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2013 DIGILAW 561 (JK)

National Insurance Co. Ltd. v. Sudesh Sharma

2013-09-19

JANAK RAJ KOTWAL

body2013
1. This is an appeal in vehicular accident claim case. 2. Heard. I have perused the record. 3. A claim petition for compensation arising out of the death of one Amit Sharma in a vehicular accident was filed by respondents-1 to 5 before the ld. Motor Accident Claims Tribunal, Jammu (for short the Tribunal). The ld. Tribunal vide its award dated 12-7-2007 allowed the claim and awarded compensation of Rs. 3,70,000/- to the respondents (claimants) and fastened the liability upon Insurance Company (herein appellant). The appellant/Company has challenged the award in this appeal. 4. Mr. R.K. Gupta, ld. sr. counsel sought to project firstly and mainly that the ld. Tribunal has fastened the liability upon the appellant/Insurance Company without providing an opportunity to prove the legal defence taken by the Company. Mr. Gupta submitted that the driver and the owner of the offending vehicle who were arrayed as respondents in the claim application, having opted not to context the claim have been set exparte, the ld. Tribunal had allowed the appellant to defend the claim petition in terms of Sec. 170 of the Act. The defence taken by the appellant was that condition of insurance policy was violated as driver of the offending vehicle did not possess the valid driving license at the time of the accident. Appellant had deposited diet expenses and process fee for summoning the driver and owner of the offending vehicle as its witnesses. The ld. Tribunal, however, closed the appellant's evidence without securing the service upon the said two witnesses and their presence before the Tribunal. Mr. Gupta, thus, concluded that the ld. Tribunal has fallen into error by rejecting defence of the appellant and fasten the liability to pay compensation on it. 5. Per contra Mrs. Neena Mishra, ld. counsel for the respondents-1 to 6 has supported the award passed by the ld. Tribunal. She would say that the ld. Tribunal gave sufficient time to the appellant to produce evidence and was ultimately constrained to closed evidence. 6. 5. Per contra Mrs. Neena Mishra, ld. counsel for the respondents-1 to 6 has supported the award passed by the ld. Tribunal. She would say that the ld. Tribunal gave sufficient time to the appellant to produce evidence and was ultimately constrained to closed evidence. 6. Record on the file of the Tribunal reveals that the appellant had pleaded before the Tribunal that it was not liable to indemnify the Insured person (owner of the offending vehicle) because driver of the offending vehicle was not holding the driving liscence at the time of alleged accident and, therefore, the vehicle was being driven in violation of the terms and conditions of the insurance policy. Record further reveals that the driver and the owner of the offending vehicle had not contested the claim and they were set exparte and the ld. Tribunal had allowed the appellant in terms of Sec. 170 of the Act to defend the claim petitions. The plea taken by the appellant/Company was formulated as question for determination in issue No. 3 which reads: "Whether driver of offending vehicle at the time of accident was not holding a valid and effective driving license and vehicle was being driven in contravention of terms and conditions of insurance policy ? OPR-3". 7. Minutes recorded and record in the file would show that the issues in the case were framed on 30-06-2004. Petitioners' evidence was closed on 15-4-2006 and appellant/respondent was asked to enter its evidence. On 20-4-2006 the appellant had deposited diet expenses and process fee for calling respondents, Sanjeev Kumar, owner of the offending vehicle and respondent Iqbal Singh, Driver of the offending vehicle as its witnesses. 8. The ld. Tribunal had resorted to issue process for summoning of these two witnesses. Order passed on 01-03-2007 shows that the ld. Tribunal had ordered issuance of summons to these two witnesses and directed to collect `dasti' summons. The case was posted for 1-5-2007. No witness was present on 1-5-2007 and the ld. Tribunal while granting last opportunity to appellant's counsel to produce the witnesses had alongside directed issuance of process against the witnesses. The case was listed for 9-6-2007. On 9-6-2007 no witness was present and the ld. Tribunal, however, closed the evidence and observing that the appellant's evidence was pending since long. English version of the order passed on 9-6-2007 would read: "Counsel for the parties present. The case was listed for 9-6-2007. On 9-6-2007 no witness was present and the ld. Tribunal, however, closed the evidence and observing that the appellant's evidence was pending since long. English version of the order passed on 9-6-2007 would read: "Counsel for the parties present. No witness for respondents has come present, therefore, as no witness is coming present since long so evidence of the respondent/Company is closed and case will come up for arguments" 9. The ld. Tribunal heard the arguments on 2-7-2007 and announced the award on 12-07-2007. 10. A bare reading of the order passed on 2-7-2007, minutes recorded in the file and record, would reveal that neither a serious effort was ever made for seeking service of summons upon the said two witnesses or seeking their attendance before the Court. The Tribunal was duty bound to cause service upon witnesses and ensure their presence before the Court. For that coercive methods like issuance warrants if witnesses had been avoiding service should have been taken. In any case, the appellant' evidence should have not been closed for the reason that witnesses were not coming present since long and In this regard the Tribunal is duty bound to secure presence once the diet expenses and process fee was deposited by the appellant. Closure of the appellant's evidence was not proper exercise of its jurisdiction by the ld. Tribunal and rejection of appellant's defence on the grounds of their failure to produce evidence was not proper. 11. For whatever stated above, the impugned award in so far as it relates to finding returned on issue No. 3 is not sustainable and appeal, thus, has merit. 12. Viewed, thus, the appeal is, accordingly, accepted and the impugned order to the extent of finding returned on issue No. 3 and fastening of liability on appellant (Insurance Company) is set-aside. The matter, however, is remanded back to the ld. Tribunal who shall decide the issue No. 3 afresh and award to that extent after recording appellant's evidence in this regard. 13. It is ordered that the summons to the witnesses and simultaneously direct for service upon them through the concerned SHOs of the Police Stations and the concerned territorial Courts. 14. A representative of appellant/Company shall remain present on all dates of hearing and assist service of the summons by collecting `dasti' summons and making `Nisan Dahi' of the witnesses. The ld. 14. A representative of appellant/Company shall remain present on all dates of hearing and assist service of the summons by collecting `dasti' summons and making `Nisan Dahi' of the witnesses. The ld. Tribunal shall conclude inquiry expeditiously preferably within a period, not later than six months hereafter. 15. Record of the ld. Tribunal be remanded back alongwith a copy of this order where both sides shall cause their appearance on 4th Oct., 2013. 16. Amount of Rs. 100000/- stands released in favour of claimants vide order dated 09-10-2009. Rest of the amount kept in FDR be sent to the ld. Tribunal forthwith.