1. The Oriental Insurance Company Limited (hereinafter "the insurer" for short) is in appeal against the award dated 31.10.2013 passed by the Motor Accident Claims Tribunal, Jammu (hereinafter "the Tribunal" for brevity) in Claim No.231/2012 titled Nand Kishore Sharma and others v. Yash Pal Sharma and others, whereby and whereunder respondent Nos. 1 to 3 (hereinafter "the claimants" for short) have been held entitled to receive a compensation of Rs.7,38,400/- along with pendente lite and future interest @ 7.5% per annum.
2. The impugned award has been assailed by the insurer primarily on two grounds:-
1) The Tribunal has not appreciated the fact that the driver of the offending vehicle i.e. respondent No.5, at the time of accident, was not holding a valid and effective driving license authorizing him to drive truck, a goods carriage commercial vehicle, and, therefore, the insurer was not liable to indemnify the insured and pay compensation to the claimants.
2) The Tribunal committed serious error in not affording adequate opportunity to the insurer to lead its evidence, in that, the Tribunal failed to summon the owner and driver of the offending vehicle, cited as witnesses by the insurer, despite the fact that the insurer had sought assistance of the Tribunal to summon them and had deposited requisite diet expenses etc.
3. The insurer has, however, not challenged the quantum of compensation awarded to the claimants.
4. Mr. D.S.Chauhan, learned counsel appearing for the insurer, has drawn attention of this Court to various provisions of the Motor Vehicles Act, 1988, particularly, the provisions of Section 169, conferring upon the Tribunal all powers of a civil Court for the purpose of taking evidence on oath and of enforcing attendance of the witnesses and of compelling the discovery and production of relevant documents and material objects. It is, thus, urged by Mr. Chauhan that the Tribunal could not have shirked from its responsibility of summoning the witnesses for which the insurer had moved an appropriate application and deposited the diet expenses under the orders of the Tribunal. He, therefore, submits that had the insurer been allowed to examine its witnesses i.e. owner and driver, it would have sufficiently discharged the burden of proving issue No.3 i.e. driver of the offending vehicle, at the time of accident, was not holding a valid and effective driving license authorizing him to drive heavy transport vehicle.
5. Per contra, Mr. Ankesh Chandel, learned counsel appearing for the claimants submits that even if, insurer is allowed to examine the aforesaid two witnesses, the position viz-a-viz the claimants would not undergo any change. Even if, the insurer upon examining of the witnesses succeeds in providing that the driver of the offending vehicle, at the time of accident, was not possessing valid and effective driving license, yet the Tribunal would apply the principle of "pay and recover". In that eventuality, urges learned counsel for the claimants, the insurer would be liable to pay compensation to the claimants in the first instance.
6. Having heard learned counsel for the parties and perused the record, I find substance in the contention of Mr. D.S.Chauhan, learned counsel for the insurer.
7. From a perusal of the record I find that an application was moved by the insurer on 31.07.2013 for summoning of two witnesses i.e. owner and driver of the offending vehicle and a sum of Rs.200/- for each witness was deposited vide GR No.4537681 dated 31.07.2013. The claim petition came up for consideration twice after deposit of the amount but no process was issued by the Tribunal for summoning the witnesses. I am in agreement with the learned counsel for the appellant-insurer that the Tribunal just ignored the application for summoning of the witnesses and hurriedly closed the evidence of the insurer and fixed the date for arguments. It is, thus, apparent that either the Tribunal was not aware of the application for summoning of the witnesses filed by the insurer or was not abreast of the provisions of Section 169 of the Motor Vehicles Act, which cast a duty on the Tribunal to enforce attendance of the witnesses in accordance with the provisions of Civil Procedure Code.
8. Mr. Chauhan has relied upon several judgments on the point but I don't think that same are required to be adverted to or discussed, for, the provisions of Section 169 are clear and unequivocal and this Court is of the considered view once an application for summoning the witnesses is filed and the requisite expenses of the witnesses are deposited, it is obligatory upon the Tribunal to issue process and enforce attendance of such witnesses.
9. From the aforesaid, it is, thus, clear that the insurer was deprived of an adequate opportunity to lead the evidence and discharge the onus to prove issue No.3. This omission on the part of the Tribunal calls for remand of this case to the Tribunal for summoning the witnesses of the insurer and allowing it to lead its evidence. However, I am in agreement with the learned counsel for the claimants that so far as liability of the insurer to pay compensation to the claimants is concerned, same would not undergo any change, even if the insurer succeeds in discharging the onus to prove issue No.3. The legal position on the point is well settled in the cases of National Insurance Company Ltd. v. Swaran Singh and others AIR 2004 SC 1531, Shamanna v. Divisional Manager, the Oriental Insurance Co. Ltd., 2018 ACJ 2163 and Parminder Singh v. New India Assurance Company Ltd. (Civil Appeal No.5123 of 2019) decided on 01.07.2019.
10. In view of the discussion made above, findings of the Tribunal on issue No.3 are set aside and the matter is remanded to the Tribunal with the following directions:-
i) The Tribunal shall summon witnesses of the insurer i.e. driver and owner of the offending vehicle with respect to which the diet expenses have already been deposited before it.
ii) The insurer shall be permitted to examine both the aforesaid witnesses with a view to discharge burden of proof of issue No.3 and the issue No.3 shall, thus, be determined and decided afresh on the basis of evidence that would come on record after the remand.
iii) All the parties to the claim petition, particularly, the owner of the offending vehicle shall also be afforded full opportunity to contest on issue No.3.
iv) Notwithstanding the remand and direction for determination
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of issue No.3 afresh, the insurer shall pay the awarded amount along with interest accrued thereon in terms of impugned award minus the amount already released by this Court in favour of the claimants. The Registry shall release the amount deposited with it in favour of the claimants as per the terms and conditions of the award impugned. v) It is, however, clarified that the right of the insurer to recover the award amount, paid to the claimants, from the insured/owner of the offending vehicle shall depend upon determination and decision of the Tribunal on issue No.3 and its effect on the liability of insurer. 11. The appeal along with connected application shall stand disposed of in the above terms.