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2023 DIGILAW 357 (JK)

Oriental Insurance Co. Ltd. v. Radha Rani

2023-08-07

RAHUL BHARTI

body2023
JUDGMENT : 1. The appellant–Oriental Insurance Company (‘OIC’ in short) was respondent no. 3 in a claim petition on File no. 32/Claim of 2007 preferred by the claimant – Radha Rani who is respondent no. 1 in the present appeal. 2. The claim was preferred before the Motor Accidents Claims Tribunal (MACT), Reasi. The road traffic accident which afforded cause of action to the respondent no. 1 – Radha Rani to prefer the claim petition for the injury received upon her person is when she was riding an Auto Rikshaw bearing no. 2551-JK14-A which came to be hit by the offending vehicle (Bus) no. JKR-2229 driven by the offending driver, namely, Mohd. Iqbal i.e. the respondent no. 3 herein (respondent no. 1 in the claim petition) resulting in causing injury to the petitioner. 3. The accident occurred on 28.09.2006 at about 4:45 PM. The accident left the respondent no. 1 – Radha Rani with injuries in the form of fracture of fingers, shoulder and collar bone resulting in her medical treatment from Amritsar, Punjab. 4. The offending vehicle (Bus) bearing no. JKR-2229 was owned by the respondent no. 2 herein i.e. Raj Kumar Sharma (respondent no. 2 in the claim petition). 5. The respondent no. 1 preferred the claim petition naming the owner of the Bus – Raj Kumar Sharma, the driver - Mohd. Iqbal and the appellant – OIC as insurer of the offending vehicle (Bus). 6. The Motor Accidents Claims Tribunal (MACT), Reasi came to adjudicate the claim of the respondent no. 1. In the claim petition, it is only the appellant–OIC which came to cause its appearance whereas the owner - Raj Kumar Sharma and the driver - Mohd. Iqbal remained absent and were set ex-parte in the case. 7. Issues were framed to the following effect:- i) Whether accident of petitioner took place near Seela village due to negligence driving of respondent No. 1/Driver of vehicle No. 2229-JKR and hit Auto bearing No. 2551-JK14-A resulting in injuries to petitioner. ii) In case issue No. 1 is proved in affirmative how much amount of compensation, petitioner is entitled. iii) Whether the offending vehicle was being driven in violation of the terms and conditions of the insurance policy and as such, the respondent No. 3 i.e. Insurance Company is not liable to pay any compensation to the petitioner. ii) In case issue No. 1 is proved in affirmative how much amount of compensation, petitioner is entitled. iii) Whether the offending vehicle was being driven in violation of the terms and conditions of the insurance policy and as such, the respondent No. 3 i.e. Insurance Company is not liable to pay any compensation to the petitioner. iv) Whether the driver of the offending vehicle was not holding a valid and effective driving license at the time of accident. v) Relief. 8. The Motor Accidents Claims Tribunal (MACT), Reasi, came to hold that the accident was caused by negligent driving of the offending vehicle (Bus) bearing no. JKR-2229 by the driver - Mohd. Iqbal (respondent no. 3 herein). With respect to Issue no. 3 & 4 as to whether the offending vehicle (Bus) bearing no. JKR-2229 was being driven in violation of the terms and conditions of the insurance policy and that the offending driver - Mohd. Iqbal was not having a valid and effected Driving License came to be found against the appellant–OIC. 9. The Motor Accidents Claims Tribunal (MACT), Reasi came to award compensation of an amount of Rs.5,11,854/- to the respondent no. 1 – Radha Rani (the claimant). For the payment of the said compensation amount, the onus came to be placed by the Motor Accidents Claims Tribunal (MACT), Reasi upon the appellant-OIC. 10. Against this award, the appellant - OIC is in the present appeal under section 173 of the Motor Vehicles Act, 1988. 11. The challenge is being thrown to the award both on factual as well as legal aspect. The main plank of the appellant-OIC to recuse itself from bearing the burden of paying the compensation as being the insurer of the offending vehicle (Bus) is that the offending driver - Mohd. Iqbal was not having a valid driving license at the time of the accident and for this the only evidence which came to be produced from its end was statement of its own official i.e. Sh. Uma Kant, Assistant Manager of OIC and no other person in particular from the Regional Transport Office (RTO) concerned. 12. In addition, the appellant-OIC has also questioned the quantum of compensation awarded by the Motor Accidents Claims Tribunal (MACT), Reasi in favour of the respondent no. Uma Kant, Assistant Manager of OIC and no other person in particular from the Regional Transport Office (RTO) concerned. 12. In addition, the appellant-OIC has also questioned the quantum of compensation awarded by the Motor Accidents Claims Tribunal (MACT), Reasi in favour of the respondent no. 1 – Radha Rani (the claimant) and, thus, sought to dislodge the final award dated 31.12.2010 passed by the Motor Accidents Claims Tribunal (MACT), Reasi. 13. The reasoning which the Motor Accidents Claims Tribunal (MACT), Reasi came to press into service for holding the appellant-OIC liable for payment of compensation as being insurer of the offending vehicle (Bus) is a failure on the part of the appellant-OIC to establish that the offending driver - Mohd. Iqbal was not having a valid Driving License and, therefore, the Motor Accidents Claims Tribunal (MACT), Reasi did not want to shift the onus of payment of compensation from appellant-OIC as being insurer to the owner and the driver of the offending vehicle (Bus) or apply the principle of pay and recover. 14. A perusal of the entire memo of appeal filed by the appellant-OIC would show that the appellant has not come forward with any averment that on what basis it maintains that the offending driver – Mohd. Iqbal did not have a valid Driving License with respect to his competence to drive the offending vehicle (Bus). 15. In fact, the appellant-OIC has gone to the extent of saying that even the offending vehicle (Bus) bearing no. JKR-2229 was not involved in any accident. In absence of the owner and the driver of the offending vehicle (Bus), maintaining said stand that the offending vehicle (Bus) bearing no. JKR-2229 was not involved in any accident which resulted causing injuries to the respondent no. 1 – Radha Rani (the claimant) it did not lie in the mouth of the appellant-OIC to lay a claim that the offending vehicle (Bus) was not involved in the accident the appellant-OIC chose the risk of making an averment to this effect that the offending vehicle (Bus) bearing no. JKR-2229 was not involved in the accident which meant that the appellant-OIC had a feed back of facts/instructions to this effect from none other than the owner and the driver of the offending vehicle (Bus). JKR-2229 was not involved in the accident which meant that the appellant-OIC had a feed back of facts/instructions to this effect from none other than the owner and the driver of the offending vehicle (Bus). By this reference, the appellant-OIC is deemed to privy to some information with respect to the driving license status of the offending driver - Mohd. Iqbal which it failed to divulge in its response to the claim petition and also did not seek examination of any record from the Regional Transport Office (RTO) concerned with respect to availability of record pertaining to driving license of the offending driver - Mohd. Iqbal. 16. Thus, for its own failure and omission to prove its case with respect to lack of valid driving license of the offending driver - Mohd. Iqbal for driving the offending vehicle (Bus), the Motor Accidents Claims Tribunal (MACT), Reasi was not supposed to shift the onus of payment of compensation from the appellant-OIC to the owner and the driver of the offending vehicle (Bus) bearing no. JKR-2229. 17. The appellant-OIC availed no opportunity from its end in the adjudication stage of the claim petition of the respondent no. 1 – Radha Rani (the claimant) for summoning of the offending driver - Mohd. Iqbal as a witness in the case for the purpose of examination as a witness to expose and prove the fact of lack of driving license of the offending driver - Mohd. Iqbal. 18. Thus, the award passed by the Motor Accidents Claims Tribunal (MACT), Reasi is found to be valid in all respects and, therefore, the present appeal is dismissed.