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HIGH COURT OF JAMMU & KASHMIR AND LADAKH

AT SRINAGAR

MA No. 87/2018

CM No. 228/2019

Reserved on: 09.08.2021

Pronounced on: 06.09.2021

National Insurance Co. Ltd.

………Petitioner(s)

Through:

Mr. J.A. Kawoosa Sr. Advocate with

Mr. Areeb Kawoosa, Advocate.

V/s

Mst. Hajira and others

…….Respondent(s)

Through:

Mr. Abdul Ahad Rather, Advocate.

CORAM: HON’BLE MR. JUSTICE DHIRAJ SINGH THAKUR, JUDGE

JUDGEMENT

-09-2021

1.

This is an appeal under Section 173 of the Motor Vehicles Act praying

for setting aside the judgment and award dated 12.10.2018 passed by the

Motor Accident Claims Tribunal, Srinagar (for short,8Tribunal9)

The Tribunal by virtue of the award impugned, allowed an amount

of Rs. 6,98,500/- with 6.5% per annum in favour of the petitioners from

the date of the presentation of the claim petition till realization.

2.

The main ground of challenge in the present appeal is that since the driver

of the offending vehicle did not have an effective and valid licence,

therefore, no liability could be fastened on the insurance company.

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3. In its defence, the insurance company took two pleas; firstly, it was stated

that the driver of the offending vehicle was not holding a valid driving

licence at the time of the alleged accident and secondly, it was generally

stated that the petitioners be put to strict proof regarding the vehicular

documents like Registration Certificate, Route Permit, Fitness Certificate

and other vehicular documents.

4. On a perusal of the award impugned, it is seen that issue No. 2 was

framed by the Tribunal, which reads as under:

<Whether the owner of the offending vehicle i.e.,

respondent No. 2 had permitted the driver of the

offending vehicle i.e., respondent No. 1 to ply the

offending vehicle without having a valid and effective

driving licence thereby committed breach of policy

conditions, if so, what would be its effect on the claim

petition?=

5. The insurance company in support of their defence examined RW-Gulzar

Ahmed Wani, Administrative Officer, who deposed that on receipt of the

summon, the company had deputed an investigator, who after investigation

found that although the offending vehicle was insured at the time of the

accident, the conditions of the route permit were found breached. He has

also stated that the driving licence of the driver was fake. On cross-

examination, however, the witness deposed that the offending vehicle was

driven by one Asif Ahmed Dar s/o Abdul Gani Dar R/o Hajan and that the

driving licence of the said driver was got verified from ARTO, Poonch.

The said witness, however, further stated in his cross-examination that he

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had no information or knowledge whether the report of the investigation

by the investigator was placed before the Tribunal or not.

6. The second witness examined by the insurance company was RW-

Maroof Ahmed, Statistical Assistant, ARTO Poonch, who deposed that he

had brought the record pertaining to driving licence No. 3511/MVD/P

dated 31.3.2008 with him, which was issued in favour of one Asif Ahmed

S/o Abdul Gani Dar R/o Haveli, Poonch and that he was authorized to

drive the light motor vehicle and motor cycle with gear. The said witness

also deposed that the said licence bears a PSV endorsement for plying

heavy vehicles. In cross-examination, the said witness deposed that the

original driving licence had not been shown to him by the insurance

company and that he cannot say about the entries recorded in the original

driving licence.

7. Based upon the testimony of the aforementioned witness, the issue No. 2

was decided against the respondent-insurance company by holding that the

driving licence belonged to the driver Asif Ahmed Dar and that it w