1. This Civil Miscellaneous Appeal is directed against the Award dated 31st Janaury, 2009, hereinafter for short as impugned Award, passed by Motor Accidents Claims Tribunal, Srinagar, for short as Tribunal, in a claim petition titled Mst. Bakhta and ors. v. Showkat Ali Dar and others, for short as claim petition, instituted on 19th March, 2002, bearing File No. 37/Claim and decided on 31st January, 2009.

2. In order to deal with the appeal in hand, the history of the case needs to be underlined so that the impugned award is appreciated to be just or otherwise.

BRIEF FACTS

3. Ghulam Rasool Baba, deceased while walking on the correct side of the road at Nail Bridge, was hit by a vehicle No. JKC-8795, (Bus), which was being driven by its driver, namely, Abdul Rashid Bhat, rashly and negligently. The victim sustained and succumbed to injuries in Soura Medical Institute. FIR No. 3/2001 was registered at Police Station Ganderbal for the offences punishable under Sections 279, 304-A of the Ranbir Penal Code, for short as RFC. The Claimants/Respondents 1-3 being the victims of vehicular accident invoked the jurisdiction of the Tribunal and sought compensation, as per the break-up given in the claim petition, for the loss suffered by them. To elaborate the contention further, it was projected by the claimants there that Ghulam Rasool Baba, while walking near Nail Bridge was hit by a vehicle bearing registration No. JKC 8795, sustained and succumbed to injuries in the Soura Medical Institute. The said vehicle was being driven by its driver Abdul Rashid Bhat-respondent No. 5 rashly and negligently. FIR in the matter was registered under Section 279, and 304-A of Ranbir Penal Code at Police Station Ganderbal.

4. The written statement was filed and claim petition was resisted by the appellant as also by the driver and owner and following issues came to be framed:-

"1) Whether on 14.01.2001 Abdul Rashid Bhat respondent No. 2 was plying vehicle No. JKC/8795 rashly and negligently as a result of which near Wail Bridge it hit one Ghulam Rasool Baba who sustained fatal injuries and later on succumbed to the same? (OPP)

2) Whether the driver of the offending vehicle was not holding a valid driving license on the date of accident and as such the insurance company cannot be saddled with the liability? (OPP)

3) Whether the claim petition is not maintainable as the same has not been preferred in prescribed proforma and does not disclose any cause of action? (OPR)

4) In case issue No. 1 proved in affirmative, to what amount of compensa#31;tion the petitioners are entitled to, from whom and in what proportion? (OPP)

5) Relief."

5. In order to discharge the onus of issues framed by the Tribunal, claimants examined witnesses and claimant No. 2-respondent No. 2 also appeared in the witness box. Insurer-appellant examined Noor-ud-Din, License Clerk RTO Kashmir, as a witness and also driver namely Abdul Rashid Bhat. Owner and driver has chosen not to examine any witness.

6. After hearing learned counsel for the parties and scanning the evidence, compensation to the tune of Rs. 4,27,000/- came to be awarded along with 6% interest from the date of institution till its final realization, in favour of the claimants against the driver, owner and insurance company-appellant and appellant being insurer was saddled with the liability. Further it was provided that in case the appellant fails to satisfy the award within timeframe i.e. within two months from the date of judgment/award, the awarded amount was recoverable, with 9% interest from the date of default. Owner and driver have not questioned the award nor have even the claimants questioned its adequacy. Only the appellant-insurer has thrown challenge to it.

Issue No. 1 and 3

7. Learned counsel for the appellant while addressing the arguments has not contested the issue No. 1 and 3. However, I have gone through the evidence and the documents on the file, perusal whereof reveals that all the witnesses have said that driver

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