Jammu & Kashmir High Court - Srinagar BenchUniversity Of Kashmir And Another vs Tej Paul Singh And Others on 17 February, 2023Author:Vinod Chatterji KoulBench:Vinod Chatterji KoulHIGH COURT OF JAMMU & KASHMIR AND LADAKH\n                        AT SRINAGAR\n                             ...\n                             CMAM no.11/2011\n\n                                                   Pronounced on: 17.02.2023\n\nUniversity of Kashmir and another\n                                                           .........Appellant(s)\n\n                            Through: Mr T. H. Khawja, Advocate\n\n                                    Versus\n\nTej Paul Singh and others\n                                                           ......Respondent(s)\n\n                            Through: Mr Manzoor A. Dar, Advocate &\n                            Mr Javaid Ahmad, Advocate\n\n\nCORAM:\n            HON'BLE MR JUSTICE VINOD CHATTERJI KOUL, JUDGE\n\n                               JUDGEMENT1. Impugned in this Appeal is Award dated 19th July 2010, passed by\n\n      Motor Accident Claims Tribunal, Srinagar (for short "Tribunal") on a\n\n      Claim petition bearing File no.33/2003 titled asTej Paul Singh v. New\n\n      India Insurance Corporation and others, holding claimant - respondent\n\n      no.1 entitled to compensation in the amount of Rs.1,30,000/- inclusive\n\n      of interim relief, if any, passed in his favour along with 6% interest\n\n      form the date of institution of claim petition till final realisation and\n\n      directing respondent no.3 - appellant herein to pay the said amount, on\n\n      the grounds made mention of therein.2. A claim petition, as is discernible from perusal of the file, was filed by\n\n      respondent no.1/claimant before the Tribunal on 5th March 2003,\n\n\n                                    Page 1Mac App no.11/2011averring therein that on 7th May 2002, he met with an accident allegedly\n\n   caused by vehicle owned by appellant-University, bearing Registration\n\n   no.JK01C-6944, in which petitioner sustained injuries and was\n\n   hospitalised. FIR no.28/2002 was registered. Claimant/Respondent\n\n   no.1 in his claim petition, prayed for grant of compensation in the\n\n   amount of Rs.2.00 Lakhs.3. Respondent-Insurance Company resisted the claim petition before the\n\n   Tribunal. Its stand was that alleged accident was outcome of rashness,\n\n   negligence and carelessness on the part of claimant/respondent no.1\n\n   driving the motor cycle.4. The Tribunal, in view of pleadings of parties, vide order dated 9th June\n\n   2003, framed the Issues for determination, which are:1)   Whether on 07.05.2009, Aijaz Ahmad Bhat respondent no.3\n             under the employment of respondent no.2 was plying vehicle\n             no.JK01C/6944 rashly and negligently as a result of which at\n             Kathi Darwaza it hit motor cyclist Tej Paul Singh who sustained\n             severe bodily injuries rendering him permanently disabled? OPP2)   Whether the driver of the offending vehicle was not holding any\n             driving licence on the date of accident and as such the insurance\n             company cannot be saddled with the liability? OPR-13)   Whether the offending vehicle was not insured with respondent\n             no.1 insurance company on the date of accident and as such the\n             insurance company cannot be held liable to indemnify the\n             insured and compensate the petitioner? OPR-14)   Whether no accident was caused by the offending vehicle on\n             07.05.2003, so the petition is not maintainable and liable to be\n             dismissed? OPR 2 and 35)   In case issue no.1 is proved in affirmative to what amount of\n             compensation the petitioner is entitled to, whom and in what\n             proportion? OPP6)   Relief.5. Claimant in support of his claim before the Tribunal produced and\n\n   examined three witnesses, besides himself. Insurance Company\n\n   produced one witness and appellant-university produced one witness.\n\n   Respondent-driver also appeared as witness.Page 2Mac App no.11/20116. By virtue of impugned Award, the Tribunal found claimant entitled to\n\n   compensation of Rs.1,30,000/- along with 6% interest from the date of\n\n   institution of claim till realization. This is how the instant Appeal has\n\n   come up before this Court.7. I have heard learned counsel for parties and considered the matter. I\n\n   have gone through the record of the Tribunal.8. According to learned counsel for appellant University, the Tribunal has\n\n   wrongly absolved Insurance Company of its liability to pay\n\n   compensation under contract of indemnity and has, thus, wrongly\n\n   directed appellant-University to pay compensation to the claimant.9. Per contra, learned counsel for respondent-Insurance has stated that\n\n   exemption of PSV endorsement is applicable to LMV driving licence\n\n   holders only and in regard to other vehicles, and that PSV endorsement\n\n   is required for plying public service vehicle. He also states that it is only\n\n   after accident, which took place on 7th May 2002, that endorsement of\n\n   HGV and HPMV stood incorporated in the driving licence of driver of\n\n   offending vehicle and therefore, the Tribunal has rightly mulcted owner\n\n   of offending vehicle with the liability of paying compensation to\n\n   claimant. He has placed reliance on an order dated 8th March 2022,\n\n   passed by the Supreme Court in M/sBajaj Alliance General Insurance\n\n   Co. Ltd v. Rambha Devi and others, 2022 LiveLaw (SC) 70, to contend\n\n   that latter part ofSection 3of the Motor Vehicles Act stipulates that no\n\n   person shall so drive a transport vehicle other than the motor cab or\n\n   motor cycle hired for his own use or rented under any scheme made\n\n   under any scheme made under subsection (2) ofSection 75of the Act\n\n\n                                  Page 3Mac App no.11/2011unless his driving licence specifically entitles him so to do and that the\n\n      provisions contemplated different regimes for those having licence to\n\n      motor vehicles as against those licensed to drive transport vehicles.10.There is force and impetus in the submission of learned counsel for\n\n      respondent-Insurance Company that driver of offending vehicle was\n\n      not having valid driving licence when the accident took place, which\n\n      fact is substantiated by his own act when he got his driving licence\n\n      updated by incorporating endorsement of HGV (Heavy Good Vehicle)/\n\n      HPMV (Heavy Passenger Motor Vehicle).Conspicuously, therefore, submission of learned counsel for\n\n      appellant-University that since driver of offending vehicle was already\n\n      plying HMV (Heavy Motor Vehicles), he could have plied HPMV\n\n      (Heavy Passenger Motor Vehicles) is misconceived.11.For the reasons discussed above, the instant Appeal is dismissed.\n\n      Interim direction, if any, shall stand vacated.12.Copy of this judgement along with the record be sent down.(Vinod Chatterji Koul)\n                                                                      Judge\nSrinagar\n17.02.2023\nAjaz Ahmad, PS\n                   Whether the order is reportable: Yes/No.\n\n\n\n\n                                    Page 4Mac App no.11/2011