Jammu & Kashmir High Court – Srinagar Bench
Jamsheed Hussain Jamsheed & Ors vs Bajaj Allianz General Insurance Co. … on 16 April, 2025
Author: Javed Iqbal Wani
Bench: Javed Iqbal Wani
Serial No. 86
Supp. Cause List
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
Mac App No. 14/2023
Mac App No. 15/2023
Mac App No. 16/2023
Mac App No. 17/2023
Mac App No. 18/2023
Jamsheed Hussain Jamsheed & Ors. ... Petitioner(s)
Through: Mr. Mohammad Amin Tibetbakal, Advocate
Vs.
Bajaj Allianz General Insurance Co. Ltd. & ...Respondent(s)
Anr.
Through: Mr. Imtiyaz Ahmad, Advocate
CORAM:
HON'BLE MR. JUSTICE JAVED IQBAL WANI, JUDGE
ORDER
16.04.2025
1. In the instant appeals filed by the appellants herein under
and in terms of Motor Vehicles Act, 1988 (for short the “Act of
1988”), award dated 17.09.2019 (for short the impugned
award) passed by Motor Accident Claims Tribunal, Srinagar
(for short the Tribunal) has been called in question.
2. Facts giving rise to the filing of these appeals are that a motor
vehicle being Tata Sumo bearing registration No. JK01L/8479
registered in the name of appellant 1 herein met with an
accident on 09.05.2009 causing death and injuries to the
passengers, travelling therein resulting into filing of various
claim petitions for compensation under the provisions of Act
of 1988 before the Tribunal.
3. Initially in the claim petitions, the registered owner/appellant
1 herein besides the driver of the vehicle/ appellant 4 herein
came to be impleaded as party respondents besides the
insurance company being respondent 1 herein with which the
vehicle was insured.
4. The Tribunal after entertaining the claim petitions issued
notice to the respondents therein the claim petition
whereafter upon entering appearance and at the instance of
the registered owner as also the driver the prospective owner
also came to be impleaded as a respondent being appellant 3.
Further appellant 2 herein had also been impleaded initially
as a respondent in the claim petition for being the driver of
the offending vehicle, however, subsequently came to be
deleted from the array of parties.
5. On the basis of the pleadings of the parties i.e, the claimants
in the claim petitions, the respondents therein being the
registered owner (appellant 1 herein) prospective owner
(appellant 3 herein) and driver (appellant 4 herein) besides
the insurance company/respondent 1 herein, the Tribunal
framed following issues:-
1. Whether on 09.05.2009, a vehicle (TATA SUMO) bearing
registration No. JK011/8479 being driven by respondent No.
2 rashly, negligently at Gundi Gujran Tehsil Karnah and onreaching near Syedan Curve (Mood) lost control over his
vehicle and said the vehicle fell into a deep gorge about 500
feet down Qazi Nag, causing thereby grievous injuries to one
Masood Ahmad Banday (hereinafter deceased) who was
travelling in the said vehicle as the passenger, going to his
home Gundi Gujran Tehsil Karnah Distt. Kupwara and he
succumbed to the injuries on the spot? (OPP)
2. In case the issue No. 1 is proved in affirmative, to what
amount of compensation the petitioners are entitled to, from
whom and in what proportion? (OPP)
3. Whether respondent No.2 driver was permitted by respondent
Nos. 1 & 4 owners knowingly to drive the offending vehicle
on the date of occurrence with fake licence and other vehicular
document like Route Permit etc if yes, the insured has
committed breach of policy stipulations absolved the
respondent No. 5, the company from its liability on account
of petitioners’ claim? (OPR-5)
4. Relief.
6. The claimants in the claim petitions being respondents in the
instant appeals lead evidence in order to prove issues 1 & 2,
whereas the onus to prove issue No. 3 was put on the
insurance company being respondent 5 therein and
respondent 1 herein.
7. The Tribunal upon conclusion of the trial/inquiry in the
claim petitions held the claimants entitled to the
compensation assessed by the Tribunal while taking into
consideration the facts ad circumstances of the case as well as
various judgments of the Apex Court referred in the award
and directed the insurance company/ respondent 1 herein to
pay the awarded amount to the claimants and yet granted
liberty to the insurance company/ respondent 1 herein to
recover the said award amount from the registered owner
being appellant 1 herein on the premise that the registered
owner had engaged the driver of the vehicle in question
knowing that the said driver was not possessed of a valid and
effective driving license and that the owner, as such, had
committed breach of the terms of the insurance policy.
8. The appellants herein have challenged the impugned award
on multiple grounds urged in the appeal.
Heard learned counsel for the parties and perused the
record.
9. Upon coming of the instant appeals for consideration on the
previous date, the record of the Tribunal was summoned and
same is available.
10. The appearing counsel for the appellants while making his
submissions in line with the grounds urged in the instant
appeals, however, notwithstanding multiple grounds of
challenge urged in the appeals would confine the challenge
only to the extent that the Tribunal wrongly recorded finding
in the impugned award that the license produced by the
driver appellant 4 herein was found fake on the basis of the
statement of the witness namely Javid Iqbal (Junior Assistant)
ARTO, Poonch produced by the insurance company and in
the process committed gros;s perversity in providing a liberty
to the insurance company/ respondent 1 herein for
recovering of the award amount from the registered
owner/appellant 1 herein.
The counsel for the appellants thus would insist that the
impugned award to the said extent is liable to be set aside.
11. On the contrary the counsel for the insurance company/
respondent 1 herein would defend the impugned award and
would contend that the Tribunal did not commit any
illegality, irregularity or perversity in drawing a conclusion
that the licence produced by the driver of the offending
vehicle being appellant 4 herein was found fake as per the
statement of the witnesses produced by insurance company.
12. Having regard to the aforesaid confining of the challenge to
the impugned order by the counsel for the appellants herein,
this Court deems it appropriate to advert to the said ground
urged by the counsel for the appellants alone hereunder in
the instant appeals.
13. Perusal of the record of the Tribunal in general and of the
statement of the witness Javid Iqbal who came to be
examined by the Tribunal after the driver appellant 4 herein
during the trial of the claim petition had produced a license to
be possessed by him in particular recorded on 08.11.2012
manifestly tends to show that the said witness during cross
examination by the counsel for the registered
owner/appellant 1 herein as also the driver the appellant 4
herein had in specific, explicit and categoric terms deposed
that he has brought the original record pertaining to the
driving license bearing No. 1948/Mvd/P-8 dated 21.05.2008
before the Tribunal and that as per the said record the said
license is issued in the name of one Liyakat Hussain S/o
Ghulam Mustafa Shah R/o Soorunkot Poonch for LMV,
Motor Cycle with its validity w.e.f 21.05.2008 upto 20.05.2028
having also stated that license stands issued from our office
and had also deposed that he had also brought the original
record pertaining to PSV endorsement bearing No.
1296/Mvd/P-8 and as per the said record the driving licence
issued in the name of Liyakat Hussain has its validity w.e.f
03.12.2008 upto 02.12.2011 and the said licence as well has
been issued as per the record from our office and is true and
correct.
14. Record also reveals that during the cross examination of the
said witness by the counsel for the insurance company/
respondent 1 herein, the said witness had also stated that in
the record which he has brought today before the Court, there
is a correction effected in the parentage and residence of the
Liyakat Hussain the holder of the licencse which correction
has been attested by ARTO of the time and same is true and
correct, having also stated that, no seal has been put thereon
the said correction as is being asked and that no seal is put
on the corrections and that a similar correction in the
parentage and residence of the said Liyakat Hussain in the
PSV endorsement license is also effected and the said
correction stands also attested.
15. Having regard to the aforesaid specific, unambiguous and
explicit statement made by the aforesaid witness before the
Tribunal, it gets revealed that the Tribunal in the impugned
award suggests that the award has wrongly recorded a
finding therein that the said witness has deposed that the
license is fake. The Tribunal in this regard has made the
following observations in the award, while dealing with issue
No. 3;
Issue No. 3 “Whether respondent No.2 driver was
permitted by respondent Nos. 1 & 4 owners knowingly to
drive the offending vehicle on the date of occurrence with
fake licence and other vehicular document like Route
Permit etc if yes, the insured has committed breach of
policy stipulations absolved the respondent No. 5, the
company from its liability on account of petitioners’ claim?
(OPR-5)”
The onus to prove this issue was on the respondent –
I/C. The counsel for the respondent -I/C has contended that
the driving license of the driver was fake which standestablished by the testimony of witnesses produced by the
respondent namely Mafooz Ahmad (Licencing Clerk of
ARTO) Poonch. The respondent produced another driving
licence during trial which was also found fictitious as per
the deposition of Javid Iqbal (Junior Assistant of ARTO)
Poonch. The registerd owner of the offending vehicle i.e
respondent No. 1 had transferred the vehicle in favour of
Ghulam Mustafa Shah (respondent No. 4) without giving
intimation to the insured company, as pre the record of the
Insurance Company, the respondent No. 1 is registered
owner of the offending vehicle who did not took reasonable
care to ensure that the vehicle was being driven by the
driver who was not holding valid and effective driving
licence as such, the registered owner has violated the terms
and conditions of the insurance policy. The counsel for the
respondent-driver and prospective owner has submitted
that driver was holding valid D/L as such they cannot be
made liable to pay compensation in any awarded in favour
of petitioners. It is further contended that possessing of two
D/L where one found fake cannot render the second license
invalid under Motor Vehicle Act.
16. It is significant to mention here that in order to prove to
issue No. 3 supra the insurance company/respondent 1
herein had examined one Muneeb Ahmad Khan Legal
Executive who in his statement made on affidavit has stated
that after receiving summons of the claim petitions, the
insurance company deputed a licensed investigator to
investigate the alleged accident and also to collect necessary
documents of the offending vehicle, FIR as also the challan
and that a lawyer was also engaged in the matter to defend
the claim petitions on behalf of the insurance company and
that as per the report of the investigator submitted to the
insurance company along with the documents, the vehicle in
question was found to be a commercial vehicle and the
driving license seized upon verification report dated
27.04.2010 was found to be not issued in favour of driver
Liyakat Hussain, and, as such, was fake and that the vehicle
was over loaded at the time of accident in violation of the
terms and conditions of the policy, and, as such, the insured,
the owner of the vehicle committed breach of the policy
conditions by allowing the driver to drive the vehicle with
fake license and by over loading the vehicle.
17. Since the insurance company/ respondent 1 herein had
alleged the violation of the terms and conditions of the
insurance policy by the owner of the offending vehicle on two
counts; firstly that the owner engaged a driver with fake
license; and, secondly that the vehicle was over loaded at the
time of the accident, yet a closer and deeper examination of
the record of the Tribunal suggests that notwithstanding the
statement of the said witnesses of the insurance company the
Tribunal entertained the another license produced by the
driver during the course of the trial/inquiry of the claim
petitions and had been subjected to verification while
examining witness namely Javid Iqbal who too had been
examined by the insurance company without any objections..
18. Record also reveals that there has been no evidence led by
the insurance company contrary there to or else that the said
license is also fake or that owner of the offending vehicle
knew that the driver is possessed of the said fake license or
that the vehicle was over loaded at the time of the accident,
and, therefore, the owner of the vehicle committed breach of
the terms and conditions of the policy.
19. The Tribunal is view of above seemingly has grossly erred
while returning a finding qua the driving license produced by
the driver during the course of the trial of the claim petitions,
which licensee indisputably was found to be genuine and
endorsements made there in as true and correct as per the
statement of the witness namely Javid Iqbal of the office of
ARTO, Poonch. Besides the Tribunal has also faulted while
granting liberty to the insurance company/respondent 1
herein to recover the award amount from the registered
owner appellant 1 herein without there being any evidence
muchless legal, credible evidence to the effect that the owner
of the vehicle violated the terms and conditions of the policy.
A reference in this regard to the judgments of the Apex
Court passed in cases titled as “Pepsu Road Transport
Corporation Vs National Insurance Company reported in
AIR 2014 SC 305″ and Rishi Pal Singh Vs. New India
Insurance Company Limited and Ors. Reported in 2022 SCC
2119 would be relevant herein, wherein following has been
held by the Apex Court at para 5 and 9 respectively:
“5. In United India Insurance Company Limited Vs. Lehru and
Others (1), a two judge Bench of this Court has taken the view that
on the ground that the person driving the vehicle at the time of
accident was not duly licensed. It was further held that the willful
breach of the conditions of the policy should be established. Still
further it was held that it was not expected of the employer to verify
the genuineness of a driving license from the issuing authority at
the time of employment. The employer needs to only test the
capacity of the driver ad if after such test, he has been appointed,
there cannot be any liability on the employer. The situation would
be different when the employer was told that the driving licence of
its employee is fake or false and yet the employer not taking
appropriate action to get the same duly verified from the issuing
authority”.
“9. We may, however, hasten to add that the Tribunal and the
court must, however, exercise their jurisdiction to issue such a
direction upon consideration of the facts and circumstances of each
case and in the event such a direction has been issued, despite
arriving at a finding of fact to the effect that the insurer has been
able to establish that the insured has committed a breach of contractof insurance as envisaged under sub-clause (ii) of clause (a) of sub-
section (2) of Section 149 of the Act, the insurance company shall be
entitled to realize the awarded amount from the owner or driver of
the vehicle, as the case may be, in execution of the same award
having regard to the provisions of Sections 165 and 168 of the At.
However, in the event, having regard to the limited scope of inquiry
in the proceedings before the Tribunal it had not been able to do so,
the insurance company may initiate a separate action therefore
against the owner or the driver of the vehicle or both, as the case
may be. Those exceptional cases may arise when the evidence
becomes available to or comes to the notice of the insurer at a
subsequent stage or for one reason or the other, the insurer was not
given an opportunity to defend at all. Such a course of action may
also be resorted to when a fraud or collusion between the victim and
the owner of the vehicle is detected or comes to the knowledge of the
insurer at a later stage”.
20. For what has observed, considered and analyzed
hereinabove, the appeals succeed as a consequence whereof,
the impugned award to the extent it provides a liberty to the
insurance company/respondent 1 herein to recover the
award amount from the registered owner is set aside.
21. The statutory deposit made by the appellants herein at the
time of institutions of the instant appeals before the Registry
of this Court is directed to be returned back along with the
interest if any allowed thereon to the appellants subject to
their proper verification and identification.
22. Disposed of.
23. A copy of this order be placed on each file.
(JAVED IQBAL WANI)
JUDGE
SRINAGAR:
16.04.2025
“S.Nuzhat”
Whether the order is speaking Yes/No
Whether the order is reporting Yes/No
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