Jammu & Kashmir High Court – Srinagar Bench
National Insurance Company Ltd vs Khalida Begum W/O Bashir Ahmed Malik on 21 December, 2024
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
CMAM No. 106/2017
Reserved On: 12th of December, 2024
Pronounced On: 21st of December, 2024.
National Insurance Company Ltd.,
Divisional Office, Srinagar
Through its Sr. Divisional Manager,
Ravi Kant Goel.
... Appellant(s)
Through: -
Mr N. A. Dendru, Advocate.
V/s
1. Khalida Begum W/O Bashir Ahmed Malik
2. Princy Jan; 3. Tehseena Jan; and 4. Shaheena Jan
Daughters of Bashir Ahmed Malik
5. Muneeb Bashir
Son of Bashir Ahmed Malik
2 to 5 minors-through their mother Khalida Begum
Residents of Mandugam, District Shopian.
6. Muhammad Sheikh S/O Khair Sheikh
R/O Menipora, Vehil, Shopian
7. Nissar Ahmed Malik S/O Abdul Khaliq
R/O Kulgam
... Respondent(s)
Through: –
Ms Mahjabeen Bhat, Advocate vice
Mr Mohammad Ayoub Bhat, Advocate for R-1 to 5; and
None for R-6 & 7.
CORAM:
HON’BLE MR JUSTICE M. A. CHOWDHARY, JUDGE
(JUDGMENT)
01. The Appellant-National Insurance Company Limited, through
the medium of the instant appeal filed under Section 173 of the Motor
Vehicles Act, 1988 (hereinafter referred to as ‘the Act of 1988’), has
Page 2 of 7CMAM No. 106/2017
challenged the Award dated 20th of July, 2017 passed by the Motor
Accident Claims Tribunal, Pulwama in Claim Petition No. 37/2006 titled
‘Mst. Khalida Begum & Ors. v. National Insurance Company & Ors.‘,
whereby an amount of Rs. 17,00,000/-, minus the interim relief along with
pendentelite and future simple interest @ 6 percent per annum from the date
of institution of the Claim Petition till final realization of the awarded
amount, was granted to the Claimants/ Respondent Nos. 1 to 5 herein.
02. The facts leading to the filing of the present appeal, as emerge
from the perusal of the file on hand, are that one Bashir Ahmad Malik,
husband of Claimant/ Respondent No.1 herein and father of Claimant/
Respondent Nos. 2 to 5 herein, approached the Tribunal with a Claim
Petition by stating therein that he, on 2nd of December, 2004, was travelling
in the vehicle bearing registration No. JK-13-1745 driven by its driver,
Nissar Ahmad Malik/ Respondent No.3 herein, rashly and negligently and
that, on reaching Chankya Dhar Road Udhampur, Jammu, the driver lost
control of the vehicle, as a result whereof, the vehicle skidded off the road,
thereby inflicting multiple injuries upon the spinal cord and lower limbs of
Bashir Ahmad Malik; that he was shifted to District Hospital Udhampur for
the treatment of said injuries, wherefrom he was referred to Government
Medical College, Jammu and, then, to Amritsar where he was hospitalized
in a private hospital for treatment.
03. It was further stated in the Claim Petition that the said Bashir
Ahmad Malik had remained admitted in Hospital for a pretty long time and
had, at that point of time, annexed all the medical record/ prescriptions of
different Hospitals with the Claim Petition, accordingly; that he had been
rendered totally disabled and was having 75% disability, requiring him to
take the services of a Helper; that the injured was a case of traumatic
compression fracture with paraplegia having 75% disability; that pursuant
to notice having been issued by the Tribunal, the Respondent Nos. 1 and 2
appeared and filed their Objections to the Claim Petition, while as, the
Respondent No.3-Driver of the offending vehicle did not file any
Objections and was, accordingly, proceeded ex-parte.; that during the
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pendency of the Claim Petition, the original Claimant-Bashir Ahmad Malik
succumbed to his injuries on 9th of March, 2012 after a prolonged illness,
when the Claim Petition was at the stage of recording of evidence,
whereafter the legal heirs of the deceased/ Respondent Nos. 1 to 5 herein
moved a motion before the Tribunal for contesting the Claim Petition,
which was allowed by the Tribunal vide Order dated 3 rd of May, 2012 and
the legal heirs were brought on record as the Claimants in the Claim
Petition; and that, thereafter, an amended Claim Petition came to be filed by
the Claimants on 19th of June, 2014; that a case, in this behalf, was
registered in Police Station, Udhampur under FIR No. 357 of 2004 for the
offences punishable under Sections 279 and 337 of the Ranbir Penal Code
(RPC) against the Respondent No.3 herein viz. the Driver of the offending
vehicle.
04. The Tribunal, on the basis of the pleadings of the parties,
initially, had framed the following issues:
i. Whether the Petitioner was travelling in the offending
vehicle on 02-12-2004 being driven by the respondent No.3
rashly and negligently which met with an accident at
Chankiya Chowk Dhar Road Udhampur causing thereby
injuries to the petitioner? (OPP);
ii. If issue No.1 is proved in affirmative, whether the Petitioner
is entitled to compensation, if yes, to what extent and from
whom? (OPP); andiii. Relief?
05. During the process of recording of evidence and having regard
to the fact that the original Claimant had succumbed to his injuries on 9th of
March, 2012 and his legal heirs were brought on record on 3rd of May,
2012, whereafter, they filed amended Claim Petition on 19th of June, 2016,
the Tribunal, vide Order dated 9th of October, 2014, appears to have framed
the following additional issues:
i. Whether the injured, namely Bashir Ahmad Malik, was
incapacitated as a result of the vehicular accident on 2nd of
December, 2004 at Chankiya Dhar Road, Udhampur, Jammu
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and as a result of the injuries ultimately died on 9th of March,
2012? (OPP); andii. Whether the applications/ petitioners are entitled to
compensation for death of Bashir Ahmad Malik as his legal
heirs/ dependents? OPP.
06. After conclusion of the proceedings and hearing the contesting
parties, the learned Tribunal, in terms of the impugned Award dated 20th of
July, 2017, allowed the Claim Petition, thereby holding the Claimants/
Respondent Nos.1 to 5 herein entitled to compensation to the tune of Rs.
17,00,000/-, minus the interim relief along with pendentelite and future
simple interest @ 6 % per annum from the date of institution of the Claim
Petition till final realization of the awarded amount. The Tribunal, however,
directed the Respondent-Insurer/ Appellant Insurance Company herein to
make payment of the awarded amount within a period of 30 days from the
date of Award through the Tribunal.
07. The impugned Award has been assailed by the Appellant-
Insurance Company before this Court through the medium of the appeal on
hand, on various grounds, including that the deceased was travelling by the
offending Insured vehicle gratuitously, as such, the Claimants, though
entitled to receive compensation, but the Insurer is not liable to indemnify
the Insured of his liability.
08. The Appellant-Insurance Company, as Respondent-Insured
before the Tribunal, had in its Written Statement asserted that the deceased
was travelling in the insured vehicle as a passenger and, as such, the
Company is not liable to pay any compensation to the owner of the vehicle
on that count. Since, the Insurance Company had raised the plea of
gratuitous passenger in their Objections, as such, the following additional
issue was framed in the Claim Petition:
“Whether the deceased Bashir Ahmad Malik was
travelling in the offending vehicle as a gratuitous passenger
and, as such, the Insurance Company is not liable to pay any
compensation to the owner of the crime vehicle?”.
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CMAM No. 106/2017
The onus to prove this issue had been placed on the Insurance
Company. After raising this issue, the Insurance Company, however, had
not taken any pains in order to prove the said plea, as has been recorded by
the Tribunal in the impugned Award, as such, it was unable to hold and
decide that the deceased was travelling in the crime vehicle as a gratuitous
passenger, as the witnesses produced and examined by the Insurance
Company also had not made any whisper with regard to the said plea and
also that there was nothing on record which would lead the Tribunal to the
conclusion that the deceased was a gratuitous passenger, hence, in absence
of any evidence, the said additional issue was decided against the Insurance
Company and in favour of the Claimants.
09. Learned Counsel appearing for the Appellant-Insurance
Company submitted that the Tribunal has erroneously recorded finding on
the aforesaid additional issue, without referring to the evidence led by the
Insurance Company, as the Company had examined as many as two
witnesses, namely, RW-Gulzar Ahmad Wani and RW-Mohd. Nayeem
Khan, both of them, based on the investigation report, had stated that the
deceased was travelling by the offending vehicle gratuitously. He has also
drawn the attention of this Court towards the statement of the deceased
recorded in support of his Petition which he had filed claiming to have been
a passenger in the offending vehicle at the time of its accident, before his
death.
10. Heard learned Counsel for the Appellant-Insurance Company
as also the learned Counsel appearing for the Claimants/ Respondent Nos. 1
to 5 herein. The Respondent Nos. 6 and 7, in view of their non-appearance
despite deemed service, have been proceeded ex-parte.
11. This Court has the advantage of having the record of the
Tribunal. Firstly, going to the statement of the deceased as original
Claimant, it is revealed that the deceased, Bashir Ahmad Malik, had stated
that he had been travelling in the offending vehicle on 2 nd of December,
2004 to Srinagar and when the offending vehicle reached at Chankya Dhar
Road, Udhampur, the same met with an accident due to the rash and
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CMAM No. 106/2017
negligent driving of the Respondent-Driver, causing him serious injuries.
The deceased had been cross-examined by the learned Counsel for the
Appellant-Insurance Company, wherein he stated that he had started the
journey in the offending vehicle from Delhi, besides some other persons
and that the vehicle was loaded with rice. However, the Insurance Company
had not put any specific question to the deceased as to how he was
travelling by the offending vehicle, whether as a passenger or as owner of
the load of the vehicle. Therefore, it cannot be stated that the deceased had
ever admitted to have travelled by the offending vehicle as a passenger
gratuitously.
12. The other witnesses examined by the Appellant-Insurance
Company before the Tribunal, RWs Gulzar Ahmad Wani and Mohd.
Nayeem Khan, had stated that as per the investigation carried out by RW-
Mohamad Nayeem Khan, Investigator, the Claimant-Bashir Ahmad Malik
had got injured in the accident caused by the offending vehicle on 2nd of
December, 2004 and that his Claim Petition was based on facts. The
Investigator-Mohd. Nayeem Khan did not say anything with regard to the
fact that the deceased was travelling in the offending vehicle gratuitously.
RW-Gulzar Ahmad Wani, who is an official as Legal Assistant of the
Appellant-Insurance Company, has attempted to say that the Investigator, in
his report, had stated that the Claimant-Bashir Ahmad Malik was travelling
by the offending vehicle as a passenger and, as such, the Company was not
bound to indemnify the compensation to the Claimants. The statement of
RW-Gulzar Ahmad Wani to this effect, however, pales into insignificance
as the Investigator himself had not stated anything with regard to this fact
and the investigation report was neither placed on record nor proved, so as
to remotely suggest that the deceased had been travelling in the offending
vehicle as on the date of accident as a gratuitous passenger and, as such, in
view of the terms and conditions of the policy of insurance, it is the
Appellant-Insurance Company which was/ is liable to indemnify the
liability of the owner of the vehicle, as Insured, to pay compensation to the
Claimants.
Page 7 of 7
CMAM No. 106/2017
13. It appears that the Appellant-Insurance Company, without
leading any evidence, with regard to an issue, the onus of which had been
placed on it to prove, wishes to assume and expects the Tribunal and even
this Court to presume this fact, even against evidence. Once, an issue is
framed on the basis of a contention raised by a party and the onus is placed
on it to prove the same, that party is supposed to lead conclusive evidence
to prove that issue. Since, in the present case, the Appellant-Insurance
Company, as Respondent-Insurer before the Tribunal, has failed to lead any
evidence on this point that the deceased was travelling by the offending
vehicle as a gratuitous passenger, the sole plea urged by the learned
Counsel for the Appellant is not tenable and is liable to be rejected
outrightly.
14. Viewed thus, the instant appeal is found to be devoid of any
merit and substance. The same is, accordingly, dismissed, along with the
connected CM(s). The impugned Award passed by the Tribunal is, thus,
upheld. The amount of compensation, if any, deposited before this Court is
ordered to be released in favour of the Claimants in terms of the Award of
the Tribunal, of course, on proper identification and after deduction of
requisite Court fee. No order as to costs.
15. Record of the Tribunal be sent down, along with a copy of this
Judgment.
(M. A. CHOWDHARY)
JUDGE
SRINAGAR
December 21st, 2024
“TAHIR”
i. Whether the Judgment is approved for reporting? No.
Tahir Manzoor Bhat
I attest to the accuracy and
authenticity of this
document
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