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Judgment
These are two Cross Appeals, one filed by the Insurance Company and the other by the claimant, against the judgment and award dated 10.05.2016
rendered by the Motor Accident Claims Tribunal (Ist Additional District Judge), Jammu in Claim No. 05/2012.
Learned Tribunal has awarded compensation of Rs.3,48,000/ in favour of the claimant, Mohd. Bashir Ullah, on account of personal injuries suffered
by him in a road traffic accident involving a motor vehicle (Tempo Traveller) bearing registration No. JK 12-1865. Liability of paying the compensation
has been foisted on appellantInsurance Company with whom the offending vehicle was insured for third party risk.Â
Learned counsel for the appellant-Insurance Company, Mr. Jugal Kishore Gupta, Advocate, submitted, precisely, that driver of the offending vehicle,
herein respondent No.2 (respondent No.1 before the Claims Tribunal), did not possess the driving licence at the time of the accident so there was
breach of a condition of the Policy of insurance providing that the Insurance Company shall not be liable to indemnify the insured in case vehicle is
driven by a person not possessing a valid and effective driving license. Learned counsel submitted further that the factum that the offending driver did
not possess any driving license was duly proved by the appellant- Insurance Company by examining the said driver as its witness but the learned
Tribunal, while ignoring his evidence, referred to and relied upon the documents produced by the claimant at a later stage, which neither were
admissible nor sufficient to prove that the offending driver possessed a valid driving license. Learned counsel argued also that the compensation
awarded by the learned Tribunal is much on higher side.
Per contra, learned counsel for the claimant, Mr. Z.A.Qazi, Advocate, supported the impugned judgment and award. He submitted that the claimant
has produced sufficient material to show that the driver of the offending vehicle possessed a valid and effective driving license at the time of accident.
He, however, submitted also that due compensation has not been paid to the claimant as the learned Tribunal has failed to award compensation for the
expenses incurred on transportation of the claimant and engagement of attendant during his treatment.Â
A clear plea was taken by the appellant-Insurance Company before the learned Tribunal that the driver of the offending vehicle did not possess a valid
and effective driving licence authorising him to drive the particular class of vehicle in breach of the condition of the Policy of the Insurance that the
vehicle should not be driven by a person not possessing a valid and effective driving license. This aspect was covered in issue No.2 framed by the
learned Tribunal. Discussion on issue No.2 by the learned Tribunal would show that the driver of the offending vehicle, therein respondent No.2, while
appearing as witness for the Insurance Company had denied that he was having a driving licence or was driving the offending vehicle at the time of
the accident. He had stated also that the vehicle was owned by his brother, Altaf Hussain and Police had registered case against driver of the vehicle,
Ikrar Shah. Learned Tribunal without attaching any importance to his evidence to the extent that he was not driving the vehicle, however, relied upon
documents produced by the claimant which he claims to have obtained from Army on an application under right to Information Act. These documents
have been produced by the claimant in this appeal also. These documents would show that the offending driver was enrolled in Territorial Army on
06.12.2003 and was disembodied on 01.05.2012, he was performing duties of driver in the said army Battalion and “was issued a Military Driving
License†w.e.f. 25.10.2004.Â
It is noticed that the aforementioned documents were not proved before the learned Tribunal. That apart, even if these documents are accepted
without proof, they show only that the driver of the offending vehicle served in Territorial Army from 06.12.2003 to 25.10.2004, he was worked as a
driver and had been issued a Military Driving License for that purpose. The said Military Driving License was not produced by the offending driver
and was not examined by the learned Claims Tribunal as is evident from the impugned judgment and award. In any case the said driving license,
whatsoever, cannot be held to be a valid and effective licence for driving the offending vehicle, which admittedly was a passenger vehicle. It is, thus, a
close and shut case that the driver of the offending vehicle, Liaquat Hussain (respondent No.1 in the claim application) did not possess any driving
license at the time of the accident.
Another witness, namely, Amandeep Sharma, Legal Officer of the appellant- Insurance Company has stated before the learned Tribunal that the
Policy of the Insurance issued in favour of the owner of the offending vehicle, Parvez Waheed, (respondent No.2 before the learned Tribunal)
contained a condition that the Insurance Company shall not be liable to pay compensation in case driver of the vehicle did not possess a valid driving
license. Evidence to this extent has not been rebutted nor this aspect is denied.
There was, thus, a clear breach of Policy of Insurance which provided that the Company shall not be liable to indemnify the owner in case the vehicle
is driven by a person not possessed of a valid and effective driving license. The Insurance Company, therefore, is not liable to indemnify the owner
and the learned Tribunal has fallen in error by foisting the liability on the said Company.
The appellant-Insurance Company having been found not entitled to indemnify the owner, objection in regard to the quantum of compensation raised
on behalf of the Company need not be entertained and considered.
In regard to the cross appeal filed on behalf of the claimant, it has been found that there is nothing in his statement made before the learned Tribunal
to show that any expenses were incurred by him on engagement of attendant or for his transportation. No merit in the appeal filed by him, therefore,
has been found.
For all that said and discussed above, the appeal filed by the Insurance Company in MA No. 145/2016 is allowed and the impugned judgment and
award is set aside to the extent it foists the liability of paying the compensation on the appellant-Insurance Company. The compensation shall be
payable by the driver and owner of the offending vehicle. The appeal filed by the claimant in MA No. 136/2016, however, is dismissed.