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2002 DIGILAW 46 (JK)

National Insurance Co. Ltd. v. Barkat Ali Mir

2002-03-02

B.L.BHAT

body2002
1. This appeal is directed against the judgment and award dated: 21-07-1997 passed by the Motor Accidents Claims Tribunal, Srinagar, whereby Petition No. 106/Claim titled Barkat Ali Mir Vs. Abdul Jabbar Peer and Ors and Claim Petition No. 107/Claim titled as Naseer Ahmad Lone Vs. Abdul Jabbar Peer and Ors both of 17-10-1986 came to be decided by a common judgment recorded by the said Tribunal. 2. The material facts leading up to this appeal are that on 08-04-1986, respondent-driver Abdul Jabbar Peer who was in the employment of respondent-owner namely Javeed Ahmad while driving Matador bearing registration No. 4856 JKC insured with the National Insurance Company, Branch Srinagar rashly and negligently towards Botakadal enroute at Molvi Masjid stop went into the Cycle Shop of one Mustafa Mir as a result of which Barkat Ali and Naseer Ali, the claimant respondent sustained injuries, in turn disablement of shortening of leg 11/2" of Barkat Ali Mir and 10% disablement to the person of Naseer Ahmad due to shortening of lower limb. In this behalf case for offences punishable under sections 279, 337, 427 Ranbir Penal Code, Svt. 1989 (1932 A.D.) came to be registered by Police Station Soura under their FIR No. 73/1986. The claimants-respondents No. 1 and 2 on 17-10-1986 came to file separate claim petitions before the MACT, Srinagar under section 166 of the Motor Vehicles Act seeking compensation under various heads. These claim petitions came to be amended by the claimants with the leave of the Court and amended claim petitions came to be filed on 28-11-1986. The respondents 1 and 3, the driver and the owner of the vehicle choose to remain absent despite due and proper service as a result of which the case came to be set exparte against them by virtue of interim orders respectively dated: 03-05-1979 and 26-05-1989 recorded in both files. The appellant-Insurance Company came to resist the claim of the petitioners-respondents No. 1 and 2 herein by filing their written objections with the said petition. On 04-07-1994 the parties went to trial with the following common issues: 1. Whether on 08-04-1986 both the petitioners have received grievous injuries due to rash and negligent driving of vehicle bearing No. 4855 JKC which was driven by its driver i.e. respondent No. 1? OPP 2. On 04-07-1994 the parties went to trial with the following common issues: 1. Whether on 08-04-1986 both the petitioners have received grievous injuries due to rash and negligent driving of vehicle bearing No. 4855 JKC which was driven by its driver i.e. respondent No. 1? OPP 2. In case of issue No. 1 is proved in affirmative for much of the petitioners are entitled to and from whom? OPP 3. Whether the offending Vehicle was not insured at the time of Accident? OPR 4. Whether policy particulars are rightly mentioned? OPR 5. Whether the application is not maintainable, if so what will be its effect upon the petitioner? OPR 6. Whether the compensation claimed is imaginary? OPR 7. Relief. 3. Since issue No. 2 is not correctly framed, therefore the same is recast as under:- 2. In case issue No. 1 is proved whether the petitioners-claimants are entitled to compensation, if so, to what extent and from whom? OPP 4. Since the said petitions were pending before the Tribunal from 1986 and the parties have been pursuing their claims delinquently, therefore, this recast issue can by no stretch of imagination take them by surprise. On conclusion of the trial of the issues, the learned Tribunal by virtue of impugned judgment and award came to award Rupees one lakh each as compensation together with interest @ 12% from the date of institution of the petition till its final realization, however with the conclusion which reads as: This amount shall be recoverable from the Insurance Company in case the Insurance policy stands issued by it otherwise owner of the offending vehicle shall be liable to pay it. The interim relief, if already taken shall stand deducted.� The stand of the learned counsel for the appellant is that claimant/respondents did not produce any evidence before the Tribunal below to prove that on the relevant date of the accident the vehicle in question was duly insured with the appellant-Company as a result of which it cannot be fastened with any liability to pay compensation to the claimants/respondents No.1 and 2. Secondly that the Tribunal below has not accorded sufficient opportunity to the appellant-Company to support its claim and that the interest awarded is excessive. Secondly that the Tribunal below has not accorded sufficient opportunity to the appellant-Company to support its claim and that the interest awarded is excessive. On the other hand the stand of the learned counsel for the respondents No.1 and 2 is that the burden of proof of issue No. 3 which reads: Whether the offending vehicle was not insured at the time of accident?� Was upon the appellant-Company, it has adduced no evidence to prove it in the bid to discharge the onus of proof. Therefore, they cannot turn a round and say that the vehicle was not insured with it. 5. Heard Mr. Dandroo, learned counsel for the appellant as well as Mr. Muzaffar, learned counsel for the respondents. 6. Considered the rival contentions of the learned counsel for the parties. The perusal of the record reveals that in para 8 and 9 of the amended petitions which came to be presented before the Tribunal on 28.11.1988 with the leave of the court, the claimants/respondents have in their respective petitions indicated the name of the offending vehicle as 4856 JKC, the name of the driver as that of the owner as respondents, Jabbar Peer and Javeed Ahmad respectively and the name of the insurance company with whom the vehicle in question was insured as National Insurance Company, Srinagar. In reply to these paras in their written objections, which came to be filed before the learned Tribunal on 7.11.1989, the appellant-company has stated in paras 6 and 7 which is reproduced in verbatim as under: 6. That the allegations made in paras 7 to 12 are not admitted by the answering opposite party. The respondent is at present unable to admit whether the interest of Javeed Ahmad respondent No. 3 in vehicle No. 3856 JKC Matador was insured with the respondent No. 2 at the material time unless further and better particulars regarding the insurance are disclosed by the claimants. The petitioner may cause the owner of the vehicle to be directed to produce and prove the policy of insurance failing which it shall be presumed that this opposite party is not the insurer in the accident case and the name of this opposite party should be expunged in this case with exemplary costs. 7. The petitioner may cause the owner of the vehicle to be directed to produce and prove the policy of insurance failing which it shall be presumed that this opposite party is not the insurer in the accident case and the name of this opposite party should be expunged in this case with exemplary costs. 7. That the route permit, driving licence fitness certificate, registration documents etc., shall be directed to be produced and proved in the case failing which it shall be presumed that there is statutory violation of the conditions of policy if any as contemplated under section 96(2) of the Motor Vehicles Act and the respondent No.2 will not as such stand in law to indemnify to award the compensation if at all in future.� 7. From the perusal of the aforesaid paras it is manifest that the reply of the appellant-company with respect to para No.9 of the claim petition is evasive, omnibus and not of specific denial when Order 8 Rule 3 Code of Civil Procedure, Svt. 1977 (1920 A.D.) is very clear on the point of law that every allegation of fact in the plaint will be taken to be admitted if it is not denied specifically or by necessary implication or stated to be not admitted. Besides notice of this fact is taken by this court that during the pendency of the claim petitions in question, the claimants/respondents came to file petitions on 26-06-1989 for grant of interim compensation, copies whereof were furnished to the respondent-company which specifically repeats the registration number, number of offending vehicle, the name of the driver, name of the owner together with his full address, the name of the appellant-company and more specifically the number of insurance policy showing its validity upto 26.1.1997. Despite this full-fledged information, the appellant-company and even on the asking of the Tribunal below for ascertaining the authenticity of the insurance policy, and also giving more than sufficient time of about more than one year in this behalf, the appellant-company has failed to deny specifically its liability to pay nor has adduced any evidence in support of their claim that the vehicle in question was not insured with it or the insurance policy indicated by the claimants covers some other vehicle. All this goes to show that the appellant-company shall be deemed to have admitted the claim of the respondents No.1 and 2 (claimants) to the effect that the offending vehicle was insured with it on the date of accident in which claimants-respondents sustained injuries and in turn permanent disablement. 8. In view of what has been discussed above, there was sufficient material with the Tribunal below that the vehicle in question was insured with the appellant-company on the date of accident and it is liable to indemnify the owner for the payment of compensation to the extent of rupees one lakhs each awarded in these cases by it. Having regard to the said discussion issues No.2 and 3 are accordingly decided in favour of the claimants/respondents and against the insurance company. The insurance company is accordingly held liable to indemnify the owner of the offending vehicle for the payment of the compensation awarded to the claimants/respondents No. 1 and 2 and the claimants are entitled to receive it minus the interim compensations received by them under the principle of No fault scheme It takes us to the last contention of the learned counsel for the appellant that the interest of 12% awarded on the compensation amount is excessive. This contention is accepted because now the law holding the field has been set at rest by the apex court and rate of interest-has now been fixed at 9% per annum. 9. In the result for the foregoing reasons and discussions the appeal is partly allowed and the award of the Tribunal below shall stand modified to the extent indicated above. The parties are left to bear their own costs. Record shall go back together with copy of this order.