Dismissed

Bilal Ahmad Lone v. Bajaj Allianz General Insu. Co. and Ors.

J&K HC2 Dec 2021CMAM/20/2017

Case brief

AI extract

What is this about?

The High Court dismissed an appeal against a Motor Accidents Claims Tribunal award. Upholding the tribunal's finding that the insurer proved the driver held a fake license, the court held the owner liable for failing to verify its genuineness before hiring, denying coverage under the policy.

What did the court decide?

The appeal was dismissed; the tribunal's award standing and liberty accorded to the insurance company to recover compensation from the appellant-owner.

Bilal Ahmad Lone Vs Bajaj Allianz General Insu. Co. and Ors. — Motor Accident Claims | J&K HC (2021)

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S. No. 5 After Notice Matter

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HIGH COURT OF JAMMU &KASHMIR AND LADAKH AT SRINAGAR

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IA No. 2/2018 in CMAM No. 20/2017

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Bilal Ahmad Lone

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...Petitioner/Appellant(s)

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Through: Mr. Shabir Ahmad, Advocate. V/s Bajaj Allianz General Insu. Co. & Ors. ….. Respondent(s) Through: Mr. Imtiyaz Ahmad, Advocate.

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CORAM:

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HON’BLE MR. JUSTICE JAVED IQBAL WANI, JUDGE.

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ORDER

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02.12.2021

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Through the medium of the instant appeal filed by the owner of the vehicle under section 173 of the Motor Vehicles Act, award dated 26.12.2016, passed by the Motor Accidents Claims Tribunal, Srinagar in claim petition titled as “Mst. Shahzada & Ors. V.s Rafiq Ahmad Kuchay & Ors.” is under challenge.

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It is being contended in the appeal that filing of the claim petition by the respondent nos. 3 to 8 herein before the Tribunal was filed on account of the death of one Saleem Wagay working in connection with the offending vehicle bearing Registration No. JK 13A/2638 died.

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It is being stated that the appellant herein being the owner of the offending vehicle contested the claim petition inter alia on the grounds that the vehicle is insured with the respondent no.1 herein

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(Insurance Company) and that the insurance company is liable to pay compensation to the claimant as such.

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It is being stated that the tribunal after framing four issues passed the impugned award dated 26.12.2016, in favour of the claimants. It is being further stated that the issue no. 2 relating to the appellant herein was wrongly decided in favour of the insurance company respondent no.1 herein and against the owner -appellant herein against the weight of evidence and that the said issue came to be decided as a result of non-application of mind by the tribunal in view of the fact that the insurance company failed to prove that the owner-appellant herein committed any willful breach of the terms and conditions of the policy.

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Heard learned counsel for the parties and perused the record . 5. Learned counsel for the appellant while reiterating his submissions urged in the appeal sought setting aside of the award.

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Per Contra counsel for the insurance company-respondent no.1 herein would oppose the appeal and consequently seeks dismissal of the same on the premise that the tribunal has rightly passed the award and accorded liberty to recover the amount of compensation from the owner-appellant herein after the tribunal held that the insurance company has satisfactorily proved issue no.2 holding that the driver employed by the appellant/owner was not holding a valid driving licence but a fake one.

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Perusal of the record would demonstrate that upon entertaining the claim petition and issuing notice to the party-respondents, the tribunal framed inter alia issue no. 2 which is extracted and re-produced here under being relevant and germane hereto:-

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“Issue no.2”:- Whether the respondent no.2 owner permitted the respondent no.1 driver to drive the offending vehicle on the date of accident with invalid and ineffective DL and other vehicular documents like RP, if yes, the respondent insured has committed breach of insurance contract absolving the respondent no.3 company from its liability on account of petitioners’ claim?OPR-3”

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While dealing with issue onus whereof to prove the same was upon the insurance company respondent no.1, herein one Maroof Ahmad licencing clerk/ Statistical Assistant ARTO Poonch, had appeared before tribunal and deposed that as per the record D/L No. 491/MVD/94 stands issued in the name of one Mohammad Azan S/o Mohammad Shafi R/o Mandhar Poonch for B&D valid from 14.08.2007 to 13.08.2027. The witness also has endorsed the verification report dated 14.04.2010 present on the file to be as true and correct having been issued from the office of ARTO and as per the verification report endorsement dated 28.04.2010, the seal and signature of ARTO of the said office has been found and that as per the record same has not been issued in the name of Rafiq Ahmad Kuchay- respondent/driver.

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Perusal of the record in general and of the statement of the owner appellant in particular would reveal that during his cross-examination the appellant- owner has in explicit terms stated and deposed that if the licence was issued from office of Srinagar or Pulwama then he could verify its genuineness and the deponent is also holding a licence which was issued from ARTO Anantnag. The aforesaid statement made by the owner exfacie suggest and reveals that the owner-

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appellant herein while employing the drive-respondent had not under taken any verification process for verifying the genenuiness or otherwise of the driving licence of the driver.

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10.The law is no more res integra and is settled that as far as owner of the vehicle is concerned, when he hires a driver, he has to check whether the driver has a valid driving licence and then has to satisfy himself as to the competence of the driver. If satisfied in that regard also, it can be said that the owner had taken a reasonable care in employing a person who is qualified and competent to drive the vehicle. In order to assume satisfaction about the validity or otherwise of the licence, the owner as a man of ordinary prudence is required to verify the genuineness of the driving licnence with the licencing authority before hiring the service of the driver.

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11.In the instant case, the admission of the appellant/owner is writ large that before employing the respondent driver, the owner appellant herein did not verify the genuineness of the licence from the licencing authority on the premise that he would have verified it had the same been issued from the office of Srinagar or Pulwama. The tribunal in the light of the evidence on record, therefore, has rightly held the issue no.2 to have been proved by the respondent no.1-insurance company and consequently accorded liberty to the respondent no.1-insurance company to pay and recover the amount of compensation awarded in favour of the claimants from the owner-appellant herein.

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12.In view of the aforesaid position and the law laid down on the subject by Hon’ble Apex Court in case titled as “ Nirmala Kothari V.s United India Insurance Company Limited reported in AIR 2020 SC 11 93 ”

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the instant appeal entails dismissal and is accordingly dismissed.

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13.Registry is directed to list the cross objections bearing No. 52/2017,

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on 28^th December 2021.

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(JAVED IQBAL WANI) JUDGE

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SRINAGAR

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02.12.2021

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“Nuzhat”

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NUZHAT SHAFI 2021.12.04 13:45 I attest to the accuracy and integrity of this document

Bilal Ahmad Lone v. Bajaj Allianz General Insu. Co. and Ors.

Case brief

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Bilal Ahmad Lone v. Bajaj Allianz General Insu. Co. and Ors.

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