Judgment · High Court of Jammu & Kashmir and Ladakh

Through :- Mr. Sumir Pandita, Advocate Coram: HON’BLE MR. JUSTICE JAVED IQBAL WANI, JUDGE (ORAL) ORDER 25.05.2023

#1. In the instant appeal the appellant/Insurance Company has challenged the award dated 07.01.2008 passed by Motor Accidents Claims Tribunal, Jammu (for short ‘the Tribunal’) in claim petition filed by respondent-1 herein under Section 166 of the Motor Vehicles Act, 1988 (for short ‘the Act’) for compensation qua the injuries sustained by the respondent-1 herein in a vehicular accident caused by a truck belonging to State Forest Corporation bearing Registration No. JKB/ 850 on 14.07.1982.

#2. The claimant came to be granted a compensation of Rs. 2 lacs by the Tribunal upon adjudication of the claim petition after having struck the following two issues on the pleadings of the parties: i. Whether on 14.07.1982 the petitioner met with a vehicular accident at Brakpora as a result of which amputation of right hand thumb was caused to the petitioner and whether such accident was caused due to rash and negligent driving of respondent No. 1? OPP ii. If issue No. 1 is proved in affirmative, to what amount of compensation the petitioner is entitled to and from whom? OPP

#3. The onus to prove both the above issues came to be put on the claimant/respondent herein who during the course of the adjudication of 2 MA No. 37/2009 the claim petition appeared in the witness box himself besides three more eye witnesses of the accident whereupon the Tribunal consequently decided the said issues in favour of the claimant/respondent-1 herein, after observing that the respondents in the claim petition did not adduce any evidence in rebuttal, in-as-much as, could not discard the evidence led by the claimant during cross examination.

#4. The appearing counsel for the appellant/Insurance Company would contend that the existence of the Insurance Policy cover came to be specifically denied by the appellant/Insurance Company before the Tribunal, in-as-much as, the claimant failed to produce any such policy which would have suggested that the offending vehicle was insured with the appellant/Insurance Company and that even the owner of the offending vehicle and the driver did not admit of the position of the vehicle being insured with the appellant/Insurance Company.

#5. On the contrary, the appearing counsel for the claimant/respondent-1 herein would contend that the appellant/Insurance Company did not specifically deny the averments in the claim petition about the offending vehicle being covered by the appellant/Insurance Company and also even failed to have an issue framed by the Tribunal in this regard. The counsel would further contend the appellant/Insurance Company cannot at this stage urge such ground which had not been urged or else proved by it before the Tribunal.

#6. The perusal of the record of the Tribunal would manifestly demonstrate that the appellant/Insurance Company did not in explicit terms, in as much as specifically denied the existence or otherwise of the Insurance policy of the offending vehicle referred in the claim petition but vaguely replied the said averment in the reply filed to the claim petition. 3 MA No. 37/2009

#7. Perusal of the record would further reflect and as noticed above that the Tribunal framed only two issues arising out of the pleadings of the parties and consequently decided the same on the basis of the evidence led and produced by the parties. Admittedly no issue in respect of the ground urged now by the counsel for the appellant before this Court qua the existence of the Insurance policy had been framed by the Tribunal, rightly so as the appellant/ Insurance Company did not deny specifically the existence of the policy in question. Thus the contention of the counsel for the appellant cannot be accepted at this stage.

#8. However, having regard to the facts and circumstances of the case, in-as- much as, the fact that neither the owner nor the driver of the vehicle appeared or else, contested the instant appeal, it is, as such, deemed appropriate to modify the award by providing that subject to all just exceptions the Insurance Company/appellant herein shall have a right to recover the award amount from the owner and driver of the vehicle. Disposed of. (Javed Iqbal Wani) Judge Jammu: 25.05.2023 Avish Kohli Whether the order is speaking Whether the order is reportable : Yes/No Yes :