New India Assurance Co. Ltd. vs Sunita Devi

Mr. Ramalingam Sudhakar, J. - This is an appeal of the year 2010.

The Insurance Company is on appeal challenging the award dated 24.10.2009 passed in File No. 162/Claim Petition.

Heard Mr. R. K. Gupta learned Senior counsel for the appellant as also Mr. P. S. Pawar, learned counsel for the respondents.

It is a case of fatal accident in which one Mulkh Raj died. The Insurance Company has filed this appeal on a limited scope. Accident in this case

happened on 28.01.2005. The deceased, Mulkh Raj, walking on the road was hit by a private bus bearing registration No. JK02T-3378 insured

with the appellant-Insurance Company.

The finding of the negligence on the part of the driver of the offending vehicle is not in dispute. The appellant disputes its liability on the plea that

the driver of the vehicle did not have a valid driving license at the time of accident. The appellant-Insurance Company in the proceedings before the

Tribunal raised a specific plea in this behalf. It submitted Diet Expenses for summoning an officer of the Licensing Authority Udhampur. The

Tribunal without giving the appellant-Insurance Company an opportunity closed the evidence and proceeded to pass award. In all a sum of Rs.

5,90,000/- with interest @ 7.5% per annum was awarded to the claimants wife, daughter, minor sons and mother of the deceased.

On the quantum of compensation awarded, the appellant is not disputing. Appellant states that claimants can take the balance of the award

amount if they have not already withdrawn. If the Court is inclined to remand the matter for re-enquiry, insofar as the plea for pay and recover' is

concerned, under no circumstances the claimants will be asked to refund the amount. Their entitlement to receive the amount awarded by the

Tribunal with interest is absolute and unchallenged. The said plea of the appellant-Insurance Company is recorded.

In view of the above, this Court is inclined to proceed with the next issue as to whether the Tribunal was justified in closing the evidence without

giving the appellant-Insurance Company an opportunity to rebut the liability on the plea that the owner of the vehicle alone is liable. The Insurance

Company has not been given right to 'pay and recover' from the owner of the vehicle on account of the fact that the driver did not hold a valid

driving license. The request for summoning the witness was turned down by the Tribunal without any just and reasonable cause. There is no serious

objection from the respondent. The right to examine the witness cannot be fore losed. The Tribunal fell into error to that extent.

In this view of the matter, the appeal is allowed to the limited extent as follows:

i) The award in favour of claimants is confirmed. They are entitled to withdraw the same and they will not be liable to refund the same in any

circumstance.

ii) Appellant-Insurance Company will be entitled to examine the witness before the Tribunal on the short issue as to whether the driver of the

offending vehicle had a valid driving license or not. If they are successful in proving that the driver did not hold a valid driving license, the Insurance

Company is entitled to raise the plea of 'pay and recover.

To this extent, the appeal is allowed and the matter is remitted back to the file of Presiding Officer-MACT Kathua for considering the specific

issue as above.

Appeal partly allowed as above.