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2021 DIGILAW 74 (JK)

National Insurance Co. Ltd. v. Safia Rehman

2021-03-16

VINOD CHATTERJI KOUL

body2021
JUDGMENT : VINOD CHATTERJI KOUL, J. 1. Impugned in this Appeal is Award dated 31.12.2014 passed by Motor Accident Claims Tribunal, Anantnag (for short “Tribunal”) on a Claim Petition bearing File No. 30/2012 titled Safia Rehman and Others vs. Tawseef Ahmad Dar and Others, directing appellant Insurance Company to pay compensation in the amount of Rs. 29,84000/- along with 6% interest per annum from the date of institution of claim till realization, on the grounds made mention of therein. 2. A claim petition, as is discernible from perusal of the file, was filed by respondents 1 to 5 before the Tribunal on 02.08.2012 averring therein that deceased Reyaz Ahmad Dar S/o Mohammad Akram Dar R/o Naagam, Kokernag aged 30 years, died in an accident, which took place on 04.05.2012 at Peer Takiya due to rash and negligent driving of driver of offending vehicle, bearing Registration No. JK-03B-3909 which was insured with appellant Insurance Company, Claimants/Respondents 1 to 5 sought compensation in the amount of Rs. 72,00,000/- 3. Appellant Insurance Company resisted the claim before the Tribunal on the ground that the driver had no effective driving license (D/L) on the date of accident. 4. The Tribunal, in view of pleadings of parties, framed Issues for determination, which are: (1) Whether the deceased namely Reyaz Ahmad Dar S/o Mohammad Akram Dar R/o Naagam, Kokernag, while driving his motorcycle and reached at Peer Takiya was hit by vehicle bearing Registration No. JK-03B-3909 and sustained multiple injuries on various parts of his body and was taken on the hospital but ultimately succumbed to the injuries and died on 05th May, 2012? OPP (2) Whether the accident was caused on 04th May, 2012 duet to the rash and negligent driving of respondent no. 1? OPP (3) Whether the petitioners are entitled to compensation, if so, from whom and to what extent? OPP (4) Whether the respondent no. 1 not having valid and effective D/L and other allied documents o the date of accident and as such there is no intentional breach of policy terms and conditions committed by respondents No. 2? OPR3 (5) Relief. OP Parties. 5. Claimants produced and examined three witnesses before the Tribunal; besides claimants/respondent no 1. Appellant Insurance Company failed to examine any witness. 6. By impugned Award, the Tribunal found claimants/respondents entitled to receive compensation of Rs. 29,84,000/- along with 6% interest per annum. 7. Heard and considered. 8. OPR3 (5) Relief. OP Parties. 5. Claimants produced and examined three witnesses before the Tribunal; besides claimants/respondent no 1. Appellant Insurance Company failed to examine any witness. 6. By impugned Award, the Tribunal found claimants/respondents entitled to receive compensation of Rs. 29,84,000/- along with 6% interest per annum. 7. Heard and considered. 8. Learned counsel for appellant Insurance Company has stated that the Tribunal erred in passing impugned Award as the driver of offending vehicle had no effective Driving License on the date of accident. It is contended that appellant Company pleaded before the Tribunal to summon ARTO, Poonch, for which requisite expenses were also deposited, but the Tribunal did not summon ARTO, Poonch, as witness and closed the evidence of appellant Insurance company on 22.11.2014. It is stated that Registering Authority, i.e. ARTO, Doda, reported that the record pertaining to the basic driving licence of driver of offending vehicle was missing for which report was lodged at P/P Doda. ARTO Poonch reported that the renewal date in driving licence was fake. In this regard learned counsel for appellant has invited attention of this Court to communication dated 19.8.2014 (Annexure B with the Appeal) to contend fakeness of driving licence of driver of offending vehicle. According to learned counsel, the said communication was also placed on record of the Tribunal and the Tribunal was requested to summon ARTO, Poonch, as a witness for which expenses were also deposited, but the said request was not allowed. 9. Learned counsel for appellant Insurance company states that assuming without admitting that the original driving licence is genuine, even then its renewal was fake, as such, the driver was not competent to drive the offending vehicle and, thus, the owner has violated terms and conditions of the policy by engaging a driver who had fake driving license. In support of his submissions, learned counsel has placed reliance to judgment passed in CIMA No. 85/2006 titled National Insurance Company vs. Mst. Zeeba and Others that if a driver had a fake driving licence at the time of the accident then the Insurance Company is not liable to indemnify the owner of the vehicle. 10. Another submission of learned counsel for appellant Insurance Company is that assuming but not admitting that the company is liable, even then the compensation awarded is exorbitant, excessive, unjust and arbitrary. 10. Another submission of learned counsel for appellant Insurance Company is that assuming but not admitting that the company is liable, even then the compensation awarded is exorbitant, excessive, unjust and arbitrary. The Tribunal is said to have taken monthly salary of the deceased as Rs. 12,000/- on the basis of salary statement issued by the Met Life, but the same was not proved in the evidence. The Tribunal has enhanced the salary by 50% without there being any proof. No evidence has been led with respect to the future prospects of the deceased. It is stated that the Tribunal has deducted 1/4th on account of personal expenses taking number of dependents between 4 to 6. According to him, the Tribunal did not appreciate that the dependents were only wife and two children and not parents as the parents are always having their own income and will not be considered as dependents upon their children when they have their own families. The Tribunal ought to have deducted 1/3rd instead of 1/4th on account of personal expenses. The Tribunal is also said to have applied multiplier of 17 taking age of the deceased between 26 to 30 years whereas age of deceased mentioned in claim petition was 30 years inasmuch as deceased was literate person, and therefore, claimants ought to have produced his date of birth certificate. Learned counsel also states that compensation on account of loss of Consortium given by the Tribunal is on higher side and compensation on account of loss of love is nowhere provided under the Motor Vehicles Act. And compensation on account Funeral Expenses is also on higher side. 11. Though various submissions have been made by learned counsel for appellant Insurance Company, yet it would be appropriate to discuss and deliberate upon validity of driving licence of driver of offending vehicle as it has clinching effect on the whole case. 12. I have gone through the record of the Tribunal, which reveals that an application had been filed, though off late, by appellant Insurance Company on 3rd December 2013, but the same has neither been decided nor discussed by the Tribunal while deciding Issue no. 4, viz. validity of driving licence of driver of offending vehicle. 12. I have gone through the record of the Tribunal, which reveals that an application had been filed, though off late, by appellant Insurance Company on 3rd December 2013, but the same has neither been decided nor discussed by the Tribunal while deciding Issue no. 4, viz. validity of driving licence of driver of offending vehicle. The Tribunal was required to look into the matter and decide, at first hand, application of appellant Insurance Company vis-a-vis driving licence, more particularly when vehement contention of appellant Insurance Company before the Tribunal was that renewal of driving licence was “fake” and therefore, sought summoning of record keeper of ARTO, Poonch, for verification of driving licence. Law as regards validity of driving licence of driver of offending vehicle need not be discussed here as a judgment has already been relied upon by learned counsel for appellant Insurance Company. In that view of matter impugned Award to the extent of Issue No. 4 is liable to be set-aside. 13. For the foregoing reasons, the Appeal on hand is partly allowed and impugned Award dated 31.12.2014 passed by Motor Accident Claims Tribunal, Anantnag on a Claim Petition bearing File No. 30/2012, titled Safia Rehman and Others vs. Tawseef Ahmad Dar and Others, is set-aside to the extent of Issue No. 4 (viz. whether driver of offending vehicle was not having valid and effective driving licence). The matter is remanded back to the Tribunal to decide afresh the claim petition with reference to validity of driving licence of driver of offending vehicle (i.e. Issue No. 4) after considering the application of appellant Insurance Company qua fakeness of driving licence and taking all steps that may be warranted therefor, including summoning of witnesses as sought for by the appellant Insurance Company. Obviously, outcome thereof shall also decide payment of compensation either to be made by Insurance Company or owner of offending vehicle and to this extent the Issue, framed by Tribunal, is also to be decided by the Tribunal. 14. Disposed of in terms of above. 15. Record be sent down along with copy of this judgment. 16. Parties shall appear before the Tribunal on 7th April 2021.