Serial No. 86 Supp. Cause List HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT SRINAGAR Mac App No. 14/2023 Mac App No. 15/2023 Mac App No. 16/2023 Mac App No. 17/2023 Mac App No. 18/2023 Jamsheed Hussain Jamsheed & Ors. … Petitioner(s) Through: Mr. Mohammad Amin Tibetbakal, Advocate Vs. Bajaj Allianz General Insurance Co. Ltd. & Anr. ...Respondent(s) Through: Mr. Imtiyaz Ahmad, Advocate CORAM: HON’BLE MR. JUSTICE JAVED IQBAL WANI, JUDGE ORDER 16.04.2025 1. In the instant appeals filed by the appellants herein under and in terms of Motor Vehicles Act, 1988 (for short the “Act of 1988”), award dated 17.09.2019 (for short the impugned award) passed by Motor Accident Claims Tribunal, Srinagar (for short the Tribunal) has been called in question. 2. Facts giving rise to the filing of these appeals are that a motor vehicle being Tata Sumo bearing registration No. JK01L/8479 registered in the name of appellant 1 herein met with an accident on 09.05.2009 causing death and injuries to the passengers, travelling therein resulting into filing of various claim petitions for compensation under the provisions of Act of 1988 before the Tribunal. 3. Initially in the claim petitions, the registered owner/appellant 1 herein besides the driver of the vehicle/ appellant 4 herein came to be impleaded as party respondents besides the insurance company being respondent 1 herein with which the vehicle was insured. 4. The Tribunal after entertaining the claim petitions issued notice to the respondents therein the claim petition whereafter upon entering appearance and at the instance of the registered owner as also the driver the prospective owner also came to be impleaded as a respondent being appellant 3. Further appellant 2 herein had also been impleaded initially as a respondent in the claim petition for being the driver of the offending vehicle, however, subsequently came to be deleted from the array of parties. 5. On the basis of the pleadings of the parties i.e, the claimants in the claim petitions, the respondents therein being the registered owner (appellant 1 herein) prospective owner (appellant 3 herein) and driver (appellant 4 herein) besides the insurance company/respondent 1 herein, the Tribunal framed following issues:- 1. Whether on 09.05.2009, a vehicle (TATA SUMO) bearing registration No. JK011/8479 being driven by respondent No. 2 rashly, negligently at Gundi Gujran Tehsil Karnah and on reaching near Syedan Curve (Mood) lost control over his vehicle and said the vehicle fell into a deep gorge about 500 feet down Qazi Nag, causing thereby grievous injuries to one Masood Ahmad Banday (hereinafter deceased) who was travelling in the said vehicle as the passenger, going to his home Gundi Gujran Tehsil Karnah Distt. Kupwara and he succumbed to the injuries on the spot? (OPP) 2. 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) 3. Whether respondent No.2 driver was permitted by respondent Nos. 1 & 4 owners knowingly to drive the offending vehicle on the date of occurrence with fake licence and other vehicular document like Route Permit etc if yes, the insured has committed breach of policy stipulations absolved the respondent No. 5, the company from its liability on account of petitioners’ claim? (OPR-5) 4. Relief. 6. The claimants in the claim petitions being respondents in the instant appeals lead evidence in order to prove issues 1 & 2, whereas the onus to prove issue No. 3 was put on the insurance company being respondent 5 therein and respondent 1 herein. 7. The Tribunal upon conclusion of the trial/inquiry in the claim petitions held the claimants entitled to the compensation assessed by the Tribunal while taking into consideration the facts ad circumstances of the case as well as various judgments of the Apex Court referred in the award and directed the insurance company/ respondent 1 herein to pay the awarded amount to the claimants and yet granted liberty to the insurance company/ respondent 1 herein to recover the said award amount from the registered owner being appellant 1 herein on the premise that the registered owner had engaged the driver of the vehicle in question knowing that the said driver was not possessed of a valid and effective driving license and that the owner, as such, had committed breach of the terms of the insurance policy. 8. The appellants herein have challenged the impugned award on multiple grounds urged in the appeal. Heard learned counsel for the parties and perused the record. 9. Upon coming of the instant appeals for consideration on the previous date, the record of the Tribunal was summoned and same is available. 10. The appearing counsel for the appellants while making his submissions in line with the grounds urged in the instant appeals, however, notwithstanding multiple grounds of challenge urged in the appeals would confine the challenge only to the extent that the Tribunal wrongly recorded finding in the impugned award that the license produced by the driver appellant 4 herein was found fake on the basis of the statement of the witness namely Javid Iqbal (Junior Assistant) ARTO, Poonch produced by the insurance company and in the process committed gros;s perversity in providing a liberty to the insurance company/ respondent 1 herein for recovering of the award amount from the registered owner/appellant 1 herein. The counsel for the appellants thus would insist that the impugned award to the said extent is liable to be set aside. 11. On the contrary the counsel for the insurance company/ respondent 1 herein would defend the impugned award and would contend that the Tribunal did not commit any illegality, irregularity or perversity in drawing a conclusion that the licence produced by the driver of the offending vehicle being appellant 4 herein was found fake as per the statement of the witnesses produced by insurance company. 12. Having regard to the aforesaid confining of the challenge to the impugned order by the counsel for the appellants herein, this Court deems it appropriate to advert to the said ground urged by the counsel for the appellants alone hereunder in the instant appeals. 13. Perusal of the record of the Tribunal in general and of the statement of the witness Javid Iqbal who came to be examined by the Tribunal after the driver appellant 4 herein during the trial of the claim petition had produced a license to be possessed by him in particular recorded on 08.11.2012 manifestly tends to show that the said witness during cross examination by the counsel for the registered owner/appellant 1 herein as also the driver the appellant 4 herein had in specific, explicit and categoric terms deposed that he has brought the original record pertaining to the driving license bearing No. 1948/Mvd/P-8 dated 21.05.2008 before the Tribunal and that as per the said record the said license is issued in the name of one Liyakat Hussain S/o Ghulam Mustafa Shah R/o Soorunkot Poonch for LMV, Motor Cycle with its validity w.e.f 21.05.2008 upto 20.05.2028 having also stated that license stands issued from our office and had also deposed that he had also brought the original record pertaining to PSV endorsement bearing No. 1296/Mvd/P-8 and as per the said record the driving licence issued in the name of Liyakat Hussain has its validity w.e.f 03.12.2008 upto 02.12.2011 and the said licence as well has been issued as per the record from our office and is true and correct. 14. Record also reveals that during the cross examination of the said witness by the counsel for the insurance company/ respondent 1 herein, the said witness had also stated that in the record which he has brought today before the Court, there is a correction effected in the parentage and residence of the Liyakat Hussain the holder of the licencse which correction has been attested by ARTO of the time and same is true and correct, having also stated that, no seal has been put thereon the said correction as is being asked and that no seal is put on the corrections and that a similar correction in the parentage and residence of the said Liyakat Hussain in the PSV endorsement license is also effected and the said correction stands also attested. 15. 15. Having regard to the aforesaid specific, unambiguous and explicit statement made by the aforesaid witness before the Tribunal, it gets revealed that the Tribunal in the impugned award suggests that the award has wrongly recorded a finding therein that the said witness has deposed that the license is fake. The Tribunal in this regard has made the following observations in the award, while dealing with issue No. 3; Issue No. 3 “Whether respondent No.2 driver was permitted by respondent Nos. 1 & 4 owners knowingly to drive the offending vehicle on the date of occurrence with fake licence and other vehicular document like Route Permit etc if yes, the insured has committed breach of policy stipulations absolved the respondent No. 5, the company from its liability on account of petitioners’ claim? (OPR-5)” The onus to prove this issue was on the respondent – I/C. The counsel for the respondent –I/C has contended that the driving license of the driver was fake which stand established by the testimony of witnesses produced by the respondent namely Mafooz Ahmad (Licencing Clerk of ARTO) Poonch. The respondent produced another driving licence during trial which was also found fictitious as per the deposition of Javid Iqbal (Junior Assistant of ARTO) Poonch. The registerd owner of the offending vehicle i.e respondent No. 1 had transferred the vehicle in favour of Ghulam Mustafa Shah (respondent No. 4) without giving intimation to the insured company, as pre the record of the Insurance Company, the respondent No. 1 is registered owner of the offending vehicle who did not took reasonable care to ensure that the vehicle was being driven by the driver who was not holding valid and effective driving licence as such, the registered owner has violated the terms and conditions of the insurance policy. The counsel for the respondent-driver and prospective owner has submitted that driver was holding valid D/L as such they cannot be made liable to pay compensation in any awarded in favour of petitioners. It is further contended that possessing of two D/L where one found fake cannot render the second license invalid under Motor Vehicle Act. 16. It is significant to mention here that in order to prove to issue No. 3 supra the insurance company/respondent 1 herein had examined one Muneeb Ahmad Khan Legal Executive who in his statement made on affidavit has stated that after receiving summons of the claim petitions, the insurance company deputed a licensed investigator to investigate the alleged accident and also to collect necessary documents of the offending vehicle, FIR as also the challan and that a lawyer was also engaged in the matter to defend the claim petitions on behalf of the insurance company and that as per the report of the investigator submitted to the insurance company along with the documents, the vehicle in question was found to be a commercial vehicle and the driving license seized upon verification report dated 27.04.2010 was found to be not issued in favour of driver Liyakat Hussain, and, as such, was fake and that the vehicle was over loaded at the time of accident in violation of the terms and conditions of the policy, and, as such, the insured, the owner of the vehicle committed breach of the policy conditions by allowing the driver to drive the vehicle with fake license and by over loading the vehicle. 17. Since the insurance company/ respondent 1 herein had alleged the violation of the terms and conditions of the insurance policy by the owner of the offending vehicle on two counts; firstly that the owner engaged a driver with fake license; and, secondly that the vehicle was over loaded at the time of the accident, yet a closer and deeper examination of the record of the Tribunal suggests that notwithstanding the statement of the said witnesses of the insurance company the Tribunal entertained the another license produced by the driver during the course of the trial/inquiry of the claim petitions and had been subjected to verification while examining witness namely Javid Iqbal who too had been examined by the insurance company without any objections.. 18. 18. Record also reveals that there has been no evidence led by the insurance company contrary there to or else that the said license is also fake or that owner of the offending vehicle knew that the driver is possessed of the said fake license or that the vehicle was over loaded at the time of the accident, and, therefore, the owner of the vehicle committed breach of the terms and conditions of the policy. 19. The Tribunal is view of above seemingly has grossly erred while returning a finding qua the driving license produced by the driver during the course of the trial of the claim petitions, which licensee indisputably was found to be genuine and endorsements made there in as true and correct as per the statement of the witness namely Javid Iqbal of the office of ARTO, Poonch. Besides the Tribunal has also faulted while granting liberty to the insurance company/respondent 1 herein to recover the award amount from the registered owner appellant 1 herein without there being any evidence muchless legal, credible evidence to the effect that the owner of the vehicle violated the terms and conditions of the policy. A reference in this regard to the judgments of the Apex Court passed in cases titled as “Pepsu Road Transport Corporation Vs National Insurance Company reported in AIR 2014 SC 305” and Rishi Pal Singh Vs. New India Insurance Company Limited and Ors. Reported in 2022 SCC 2119 would be relevant herein, wherein following has been held by the Apex Court at para 5 and 9 respectively: “5. In United India Insurance Company Limited Vs. Lehru and Others (1), a two judge Bench of this Court has taken the view that on the ground that the person driving the vehicle at the time of accident was not duly licensed. It was further held that the willful breach of the conditions of the policy should be established. Still further it was held that it was not expected of the employer to verify the genuineness of a driving license from the issuing authority at the time of employment. The employer needs to only test the capacity of the driver ad if after such test, he has been appointed, there cannot be any liability on the employer. The situation would be different when the employer was told that the driving licence of its employee is fake or false and yet the employer not taking appropriate action to get the same duly verified from the issuing authority”. “9. We may, however, hasten to add that the Tribunal and the court must, however, exercise their jurisdiction to issue such a direction upon consideration of the facts and circumstances of each case and in the event such a direction has been issued, despite arriving at a finding of fact to the effect that the insurer has been able to establish that the insured has committed a breach of contract of insurance as envisaged under sub-clause (ii) of clause (a) of sub- section (2) of Section 149 of the Act, the insurance company shall be entitled to realize the awarded amount from the owner or driver of the vehicle, as the case may be, in execution of the same award having regard to the provisions of Sections 165 and 168 of the At. However, in the event, having regard to the limited scope of inquiry in the proceedings before the Tribunal it had not been able to do so, the insurance company may initiate a separate action therefore against the owner or the driver of the vehicle or both, as the case may be. Those exceptional cases may arise when the evidence becomes available to or comes to the notice of the insurer at a subsequent stage or for one reason or the other, the insurer was not given an opportunity to defend at all. Such a course of action may also be resorted to when a fraud or collusion between the victim and the owner of the vehicle is detected or comes to the knowledge of the insurer at a later stage”. 20. For what has observed, considered and analyzed hereinabove, the appeals succeed as a consequence whereof, the impugned award to the extent it provides a liberty to the insurance company/respondent 1 herein to recover the award amount from the registered owner is set aside. 21. The statutory deposit made by the appellants herein at the time of institutions of the instant appeals before the Registry of this Court is directed to be returned back along with the interest if any allowed thereon to the appellants subject to their proper verification and identification. 22. Disposed of. 23. A copy of this order be placed on each file. (JAVED IQBAL WANI) JUDGE SRINAGAR: 16.04.2025 “S.Nuzhat” Whether the order is speaking Yes/No Whether the order is reporting Yes/No