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2013 DIGILAW 248 (JK)

National Insurance Co. Ltd. v. Gulzar Ahmad Shah & Ors.

2013-04-25

MANSOOR AHMAD MIR

body2013
1. This appeal calls in question Judgment and Award dated 31st March, 2010, passed by Motor Accidents Claims Tribunal, Srinagar, in a claim petition titled Gulzar Ahmad Shah and others v. Manzoor Ahmad Gujree and others, hereinafter for short as 'impugned award'. BRIEF FACTS 2. Claimants-respondents 1 to 6 filed a claim petition before the MACT, Srinagar, being the victims of vehicular accident for awarding compensation, in their favour, on the ground that one Manzoor Ahmad Gujree, driver of the offending vehicle (tipper) bearing registration No. JKS-9427, hit deceased Irfan Ahmad, on 24th August, 2006, who sustained and succumbed to the injuries. Deceased, was driving a motorcycle, and was of 17 years of age, at the time of accident. He was earning Rs. 150/-per day as a manual labourer. The claimants, respondents were dependent on the deceased and they are not in a position to make their both ends meet in these hard days. The compensation was sought to the tune of Rs. 30.20 lacs, as per the breaks up given in paragraph 12 of the claim petition, 3. Respondents in the claim petition appeared. However, later on, respondent Nos. 1 and 2 did not appear and were proceeded exparte and following issues came to be framed:- 1. "Whether on 24.8.2006 Manzoor Ahmad Gujree, respondent no. 1, was plying offending vehicle Tipper bearing No. JKS-9427 rashly and negligently as a result of which at Tangmarg it hit motor cyclist Irfan Ahmad Shah who sustained fatal Injuries and later on succumbed to the same on the way to the hospital? OPP 2. Whether the driver/respondent no. 1 of the offending vehicle was not holding valid and effective driving license to drive the crime vehicle and the offending vehicle was without valid R/P and other vehicular documents on the date of accident so no liability can be saddled on the company because the insured has breached policy stipulations? OPR3 3. Whether the accident has been caused by the contributory negligence of the deceased who was plying a not fit for road motor cycle even without driving licence? If yes, what is its effect on the merits of the claim petition and quantum claimed? OPR-3 4. In case issue No. 1 is proved in affirmative, to what amount of compensation the petitioner is entitled to, from whom and in what proportion? OPP 5. Relief." 4. If yes, what is its effect on the merits of the claim petition and quantum claimed? OPR-3 4. In case issue No. 1 is proved in affirmative, to what amount of compensation the petitioner is entitled to, from whom and in what proportion? OPP 5. Relief." 4. Claimants, after being asked to lead evidence, have examined witnesses namely Liyaqat Ahmad Shah, Latif Ahmad Shah, Fayaz Ahmad Shah and petitioner No. 1 Gulzar Ahmad Shah, also appeared in the witness box. Appellant-insurer, on its part, examined the Mr. Harish Raina, Administrative Officer of the Insurance Company and at the request of insurer/appellant driver Manzoor Ahmad was also examined. 5. All the witnesses examined by the respondents/claimants have stated that deceased namely Irfan Ahmad Shah, had passed 9th class examination, was of the age of 17 years. That deceased was working as manual labourer and was earning ISO/- Rs. per day; the deceased was the only source of dependence for claimants/respondents; that because of the death of the deceased claimants/respondents have come on streets. 6. The witness examined by the appellant/insurer, Mr. Harish Raina, has deposed that appellant has issued insurance policy which was in force and the offending vehicle was covered under the said policy. Driver was having the licence which was only valid up to 22nd February, 2004 and was competent to drive the vehicles of Heavy Goods Vehicle type. Licence was not renewed on the date of accident. 7. In cross examination the witness has deposed that non-renewal of licence will not amount to cancellation of the licence and would not render the driver incapable. In order to get licence renewed, the driver has to fill up a form and has to deposit the fee and no other formality is to be complied with. He has further stated that he has not examined the record of RTO, but has made the statement in view of the RTO's verification report. 8. Driver Manzoor Ahmad Gujree has deposed that he has obtained licence from ARTO Rajouri, got it renewed from ARTO Sopore in 2004, but the page of renewal has not been kept with the Photostat copy of the driving licence which is on the file. Thereafter it has got renewed after 26th April, 2010. The licence is seized in a criminal case in the court of Judicial Magistrate Tangmarg. Thereafter it has got renewed after 26th April, 2010. The licence is seized in a criminal case in the court of Judicial Magistrate Tangmarg. His specific case is that the licence was renewed on the said date. ISSUEWISE FINDING: ISSUE No. 1: 9. Neither appellant/insurer nor insured, nor even the driver has questioned the finding on issue no. 1. Even otherwise claimants have proved that accident was caused because of the rash and negligent driving of Manzoor Ahmad Gujree and it resulted in the death of deceased Irfan Ahmad Shah. Thus issue No. 1 came to be rightly decided in favour of the claimants. ISSUE No. 2 10. As discussed hereinabove the only dispute is as to whether licence was renewed at the time of accident. Virtually insurer/appellant has admitted that licence was valid in 2004 and thereafter from 2007 to 2010. But as far as the evidence of the insurer/appellant is concerned, it does not prove that the licence of the driver was not renewed at the time of accident. On the other hand driver appeared and stated that licence was renewed at the time of accident. 11. Appellant/insurer has failed to examine any official to prove the status of the licence on the date of occurrence or to produce the driving licence before the Tribunal, when as a matter of fact, the driver has taken a specific stance that licence is seized in the court of Judicial Magistrate, Tangmarg. Thus appellant/insurer has failed to prove that licence was not renewed at the particular point of time. The insurer/appellant has not taken a plea that owner has committed any willful breach which would disentitle him from protection available to him under and in terms of insurance agreement. The Tribunal has very rightly turned down the plea of the insurer/appellant. 12. It was for the insurer/appellant to prove that owner has committed a willful breach and thereafter claim that it cannot be saddled with the liability. 13. Thus the finding, on issue No. 2, returned by the Tribunal, is upheld. ISSUE No. 3 14. Learned counsel for appellant/insurer argued that excess amount has been awarded in favour of the claimants, the argument is devoid of force, for, life of a young boy of 17 years of age has been snatched by the cruel accident. The deceased was a labourer and claimants were his dependents. ISSUE No. 3 14. Learned counsel for appellant/insurer argued that excess amount has been awarded in favour of the claimants, the argument is devoid of force, for, life of a young boy of 17 years of age has been snatched by the cruel accident. The deceased was a labourer and claimants were his dependents. Tribunal after taking into consideration the schedule appended with the Motor Vehicles Act, and the age of the claimants and that of the deceased, applied multiplier 14. Tribunal, therefore, has rightly held that claimants have lost source of dependency to the tune of rupees 2000/- per month, after taking his income as Rs. 3000/-. 15. The court, in the given circumstances, feels that the awarded amount is too meager rather than being excessive. The pain and agony of the family, which is consisting mostly of female members, having lost its only source of income, that too when he was in his prime youth, can just be imagined. The said pain multiplies when the family faces the hardships of life mainly because of steep price escalation. Therefore, it appears to be totally unreasonable and unwarranted to question even such a lowest award, amounting thereby, in contributing to the sufferings of the otherwise vagrant family. 16. Viewed thus the appeal is found to without any merit, therefore/dismissed. 17. Send down the record along with the copy of the judgment.