SAKEENA BEGUM Vs. NEW INDIA ASSURANCE CO. LTD.
LAWS(J&K)-2020-9-41
HIGH COURT OF JAMMU AND KASHMIR
Decided on September 21,2020

SAKEENA BEGUM Appellant
VERSUS
NEW INDIA ASSURANCE CO. LTD. Respondents




JUDGEMENT

SANJEEV KUMAR,J. - (1.)The wife of the deceased late Gander Malik, who was claimant before the Motor Accident Claims Tribunal, Bhaderwah (hereinafter referred to as the "Tribunal'), is in appeal against the award dated 31.03.2004 passed by the Tribunal in file No. 58/claim titled "Mst. Sakeena Begum vs. Ashwani Kumar and ors'.
(2.)This appeal has been filed primarily on the ground that the compensation awarded by the Tribunal is too meager, to be called just and fair and also that the Tribunal, in the given facts and circumstances, failed to apply the principle of "pay and recover' and erroneously absolved the New India Assurance Company Ltd., "insurer'. of its liability to pay compensation to the appellant claimant.
2. The bare minimum facts relevant to disposal of this appeal may be noticed herein below:

On the fateful day, deceased Gander Malik, the husband of appellant boarded a load carrier bearing registration No.4861-JKS the offending vehicle. at village Malhori. The offending vehicle was going towards Pul Doda and just a few yards before the destination, it met with a fatal accident at Napli. The offending vehicle skidded off the road and plunged into the river causing the death of the deceased.

(3.)On the allegation that the deceased had died in the motor vehicle accident due to rash and negligent driving of the offending vehicle by its driver, the respondent No.3, a claim petition was filed by the appellant before the Tribunal arraying Mushtaq Ahmed, the driver, Ashwani Kumar, the owner and the insurer as party respondents. The claim petition was contested only by the insurer.
3 On the basis of pleadings of the parties, the Tribunal framed the following issues:

(i) Whether the deceased Gander Malik died in a vehicular accident on 19.03.1996 at Napli Doda which occurred due to the rash and negligent driving by respondent No.3 ?OPP.

(ii) On proof of issue No.1, to what amount of compensation the petitioner is entitled and from whom? OPP

(iii)Whether the deceased was travelling as gratuitous passenger and the petitioner is not entitled to any claim ? 0PR 2

(iv)Whether the vehicle was being driven by an un-authorized person and the respondent No. 2 is not liable to pay the amount of compensation ? OPR2

(v) Relief.

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