The central legal point established in the judgment is the obligation of the insurer to discharge the burden of proof regarding alleged violations of insurance policy terms and the inapplicability of personal living expenses deduction in injury cases.

JUDGMENT :

SANJEEV KUMAR, J.

1. The Oriental Insurance Company Limited [“the insurer”] is in appeal against the award dated 4th September, 2019 passed by the Motor Accident Claims Tribunal, Ramban [“the Tribunal”] in file No. 70/Claim entitled Mohd. Aijaz vs. Oriental Insurance Company Limited and Another, whereby an award of Rs. 3,93,020/- along with simple interest pendente lite and future @ 7.5% per annum has been passed in favour of respondent No. 1 [“the claimant”] and against the insurer.

2. The respondent No. 1 has also filed cross objections seeking enhancement of the compensation awarded by the Tribunal.

3. Briefly stated, the facts leadings to the filing of the appeal by the insurer and cross objections by the claimant-respondent No. 1 are that on 18th February, 2014, a motor vehicle accident took place at Mehar within the jurisdiction of Police Station, Ramban due to rash and negligent driving of an Auto Rickshaw bearing Registration No. JK19/2203 [“the offending vehicle”] by respondent No. 2. In the accident, respondent No. 1, who was travelling in the offending vehicle, suffered serious injuries and permanent disablement to the extent of 42%. The respondent No. 1, at the time of accident, claimed to be 19 years old and working as mechanic. He preferred a claim petition before the Tribunal, which was contested by the insurer alone. Respondent No. 2, who was driver-cum-owner of the offending vehicle, chose not to appear and was, thus, proceeded ex-parte. On the basis of the pleadings of the parties, the Tribunal framed following issues for adjudication:

“(i) Whether petitioner Mohd Aijaz sustained injuries in road traffic accident on 18.02.2014 at Mehar within the jurisdiction of police station Ramban due to rash and negligent driving of the vehicle No. JK19/2203 by respondent no. 2? OPP

(ii) If issue No. 1 is proved in affirmative, to what amount of compensation the petitioner is entitled to and from whom? OPP

(iii) Whether the offending vehicle was being driven in violation of insurance policy? OPR-l

(iv) Whether the vehicle was having no valid documents at the time of accident? OPR-l.

(v) Relief?

4. With a view to discharge the burden of proof of issue Nos. (i), (ii) and (v), the claimant besides entering the witness box himself, also examined Mohd. Ashraf, Mohd. Farid and Dr. Safi-ud-Din as his witnesses. The insurer, however, did not lead any evidence. The Tribunal, upon appreciation of evidence on record, held issue No. (i) proved in favour of respondent No. 1-claimant. It was held that the claimant had received injuries in the motor vehicle accident involving the offending vehicle, which, at the relevant time, was being driven rashly and negligently by its driver-respondent No. 2. Issues Nos. (iii) and (iv), onus whereof was placed on the insurer, were held not proved for want of evidence. The Tribunal proceeded to determine compensation payable to respondent No. 1. The Tribunal took the monthly income of the claimant as Rs. 7,000/- and applied deduction of 50%. Taking the loss of earning capacity at 42% and applying the multiplier of 18, the Tribunal awarded a total compensation of Rs. 3,93,020/- along with interest in favour of the claimant.

5. The insurer is aggrieved and has challenged the impugned award primarily on the following grounds:

(i) The offending vehicle, at the time of accident, was being driven by respondent No. 2 in violation of the terms of the Insurance Policy and was overloaded with passengers, as is evident from the police challan, relied upon and placed on record by the claimant himself.

(ii) The driver of the offending vehicle did not possess a valid and effective driving license and the same was without any valid route permit, fitness certificate and registration certificate etc.

(iii) Since the owner-cum-driver i.e. respondent No. 2 has chosen not to contest the claim petition, as such, issue