MAC App No. 52/2021

Page 1

HIGH COURT OF JAMMU &KASHMIR AND LADAKH

AT SRINAGAR

MAC App No. 52/2021

Reserved On : 12. 09.2022

Pronounced On: 22 .09.2022

State of J&K & Ors.

…Appellant(s)

Through: Ms. Asifa Padroo, AAG

Versus

Mir Fathima & Ors.

..…Respondent

Through: Mr.Nazir Ahmad, Advocate

CORAM: HON’BLE MR JUSTICE M.A.CHOWDHARY, JUDGE

JUDGEMENT

1.

The instant appeal is directed against the Award dated

09.12.2017 passed by Motor Accident Claims Tribunal

Pulwama, in 76/CP titled Abdul Gani Mir & Anr. Vs. State of

J&K & Ors. seeking setting aside of the same.

2.

Brief facts giving rise to laying of Motor Accident Claim and the

appeal are that on 12.02.2003 the deceased namely Aijaz

Ahmad Mir was travelling in a Police Gypsy bearing

registration No. 4026-JK02Q belonging to appellants alongwith

other police officials including Dy.SP DAR Awantipora and

while proceeding towards Pampore and reaching near Konibal

Bus Stop Pampore, the said gypsy was hit by a land mine

blast pre planned by the anti social elements to kill the police

personnel which resulted into death of the deceased namely

Aijaz Ahmad Mir on spot, other police personnel were injured

MAC App No. 52/2021

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and said Gypsy was totally damaged. In this connection an

FIR was lodged at Police Station Pampore.

3.

Since the said occurrence involved the use of motor vehicle so

the parents of the deceased filed a claim petition before MACT

Pulwama to seek compensation under Motor Vehicles Act

against the appellants. The claimants ( herein respondents)

claimed compensation for the death of the deceased on the

grounds that the deceased at the time of accident was a young

healthy and hard working person at the age of 27 years. The

deceased was working as SPO in Police Department and was

receiving monthly salary of Rs. 3300/- and that the deceased

was only bread earner of his family who was dependable on

the earnings of the deceased. In view of good health and hard

worker, the claimants were expecting that the deceased would

have earned upto the age of 70 years, as such, the claimants

are deprived from the future earning of the deceased. They

claimed conpensation of Rs. 10,50,000/- under various heads.

4. The appellants strongly objected to the maintainability of the

claim petition and resisted the claim on the grounds that the

claimants have no cause of action against the appellants. Besides

claimants have been compensated already as per the rules and

norms. It is submitted that occurrence took place due to

subversive activity, there being no negligence on part of the

appellants herein vis-a-vis the occurrence. The occurrence is the

result of well planned conspiracy of the militants and in this

connection a case FIR No. 18/2003 U/Ss 302,307,427 RPC and

MAC App No. 52/2021

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3/5 Explosive Substance Act ( ESA) was registered at P/S

Pampore. They further submit that an ex-gratia relief of Rs. 1.90

laces have been paid by the department and brother of deceased

was also provided employment in terms of SRO 43 of 1994, in the

Flood and Irrigation Department by the Government for the death

of deceased SPO.

5. On the basis of the pleadings of the parties, following issues

were raised :

i/

Whether on 12.02.2003, the deceased Aijaz Ahmad Mir

while travelling in police gypsy bearing registration No.

4026-JKO2Q belonging to respondents and while

reaching near Konibal bus stop the said gypsy was hit by

a landmine blast resulting in the death of deceased on

spot? ….OPP

ii/

Whether

the

petitioners

are

entitled

to

compensation?....OPP

iii/

Whether the deceased died due to IED blast carried out

by milit