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2020 Supreme(J&K) 206
IN THE HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR
Sanjay Dhar, J.
New India Insurance Company Ltd. - Appellant
Versus
Ghulam Mohammad Sheikh & Ors. - Respondents
CMAM No.103 of 2010
Decided On : 15-07-2020
For the Appellant :Mr. Manzoor A. Dar, Advocate.
Headnote:
Motor Vehicles Act, 1939 - Section 173 - Motor Accidents Claim – FIR - Appeal Section Motor Vehicles Act is directed against award passed by Motor Accidents Claims Tribunal Srinagar for brevity Tribunal in claim petition filed by the legal heirs of deceased emanating from record of Tribunal reveal deceased was knocked down by a vehicle bearing registration that was being driven rashly and negligently by its driver respondent herein accident resulted fatal injuries to deceased dependents of deceased filed a claim petition before Tribunal claiming a compensation from driver owner and insurer of offending vehicle –Held, Court of Rajasthan case of National Insurance and Ors reported said case Tribunal awarded a sum compensation to claimants and insurance company was held liable indemnify owner of vehicle for entire sum policy insurance company appealed before High Court for limiting its liability statutory liability fixed Act After High Court dismissed appeal matter was taken Hon’ble Supreme Court wherefrom matter was remanded to Tribunal with a direction to hold enquiry as regards liability of insurance company - After framing additional issue and considering material Tribunal found that premium Act Only Liability was and premium charged from vehicle owner was which was captioned Therefore in our opinion policy appellant specifically undertook unlimited liability to indemnify insured towards third party by not excluding liability of insured in respect of claims arising out death or bodily injury caused third party - Therefore Motor Accidents Claims Tribunal as well single Judge were right in their conclusion discussion of law on subject it becomes clear that appellant insurance company has failed to discharge its burden of proving its assertion of limited liability policy of insurance reference by not producing even a copy of policy or record of policy - It has also failed examine even single witness prove circumstances under which it was unable to produce such record/policy - Even otherwise appellant insurance company per its own version having received higher premium than premium prescribed for statutory liability cannot avoid its liability to indemnify insured to full extent - Appeal dismissed
JUDGMENT :
1. This appeal under Section 173 of the Motor Vehicles Act is directed against the award 18.03.2010, passed by Motor Accidents Claims Tribunal, Srinagar (for brevity ‘the Tribunal), in the claim petition filed by the legal heirs of deceased Mohammad Jabbar Mir.
2. The facts emanating from the record of the Tribunal reveal that on 30.11.1986, deceased Mohammad Jabbar Mir was knocked down by a vehicle bearing registration No.JKC-5787, that was being driven rashly and negligently by its driver, Gh. Mohammad Sheikh, respondent No.1 herein. The accident resulted in fatal injuries to the deceased. The dependents of the deceased filed a claim petition before Tribunal on 25.08.2001 claiming a compensation of Rs.15.00 lacs from the driver, owner and the insurer of the offending vehicle.
3. The respondent No.1, driver, and respondent No.3, owner of the offending vehicle did not contest the claim petition whereas respondent No.2, the registered owner of the offending vehicle, claimed in his reply that he had already sold the vehicle in question to one Ghulam Ahmad Kaboo before the occurrence.
4. The appellant insurance company, resisted the claim petition before the Tribunal, mainly, on the ground that the claim petition has been filed after a lapse of 17 years of the occurrence and, as such, the same is not maintainable. It was further contended by the insurer that the insurance policy that was issued in favour of the insured relating to the offending vehicle, covered only limited liability in terms of Section 95 of the Motor Vehicles Act, 1939 (hereinafter referred to as the Act of 1939), that was in operation at the relevant time.
5. The Tribunal, on the basis of pleadings of the parties, framed the following issues:
1. Whether on 30.11.1986, Ghulam Mohd. Sheikh, respondent No.1, was plying vehicle JKC/5787 rashly and negligently from Anantnag to Srinagar, as a result of which at Drangbal, Pampore, it hit Mohd. Jabbar Mir who sustained fatal injuries and later on succumbed to the same? OPP
2. Whether the respondent No.2 has sold the offending vehicle to one Ghulam Ahmad Kaboo who in turn has sold the same to respondent No.3 before the accident, if yes, what is its effect on the merits of the case? OPR-2.
3. Whether claim petition is time barred and as such not maintainable? OPR-2
4. Whether this Tribunal has no jurisdiction to try and decide the claim petition? OPR-2
5. Whether the offending vehicle was not having any insurance cover on the date of accident, as such the company is under no obligation to indemnify the insured and compensate the petitioners? OPR-4
6. Whether the driver of the offending vehicle was not holding valid and effective driving licence on the date of accident. As such the insurance company cannot be saddled with the liability? OPR-4
7. In case the issue No.1 is proved in affirmative, to what amount of compensation the petitioners are entitled to, from whom and in what proportion? OPP
8. Relief.
6. After conclusion of the trial the Tribunal, while holding that the claim petition is maintainable despite having been filed after 17 years of occurrence and repelling the contention of the insurer that its liability was limited to Rs.50,000/-, awarded a sum of Rs.5,30,088/- along with interest @6% per annum in favour of the claimants payable by the insurer.
7. The appellant insurance company has assailed the award passed by the Tribunal, mainly on the grounds that the claim petition having been filed after more than 17 years of occurrence had become stale and dead and, as such, the Tribunal was not justified in entertaining the same; that the liability of the insurer in the instant case was limited to Rs.50,000/- in terms of Section 95 of the Act of 1939 and ,as such,, the Tribunal has fallen into error by extending the liability of the appellant insurance company beyond limits.
8. I have heard learned counsel for the appellant and perused the grounds of appeals, impugned award and record of the Tribunal. It is pertinent
