Sr. No. 12 Regular Cause List IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT SRINAGAR CMAM No. 152/2015 IA No. 2/2015 (01/2015) IA No. 01/2016 (01/2016) CM No. 3171/2023 Oriental Insurance Company …Petitioner(s)/Appellant(s) Through: Ms. Muzamil Jabeen, Adv. vice Mr. Manzoor A. Dar, Adv. Vs. Mushtaq Ahmad Tak and Ors. ...Respondent(s) Through: Mr. G. N. Sofi, Adv. CORAM: HON’BLE MR. JUSTICE RAHUL BHARTI, JUDGE O R D E R 06.02.2025 1. A vehicle (Tipper) No. JK03-8753 which was driven by Showkat Hussain Dar, owned by Ghulam Hassan Sheikh and insured by the appellant-company met with an accident on 26.10.2005 at Adoo, Pahalgam Road in which one Mushtaq Ahmad Tak i.e. the respondent No. 1 had received injuries for which he came forward with a claim petition before Motor Accident Claims Tribunal, Anantnag on File No. 56/2006 claiming compensation of an amount of Rs. 30.52 lacs on the plea that he was rendered permanently disabled by reference to his left leg which had suffered the brunt of the accident injury for which he was treated in the Government Hospital for Bone and Joint Surgery, Barzulla. 2. The cause of accident was said to be rash and negligent driving of the offending tipper by its driver-Showkat Hussain Dar. 3. In the claim petition before the Motor Accident Claims Tribunal, Anantnag, the owner and the driver absented themselves from appearance and that left only the appellant, as being the insurer of the offending tipper, to step forward and contest the claim of the respondent No. 1. 4. In its reply/objections to the claim petition filed through Senior Divisional Manager, Divisional Office Srinagar, the appellant nowhere took a position as to whether it was the insurer of the tipper in reference, if not the insurer then why it was getting itself engaged in denying the cause of the accident, nature of the injuries received and the involvement of the tipper in reference in the accident. The appellant went to the extent of saying as to whether the offending vehicle had a route permit, proper fitness certificate and was being driven by a duly authorized driver, are the facts to be verified by the appellant at its own end and still wanted the claim petition filed by the respondent to be knocked down by the Motor Accident Claims Tribunal, Anantnag which did not oblige the appellant and accordingly allowed the Claim petition filed by the respondent No. 1 by granting compensation of an amount of Rs. 7,75,000/- (rupees seven lac and seventy five thousands) with the following composition: a) Loss of future income: Rs. 4,75,000.00 b) Loss of amenities: Rs. 1,00,000.00 c) Pain and Sufferings: Rs. 1,00,000.00 d) Medical Expenses: Rs. 1,00,000.00 Total: Rs. 7,75,000.00 (Seven lac and Seventy five thousand rupees only) 5. The award dated 09.06.2015 so passed against which the present appeal under section 173 of the Motor Vehicles Act, 1988 came to be preferred which is now getting its adjudication. 6. In the memo of appeal, the appellant has assailed the award both on quantum as well as on the point of the liability fastened upon the appellant as being the insurer of the offending vehicle and, therefore, the appellant intends to escape out of its liability from the payment of compensation so awarded. 7. During the pendency of the appeal, the respondent No. 1 Mushtaq Ahmad (claimant) came to demise on 09.02.2022 resulting in bringing on record his legal representatives. Some of the compensation amount got released in favour of the respondent No. 1 i.e., 50% of the total award amount deposited by the appellant before this Court. 8. A case which appellant never set up before the Motor Accident Claims Tribunal, MACT, Anantnag cannot be put forth in appeal by the appellant as an insurer of the offending vehicle and, as such, this Court is not inclined to entertain the plea of the appellant that there was a violation on the part of the owner as well as driver of the offending vehicle of the terms and conditions of the insurance policy when there is no such insurance policy on the record of the Claim petition itself placed before the Motor Accident Claims Tribunal MACT, Anantnag by the appellant and, therefore, this Court dismisses the said challenge of the appellant leaving only with respect to quantum of compensation awarded to be considered. The learned counsel for the appellant is right in saying that the medical expenses of Rs. 1,00,000/-(rupees one lac) awarded in favour of the respondent No. 1, that too in the year 2005, is on the higher side particularly when the vouchers which came to be produced by the respondent No. 1 himself were found out by the Motor Accident Claims Tribunal, MACT, Anantnag to be only of Rs. 7500/- (rupees seven thousand and five hundred) and, therefore, the grant of compensation on medical expenses for an amount of Rs. 1,00,000/- (rupees one lac) was literally a lottery like handed out by the Motor Accident Claims Tribunal, MACT, Anantnag in favour of the respondent No. 1. To that extent the compensation awarded in favour of the petitioner on medical expenses is on the higher side and therefore requires to be reduced. At the best as against the vouchers of Rs. 7500/- produced by the respondent No. 1, the Motor Accident Claims Tribunal, MACT, Anantnag could have granted double the amount giving scope for missing medical vouchers or not sought medical vouchers by the respondent No. 1 or his relatives attending upon him while he was in state of hospitalization and medical care. 9. Therefore compensation on account of medical expenses is reduced from Rs. 1,00,000/ (rupees one lac) to be Rs. 15,000/- (rupees fifteen thousand) and to that extent the award stands modified with rest of the award being retained as it is. 10. Accordingly the amount deposited by the appellant before this Court to be released in favour of the legal representatives of the respondent No. 1 minus the reduction part of rupees eighty five thousand the medical expenses hereby ordered. The amount reduced hereby to be released in favour of the appellant by Registrar Judicial, Srinagar. 11. Dismissed. (RAHUL BHARTI) JUDGE SRINAGAR 06.02.2025 Sakeena