United India Insurance Co. Ltd vs Mumtaza Shah And Others

Impugned in this Appeal is Award dated 25.04.2016, passed by Motor Accident Claims Tribunal, Srinagar (for short “Tribunalâ€) on a Claim

petition bearing File no. 230 titled Mumtaza Shah v. Mohammad Shafi shah and others, directing appellant Insurance Company to pay compensation in

the amount of Rs.15,72,000/- along with 6% 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 respondent no.1 before the Tribunal on 26.07.2011, averring therein that

injured â€" Mumtaza Shah, aged 36 years, injured in an accident, which took place on 27.06.2011 at Wanigam, due to rash and negligent driving of

driver of offending vehicle (Tata Sumo) bearing Registration no.JK12-2096 which was insured with appellant Insurance Company,

Claimants/Respondents 1 to 4 sought compensation to the tune of Rs.35.00 lacs.

Appellant Insurance Company resisted the claim petition before the Tribunal on the ground that offending vehicle was driven totally against the

terms and conditions of policy, more so driver of offending vehicle was not holding valid and effective driving licence at the time of accident. Appellant

Insurance Company also averred in the written statement that claimant be put to strict proof qua her sufferings of permanent disability and as regards

her monthly income. It was also urged that insured having committed breach of policy terms and conditions, as such, Insurance Company was not

liable to indemnify the insured and any responsibility of payment of compensation be saddled upon respondent owner.

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

Whether on 27.06.2011 a vehicle Tata Sumo bearing registration No. JK012- 2096 being driven by respondent No. 1 rashly and negligently from

Wangam towards Achabal and on reaching near Wangam lost control over his vehicle and struck against two pedestrians, who were standing on the

correct side of the road, causing thereby multiple fatal injuries to the petitioner namely Mumtaza Shah and her right leg above knee was amputated

which resulted her permanent disablement of the petitioner? OPP

Whether the respondent No.1, driver was permitted by respondent no.2, registered owner knowingly to drive the offending vehicle with invalid/

ineffective DL and other vehicular documents like R/P,R/C,F/C etc on the material date of occurrence, if yes, the insured has committed the breach

policy stipulation absolved the respondent no.4 on account of petitioner’s claim? (OPR-4)

In case the issue No.1 is proved in affirmative, to what amount of compensation the petitioner is entitled to, from whom and in what proportion?

OPP

The parties adduced evidence in support of their respective stand. By impugned Award, the Tribunal found claimants/respondents entitled to

receive compensation of Rs.15,42,000/- along with 6 % interest per annum.

Heard and considered.

Learned counsel for appellant Insurance Company has stated that appellant Insurance Company examined its witness, who placed on record the

verification report of Route Permit issued by Assistant Regional Transport Officer, Poonch, which clearly shows that route permit was not valid on the

date of accident inasmuch as route permit had expired on 13.06.2011 and accident took place on 27.06.2011. In addition to this, it is contention of

learned counsel for appellant that respondents 2 to 4 â€" driver and owners of offending vehicle did not choose to contest claim petition before the

Tribunal and therefore, the Tribunal was required under law to draw an adverse inference against driver and owners.

The Tribunal framed Issue no.2 as to validity of driving licence and other vehicular documents, like route permit, fitness etc. To discharge onus of

proving Issue no.2, appellant Insurance Company produced and examined two witnesses, namely, Jamsheed Sakib, Administrative Officer, Legal,

United India Insurance Company, and Farooq Ahmad Wagey, Licencing Clerk, ARTO Baramulla. About driving licence, it came to fore that driver

was competent to drive MPV vehicle as also sumo vehicle.

There is substance and force in the submission of learned counsel for appellant Insurance Company that the Tribunal has not taken into account the

fact that Route Permit was not valid on the date of accident, viz.27.06.2011, as it had expired on 13.06.2011. Assumptions are coming forth from

impugned Award with reference to Route Permit. The Tribunal has assumed that Route Permit was in existence on the date of accident without

making any mention of any valid documentary proof in this regard. The Tribunal ought to have come up with clear cut and categoric assertion as to

whether Route Permit on the date of accident was in existence or not. So, the Tribunal is required to discuss comprehensively Issue no.2 vis-Ã -vis

Route Permit and come up with lucid finding about the same. To this extent impugned Award is liable to be set-aside.

Next assertion of learned counsel for appellant Insurance Company is that compensation granted by the Tribunal is exorbitant and on higher side.

Above submission of learned counsel for appellant Insurance Company is misconceived. The reason being that the Tribunal, while deciding Issue no.3

qua computation of compensation, has comprehensively discussed all facets of the matter. The Tribunal, while computing compensation, relied upon

the judgments passed in NIC Ltd v. Smt Raja Beghum & ors 2011(1) SLJ 135, and Arun Kumar Agarwal v. National Insurance Company 2010 ACJ

2161 and only thereafter granted compensation in the amount of Rs.39,94,411/-. In that view of matter, impugned Award to the extent of

compensation does not warrant any interference.

For the foregoing reasons, the Appeal on hand is partly allowed and the Award dated 03.02.2018, passed by Motor Accident Claims Tribunal,

Srinagar on a Claim Petition, being File no. 98 of 2012, titled as Bashir Ahmad Mir and another v. Ghulam Hassan Dar and others, is set-aside to the

extent of Issue No.2 (viz. whether the respondent no.1, driver was permitted by respondent no.2, registered owner knowingly to drive the offending

vehicle with invalid/ineffective DL and other vehicular documents like R/P, R/C, F/C etc on the material date of occurrence if yes, the insured has

committed the breach policy stipulation absolved the respondent no.4 on account of petitioner’s claim). The matter is remanded back to the

Tribunal to decide afresh the claim petition with reference to validity of Route Permit (i.e., Issue no.2) after considering all aspects of the matter and

after taking all steps that may be warranted therefor, including summoning of witnesses and calling of record. 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.

Disposed of in terms of above.

Record of the Tribunal be sent down along with copy of this judgement.

Parties shall appear before the Tribunal on 21st June 2021.