Insurance liability cannot be denied based solely on FIR claims; evidence shows claimants were standing on roadside, establishing negligence of the driver.

JUDGEMENT

1. Both the aforetitled appeals are being disposed of by virtue of this common judgment as they trace their genesis to the same motor vehicular accident stated to have occurred on 21.11.2012 in respect of which FIR 227 of 2012 came to be registered with Police Station, Rajbagh.

2. Before a closer look at the grounds urged in the memo of appeals, it shall be expedient to have an overview of the background facts, as they emerge from the claim petitions.

3. While deceased Veena Devi daughter of the claimants/respondents no. 1 and 2 [MA No. 292 of 2017] and claimant-Balbir Singh, [MA No. 291 of 2017] were standing on the road side on 21.11.2012, they were hit by a vehicle bearing Registration No. JK08C-1571, on its way from Village Malaman to Makwal, Tehsil Billawar due to rash and negligent driving of its driver, as a result whereof, Veena Devi died on the spot and Balbir Singh sustained grievous injuries. Separate claim petitions came to be preferred before the tribunal by legal representatives of the deceased and the injured. As per the claim petition filed by parents of the deceased (CP No. 29), deceased was 15 years of age and as per the claim petition filed by the injured (CP No. 30), he was 16 years of age and was a student of 8th standard at the time of accident. It was claimed by the injured that after the accident, he was evacuated to the District Hospital, from where he was referred to Government Medical College and Hospital (GMC&H) Jammu, where he remained under treatment for about 25/26 days and later he was admitted at Pathankot Hospital and Trauma Centre on 09.01.2023 where he was operated upon and was discharged from the hospital on 15.01.2023.

4. The Respondent/driver-cum-owner of the offending vehicle though denied involvement of his vehicle in the accident, but admitted that vehicle in question, at the relevant time, was insured with the appellant-insurance company.

5. On the other hand, the appellant-insurance company though admitted that vehicle in question was insured with the company in the name of respondent/owner-cum-driver w.e.f. 26.07.2012 to 25.07.2013, but it was affront with the contention that driver of the offending vehicle was not holding a valid/effective driving licence. It is pertinent to mention that later amended objections came to be filed by the appellant-insurance Company, by virtue of which, claim petitions were primarily opposed on the ground that since victims i.e. deceased and injured, at the time of occurrence, were travelling as gratuitous passengers in the goods vehicle in question, therefore, company was not liable to indemnify the insured on account of violation of the terms and conditions of the insurance policy.

6. Following issues were drawn by the tribunal in CP No. 29 (MA No. 292/2017):

1. Whether an accident occurred on [21.11.1011] at Malaman to Makwal road Tehsil Billawar, District Kathua by rash and negligent driving of offending vehicle bearing registration number JK08C-1571 by its erring driver in which petitioner sustained grievous injuries and died thereafter? OPP

2. If issue No. 1 is proved in affirmative, whether petitioner is entitled to the compensation. If so, to what amount and from whom? OPP

3. Whether the vehicle was being driven by the driver without having valid/ effective driving license at th