NATIONAL INSURANCE CO LTD Vs. BARKAT ALI MIR

JUDGEMENT

(1.) THIS appeal is directed against the judgment and award dated: 21 -07 -1997 passed by the Motor Accidents Claims Tribunal, Srinagar, whereby Petition No. 106/Claim titled Barkat Ali Mir Vs. Abdul Jabbar Peer and Ors and Claim Petition No. 107/Claim titled as Naseer Ahmad Lone Vs. Abdul Jabbar Peer and Ors both of 17 -10 -1986 came to be decided by a common judgment recorded by the said Tribunal.

(2.) THE material facts leading up to this appeal are that on 08 -04 -1986, respondent -driver Abdul Jabbar Peer who was in the employment of respondent -owner namely Javeed Ahmad while driving Matador bearing registration No. 4856 JKC insured with the National Insurance Company, Branch Srinagar rashly and negligently towards Botakadal enroute at Molvi Masjid stop went into the Cycle Shop of one Mustafa Mir as a result of which Barkat Ali and Naseer Ali, the claimant respondent sustained injuries, in turn disablement of shortening of leg 11/2" of Barkat Ali Mir and 10% disablement to the person of Naseer Ahmad due to shortening of lower limb. In this behalf case for offences punishable under sections 279, 337, 427 Ranbir Penal Code, Svt. 1989 (1932 A.D.) came to be registered by Police Station Soura under their FIR No. 73/1986. The claimants -respondents No. 1 and 2 on 17 -10 -1986 came to file separate claim petitions before the MACT, Srinagar under section 166 of the Motor Vehicles Act seeking compensation under various heads. These claim petitions came to be amended by the claimants with the leave of the Court and amended claim petitions came to be filed on 28 -11 -1986. The respondents 1 and 3, the driver and the owner of the vehicle choose to remain absent despite due and proper service as a result of which the case came to be set exparte against them by virtue of interim orders respectively dated: 03 -05 -1979 and 26 -05 -1989 recorded in both files. The appellant -Insurance Company came to resist the claim of the petitioners -respondents No. 1 and 2 herein by filing their written objections with the said petition. On 04 -07 -1994 the parties went to trial with the following common issues:

(3.) SINCE issue No. 2 is not correctly framed, therefore the same is recast as under: -