Remanded

National Insurance Company Limited v. Hajra and Ors.

J&K HC6 Apr 2021MA/4/2019

Case brief

AI extract

What is this about?

The High Court of Jammu and Kashmir, in an interlocutory appeal, set aside the Motor Accident Claims Tribunal's award to the extent of its finding on the validity of the driver's license. The Tribunal was remanded to decide this issue after considering the appellant's verification report and summoning witnesses.

What did the court decide?

Award set aside to the extent of Issue No. 2; matter remanded to Tribunal to decide afresh considering the Verification Report.

National Insurance Company Limited Vs Hajra and Ors. — Specific Performance | J&K HC (2021)

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HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR

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MA No.04/2019 [Mac App No.04/2019]

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Reserved on: 29.12.2020

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Pronounced on: 06.04.2021

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National Insurance Company Limited

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……..Appellant(s)

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Through: Mr. N. A. Dandroo, Advocate V/s

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Hajra and others …….. Respondent(s)

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Through: Mr. Aijaz Bedar, Advocate Mr. Shuja-ul-Haq, Advocate

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Coram:

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HON’BLE MR. JUSTICE VINOD CHATTERJI KOUL, JUDGE

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JUDGEMENT

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Impugned in this Appeal is Award dated 27^th October 2018, passed by Motor Accident Claims Tribunal, Srinagar (for short “Tribunal” ) on a Claim Petition bearing File no. 212 of 2013 titled Mst. Hajra and Ors. v. Ms. Nazia Nazir and Anr., directing appellant Insurance Company to pay compensation in the amount of Rs. 3,25,000/- along with 6.5% interest per annum from the date of institution of claim till realization, on the grounds made mention of therein.

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A claim petition, as is discernible from perusal of the file, was filed by respondent nos. 1 to 4 before the Tribunal on 11^th November 2013, averring therein that deceased, Abdul Samad Sofi S/o Abdul Gafar Sofi R/o Reiteng, Khanyar Srinagar, aged 70 years, died in an accident, which took place on 21^st September 2013 at Victory Crossing Pamposh Petrol Pump, Rainawari, due to rash and negligent driving of driver of offending vehicle, bearing Registration no.JK01U-0609, which was insured with appellant Insurance Company.

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Appellant Insurance Company resisted the claim before the Tribunal on the ground that driver of the offending vehicle was not holding a valid and effective driving licence at the time of accident and was not

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MA no.04/2019

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authorized to drive insured vehicle, as such, Insurance Company be exonerated from any liability. Moreso, vehicle was being plied without valid vehicular documents, as such, Insurance Company could not be held liable to pay any compensation in absence of valid documents.

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The Tribunal, in view of pleadings of parties, framed following issues for determination, which are:

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Whether on 21^st September 2013, the deceased while going on correct side of the road and when reached near Victory Crossing Pamposh Petrol Pump, Rainawari, Srinagar, he was hit by a speedy driven scooty bearing registration no. JK01U-0609, driven by respondent no.1, as a result of which the deceased namely Abdul Samad Sofi fell down and sustained fatal injuries on the same day? (OPP).

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Whether the owner/driver of the offending vehicle plied the said vehicle without valid, effective D/L, and other vehicular documents, which is violation of policy conditions, if yes, the insured has committed the breach of insurance contract absolved respondent no. 2, insurance company from its liability on account of petitioners claim? (OPR-2).

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In case the issue no.1 is proved in affirmative, to what amount of compensation the petitioners are entitled to, from whom and in what proportion? (OPP).

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Relief. OP Parties.

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Claimants produced and examined three witnesses before the Tribunal; besides claimants/respondent no. 3. Appellant Insurance Company also produced one witness.

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By impugned Award, the Tribunal found claimants/respondents entitled to received compensation of Rs. 3,25,000/- along with 6.5% interest per annum.

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Heard and considered.

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Learned counsel for appellant Insurance Company has stated that driving licence of driver of the offending vehicle was not having authorization to drive Scooty. The Tribunal is said to have given totally an erroneous finding on the class of offending vehicle by holding that the Scooty falls within the definition of light motor vehicle. The scooty does not fall within the definition of light motor vehicle nor does this can be brought within the ambit of light motor vehicles by any stretch of imagination. It is further pleaded that the tribunal has also erred in law in deciding the Issue no.2 for the reasons that there was a clear breach of policy terms and conditions and willful breach of Motor Vehicles Act, committed by

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MA no.04/2019

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respondent no.5. The respondent no.5 as owner and driver of the offending vehicle has committed a willful breach by driving offending vehicle in a public place knowing that she was not authorized to drive a scooty under light motor vehicle authorization in her driving licence. Hence a breach of statute as well as breach of policy terms and conditions was committed by respondent no.5.

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There is substance in the submission of learned counsel for appellant Insurance Company. Perusal of impugned Award reveals that the Tribunal has not properly adjudicated upon, lucidly discussed and decided Issue no.2 (Whether the owner/driver of the offending vehicle plied the said vehicle without valid, effective D/L, and other vehicular documents, which is violation of policy conditions, if yes, the insured has committed the breach of insurance contract absolved respondent no. 2, insurance company from its liability on account of petitioners’ claim?). The Tribunal has not taken into account the statement of witness produced by Insurance Company and documentary evidence in support thereof. Though the Tribunal has made mention of Verification Report produced by Insurance Company before it, yet it has not made any comment or given any finding thereabout. The Tribunal was required to look into the matter and discuss and deliberate upon, at first hand, about the Verification Report that was submitted by appellant Insurance Company before it. Law as regards validity of driving licence of driver of offending vehicle need not be discussed here as the law on the subject is well settled. In that view of matter impugned Award to the extent of Issue no.2 is liable to be set-aside.

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For the foregoing reasons, the Appeal on hand is partly allowed and impugned Award dated 27^th October 2018 passed by Motor Accident Claims Tribunal, Srinagar on a Claim petition bearing File no.212 of 2013, titled Mst Hajra and others v. Ms Nazia Nazir Mir and another, is set-aside to the extent of Issue No.2 (viz. Whether the owner/driver of the offending vehicle plied the said vehicle without valid, effective D/L, and other vehicular documents, which is violation of policy conditions, if yes, the insured has committed the breach of insurance contract absolved respondent no. 2, insurance company from its liability on account of petitioners’ claim?). The matter is remanded back to the Tribunal to decide afresh the claim petition with

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MA no.04/2019

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reference to validity of driving licence of driver of offending vehicle/ scooty (i.e., Issue no.2) after considering the Verification Report, or for that matter any other evidence/document(s), qua driving licence and taking all steps that may be warranted therefor, including summoning of witnesses/production of documents/evidence. 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.

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Disposed of in terms of above.

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Record be sent down along with copy of this judgement.

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Parties shall appear before the Tribunal on 28^th April 2021.

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(VINOD CHATTERJI KOUL)

SRINAGAR

06.04.2021
“Manzoor”

JUDGE

MANZOOR UL HASSAN DAR 2021.04.23 14:05

National Insurance Company Limited v. Hajra and Ors.

Case brief

What is this about?

What did the court decide?

National Insurance Company Limited v. Hajra and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

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Statutes considered

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