Jammu & Kashmir High Court - Srinagar Bench
Nazir Ahmad Mir @ Nana vs Santosh Kour Wd/O Gurpurab Singh on 15 December, 2023
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
Mac App. No.58/2021
c/w
Mac App No. 62/2021
Reserved on: 02.12.2023
Pronounced on: 15.12.2023
Mac App. No.58/2021
1. Nazir Ahmad Mir @ Nana
S/O Haji Bashir Ahmed Mir
R/O Balgarden Karan Nagar
C/O H.No. 189 Nursing Garh Srinagar.
2. Ashiq Hussain Dar @ Muna
S/O Ghulam Mohammad Dar
R/O Fateh Kadal Srinagar
Near Taj Bibi Khatoon Makbarah
...Appellant(s)
Through: Mr. Z.A.Qureshi, Sr. Advocate
with Ms. Monisa Manzoor, Advocate.
Vs.
1. Santosh Kour Wd/O Gurpurab Singh
2. Saneet Paul Kour D/O Gurpurab Singh
3. Simranjeet Kour D/O Gurpurab Singh
4. Amarjeet Singh S/O Gurpurab Singh
5. Sant Kour W/O Late Kashmir Singh
All residents of Nageenpora Tral Pulwama.
6. Mohammad Aslam Shiekh
S/O Wali Mohammad Sheikh
R/O Gopal pora Chadoora
7. Khazir Mohammad Reshi
S/O Ali Mohammad Reshi
R/O Brain Nishat Srinagar.
...Respondent(s)
Through: Mr. Mohammad Saleem Bandh, Advocate, for R-6.
Mr. Aftab Ahmad, Advocates, Advocate, for R- 7.
Mac App No. 62/2021
Mohammad Aslam Sheikh
S/O Wali Mohammad Sheikh
R/O Gopalpora, Chadoora Budgam Kashmir
...Appellant(s)
Through: Mr. Asif Ahmad Bhat, Advocate
with Ms. Azra Bhat, Advocate .
Page |2
Vs.
1. Santosh Kour W/O Late Gurpurab Singh
2. Saneet Paul Kour
3. Simranjeet Kour
4. Amarjeet Singh, daughters and son of Late Gurpurab Singh
5. Sant Kour W/O Late Kashmir Singh
All residents of Nageenpora Tral Pulwama.
6. Khazir Mohammad Reshi
S/O Ali Mohammad Reshi
R/O Brain Nishat Srinagar.
7. Nazir Ahmad Mir @ Nana
S/O Haji Bashir Ahmed Mir
R/O Balgarden Karan Nagar
C/O Nursing Garh H.No. 189 Srinagar.
8. Ashiq Hussain Dar @ Muna
S/O Ghulam Mohammad Dar
R/O Fateh Kadal Srinagar near Sayed Taj Bibi Khatoon Makbarah
...Respondent(s)
Through: Mr. Z.A.Qureshi, Sr. Advocate
with Ms. Monisa Manzoor, Advocate, for R-7 & 8.
Mr. Aftab Ahmad, Advocate, for R-6.
CORAM:
HON'BLE MR. JUSTICE M. A. CHOWDHARY, JUDGE
JUDGMENT
1. The appellants in both the above titled Appeals are aggrieved of the Award dated 05.08.2021 (for short 'impugned award) passed by the Motor Accident Claims Tribunal Pulwama, in a Claim Petition titled "Santosh Kour & Ors. Vs. Mohd. Aslam Sheikh & Ors.", whereby the compensation for an amount of ₹14, 45,553/- together with interest @ 6% per annum from the date of institution of the Claim Petition till the final realization of the awarded amount, has been granted in favour of claimants and the respondent-registered owner was held entitled to recover 75% of compensation after payment to the claimants from the appellants- Nazir Ahmad Mir @ Nana and Ashiq Hussain Dar @ Muna- purchasers of the vehicle, whereas, Mohd Aslam Sheikh- driver has been directed to pay 25% of compensation amount to the claimants.
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2. The factual matrix of the case is that on 22.10.2008, one Gurupurab Singh S/O Kashmir Singh R/O Nigeenpora Tral, who was serving in J&K Police as Head Constable, boarded the vehicle bearing registration No. JK02C/9692 (Matuti Car) which was being driven by Mohd. Aslam Sheikh, while travelling from Anantnag to Srinagar; that the said vehicle, because of rash and negligent driving its driver turned turtle near Drangbal Pampore on NHW; that he was seriously injured and was taken to the SMHS Hospital by some locals, where he succumbed to his injuries and in the said accident the driver also got injured. The driver namely Mohd. Aslam Sheikh fled from the spot and thereafter an FIR bearing No. 35/2008 under Sections 279 and 427 RPC was lodged in Police Station Pampore, subsequently Section 304-A RPC was added on account of the death of the deceased. The age of the deceased, as stated, was 45 years at the time of occurrence. The deceased was survived by his wife Santosh Kour and minor children- two daughters and a son.
3. The wife of the deceased, on her behalf and on behalf of her minor children and mother of deceased, filed a Claim Petition titled as Santosh Kour & Ors. Vs. Mohd. Aslam Sheikh & Ors. on 14.07.2009, seeking compensation under Motor Vehicles Act 1988, before Motor Accident Claims Tribunal Pulwama. The Tribunal, after considering the pleadings of the parties, framed the following issues for determination:-
a) Whether on 22.10.2008, while the respondent No.1 was driving his Maruti Car No. JK02C 9692 rashly and negligently and on reaching Drangbal NH hit one Gurupurb Singh who got critically injured and latter succumbed to the injuries on the same day. (OPP)
b) In case the issue No.1 is proved in affirmative, then to what extent the compensation the petitioners are entitled to and from whom such compensation is recoverable. (OPP) Page |4
c) Whether the respondent No.2 has sold the alleged offending vehicle before the alleged accident to respondent Nos. 3 and 4 and thus offending vehicle was not under his control and supervision on the alleged date of accident and thus is not liable to compensate the petitioners. (OPR 2)
d) Whether the respondent No.1 was not under the employment of respondent No.2 on the alleged date of accident and there was not master-servant relationship between them and respondent No.2 could not be held vicariously responsible for the acts of the driver (respondent No.1) and thus not liable to pay compensation to the petitioners. (OPR 2)
e) Whether the respondent No.1 was not holding the valid and effective driving license on the date of occurrence and the offending vehicle was also without valid documents on the date of accident (OPR 3)
f) Whether the vehicle was being plied in violation of terms and conditions of Insurance policy. (OPR 3)
g) Relief?
4. After hearing the arguments from the both sides and considering the evidentiary material, produced, the learned Tribunal passed the impugned Award dated 05.08.2021 in the following terms:-
"...Therefore, in the backdrop of aforesaid discussion, the claim petition in hand is allowed. The petitioners are held entitled to the amount of Rs.14,45,553 + 6 % interest from the date of filing of the claim petition i.e., 14.07.2009 till the final realization of the awarded amount. The respondent No.1 and 2 are directed to deposit the awarded amount at the ratio of 25% and 75% respectively along with interest within a period of one month before this Tribunal. However, the respondent No.2 is allowed to recover his 75% awarded amount Page |5 from the respondents 3 & 4 equally after making the payment to the petitioners, as per the procedure established by law. However, the awarded amount shall be released in favour of the petitioners as per Hindu Law..."
5. Though, in both these clubbed appeals, same Award is impugned, however, appellants in both the appeals have challenged the Award on different grounds. Therefore, both the appeals are taken up one by one. Mac App. No. 58/2021
6. Through the medium of the instant Appeal, the appellants prayed to set aside the impugned Award to the extent it gives right to the respondent No.7 herein to recover his 75% awarded amount which he paid to the claimants, from the appellants herein equally.
7. Aggrieved of the impugned Award, the appellants have assailed the same on the following grounds:-
a) That, while assessing the compensation and deciding the issue no.2, the learned Tribunal has held operative multiplier as 13 when in fact it on the higher side for the reason that the learned Tribunal was under legal obligation to assess the multiplier having regard to several imponderables in life and economic factors. The multiplier assessed by the learned Tribunal is a table relied upon by the learned Tribunal in Sarla Verma's case, could not have been relied on or taken note of because in that case the claim was raised under Section 166 of the Motor Vehicle Act read with Section 168 and not under Section 163-A of the MV Act. In this case the multiplier would be 12 for the person of the age of 45 years.
b) That the second ground is viz-a-viz the finding that the respondent No.7- owner, is allowed to recover 75% of the awarded amount from respondent nos. 3 and 4 (appellants Page |6 herein) as per the procedure established by law. While deciding issue no.3, the learned Tribunal has held that 75% of the awarded amount will be paid by the owner to the claimants at first instance and after the payment, the owner is entitled to recover the same from the respondent nos.3 and 4 (appellants herein) equally after making a simple application before the learned Tribunal.
c) That the appellants are aggrieved of this finding for the reasons that the owner has no right to seek the awarded amount from the appellants who are the brokers and had not purchased the vehicle of the respondent no.7 -Khazir Mohammad Reshi. If by any stretch of imagination, if the version of the owner Khazir Mohammad Reshi is accepted that he had sold the vehicle to the appellants, in that eventuality he can initiate the process under civil law before the civil court, with the question of issue of sale and effect thereof, will be decided and decree passed accordingly. The learned Tribunal has not decided the issue whether the sale has been affected and what is the effect of the sale. The appellants submit that the learned Tribunal at the most could acknowledge the right of the owner who has sold the vehicle as alleged, but had no jurisdiction to effect the recovery on a simple application to be filed by the owner of the vehicle Khazir Mohammad Reshi.
8. Mr. Z.A.Qureshi, learned senior counsel appearing for the appellants in Appeal No. 58/2021, has argued that the respondents 6 and 7 herein have not been saddled with the liability of payment of compensation to the claimants vide impugned Award, however, respondent No.7 was allowed to recover his 75% awarded amount from the appellants herein. Appellants cannot be held liable to pay the same, as the offending vehicle was registered in the name of respondent No.7. He has further argued that the appellants before the learned Tribunal has prayed for their deletion from the array of respondents there, for the reason that Page |7 they are brokers by profession and as brokers their role is to settle the price negotiation regarding the sale of the vehicle between the buyer and the seller. It is further argued that the learned Tribunal was of the opinion that the registered owner i.e., respondent No.7 herein is liable to pay the compensation to the extent of 75% and the respondent No.6 was directed to pay 25% of the awarded amount, but at the same time the learned Tribunal directed that the respondent No.7 is entitled to recover the awarded amount to the extent of 75% from the appellants in equal shares after making simple application before the learned Tribunal.
9. Mr. Qureshi, further argued that the owner of the offending vehicle has no right to seek the awarded amount form the appellants, who are the brokers and had not purchased the vehicle of the respondent No.7- Khazir Mohammad Reshi. He next argued that if the version of the owner is accepted that he had sold the vehicle to the appellants, in that eventuality he can initiate the process under civil law before the civil court with the question of issue of sale and effect thereof will be decided and decree passed accordingly. Learned Tribunal, according to the learned counsel, at the most could acknowledge the right of the owner who had sold the vehicle, as alleged, but had no jurisdiction to effect the recovery on a simple application to be filed by the owner of the vehicle i.e., Khazir Mohammad Reshi. This is the reason the appellants are before this Court.
10. Respondent No.7 - registered owner of the offending vehicle, filed a written response to Appeal No. 58/2021, pleading therein that the appellants have filed the appeal on concocted and baseless grounds only with the ulterior motive to prevent respondent No.7 to recover the amount, which he has paid to the claimants. It is stated that after the Page |8 payment to the claimants, the respondent No.7, as per the orders of learned Tribunal, presented an Execution Petition titled "Khazir Muhammad Reshi Vs. Nazir Ahmad Mir & Anr", before the learned Tribunal at Pulwama on 17.11.2021, for recovery of Rs.13,00,000/- from the judgment debtors 1 and 2-appellants herein, but in order to stop the payment and to prolong and defeat the said Execution Petition, the appellants have filed the instant appeal. It is further stated that earlier an Execution Petition titled "Santosh Kour & Ors. Vs. Mohd. Aslam Sheikh & Anr", was filed by the claimants against the respondents 6 and 7, before the learned Tribunal at Pulwama for recovery of awarded amount. Respondent No.7, appeared before the learned Tribunal and entered into compromise with the claimants / decree holders and by virtue of compromise deed, the claimants agreed to receive an amount of Rs.13,00,000/- only, in lump sum from him and rest of the amount was remitted by claimants to him and thus, the compromise deed was presented by them before the learned Tribunal and in light of the said compromise deed, the whole amount of Rs.13,00,000/- was paid to the claimants in cash by respondent No.7 in the open court.
11. Learned counsel appearing for respondent No.7, argued that respondent No.7 was a registered owner of the alleged offending vehicle but had sold the said vehicle to the appellants herein in the year 2006 for an amount of Rs.50,000/- and at the same time respondent No.7 purchased a Maruti car bearing JK04-9211 from the appellants for an amount of Rs.1.90 lacs, thus, after deducting the price of his Maruti car as Rs.50,000/-, he paid the remaining amount of Rs.1.40 lacs to the appellants. Thereafter, the alleged offending vehicle bearing registration Page |9 No. JK02C-9692 was handed over to the appellants herein and the vehicle bearing JK04-9211 was handed over to respondent No.7 by the appellants. He further argued that there was no role of any stranger in this transaction. Since, respondent No.7 had sold the said alleged offending vehicle to the appellants, therefore, he was neither having any supervision and control over the said vehicle nor its driver was under
his employment, thus respondent No.7 cannot be held responsible for the acts of the driver of the offending vehicle. His further argument is that since, the appellants have purchased the alleged offending vehicle form the respondent No.7 and were in the possession of the said vehicle at the time of alleged occurrence, therefore, the learned Tribunal has directed the respondent No.7 to pay the amount of compensation to the claimants first and then to recover the same from the appellants equally.
12. Learned counsel for respondent No.7 has vehemently contended that once it is found that there is transfer of vehicle by the registered owner to de facto owner before the accident, there is no reason why the registered owner should not be given the right to recover the amount, if any realized from him by the claimants, from the de facto owner. He also argued that the plea that civil court has jurisdiction in the matter, is misplaced, in view of the statutory provisions of Section 175 of the Motor Vehicles Act 1988.
13. Heard, perused the record and considered.
14. Though, the appellants in their memorandum of appeal pleaded and challenged the Award on the quantum of compensation, disputing the applicability of multiplier of 13 applied by the Tribunal, instead of 12, however, while advancing arguments, the learned counsel for the appellants has not pressed this ground, therefore, the moot question, P a g e | 10 which falls for consideration of this Court in this Appeal, is that whether the registered owner of the alleged offending vehicle has any right to seek recovery of the awarded amount from the de-facto owners- appellants, awarded in favour of the claimants by the learned Tribunal by virtue of impugned Award, who are the brokers by profession.
15. It can safely be said that registration of the vehicle in the name of an individual is of import. It generally proceeds on the presumption that a person in whose name a vehicle is registered is a person responsible for its use. This attracts to him the vicarious liability. But at the same time, if the registered owner can show, by credible evidence, that he had no control over the vehicle or that the vehicle was with someone else, over whom or use of a vehicle by whom, he had no control, he cannot be held accountable, the liability in such case shifts on to a person who had the control over the vehicle.
16. So far as the issue raised in Appeal No. 58/2021, as to whether the registered owner is liable to satisfy the Award in case he had sold the vehicle prior to the accident and whether the jurisdiction to adjudicate on the dispute between the registered owner and de-facto owner regarding ownership of the vehicle involved in the accident lies with the Tribunal, is concerned, the learned Single Judge of Kerala High Court has elaborated the same in a case 'Sreekumar v. Abdeen', reported as 2013 (3) KHC 329, while holding that any person occurring in Section 174 of the Motor Accidents Act includes registered owner who had transferred the vehicle prior to the accident. In the said case, the offending vehicle was a scooter which did not have any insurance coverage, while the 2nd respondent therein was riding the scooter. The appellant claimed that he had sold the vehicle, who in turn sold it to the P a g e | 11 2nd respondent, but the appellant continued to be the owner as per the records of the registering authority. The Tribunal held that the appellant, being the registered owner of the vehicle as on the date of accident, cannot escape the liability and held that he along-with other respondents were liable to pay compensation to the claimant. The question which came up for consideration before the Court was regarding the jurisdiction of the civil court under Section 175 of the Act to adjudicate the inter-se dispute between the transferor and transferee i.e. between the registered owner and de-facto owner. On the basis of evidence on record, the Court found that there was transfer of the vehicle by the registered owner to the de-facto owner before the accident.
17. Hon'ble Kerala High Court in the afore-stated case found that transfer of motor vehicle is governed and regulated by the provisions of the 'Sale of Goods Act' and accordingly, the transfer was complete on passing of consideration and delivery of possession of the vehicle. Thereafter, the Court found that the appellant, in whose name the registration of the vehicle continued, was liable towards the claimant notwithstanding the transfer of the offending vehicle. In that view of matter, the Court found that under Section 174 of the Act, the registered owner can be given the right to recover the amount if any, realized from him by the claimant, from the de-facto owner, as provided in Section 174 of the Act, after considering the provisions contained in Section 174 of the Act, which provides that where any amount is due from any person under an award, the Claims Tribunal may, on an application made to it by the person entitled to the amount, issue a certificate for the amount to the Collector and the Collector shall proceed to recover the same in the same manner as an arrear of land revenue. The words 'any P a g e | 12 person' occurring in Section 174 of the Act was thereupon interpreted to include the registered owner who had transferred the vehicle prior to the accident. Seeing that Section 175 of the Act ousts jurisdiction of the civil court to decide any question relating to any claim for compensation, as may be adjudicated upon by the Tribunal, the Court found that the Tribunal alone has jurisdiction to adjudicate on the dispute between the registered owner and the de-facto owner regarding ownership of vehicle involved in the accident and arising in a claim petition pending before it. The 2nd respondent therein did not dispute his ownership over the vehicle at the time of accident. The Court, therefore, declared the right of recovery of the registered owner- appellant, of the amount realized from him from the 2nd respondent- de-facto owner, under Section 174 of the Act.
18. The Full Bench of Delhi High Court in "Anand Sarup Sharma Vs. P.P.Khurana & Ors." reported as AIR 1989 Delhi 88, in a case of similar circumstances, held that the purchaser, in view of the provision of Section 94, no-doubt, is barred by statute from using the vehicle without getting it insured and that the non-compliance with the statutory obligation can lead to two consequences, namely, (i) criminal liability and (ii) tortuous liability. Para-26 of the judgment, being relevant, is extracted as under:-
"A decree or award, in our opinion, can never be made against a person who has sold the vehicle prior to the date of accident. A driver is always liable if the death or bodily injury is caused due to his rash and negligent driving. It is also the rule that an employer, though guilty of no fault of himself, is liable for damage done by a fault P a g e | 13 or negligence of his servant acting in the course of his employment on the principle that an owner is vicariously liable for rash and negligent act of his servant. The buyer cannot, by any stretch of argument, be termed as the servant of the seller. The seller, therefore, cannot be held liable for the tortious act of the purchaser or his servant, committed during the course of this (purchaser's) employment. The purchaser, in view of the provisions of Section 94, no doubt, is barred by statute from using the vehicle without getting it insured. Non-compliance with the statutory obligation can lead to two consequences, namely, (i) criminal liability and (ii) tortious liability. However, the seller in no case would be liable either under tort or under statute. This non-compliance by the buyer would not make the seller liable for damages. The fact that he continues to be the registered owner would not make any difference so far as his liability to pay compensation under tort or statute is concerned."
19. Section- 2 of the Motor Vehicles Act, provides various terms defined therein and it starts with the phrase "unless the context otherwise requires". The definition of owner is a comprehensive one. The term "owner" is defined under Section 2(30) of the Act which provides as under:-
"2(30). "owner" means a person in whose name a motor vehicle stands registered and where such person is a minor, the guardian of such minor, and in relation to a motor vehicle which is the subject of a hire-purchase, P a g e | 14 agreement, or an agreement of lease or an agreement of hypothecation, the person in 'possession of the vehicle under that agreement'."
20. The offending vehicle was admittedly without any insurance cover, as such, the liability to pay compensation, in view of statutory liability under Motor Vehicles Act, has to be fastened either on the registered owner or on the person(s) having possession and control over the use of the vehicle.
21. The Tribunal in the instant case, had framed Issue No.3, based on the pleadings, which reads as under:-
"3. Whether the respondent No.2 had sold the alleged offending vehicle before the alleged accident to respondents 3 and 4 and thus offending vehicle was not under his control and supervision on the alleged date of accident and thus he is not liable to compensate the petitioners."
The issue No.4 is also relevant for the reason that both the issues No. 3 and 4 have been decided jointly by the Tribunal. Issue No.4 reads as follows:-
"Whether the respondent No.1 was not under the employment of the respondent No.2 on the alleged date of accident and there was no master-servant relationship between them and respondent No.2 could not be held vicariously responsible for the acts of the driver and thus not liable to pay the compensation to the petitioners."
The onus to prove both these issues were also placed on respondent No.2 -registered owner of the vehicle.
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22. While returning finding on these issues, the Tribunal observed that the documentary evidence on the record shows that the vehicle was registered in the name of respondent No.2 and it is the respondent No.2 who is liable to compensate the claimants but at the same time the respondent No.1, who was driving the offending vehicle on the date of occurrence and due to whose negligence the deceased lost his life, is also liable to pay the compensation to the tune of 25% of the total awarded amount along-with interest to the claimants, whereas rest of the 75% of the awarded amount, shall be paid by the respondent No.2- registered owner to the claimants at the first instance and then after the payment, he is entitled to recover the same from the respondents 3 and 4 equally, to whom the vehicle was alleged to have been sold by the registered owner before the date of accident, after making a simple application before the Tribunal, as such, both the issues were decided holding respondents 1 and 2 i.e., driver and registered owner of the offending vehicle liable to pay compensation to the petitioners in the ratio of 25 : 75 respectively.
23. The appellants, in this case are aggrieved of the finding on both these issues for the reason that the Tribunal had not held respondents 3 and 4 liable to pay compensation and without recording such factual finding, the Tribunal had asked the registered owner i.e. respondent No.2 to pay 75% of the awarded amount to the petitioners, to which he was held liable, and then recover the same from respondents 3 and 4 by moving a simple application. The appellants are aggrieved of this finding to the extent of recovery and rightly so, because the Tribunal had not held respondents 3 and 4 liable to pay compensation. No factual finding was recorded that the offending vehicle after being sold by the registered P a g e | 16 owner, was under their control. Had such finding been recorded by the Tribunal, the recovery could have been proceeded. The Tribunal admittedly had the jurisdiction to decide this matter interse the claim of ownership of the vehicle between the registered owner and the vendee of the vehicle i.e. appellants herein, however, in view of the absence of any clear factual finding with regard to their liability, the course adopted by the Tribunal with regard to recovery by the registered owner from appellants herein, seems to be not tenable. Even against the issue No.1, as who was liable to pay compensation to the petitioners for the death of the deceased, except to work out the compensation, no finding has been recorded as to from whom compensation was recoverable.
24. The respondent No.2-registered owner of the vehicle had made the payment of Rs.13.00 lacs to the claimants by way of agreement during execution proceedings before the Tribunal and now the dispute with regard to his right of recovery of 75% of the awarded amount of compensation from the appellants, remains to be decided.
25. Since the Tribunal has not returned any finding with regard to liability as to from whom registered owner or the purchasers, claimants are entitled to recover the compensation and in view of the plea taken by the registered owner that he had already sold the vehicle before the date of accident, as such, the purchaser of the vehicle i.e. the appellants herein were liable to pay the compensation, has not been decided. In such a situation when there is no clear finding returned on issue Nos. 2, 3 and 4, which encompass with regard to entitlement of recovery of compensation, liability of registered owner or the person(s) having control and supervision over the vehicle, as on date of accident and master-servant relationship with the driver of the vehicle having not P a g e | 17 been settled by the Tribunal, the finding recorded with regard to recovery of the amount of compensation payable by the registered owner, from the appellants herein, is not tenable, as such, the finding to this extent is liable to be set aside.
26. The contention of learned counsel for the appellants that the matter with regard to recovery by the registered owner from the prospective owners, based on some transaction between them, can be settled in the civil proceedings before the civil court, is not tenable, in view of the provisions contained in Section 175 of Motor Vehicles Act 1988, which creates bar of jurisdiction of civil courts with regard to which the Hon'ble Kerala High Court in the judgment of Sreekumar Vs. Abdeen (supra), has clearly laid down, which I respectfully follow, that in such matters the, Tribunal, under the Motor Vehicles Act has jurisdiction to decide this matter with regard to liability to pay compensation either by the registered owner or by prospective owner. Thus, the contention, raised by learned counsel for the appellants with regard to the matter of jurisdiction of civil courts, is misplaced and, is, rejected.
27. Having regard to the observations and discussions made hereinabove, this Court is of the opinion that the findings recorded on issue Nos. 3 and 4 in particular, are required to be set aside.
28. The Appeal No. 58/2021, is therefore, allowed to that extent and the findings recorded on Issue Nos. 3 and 4, are set aside and the case is remanded back to the Tribunal to return finding on both these issues afresh, after appreciating the evidence recorded during the trial. Mac App. No. 62/2021
29. Through the medium of this connected appeal, the appellant-driver seeks to set aside/quash the same impugned Award dated 05.08.2021 to P a g e | 18 the extent of payment of 25% of the amount of compensation ordered to be paid by him by the Tribunal. The impugned Award has been challenged by the appellant-driver on the following grounds:-
i) That, under law the appellant cannot be fastened with the liability as mentioned in the impugned award as appellant was having valid and effective driving license and was plying the vehicle on behalf of other respondents.
ii) That, the registered owner i.e., respondent No.6 has got permission to recover his 75% award amount from the respondents 7 and 8 as the said respondents were the prospective owners of the vehicle, even though there was evidence on the record that negligence regarding the vehicle not insuring the same was of respondents 6 to 8, still the appellant was fastened with the liability, when the fact of the matter being that the role of the driver is limited and works always for a meager salary, hence cannot be burdened with such a huge liability.
iii) That, the impugned award to the extent of appellant is patently illegal as there was no such evidence on record which would have justified the learned Tribunal to fasten the liability on appellant as neither the appellant was driving the vehicle rashly and negligently nor the appellant was without valid and effective driving license nor the appellant was owner of the vehicle.
iv) That, the claimants completely failed rashness and negligence on part of the driver and the Insurance Company completely failed to prove fakeness of the license of driver, P a g e | 19 despite the said issues were not proved by respective parties, still the said issues were decided in favour of the respective parties, result of which is the appellant has been fastened with liability when the fact of matter being the appellant was having all requisite and necessary papers of the vehicle.
v) That, the learned Tribunal has failed to appreciate the evidence and has in a technical manner burdened the appellant with the liability without any evidence. The award to the extent it effects the appellant is bad in law and deserves to be set-aside.
30. Mr. Asif Ahmad Bhat, learned counsel for the appellant, vehemently, argued that under law the appellant cannot be fastened with the liability as mentioned in the impugned Award, as appellant was having a valid and an effective driving license and was plying the vehicle on behalf of other respondents. He further argued that the expression 'driver' has been well defined in terms of Section 2(9) of the Motor Vehicles Act. Furthermore, learned counsel argued that the pre-condition for any driver is to have an effective driving license as being the only steersman of the vehicle and not an owner; that, if at all the registered owner or prospective owner have not insured the vehicle, in that eventuality the driver of the said vehicle cannot be held responsible.
31. Mr. Asif Bhat, further argued that with regard to the claimants- respondents 1 to 5, there is no destitution existing as on date, as one of the son of the deceased was absorbed in the government employment in terms of SRO 43 of 1994, besides that the Police Organization has paid compensation also to the family of the deceased and in addition to that P a g e | 20 the respondent-registered owner has already deposited an amount of Rs. 13,00,000/- on 25.10.2021 with the learned Tribunal. Finally, it was prayed for setting aside the impugned Award passed by MACT Pulwama.
32. The appellant herein has raised a question as to whether he can be fastened with the liability as mentioned in the impugned Award, as the appellant in the said Appeal was having a valid and an effective driving license and was plying the vehicle on behalf of other respondents.
33. The Tribunal had framed issue No.1, which reads as under:-
"Whether on 22.10.2008, while the respondent No.1 was driving his Maruti Car No. JK02C/9692 rashly and negligently and on reaching Drangbal NHW hit one Gurupurab Singh who got critically injured and later succumbed to the injuries on the same day?"
The onus to prove this issue has been placed on the petitioners- claimants i.e., legal heirs of the deceased.
34. While returning finding on this issue, the Tribunal had observed that the most important evidence which had been established, that the deceased namely Gurupurab Singh, who was working in the Police Department as SG Constable and was posted at Lethpora on 22.10.2008, while travelling from Anantnag to Srinagar in a Maruti Car bearing registeration No. JK02C/9692, driven by Mohd Aslam Sheikh i.e., respondent No.1 (appellant herein), rashly and negligently and on reaching Drangbal the said vehicle met with an accident, in which the deceased -Gurupurab Singh was seriously injured and the driver was also injured. The deceased was taken to the hospital where he succumbed to his injuries.
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35. PW-4 ASI Ab. Ahad posted at Police Station Pampore investigated the case registered vide FIR No. 35/2008, post mortem of the deceased was conducted in SDH Pampore and after completing the requisite procedural formalities the body was handed over to the legal heirs of the deceased. Based on the statements of witnesses recorded under Section 161 CrPC and from the facts and circumstances of the case as investigated by PW-4, it was established that the accident had taken place, because of the rash and negligent driving of the driver-respondent No.1 and on oral evidence of PWs 1, 2 and 3, as well as, the statement of PW-4, coupled with the registration of FIR and the charge sheet, it was clearly established that the deceased died in the vehicular accident due to rash and negligent driving of driver-respondent No.1. Therefore, the issue No.1 was decided in favour of the petitioners and against the respondents.
36. The appellant has challenged the Award mainly to the extent that he has been made liable to pay 25% of awarded amount of compensation for his negligent driving due to which the deceased had died. His plea that the vehicle was not insured, as such, the whole of the liability is required to be fastened on the owner of the vehicle and not on him. Based on the evidence, the Tribunal has rightly concluded that the vehicle was driven rashly by driver-appellant herein, which had met with an accident causing fatal injuries to the deceased, as a result of which, he succumbed to those injuries. There is sufficient evidence, oral as well as documentary, which has been based by the Tribunal to record finding on issue No.1.
37. PW-4 ASI Ab. Ahad, who had investigated the case registered at P/S Pampore vide FIR No. 35/2008 had stated that as per the investigation, P a g e | 22 it has been established that the accident had occurred only because of rash and negligent driving of the appellant herein. PW 1- Santosh Kour, PW 2- Sheikh and PW 3- Gurmeet Singh had also supported this aspect by their oral evidence. Therefore, in view of the charge sheet laid after investigation by the police and in view of the oral evidence led by the petitioners, it had been sufficiently proved that the accident had taken place due to negligence and carelessness of appellant-Mohd. Aslam Sheikh. The appellant had been made liable to pay 25% of the compensation for his negligent driving and his plea that he is not liable to pay the same simply for the reason that the vehicle was not insured, is untenable and does not call for any consideration by this Court to accept the submission made on his behalf.
38. In a vehicular road accident, the death of a deceased can be said to have been caused due to negligence of the driver of the vehicle. The Scheme of Motor Vehicle Act, provides that the tortious liability is of the driver of the offending vehicle. However, owner can be held vicariously liable due to master-servant relation of the owner and driver of the vehicle and in case there is insurance cover of the vehicle in question, their liability to pay compensation can be indemnified by the insurer of the vehicle, in terms of its contractual liability as per the terms and conditions of the insurance policy. Since, the offending vehicle had not been insured as on date of accident, the liability has to be borne by the driver and owner, on the principles of tortious and vicarious liability. The Tribunal has rightly apportioned the liability between them.
39. Having regard to the reasons and discussions made hereinabove, the Appeal filed by the appellant, is found to be devoid of any merit and substance and does not call for any interference by this Court, P a g e | 23 exercising appellate jurisdiction. The finding recorded to the extent of liability of appellant, is, thus, maintained and upheld. Resultantly, Appeal No.62/2021, is, dismissed. No order as to costs.
40. Both the Appeals are, accordingly, disposed of.
41. The Trial court record be sent down along-with the copy of this judgment.
( M. A. CHOWDHARY ) JUDGE Srinagar 15.12.2023 Muzammil. Q Whether the Judgment / Order is Reportable: Yes / No Whether the Judgment / Order is Speaking: Yes / No