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2017 DIGILAW 135 (JK)

National Insurance Co. Ltd. v. Jai Dev Singh

2017-03-16

RAMALINGAM SUDHAKAR

body2017
JUDGMENT : 1. The appellant-Insurance Company has filed the appeal challenging the award dated 14.09.2004 passed by MACT Jammu. 2. It is a case of fatal accident. Appellant-Insurance Company filed this appeal primarily on the plea of ‘no liability’ on the ground that driver of the offending vehicle was not having a valid driving license. The Insurance Company deposited the diet expenses for summoning the driver, owner and RTO record. The Tribunal, however, without doing so proceeded to decide the matter against the Insurance Company and, therefore, appeal is filed challenging that portion of order holding the Insurance Company liable to compensate the claimants instead of deciding the plea raised that the driver was not holding a valid driving license and, therefore, Insurance Company is not under liability. At the best the Insurance Company can be directed to pay and recover, if there is a proof that there was some driving license though not valid to drive the offending vehicle. 3. The Tribunal has granted a sum of Rs. 2,40,000/- along with interest @ 7.5% per annum on the death of child of 3 years age. The appellant-Insurance Company does not challenge the quantum. Hence the same is confirmed. 4. Learned counsel for the appellant-Insurance Company relied upon the proceeding before the Tribunal to state that summon was issued to Inspector Rajinder Salgotra. Bailable warrant was also issued for his appearance that was not executed. Similarly, summon was issued to driver Ashwani Kumar. He was also not secured by the Tribunal and without proceeding to secure their presence, the Tribunal proceeded to pass the award. Therefore, the Insurance Company pleads prejudice. These facts are not disputed or rebutted. 5. In view of the above, the appeal is allowed by way of remand to the limited extent as follows: (i) The award in favour of claimants is confirmed. They are entitled to withdraw the same and they will not be liable to refund the same in any circumstances. (ii) Appellant-Insurance Company will be entitled to examine the witness before the Tribunal on the short issue whether the driver of the offending vehicle had a valid driving license or not and, if it is successful in proving that the driver was not holding a valid driving license, the appellant-Insurance Company is entitled to raise the plea of pay and recover. 6. 6. The appeal is allowed as above and the case is remanded back to the file of Presiding officer Jammu. The claimants are free to withdraw the entire amount with interest.