that the said Chaman Lal had died on 8th September 2009.

Perusal of the record would further reveal that the Tribunal did not issue

any notice for appearance as witnesses to the clerk of RTO Office or else, the

driver of the offending vehicle Karan Singh.

Perusal of the record would further reveal that the claimants even did not

chose to implead the legal heirs of the owner of the vehicle as party respondents

in the Claim Petition as the owner of the vehicle have had been impleaded as

party respondent.

9. It would be pertinent to mention here that the Tribunal constituted under

the provisions of the Motor Vehicle Act 1988 has been consistently held by the

Courts to be a Judicial Authority created by the Act with an inherent judicial

power to determine the disputes between the parties fairly and objectively while

possessing the powers to summon and examine the witnesses, cross examine

them as also to order discovery, admission or denial of documents. The

Tribunal under the Act has been held to have trappings of a Court and though it

is not enjoined by law to observe all rules and the procedure contained in the

Civil Procedure Code and in the Evidence Act, yet it has to decide the matters

before it fairly and objectively.

10. Keeping in mind the aforesaid nature and character of the Tribunal and

reverting back to the case in hand, the Tribunal admittedly has fallen in grave

error while having failed to advert to the applications filed by the Insurance

Company appellant herein where-under the assistance of the Tribunal had been

sought for production of witnesses referred therein in the applications cited by

the appellant Insurance Company for proving an issues framed by the Tribunal

onus to discharge whereof had been placed on Insurance Company-appellant

herein. No steps whatsoever seem to have been undertaken by the Tribunal to

secure the presence of the said witnesses covered in the applications except the

witness namely Chaman Lal, the owner of the vehicle. The Tribunal admittedly

has misdirected itself in law in the matter and proceeded to pass the impugned

award.

11. For what has been observed and considered hereinabove, the impugned

award is not legally sustainable. Resultantly, appeal succeeds and while setting

aside the impugned award, the matter is remanded back to the Tribunal upon its

revival and is directed to proceed in the matter in accordance with law and to

address to the applications filed by the appellant Insurance Company for

summoning of witnesses covered in the applications supra. The Tribunal shall

proceed in the matter expeditiously and dispose of the same preferably within a

period of six months from today.

12. It is made clear that the legal heirs of the deceased Chaman Lal being

party respondent herein the instant appeal shall stand impleaded/substituted as

party respondents in the Claim Petition.

13. The parties shall appear before the Tribunal on 12.06.2023.

14. Further the amount of award deposited by the appellant-Insurance

Company before this Court be returned back to it along with interest, if any,

accrued thereon.

(Javed Iqbal Wani) Judge

Jammu:

23.05.2023 Vijay

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