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2004 DIGILAW 54 (JK)

National Insurance Co. Ltd. v. Habibullah Hajam

2004-03-17

SYED BASHIR-UD-DIN

body2004
This Appeal at post admission stage is taken for final disposal on consensual submissions of the counsel for the parties. The Claim Tribunal file is on record. Heard. 2. Claimants before the Tribunal and Respondent 1 and 2 in this appeal filed a Claim Petition before the Motor Accident Claims Tribunal Budgam on the ground that the goods Vehicle with registration mark and No,. JK 08-2396 was rashly and negligently driven by Kuldeep Kumar, Respondent No. 1, when it met an accident on 4.6.2001 near Police Colony Qamarwari, causing fatal injuries to Mohd Shaffi Hajam who latter succumbed to injuries (son of the claimants). After raising issues, the Tribunal disposed of the matter on award of compensation of Rs.2,40, 000/- with 9% interest from 27.7.2000 to the date of actual payment or realization. The appeal is filed against this award and order dated 18.4.2002 of the Tribunal. 3. Mr. Kawoosa, submits that in the written statement and also in the submissions and as also in the various interim applications filed in the main claim case (11 of 2000), Insurance Company (Appellant) has raised the plea that Kuldeep Kumar who was on the steering at the material time and date was not having valid driving license. The Tribunal has not returned any finding on the issue except to say that the issue has not been proved by the Insurance Company. The Insurance Company /Appellant moved more than one application for summoning the record from ARTO Udhampur, under whose signatures the license is shown to have been issued and also for verification of the validity or otherwise of the license by Vigilance Organisation, when a private investigating agency "Expert Investigation Services" reported the license to be fake. But even so repeated pleas for summoning the record and verification of validity of license was turned down without any rhyme or reason. This submission of Mr. Kawoosa is borne out by the Claims Tribunal record. 4. It appears that the finding on this issue against Respondent No. 3 (Insurance Company) is not based on appreciation of material available on record. As the plea was raised even in the Pleadings, the Tribunal was under duty to take necessary steps and record a reasoned finding on wholesome consideration of the matter and in the process to facilitate and take steps to bring on record the file/papers pertaining to the license. As the plea was raised even in the Pleadings, the Tribunal was under duty to take necessary steps and record a reasoned finding on wholesome consideration of the matter and in the process to facilitate and take steps to bring on record the file/papers pertaining to the license. The finding is not supported by reasons and is in any case perverse. 5. Mr. Beig, contesting the Appeal on behalf of the Claimants is not joining issue on any count including loop-sided and vitiated finding on the license given by the MACT. He submits that the matter can be remanded to the MACT in case the finding is operating adversely to Respondent No. 3, Insurance Company, vis-a-vis its light to recover the compensation from the Driver/owner. However, Mr. Beig submits that even so, when the Driving license in question is treated to be not valid or fake, the Insurer Co., Respondent No. 3 cannot escape the statutory liability to pay compensation to 3rd party, like the Claimants though the insurer is within its rights to recover the amount from the owner/ Driver of the insured vehicle. 6. In support of the submissions, Mr.Beig has submitted New India Insurance Company Shimla v. Kamla and others along with two other Appeals (AIR 2001 SC: 1419) and United India Insurance Coy. v. Lehroo, AIR 2003 SC 1292. The submission of Mr.Beig and the law cited by him firmly do hold in place, liability of the insurer/Appellant, to pay the compensation awarded by the Tribunal by way of statutory liability to pay the claimants way of risk covered by Insurance Certificate/ policy to third parties under M.V.Act. However, the question whether the Insurance Company /Appellant can recover it from the owner of the insured vehicle or from Driver , is an open ended question, in as much as, the Tribunal has failed to record a finding whether the Driver was having an invalid fake license to the knowledge of the owner. 7. The Tribunal having not returned finding on that aspect of the matter, the case is remanded back or finding on that count and the MACT is directed to record finding as to the validity or otherwise of the Drivers license and as also to the knowledge of the owner of the vehicle with regard to such character of license. 7. The Tribunal having not returned finding on that aspect of the matter, the case is remanded back or finding on that count and the MACT is directed to record finding as to the validity or otherwise of the Drivers license and as also to the knowledge of the owner of the vehicle with regard to such character of license. In the event of positive finding in that regard, the Insurance Company/Appellant shall be required to recover the amount from the owner/Driver of the Vehicle as per the statute and the case law. The award amount of compensation awarded by the Tribunal, shall be released to the claimants under law after due verification. 8. Parties to appear before the Tribunal on 22nd of April, 2004. Inform Tribunal of this order. It is made clear that the whole issue of leading evidence and summoning of the necessary relevant record is open and the parties shall have liberty to lead evidence as also approach the Tribunal for summons to witnesses with or without record in the matter.