Motor Accident Claims Tribunal required to deliberate upon effective driving licence of driver of offending vehicle, which, however, is missing in the case: The High Court of Jammu & Kashmir and Ladakh

National Insurance Company Limited HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR CMAM no. 76 2017 Reserved on: 06.10.2021 Pronounced on: 18.11.2021 Through: Mr. J.A. Kawoosa Senior Advocate with Mr Areeb Kawoosa Advocate ….. Respondent(s) Through: Mr M. Altaf Khan Advocate Shameema Begum and others HON’BLE MR. JUSTICE VINOD CHATTERJI KOUL JUDGE 1. Challenge in this Appeal is thrown to Award dated 13th May 2017 passed by Motor Accident Claims Tribunal Srinagaron a Claim Petition bearing File no.254 2021 titled Shameema Begum and others v. National Insurance Company Limited and others directing appellant Insurance Company to pay compensation of Rs.10 10 000 along with 6% interest per annum from the date of institution of claim till realization on the grounds made mention of therein. 2. A claim petition as is discernible from perusal of file was filed by claimants respondents 1 to 4 herein before the Tribunal on 12th August 2011 averring therein that on 7th June 2011 respondent no.8was rashly and negligently plying offending vehicle bearing Registration no.JK01E 2018 and on reaching Mirgund on Srinagar Baramulla NHW he lost control over offending vehicle and struck against a pedestrian namely Ghulam Rasool Antoo who was standing on the correct side of Page 1 CMAM no.76 2017 the road with due care and caution with the result deceased sustained multiple fatal injuries on various parts of his body and ultimately succumbed to injuries in hospital. Offending vehicle was insured with appellant Insurance Company. Claimants respondents 1 to 4 sought grant of compensation of Rs.25.00 Lakhs along with interest 3. Appellant Insurance Company resisted claim petition before the Tribunal on the ground that driver of offending vehicle was not having valid and effective driving licence at the time of alleged accident. It was also stated that offending vehicle at the time of alleged accident was being driven in violation of terms and conditions of insurance policy permit and provisions of the Motor Vehicle Act. It was admitted that offending vehicle was insured with appellant Insurance Company. 4. The Tribunal in view of pleadings of parties framed following Issues for determination: 1. Whether on 07.06.2011 while the respondent no.5 was driving a vehicle bearing no.JK01E 2048 rashly and negligently coming from Pattan towards Srinagar and on reaching Mirgund the driver of the offending vehicle lost control over his vehicle and struck against a pedestrian namely Ghulam Rasool Antoo standing on the right side of the road with the result the deceased sustained multiple fatal injuries on various parts of his body and succumbed to the injuries 2. Whether the owner of the offending vehicle has permitted the driverto ply the said vehicle without valid effective DL and other vehicular documents e.g. R P R C etc and has committed the breach of insurance contract absolved respondent no.1 insurance company from its liability on account of petitioners’ claim 3. If issue no.1 is proved in affirmative to what amount of compensation the petitioners are entitled to from whom and in what proportion OPP 4. Relief. 5. Claimants produced and examined four witnesses before the Tribunal besides claimant respondent no.1. Driver of offending vehicle also got his statement recorded. Appellant Insurance Company produced one witnesses i.e. Licence Clerk ARTO in support of its stand. 6. By impugned Award the Tribunal found claimants respondents entitled to receive compensation of Rs.10 10 000 along with 6% interest per annum by saddling appellant Insurance Company to pay it. 5. Heard and considered. Page 2 CMAM no.76 2017 6. Learned senior counsel for appellant Insurance Company has stated that the Tribunal has not dealt with Issue no.2 in proper perspective. Respondent no.8 driver of offending vehicle was not having valid and effective driving licence at the time of accident. However the Tribunal did not properly appreciate this facet of the matter while deciding aforesaid Issue. According to him finding returned by the Tribunal on Issue no.2 is bad in law as there was breach on the part of owner of offending vehicle and therefore insurance company is not bound to prove terms and conditions of insurance policy. It is contended that driving licence of respondent no.8 could not be verified as the records pertaining to the period from 05.02.2002 to 29.01.2006 and the record pertaining to HGV endorsement w.e.f. 05.07.2002 to 07.05.2007 was missing from the office of ARTO Doda. It is also contended that driving licence was renewed from ARTO Udhampur w.e.f. 27.03.2008 to 26.03.2011 and thereafter the said licence was renewed from 08.07.2011 to 07.07.2014 and therefore the licence was not renewed after 03 months of the date of accident. It is also contended that the Tribunal while passing impugned award has not appreciated the law correctly. There is substance in the submission of learned senior counsel qua validity of driving licence. The Tribunal was required to deliberate upon discuss and decide Issue no.2 vis à vis valid and effective driving licence of driver of offending vehicle in detail which however is missing in the present case. So the Tribunal is required to discuss comprehensively Issue no.2 and come up with a lucid finding thereabout. To this extent impugned Award is liable to be set aside. 7. Another contention of learned counsel for appellant is that quantum of compensation awarded by Tribunal is exorbitant arbitrary and unjust. The multiplier is stated to have not been applied properly. The award of compensation is not within four corners of law and schedule contained in the Motor Vehicle Act. Above submission of learned counsel for appellant Insurance Company is misconceived. The reason being that the Tribunal while Issue no.4 qua computation of compensation has comprehensively discussed all aspects of the matter. The Tribunal relied Page 3 CMAM no.76 2017 upon the judgment rendered by the Supreme Court in Sarla Verma v. Delhi Transport Corporation ACJ 2009 1298 and only thereafter granted compensation in the amount of Rs.10 10 000 . In that view of matter impugned Award to the extent of compensation does not warrant any interference. 12. For the foregoing reasons the Appeal on hand is partly allowed and the Award dated 13th May 2017 passed by Motor Accident Claims Tribunal Srinagar on a Claim Petition bearing File no.254 2021 titled Shameema Begum and others v. National Insurance Company Limited and others is set aside to the extent of Issue No.2to ply the said vehicle without valid effective DL and has committed the breach of insurance contract ). The matter is remanded back to the Tribunal to decide afresh the claim petition with reference to validity of driving licence of driver of offending vehicleafter considering all aspects of the matter and after taking all steps that may be warranted therefor including summoning of witnesses and recording their statements. 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. 13. Disposed of in terms of above. 14. Record of the Tribunal be sent down along with copy of this judgement. 15. Parties shall appear before the Tribunal on 22nd December 2021. Ajaz Ahmad PS Whether approved for reporting Yes No Vinod Chatterji Koul) Judge Page 4 CMAM no.76 2017 

Summary: The Tribunal, required to deliberate upon, discuss and decide the validity and effective driving licence of the driver of the offending vehicle, in detail, which, however, is missing in the present case. The Tribunal required to come up with a lucid finding thereabout. In the Hon’ble High Court of Jammu &amp; Kashmir and Ladakh through the single-bench led by Justice VINOD CHATTERJI KOUL  in the matters of National Insurance Company Limited. v. Shameema  Begum&amp; Ors [CM/76/2017]. The facts of the case are respondent no.8 (driver) was rashly and negligently plying offending vehicle, bearing Registration no.JK01E-2018, and on reaching Mirgund on Srinagar-Baramulla NHW, he lost control over the offending vehicle and struck against a pedestrian, namely, Ghulam Rasool Antoo, who was standing on the correct side of the road with due care and caution, with the result deceased sustained multiple fatal injuries on various parts of his body, and ultimately succumbed to injuries in hospital. The offending vehicle was insured with the appellant Insurance Company. Claimants/respondents 1 to 4 sought a grant of compensation of Rs.25.00 Lakhs along with interest. Appellant Insurance Company resisted the claim petition before the Tribunal on the ground that the driver of the offending vehicle was not having a valid and effective driving licence at the time of the alleged accident. It was also stated that the offending vehicle at the time of the alleged accident was being driven in violation of terms and conditions of insurance policy, permit and provisions of the Motor Vehicle Act. It was admitted that the offending vehicle was insured with the appellant-Insurance Company. The Tribunal framed three issues. The Tribunal directed “The Tribunal found claimants/respondents entitled to receive compensation of Rs.10,10,000/- along with 6% interest per annum by saddling appellant Insurance Company to pay it.” The counsel for the applicants submitted that the Tribunal has not dealt with Issue no.2 in proper perspective. Respondent no.8, driver of the offending vehicle, was not having a valid and effective driving licence at the time of the accident. However, the Tribunal did not properly appreciate this facet of the matter while deciding the aforesaid Issue. According to him, finding returned by the Tribunal on Issue no.2 is bad in law as there was a breach on the part of the owner of the offending vehicle and, therefore, the insurance company is not bound to prove the terms and conditions of the insurance policy. It is contended that the driving licence of respondent no.8 could not be verified as the records pertaining to the period from 05.02.2002 to 29.01.2006 and the record pertaining to HGV endorsement w.e.f. 05.07.2002 to 07.05.2007 was missing from the office of ARTO Doda. It is also contended that driving licence was renewed from ARTO Udhampur w.e.f. 27.03.2008 to 26.03.2011 and thereafter the said licence was renewed from 08.07.2011 to 07.07.2014 and, therefore, the licence was not renewed after 03 months of the date of the accident. The court concluded “the Appeal on hand is partly allowed and the Award dated 13th May 2017, passed by Motor Accident Claims Tribunal, Srinagar, on a Claim Petition, bearing File no.254/2021, titled Shameema Begum and others v. National Insurance Company Limited and others, is set-aside to the extent of Issue No.2 (viz. Whether the owner of the offending vehicle has permitted the driver (respondent no.5) to ply the said vehicle without valid, effective DL and has committed the breach of the insurance contract?). The matter is remanded back to the Tribunal to decide afresh the claim petition with reference to the validity of driving licence of the driver of offending vehicle (i.e., Issue no.2) after considering all aspects of the matter and after taking all steps that may be warranted therefor, including the summoning of witnesses and recording their statements. 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.”