Research › Search › Judgment

J&K High Court · body

2009 DIGILAW 88 (JK)

New India Assurance Co. Ltd. v. Jasmeet Kour

2009-02-27

MANSOOR AHMAD MIR

body2009
1. Notices came to be issued to the respondents in the year 2004 and were not received back served or unserved. However, Mr. Navneet Dubey, Advocate appeared on behalf of respondent No.1. None appeared on behalf of respon- dents 3 and he came to be set ex parte vide order dated 25.08.2005. There is no representation on behalf of respondent No.2. despite the fact that one Chander Mohan Sharma has caused appearance on his behalf before the Court and Registry. He is, accordingly, set ex parte. 2. Claimant-Injured, Jasbeer Kour filed a claim petition before the learned Motor Accident Claims Tribunal, Jammu on 24.07.1998 and said petition re- mained on board before the learned Tribunal for at least seven years till the judgment and award came to be announced. 3. The grievance projected in the memo of the appeal is that the learned Tribunal has wrongly stated in the award that the appellant-insurer did not lead any evidence in support of its defence. 4. On the first look, I was going to dismiss this appeal but while going through the record of the learned Tribunal I changed my opinion/mind because it is crystal clear that the appellant-insurer has examined one witness, namely, Pirzada Noordin, Senior Assistant of RTO Office Srinagar in order to substan- tiate its defence. It is astonishing that how the trial court recorded that the appellant-insurer did not lead any evidence, suggesting the fact that the learned Tribunal has taken and dealt the case in a casual manner. I deem it proper to refrain from any expression of opinion because less said is better. 5. Jasmeet Kour, the victim of the accident, filed a claim petition for grant of compensation to the tune of Rs.5,50,000/-as per details given in para No.23 of the claim petition. The learned Tribunal after scanning the evidence vide impugned award and judgment granted Rs.40,000/-as compensation. No doubt, the compensation is meager. Even otherwise the injured-claimant is entitled to interim relief to the tune of Rs.25,000/-while keeping in view the principle of no fault liability. The medical board has also opined that the injured suffered permanent disability and said opinion came to be proved and exhibited as EXPW-RSM dated 01.02.2003. The claimant-injured has not challenged the award, so I deem it proper not to thrash out/marshal out whether the amount of compensation is just or otherwise. 6. The medical board has also opined that the injured suffered permanent disability and said opinion came to be proved and exhibited as EXPW-RSM dated 01.02.2003. The claimant-injured has not challenged the award, so I deem it proper not to thrash out/marshal out whether the amount of compensation is just or otherwise. 6. The only question to be determined is whether the appellant-insurer came to be rightly saddled with the liability, the answer is negative for the following reasons:- 7. The appellant-insurer has taken the defence that the driver of the offending vehicle, namely, Joginder Pal was not having a valid driving licence at the relevant point of time and, accordingly, issues came to be framed vide order dated 04.10.2001. Issue No. 3 is reproduced herein below :- Whether the driver was not holding the valid driving licence at the time of accident?� OPR-1. 8. In order to discharge the onus, the appellant-insurer has examined one Pirzada Noordin, who has categorically stated that the licence, which came to be seized by the police during the investigation and came to be produced before the learned Tribunal had not been issued in the name of the driver but as per the record of the RTO Srinagar, the said driving licence was issued in the name of one Mohd. Sultan Bhat S/O Lassa Bhat resident of Srinagar and it was further stated that no such licnece came to be issued in favour of the Joginder Pal driver. 9. While keeping in view the statement made by Pirzada Noordin, it can safely be held that the driver Joignder Pal was not having a valid driving licence at the relevant point of time. The appellant-insurer has discharged the onus. Now it was for the owner to prove that he had taken all precautions at the time of employing the driver and has not committed any willful default. The owner did not lead any evidence and there is nothing on the record of the trial court or before the appellate court which can be made basis for holding that the owner/insured has not committed any willful default in terms of the mandate of Section 147 and 149 of the Motor Vehicles Act. Thus, it was the owner who was to saddle with the liability. However, the appellant-insurer has deposited the amount and satisfied the award. Thus, it was the owner who was to saddle with the liability. However, the appellant-insurer has deposited the amount and satisfied the award. Thus, I deem it proper to grant the right of recovery to the appellant enabling it to recover the same from the in- sured/owner by making appropriate motion/execution petition before the learned Tribunal. Accordingly, issue No.3 is decided in favour of the appellant- insurer and against the insured and driver. 10. In the given circumstances, the appeal is partly allowed. The impugned award is modified and appellant-insurer is given right of recovery as indicated above. Send down the record to the learned Tribunal along copy of this judgment.