The main legal point established in the judgment is the liability of the insurance company to pay compensation for accidents involving vehicles insured by them, and the right of the insurance company to recover the amount from the owner of the offending vehicle.

JUDGMENT :

1. Appeals on hand have been, by Order dated 18th September 2020, directed to be listed together as these arise out of same accident having taken place on 21.04.2014 at Lawaypora, Baramulla.

2. Let me first take up and decide Appeal–MA. No. 25/2019. MA No. 25/2019

3. Impugned in this Appeal is Award dated 31.07.2018 passed by Motor Accident Claims Tribunal, Srinagar (for short “Tribunal”) on a Claim petition (File no. 96 of 2013) titled as Ishtiyaq Ahmad Sheikh and others v. Bashir Ahmad Dar and others, directing appellant Insurance Company to pay compensation in the amount of Rs. 4,60,000/- along with 6.5% interest per annum from the date of institution of claim till realization, on the grounds made mention of therein.

4. A claim petition, as is discernible from perusal of the file, was filed by respondents 1 to 6 before the Tribunal on 11.05.2013, averring therein that deceased Mohammad Subhan Sheikh aged 59 years, died in an accident, which took place on 21.4.2013 at Lawaypora, Baramulla, NHM due to rash and negligent driving of driver of offending vehicle (Xylo Cab), bearing Registration no. JK05B/4106 which was insured with appellant Insurance Company.

5. Appellant Insurance Company resisted the claim before the Tribunal. Driver and owner of offending vehicle did not appear in the matter and, therefore, were set ex parte by the Tribunal.

6. The Tribunal, in view of pleadings of parties, framed following Issues for determination, which are:-

a) Whether on 21.04.2013 a vehicle (Xylo) bearing regd. No. JK05B-4106 being driven by respondent no. 4 very rashly and negligently and on reaching Lawaypora, Baramulla NHW, the driver lost control over his vehicle and has struck again pedestrian namely Mohammad Subhan Sheikh (hereinafter deceased) who was walking on the correct side of the road, causing thereby multiple fatal grievous injuries to the deceased and later-on he succumbed to the injuries in the SKIMS Hospital, Bemina? (OPP)

b) Whether the owner of the offending vehicle insured has permitted the driver respondent no. 4 to ply the said vehicle without valid, effective D/L and other vehicular documents which is violation of policy conditions, if yes, the insured has committed the breach of insurance contract absolved respondent no. 3-Insurance Company from its liability on account of petitioners claim? (OPR-3)

c) 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)

d) Relief?

7. Claimants produced and examined besides petitioner no. 1, two witnesses before the Tribunal; besides claimants/respondent no. 03. Appellant Insurance Company produced one witness, namely, Jahangir Hussain, Law Officer, in support of its stand.

8. By impugned Award, the Tribunal found claimants/respondents entitled to receive compensation of Rs. 4,60,000/- along with 6.5% interest per annum.

9. Heard and considered.

10. Learned counsel for appellant Insurance Company has stated that the Tribunal erred in passing impugned Award. The vehement ground urged during the course of argument by learned counsel for appellant Insurance Company is that driver of offending vehicle was not holding driving licence, which fact was proved by appellant-Insurance Company, but the Tribunal has wrongly held that appellant was to produce evidence which it had failed to prove that driver was not holding the licence. It is contended that evidence produced by Insurance Company was sufficient to prove that driver was not holding licence inasmuch as charge sheet produced against accused-driver also charged him with offence punishable under Section 3/181 of the Motor Vehicle Act, and, therefore, it was for driver and owner of offending vehicle to have produced licence before the Tribunal. It is contended that driver was not holding driving licence because of the fact that driver and owner of offending vehicle did not contest the claim and did not produce any evidence showing that d