Serial No. 26
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
Case:- Mac App No. 06/2020
Oriental Insurance Co. Ltd., Appellant(s)/Petitioner(s)
…..
Dhar Road, Udhampur,
Acting through its Manager Incharge, Oriental
Insurance Co. Ltd. 3rd Party Hub Town Hall,
Jammu
Sh. Duni Singh Motten age 58 years.
Through: Mr. Suneel Malhotra, Advocate.
Vs
1. Nek Mohd. S/o Abdul Mazid
R/o Dhramni Tehsil Billawar District Kathua
(Claimant)
2. Gulam Abas alias Mohd. Abas
S/o Abdul alias Abdullha,
R/o Lohai at present Dargara Pull
Tehsil Billawar, District Kathua.
(Driver of the offending vehicle No. JK02-H/5789)
3. Mohd Iqbal Wani
SW/o Din Mohd Wani,
R/o Bhadharwah District Doda at present Malik Market Narwal, C/o Sahni
Motors 19, Palace Road Panjtirthi, Jammu.
(Owner of the truck No. JK02H/5789)
.…. Respondent(s)
Through: Mr. Jagpal Singh, Advocate.
Coram: JAVED IQBAL WANI, JUDGE
HON’BLE MR. JUSTICE
ORDER
(29.02.2024)
(ORAL)
01. In the instant appeal, award dated 23.11.2019 (for short
) passed by the Motor Accident
“the impugned award”
Claims Tribunal, Kathua (for short ) in the
“the Tribunal”
claim petition titled as
“Nek Mohd Vs Gulam Abas alias
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has been thrown challenge to by the
Mohd Abas & Ors.”
Insurance Company appellant herein.
–
02. Facts emanating from the record would reveal that the
respondent 1 herein filed a claim petition under Section
166 of the Motor Vehicles Act, 1988 for compensation for
the injuries sustained by him in a vehicular accident
having taken place on 02.09.2011 at Ganeer Bouli near
Mahanpur at Dhar Road due to the rash and negligent
driving of the driver of the vehicle bearing registration No.
JK02H/5789.
In the claim said petition, the claimant/respondent 1
herein besides impleading the driver of the offending
vehicle as respondent, also impleaded the owner of the
offending vehicle as well as the Insurance Company
–
appellant herein with whom the offending vehicle was
insured on the date of accident.
03. Upon entertaining the claim petition, the Tribunal issued
notice to the respondents in response to which the
respondents 1 and 2 i.e. the driver and owner of the
offending vehicle did neither appear not contest the claim
petition, however, the respondent 3 Insurance Company
–
appeared and filed its objections to the claim petition
whereafter, on the basis of the pleadings of the contesting
parties, the Tribunal framed the following issues:-
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(i) Whether an accident occurred on 02.09.2011 at about
745 PM, at Ganeer Bouli, near Mahanpur, at Dhar Road,
due to rash, negligent and careless driving of Gulam
Abas alias Mohd Abas thereby causing injuries to the
petitioner.? (OPP)
(ii) If issue no. 1 is proved in affirmative, whether
petitioner is entitled to the compensation and to what
extent? (OPP)
(iii) Whether the offending vehicle was being used in
contravention of registration certificate and in violation
of terms and conditions of the policy of Insurance?
(OPR-3)
(iv) Whether the driver of the alleged vehicle did not
possess valid/effective driving license to drive the
particular class of vehicle? (OPR-3)
(v) Relief. (OP Parties)
04. The claimant/respondent 1 herein in order to prove the
issues (i) & (ii), onus whereof to prove the same was put
upon him by the Tribunal besides appearing himself as a
witness also examined witnesses, namely, Gulam Haider,
Qamar Din and Dr. Vikas Padha whereas the Insurance
Company appellant herein examined two witnesses in
–
support of the issue, onus whereof was laid upon it,
namely, Sanjay Kumar Junior Assistant in the Office of
–
ARTO, Udhampur and Surinder Kumar Bhat being
Administrative Officer of the Insurance Company.
05. The Tribunal upon adjudication of the claim petition
passed the impugned award holding the
claimant/respondent 1 herein entitled to the compensation
amounting to Rs. 3,73,000/- along with interest @ 6.5%
per annum from the date of institution of the claim petition
till the date of its payment by the respondent 3/appellant
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herein while holding the Insurance Company appellant
–
herein liable to indemnify the insured owner of the
offending vehicle.
06. The appellant-Insurance Company has challenged the
impugned award on the following grounds urged in the
instant appeal:-
a. That the section 3 of the Motor Vehicle act of 1988 provides
―
that no person shall drive a motor vehicle in any public place
unless he holds the effective driving licence issued to him
authorising him to drive the vehicle and no person shall so drive
a Transport vehicle other than the Motor Cab or Motor Cycle
hired for his own use or rented under any scheme made under
[2) section 75 unless his driving licence entitled him to do so.
The section 10(2) of the Motor Vehicle Act of 1988 provides form
and contents of the driving licence to drive section 10 provides
the classes of licence as:-
a. Motor cycle without gear,
b. Motor cycle with gear,
c. Invalid carriage,
d. Light Motor Vehicle
e. Transport vehicle
f. Road Roller
g. Motor vehicle of specific description.
The Section 14 of the Motor Vehicle Act provides as:-
14(2) The driving licence issued or renewed under this act shall
a. In all cases of licence to drive the transport vehicle, be
effective for a period of 3 years {provided} …….
b. In case of any other license (i) if the person obtaining
the license, either originally or on renewal thereof has
not attained the age of 50 years on the date of issue
or as the case may be renewal thereof.
[A] Be effective for a period of 20 years from the date of
such issue or renewal or
[B] Untill the date on which the person attains the age of
50 years whichever is the earlier………
That herein the present case the driver was holding licence No.
5496/2001 issued by ARTO Udhampur for Light Motor Vehicle
(LMV) non transport and Motor Cycle with gear. The said licence
was valid for the period 15-05-2001 up to 14-05-2020, the
certificate of the authority is annexed and is marked as
Annexure-IV with this appeal.
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The vehicle/ Truck No. Jk02-H/5789 was a commercial vehicle
on the date of alleged accident. A copy of Registration certificate
(R. C) of the said vehicle is enclosed herewith and is marked as
Annexure-l/’with this appeal. Therefore, the vehicle/ Truck
bearing registration No. JK02-H/5789 is a commercial vehicle
and the driver respondent No.2 was not holding valid and
effective driving licence to drive the same i.e to drive the
transport/commercial vehicle.
"Therefore, even if the name and address of the driver is
disclosed, it is absolutely impossible for the person to find out
and lead evidence whether he holds a valid driving licence or not
unless complete details viz the date of issuance and number of
the licence is given, the section 106 of the evidence act lays
down that if any fact is especially within the knowledge of any
person, the burden of proving that fact is upon him illustration
(b) of this section is ’A’ is charged with travelling on a railway
—
without ticket. The burden of proving that he had a ticket is on
him. There cannot be even a slightest doubt that holding of a
driving licence is especially within the knowledge of the person
concerned as no one also can have the knowledge of the said
fact. This will be more so in situations covered by section 149 of
the act as the insurance company cannot have any knowledge
regarding the driving licence of the driver of the vehicle which is
involved in an accident. Therefore the burden to prove that the
driver of the vehicle had a valid driving licence is upon the owner
of the vehicle and not upon the insurance company".
That applying the above said principle, the Learned Presiding
Officer MACT, Kathua, ought to have drawn the adverse
inference against the respondent driver and owner i.e
respondent No.2 and 3 who have failed to produce the driving
licence. The onus of the issue in the given circumstances was on
the owner and driver who have failed to discharge the same.
Hence by drawing the adverse inference against the said
respondent, the Learned Presiding Officer ought to have granted
the recovery rights to the appellant/ insurer by applying the
principle as laid down in case titled NIC V/s Swaran singh. That
since the learned Tribunal has not followed the law as laid
down. Therefore the impugned award is illegal and bad in the
eye of law, therefore may kindly be set a side and the liability if
The learned Presiding Officer MACT, Kathua has wrongly applied
the judgement as reported in AIR 2017 SC 3668 titled Mukund
Dewangan V/s Oriental insurance co.
The section 14 specifically provides that the transport
/commercial vehicle’s validity period is 03 years. Hence the
finding as being returned by the learned presiding Officer,
MACT, Kathua to this extent is not in accordance with law
therefore, is illegal and bad in the eye of law. The driver as per
the law was not holding the valid and effective driving licence to
drive the commercial vehicle/ transport vehicle, therefore the
learned Presiding Officer, MACT, Kathua ought to have
exonerated the appellant from the liability and the liability under
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Motor Vehicle Act ought to have been fixed on the respondent
No.2 and 3 herein. Therefore the impugned award is not in
accordance with law, therefore may kindly be set a side and the
liability may kindly be fixed on the respondent No.2 and 3
herein.
b. That the appellant herein had issued a notice under section
149 of Motor Vehicle Act of 1988 to the respondent No.2 and
herein to produce the vehicular documents, the respondent No.2
and 3 failed to submit the same. A copy of the notice under
section 149 of Motor vehicle Act dated 07- 03-2014 is annexed
herewith and is marked as Annexure-(VI) with this appeal. That
in such an event when the respondent owner and driver failed to
produce the vehicular documents despite notice, the Learned
Presiding Officer MACT, Kathua ought to have drawn the
adverse inference against the said respondents in accordance
with section 106 of the Evidence Act as the vehicular documents
are in the control and possession of respondent No.2 and 3
herein, the Hon’ble Division Bench of Allahabad High Court in a
case titled NIC V/s Brij Pal Singh reported as 2007 ACJ 1274 in
para No.17 has held as under:- the last lines of the para 17 are
as:-
any may kindly be fixed on the respondent owner and driver i.e
respondent No.2 and 3 herein and the appellant company may
kindly be exonerated from the liability.
c. That as admitted by the respondent No.l/ claimant that the
claimant by profession is having Dairy Unit however was
travelling in the said truck alleged to be as a labourer. The
occupation of the claimant/ respondent No.l herein whatsoever
maybe but while travelling in the vehicle, the status of the
respondent No.l is that of a gratuitous passenger. That since the
petitioner was travelling in the goods vehicle as a gratuitous
passenger hence the appellant company is not liable to
indemnify the insured owner. That the Hon’ble Supreme Court
of India in a case reported as AC] 2008 SC page 6 and 2018
SCCR 841 [SC) has held that he insurance company is not liable
to indemnify the insured owner of the vehicle in case the insured
owners goods vehicle carry a gratuitous passenger. The Learned
Presiding Officer has failed to appreciate the facts and that of
the status of the claimant/ respondent No.l while travelling in
the goods vehicle as that of a gratuitous passenger, therefore
ought to have exonerated the Insurance Company/ appellant
herein from the liability. Hence the impugned award is illegal
and bad in the eye of law and the liability if any may kindly be
fixed on the insured owner of the vehicle as the objections in
this regard was taken before the Learned Tribunal.
d. That the respondent No.l claimant has contributed in the
alleged accident. The claimant when the vehicle was moving,
open the window and because of the sudden jerk fell down. The
respondent No.l ought not to have opened the window when the
vehicle was moving. That this act of the respondent No.l of
opening the window all of a sudden became the cause of the
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accident. The Learned Tribunal has failed to take the note of the
same. Therefore the impugned award is illegal and bad hence
may kindly be slashed down for the reasons of contributory
negligence on the part of the respondent No.l in the alleged
accident.
e. That the Learned Presiding Officer MACT, Kathua while
awarding the amount of compensation under the head of loss of
earning during the period the petitioner could not work has
further awarded the amount of Rs. 30,000/- and while awarding
the compensation on account of loss of income has applied the
multiplier system and thus awarded an amount of Rs. 1,
68,000/-, therefore the amount as awarded separately under the
head amounts to duplicity (awarding twice for the same case).
The Learned presiding Officer ought not to have awarded Rs.
30,000/- as compensation separately for loss of earning during
the period the petitioner could not work. The Learned Presiding
Officer has awarded the compensation on account of pain and
suffering as well as for the loss of amenities of life @ Rs.
70,000/- for both head s i.e. under the head G & H. Whileas
there is no evidence on record to support the same, therefore the
compensation as awarded under these heads i.e G & H is again
on higher side and needs to be slashed down. The amount as
awarded by the learned Tribunal, along with interest @ 7.5 % is
not in accordance with law and needs to be slashed down.
f. That the other detailed grounds shall be made at the time of
hearing to substantiate the fact that the impugned award is
illegal and bad in the eye of law.
Heard learned counsel for the parties and perused the
record.
07. Perusal of the record would reveal that the
claimant/respondent 1 herein in order to prove issues (i) &
(ii) qua the happening of the accident on 02.09.2011
resulting into serious injuries to him caused by the rash
and negligent driving of the offending vehicle as also the
quantum of compensation he became entitled thereto for
the said injuries sustained by him, appeared as his own
witness, besides examining three more above named
witnesses.
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Perusal of the statements of claimant/respondent 1 herein
as also the other witnesses produced by him in the witness
box tend to show that the claimant/respondent 1 herein
proved that the accident took place on 02.09.2011 at
Ganeer Bouli near Mahanpur at Dhar Road caused by the
offending vehicle having been driven by its driver rashly
and negligently resulting into serious injuries to him and in
this regard besides producing the aforesaid witnesses had
also relied upon the charge-sheet filed under Section 173
Cr.P.C pertaining to the accident in question being FIR No.
06/2012 for offence under Sections 279, 337 and 338 RPC
with Police Station Basohli, and in order to prove the
nature of injuries suffered by him as also the degree of
disability sustained by him on account of the said injuries,
has produced the above named Doctor as witness besides
producing the Disability Certificate issued by Chief Medical
Officer, Health and Family Welfare, Kathua which
certificate reveals that the petitioner had been diagnosed as
that of non-united fracture of neck of femur left side with
shortening of left lower limb and wasting of left thigh and
leg with post-traumatic stiffness of left hip and left knee
with pain constituting 35% permanent disability.
The claimant/respondent 1 herein has also proved the
income he was earning and also the loss of income on
account of the disability suffered in the accident in
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question besides the expenses incurred by him for receiving
the treatment for the injuries.
08. On the contrary the Insurance Company appellant herein
–
as has been noticed in the preceding paras produced the
above named two witnesses in order to prove issues (iii) &
(iv) that the offending vehicle was being driven in
contravention of the registration certificate and in violation
of the terms and conditions of the policy of insurance
besides that the driver of the offending vehicle was not
possessed with valid and effective driving license on the
date of accident.
Perusal of the record would reveal that the Insurance
Company during the course of leading of its evidence
showed that the driver of the offending vehicle was
competent to drive Light Motor Vehicle (LMV) and not a
transport vehicle, thus, not making it liable to pay any
compensation, however, the Tribunal while considering the
aforesaid position discarded this plea and relied upon
Section 2(21) of the Motor Vehicles Act, 1988 which
provides that a Light Motor Vehicle (LMV) would include a
transport vehicle as per the weight prescribed in Section
2(21) read with Sections 2(15) and 2(48) taking further
cognizance of the amendment carried out in the Motor
Vehicles Act, 1988 by virtue of Act of 54 of 1994 whereby
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―medium goods vehicle‖ also came to be substituted in
clause (e to h) of Section 10(2) substituting the expression
―transport vehicle‖ therein the said clauses, thus, not
excluding the transport vehicle.
09. The Tribunal has also considered the evidence led by the
Insurance Company appellant herein in support of issues
–
(iii) & (iv), that the vehicle was used in contravention of the
registration certificate and in violation of terms and
conditions of the policy, to be precise that the
claimant/respondent 1 herein was travelling in a transport
vehicle, thus, not covered by the policy of the insurance.
The Tribunal though has not returned any specific finding
on the said issue, yet a bare perusal of the insurance policy
produced by the appearing counsel for the appellant would
tend to show that the policy pertaining to the offending
vehicle besides covering the driver, conductor and cleaner
of the vehicle also covers coolie and it emerges from the
claim petition that the claimant/respondent 1 herein had
specifically pleaded in the claim petition that he was
working as a labourer with a vehicle and that while
working, as such, met with an accident in the offending
vehicle suggesting that the claimant/respondent 1 herein
at the time of the accident was attached as a labourer with
the offending vehicle, thus, plea of the Insurance Company
appellant herein that the terms and conditions of the
–
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Insurance Policy or the fitness and registration certificate of
the offending vehicle were violated is held to be grossly
misconceived.
10. A further perusal of the impugned award would reveal that
the Tribunal has been alive to the fact and circumstances
of the case, the evidence on record led by the parties
inasmuch as the legal position qua the assessment and
computation of the amount of compensation the
claimant/respondent 1 herein was entitled to and
consequently, has passed a just and fair to the sum of Rs.
3,73,000/- along with interest @ 6.5% per annum in favour
of the claimant.
11. Viewed thus, the Tribunal cannot be said to have faulted in
the matter. Resultantly, appeal fails and is, accordingly,
dismissed
.
12. The Registry is directed to release the award amount
deposited by the appellant-Insurance Company in favour of
the claimant along with interest, if any, accrued thereon
subject to his proper verification and identification by his
counsel.
(JAVED IQBAL WANI)
JUDGE
JAMMU
29.02.2024
Bunty
Whether the order is speaking: Yes
Whether the order is reportable: Yes