Decided on February 25,1999

Nabla Ashraf Zehgir Respondents


M.Y.KAWOOSA.J. - (1.) THIS order will dispose of C. I. M. A. No. 80/1996, an appeal filed by New India Assurance Company Ltd. against the respondents, who are claimants of compensation and Cross Appeal No.90/1996 filed by the respondents for the enhancement of the award.
(2.) BOTH the appeals emanate from ah award dated 9th January, 1996 passed by Motor Accidents Claims Tribunal, Jammu to the tune of Rs. 1,20,000/ -, in a claim petition entitled Nabla Ashraf Zehgir and others Versus New India Assurance Company Ltd. In the petitioner it was stated that husband of the petitioner respondent died in a vehicular accident on March 05, 1994 near Patoli Morh janipur Jammu, leaving behind his widow -respondnet -1 and children -respondents 2 and 3. Respondent in the claim petition pleaded that her husband died due to rash and negligent driving of respondent -5. The petition was resisted before the Tribunal on the grounds that the Vehicle was being plied by a person not holding a valid license, so there has been breach of terms and conditions of the Insurance Policy. Appellant due to that breach could not be held liable to indemnify the payment of compensation to respondent -1 and her children. However, issues were framed. Issue No.3 reads as follows: - "3. Whether the insurance company is exempt from the liability to indemnify the insured, if so how ? OPR -3" Motor Accidents Claims Tribunal, Jammu held this issue not proved and decided the case against the present appellant. Present appellant has pleaded that the driver of the vehicle has shown the license No.2013/DTC/89 -90 alleged to have been issued by the Licensing Authorities, Hoshiarpur, which was further alleged to have been renewed by R. T O Jammu under renewal No.25231/TPJ dated 15/04/1989. On verification from Licensing Authorities. Hoshiarpur, it was certified by the said Authority that the afore -mentioned driving license was issued by that office not in the name of the respondent -3 driver, but in the name of Inderjit Singh. Similarly, R. T. O. Jammu also certified that renewal stands in the name of another person, namely, Kartar Chand of Assam. It has been further contended that the appellant filed an application on 11.12.1995 before the trial Court to call the Licensing Authorities, Hoshiarpur as a witness. But without deciding that application the trial court decided the case itself and held the appellant liable to indemnify the amount of compensation to the respondents, which is against law.
(3.) IN the Cross Appeal, respondents have contended that the Presiding Officer has only counted Rs. 3,000/ - as income of the deceased of which 1/3rd was allowed to be the personal expenses of the deceased and Rs.3,000/ - were counted as income for awarded compensation. According to the respondent, trial court had erred in not adding Rs. 2,000/ - as monthly pension of the deceased. That being so, award has been calculated only Rs. 2,000/ -, which is 2/3rd of Rs. 3,000/ -. Heard learned counsel for the parties.;

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