ALI MOHD GANAI Vs. NATIONAL INSURANCE CO LTD

JUDGEMENT

(1.) One Sharik Rashid Wani on 16.7.1997 while travelling in motor vehicle bearing registration mark and No. JK 01-4493 on Anantnag-Kulgam Road, was flung out of the vehicle at Kanipora Kulgam and run over next moment by the very vehicle, while the vehicle was driven by driver respondent No. 1, rashly/ negligently. The life of this young boy aged 21 years was thus suddenly put to an end by the vehicular accident. His parents preferred claim before M.A.C.T., Anantnag. The Claims Tribunal after summoning the parties, providing them opportunity to complete pleadings and lead evidence, on appreciation of evidence, after hearing the parties allowed the compensation of Rs. 5,86,000 with 9 per cent simple interest per annum from the date of institution of the petition till actual realization to mother and father in the ratio of 5:1. The compensation was awarded against the owner and driver, parties to the petition jointly and severally though in the first instance the award amount was recoverable from the insurer, the respondent No. 3, with liberty to the insurer to realize the same in equal shares from owner and driver jointly and severally. This award dated 24.2.2003 is under challenge in two appeals filed by the owner, respondent No. 2 and the insurer, respondent No. 3.

(2.) As many as five issues are struck in the claim petition. Witnesses have been examined and the evidence is led by the parties. On appreciation of the evidence upon hearing the counsel for the parties, the Tribunal has found that at the material time when the accident in question took place, the driver of the vehicle was driving the vehicle rashly and negligently which resulted in death of Sharik Rashid Wani, claimants' son. The driver was not holding a valid licence as the licence of the driver, respondent No. 1, was found invalid and fake. The owner of the vehicle, respondent No. 2, had failed to make necessary inquiries and verification and did not assure himself of the validity of licence while engaging the driver and allowing him to drive the vehicle. Both owner and the driver having thereby infracted the condition of the policy were liable for the compensation. The Claims Tribunal assessed the monthly income of the deceased aged 21, engaged in some business, as Rs. 6,000 and after deducting 1/3rd for his personal expenses calculated his monthly income as Rs. 4,000. This amount is adjudicated as payment towards dependency of claimants by the deceased. On applying multiplier of 12, the figure arrived is Rs. 5,76,000. Besides funeral expenses are assessed at Rs. 10,000. The amount is accordingly awarded. The interest has been allowed at the rate of 9 per cent from the date of presentation of the claim petition.

(3.) Counsel for claimants-respondents has raised a preliminary objection to the maintainability of the appeal on the ground that the insurer to the extent of quantum of compensation and negligence of the driver cannot challenge the appeal as the provisions of section 149 (2) read with section 170 of 1988 Act are not complied with. The application moved by the insurer to contest the claim on merits before the Tribunal has been rejected by the Tribunal vide its order dated 29.7.2002. The Claims Tribunal has recorded a positive finding against the insurer that there is no collusion between the claimants and the person against whom the claim is made. Besides, the person against whom the claim is made has contested the claim bona fide and on merits of the claim. The application was moved after parties evidence was closed and not at the stage when insured led his evidence.