National Insurance Company Limited vs Irshad Ahmad Baba And Others

Impugned in this Appeal is Award dated 17.07.2017, passed by Motor Accident Claims Tribunal, Baramulla (for short ‘Tribunal’) on a Claim

Petition bearing File No. 03 titled Irshad Ahmad Baba and others v. Taimoor Ahmed Sheikh and others; directing appellant Insurance Company to pay

compensation in the amount of Rs.11,23,104/- along with 6% simple interest per annum from the date of institution of claim till realization, on the

grounds made mention of therein.

A claim petition, as is discernible from perusal of the file, was filed by claimants/ respondents 1 to 5 before the Tribunal on 04.05.2009, averring

therein that deceased namely Mst. Haja Begum, aged 48 years, died in a vehicular accident, which took place on 03.03.2009 at Hadipora Crossing,

due to rash and negligent driving of driver of offending vehicle, bearing Registration No. JK01L/1925 which was insured with appellant Insurance

Company. Claimants/Respondents 1 to 5, on the edifice of case set up before the Tribunal, sought compensation to the tune of 11,23,104/-

Appellant Insurance Company resisted the claim before the Tribunal on the ground that offending vehicle at the relevant time was being plied in

violation of terms and conditions of the policy of insurance as driver of offending vehicle was not holding valid driving license at the time of incident. It

was also stated that verification report of driving license issued by Licensing Authority Sopore Kashmir reveals that the license was valid upto

21.08.2007 only and on 03.03.2009 the license was not valid. The owner of vehicle has not kept a valid driving license holder on insured vehicle at the

time of incident, as such, he violated insurance contract. Therefore, Appellant Insurance Company is not liable to pay compensation to claimants.

The Tribunal, in view of pleadings of parties, framed five Issues for determination, which are:

i. Whether on 03.03.2009 at Hadipora crossing the deceased was waiting for a lift, in the mean while the offending vehicle bearing Registration No.

JK01L/1925 hit the deceased and she got critically injured who later on succumbed to the injuries? OPP

ii. Whether the accident was caused due to rash, negligent and careless driving of the driver (respondent no. 1) of the offending vehicle? OPP

iii. In proof of issue Nos. 1 & 2 to what compensation the petitioners are entitled to and from whom? OPP

iv. Whether the driver of the offending vehicle was not holding valid driving license at the time of alleged accident. OPR -3

v. Relief. OP Parties.

Claimants produced and examined three witnesses, namely, Farooq Ahmed Yatoo, Altaf Ahmad Yatoo and Abdul Majid Malik before the

Tribnunal; besides claimant /respondent No. 1. Appellant Insurance Company produced and examined three witnesses and thereafter, the evidence of

respondent no.1 was closed and matter was put up for further proceedings.

By impugned Award, the Tribunal found claimants/respondents entitled to receive compensation of Rs. 11,23,104/- along with 6% interest per

annum.

Heard and considered.

Though various submissions have been made by learned senior counsel for appellant Insurance Company, yet he insisted that the Tribunal has erred

in passing impugned Award as driver of offending vehicle was not holding a valid driving licence on the date of accident.

Issue no.4, with regard to holding valid driving license, was framed by the Tribunal. It held that driver was not holding valid driving licence to ply

offending vehicle, as such, decided Issue in favour of Appellant Insurance Company and right to recover the compensation from owner and driver of

the offending vehicle has been given to it. The Tribunal, it is insisted by learned senior counsel for appellant Insurance Company, instead of directing

Appellant Insurance Company to pay and then recover from the owner and driver, ought to have directed owner and driver of offending vehicle

(Respondent Nos. 7 & 8) to pay award amount to claimants. This submission of learned senior counsel is specious.

The question, whether Insurance Company can be and ought to be directed to pay claim amount, with liberty to recover the same from the

owner/driver of the vehicle, has been answered by the Supreme Court in National Insurance Company Ltd v. Swaran Singh and others (2004) 3 SCC

297, and reiterated in Pappu and others v. Vinod Kumar Lamba and others, (2018) 3 SCC 208. On the contention of Insurance Company that once

the defence taken by insurer is accepted by Tribunal, it is bound to discharge insurer and fix liability only on owner and/or driver of vehicle, the

Supreme Court held that even if insurer succeeded in establishing its defence, the Tribunal or the Court could direct insurance Company to pay award

amount to claimant(s) and, in turn, recover the same from owner of vehicle. The three-Judge Bench of the Supreme Court in Swaran Singh (supra),

after analysing earlier decisions on the point, held that there was no reason to deviate from the said well-settled principle. Having said that, impugned

Award does not warrant any interference and as a corollary thereof, Appeal on hand is liable to be dismissed.

For the reasons discussed above, the Appeal on hand is dismissed with connected CM(s). Interim direction, if any, shall stand vacated.

Record of the Tribunal, if summoned/received, be sent down along with copy of this judgement.