Jammu & Kashmir High Court
Gouri Raina And Ors. vs Kh. Habib-Ullah Najar And Ors. on 5 August, 2004
Equivalent citations: II(2005)ACC541, 2005(1)JKJ645
JUDGMENT S.K. Gupta, J.
1. This appeal by the claimants arises out of the award passed by Motor Accidents Claims Tribunal, Jammu on File No. 560/Claim dated 24-09-1996.
2. The appellants herein filed a claim petition seeking compensation in respect of the death of the deceased in a vehicular accident, on 11-03-1986. It is alleged that the accident occurred due to reckless and negligent driving of the offending vehicle (truck) bearing Registration No. 6827-JKB. The deceased, while walking on the road towards Batmalu to attend his office, was struck by the offending vehicle driven recklessly and negligently by his driver in reversing the vehicle, as a result of which, the deceased sustained injuries and lost his breath in the hospital on the same day. The driver and the owner remained absent before the Tribunal and were stood exparte. The claim petition, however, was contested only by the Insurance Company, which refuted its liability on the ground that the vehicle was not insured with the Company on the date of accident.
3. The Tribunal, after recording the evidence and hearing the parties, awarded an amount of Rs. 1,15,500/- as compensation to the claimants, to be satisfied by respondents-1 and 2 (driver and owner of the vehicle), in the claim jointly and severly. It was further held that the Insurance Company is not liable to pay compensation, as the vehicle has not been found to be insured with the Company on the date of accident. Aggrieved by the award passed by the Tribunal vide order dated 24-09-1996 only to the extent that instead of Insurance Company fastened with liability, the award has been directed to be satisfied by respondents-1 and 2, driver and owner of the offending vehicle, claimants impugned its correctness before this Court in appeal.
4. The only contention raised by Mr. K.L. Bhat, learned counsel appearing for the appellants, is that the Tribunal has mis-appreciated the evidence, much less ignored the material documents, viz., seizure memo and the FIR, showing the proof of the Insurance Policy vide which the offending truck was insured on the date of accident and wrongly fastened the liability to satisfy the award on the driver and the owner of the vehicle instead of the United India Insurance Company. Mr. Bhat further submitted that the Tribunal has also not taken note of the fact that while granting interim relief of Rs. 15,000/-, the Insurance Company was directed to satisfy the interim award vide its order dated 13.06.1987.
5. It is significant to point out that while granting interim award at an initial stage, the Tribunal does not look into the defences available to the Insurance Company, which are required to be determined on evidence in the main claim petition. What is required to be seen at the initial stage of the interim award is the death of the deceased to have taken place in a vehicular accident. No roving enquiry is required to be conducted while granting interim award but only on the basis of prima facie evidence available on record.
6. Mr. K.L. Bhat, learned appellants' counsel, however, did not dispute that during the currency of the proceedings before the Tribunal, he had made an application seeking a direction to the Insurance Company to produce the Policy in respect of the offending vehicle. The application, however, did not merit acceptance with the Tribunal on the ground that in support of specific denial in the demurrer to the claim petition, filed by the insurance Company to the effect that offending vehicle was not insured, at the time of accident, with the Insurance Company. Mr. G.D. Bhargava made a statement in refuting the contention of the claimants that on verification of the record of the offending vehicle, as per Policy indicated in the FIR, it was found that the vehicle involved in the accident was not insured with the Company on the relevant date. No attempt seems to have been made by the claimants to bring evidence on record to show that the vehicle was insured with the Company on the date of accident. Even Investigating Officer, who is stated to have prepared the seizure memo and stated to have reflected the number of Policy in the FIR, has not been examined to prove the documents and show the source of procuring the number of the said policy. It may further be pointed out that the claimants, by merely giving the number of the Policy without furnishing further particulars in the relevant column of claim petition, Insurance Company cannot be fastened with the liability to pay the award, particularly when the Insurance Company had denied the insurance of the offending vehicle, and no evidence is placed on record by the claimants in support of their contention to the contrary. So the number of Insurance Policy given in the FIR without furnishing further particulars and any other evidence brought on record to show that the vehicle was insured, at the time of its accident, with the Insurance Company, is of no help to decide the question of insurance.
7. As regards the contention of Mr. Bhat that the interim award was satisfied by the Insurance Company, it is significant to point out that this itself will not conclude the fact that the vehicle was insured with the respondent-Insurance Company on the date of accident. So, practically there is no evidence in the Court below to show that the vehicle in question was insured. In that view of the matter, unless this fact is proved that the vehicle is insured, no liability of compensation can be fastened on the Insurance Company. Mr. Bhat during the course of argument also submitted that after the award has been passed, a petition has also been filed before the competent authority seeking execution of the award and is still subjudice. In view of the submission made by Mr. Bhat with regard to the pendency of the execution petition in respect of the award of compensation passed by the Tribunal, it clearly shows that the claimants are satisfied with the award on all counts, and in that event, the appeal against such award is not legally tenable.
8. In the above view of the matter, I don not find any ground to interfere in the well-considered judgment and order passed by the Tribunal awarding compensation to the claimants to be satisfied by the driver and the owner being liable.
9. Taking conspectus of the aforesaid discussion and the facts and circumstances of the case, I do not find any merit in this appeal, which is, accordingly, dismissed.