Jammu & Kashmir High Court – Srinagar Bench
Bilal Ahmad Lone vs Bajaj Allianz General Insurance … on 11 March, 2026
Author: Javed Iqbal Wani
Bench: Javed Iqbal Wani
S. No. 28
IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
RP 2/2022 in[CMAM 20/2017] CM(150/2022)
Date of Pronouncement 11-03-2026
Uploaded on 03-2026.
BILAL AHMAD LONE ...Petitioner/Appellant(s)
Through: Mr. N. H Khuroo, Advocate.
Vs.
BAJAJ ALLIANZ GENERAL INSURANCE COMPANY ...Respondent(s)
LIMITED AND ORS.
Through: Mr. Imtiyaz Ahmad, Advocate.
CORAM:
HON'BLE MR JUSTICE JAVED IQBAL WANI, JUDGE
ORDER
11.03.2026
ORAL.
1. In the instant review petition, the appellant herein is seeking review of the
judgment and order dated 02-12-2021, passed in CMAM No. 20/2017.
2. Facts giving rise to the filing of the instant review petition reveals that a
claim petition came to be filed by private respondents herein before Motor
Accident Claim Tribunal, Srinagar, seeking compensation therein for the
death caused to one Mr. Saleem Wagay, in a vehicular accident caused by
vehicle bearing Registration No. JK13A-2638 and impleaded therein the
said claim petition, the owner of the said vehicle, the driver as also the
insurance company with which the vehicle was stated to be insured.
3. The tribunal after adjudicating upon the claim petition in terms of the award
dated 26-12-2016 allowed the claim petition and the saddled the insurance
company-respondent 1 herein with liability to pay compensation to the
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CMAM 20/2017
claimants, however, granted liberty to the insurance company to recover
the said amount of compensation from the owner owing to the reason that
the insurance company-respondent 1 have had proved that the owner had
committed breach of the terms of the insurance policy having engaged a
driver holding an invalid /fake licence.
4. The owner-petitioner herein aggrieved of the said liberty granted to the
insurance company assailed the award before this Court in the CMAM
supra, which appeal however, came to be dismissed in terms of the
judgment and order under review.
5. The owner-petitioner herein has sought review of the judgment and order
in question in the instant petition inter alia, on the premise that the court
while deciding the appeal did not give consider the statement of the owner-
petitioner herein as also the law laid down by the Apex Court qua the
engagement of a driver by the owner in right perspective.
6. Objections to the petition have been filed by the respondent-insurance
company, wherein the petition is being opposed on the premise that the
petitioner essentially seeks rehearing of the appeal as there is no error
apparent on the face of the record and no other ground as well available to
the petition or in law warranting review of the judgment.
Heard counsel for the parties and perused the record.
7. Before proceeding to advert to the rival submissions of the appearing
counsel for the parties as well as their respective pleadings, it needs to be
mentioned here that, in law, the normal principle is that once a judgment
is pronounced or order is made, the court becomes functus officio (seizes
to have been control over the matter as such judgement and order is final
and cannot be altered, modified or varied). However, where the court finds
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CMAM 20/2017
that an error has occurred in the judgment and order and that the said error
is apparent on the face of the record, court can arrogate until itself a power
to review the judgment and order.
The Apex Court in case titled as “Northern India Caterers(India Limited) vs.
Lt. Governor of Delhi reported in 1980 SCC (2) 167 has held as under;
“It is well settled that a party is not entitled to seek a review of
a judgment delivered by the Court merely for the purposes of a
rehearing and a fresh decision of the case. The normal principle
is that a judgment pronounced by the Court is final, and
departure from the principle is justified only when
circumstances of a substantial and compelling character make
it necessary to do so. For instance, if the attention of the Court
is not drawn to a material statutory provision during the
original hearing, the Court will review its judgment. The Court
may also reopen its judgment if a manifest wrong has been done
and it is necessary to pass an order to do full and effective
justice. Power to review its judgment has been conferred on the
Supreme Court by Article 137 of the Constitution, and that
power is subject to the provisions of any law made by
Parliament or the rules made under Article 145. In a civil
proceeding, an application for review is entertained only on a
ground mentioned in Order XLVII rule 1 of the Code of Civil
Procedure, and in a criminal proceeding on the ground of an
error apparent on the face of the record. But whatever the
nature of the proceeding, it is beyond dispute that a review
proceeding cannot be equated with the original hearing of the
case, and the finality of the judgment delivered by the Court
will not be reconsidered except “where a glaring omission or
patent mistake or like grave error has crept in the earlier by
judicial fallibility.”
8. Keeping in mind the aforesaid position of law in mind and reverting
back to the case in hand, the sole ground urged by the petitioner for
seeking review of the judgment is that the court did not consider
the evidence in its right perspective led by the petitioner before the
tribunal as also the position of law laid down by the Apex Court in
case titled as “Nirmala Kothari v. United India Insurance
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CMAM 20/2017
Company Limited” reported in (2020) 4 SCC page 49, wherein at
para 12 following has been held;
While hiring a driver the employer is expected to
verify if the driver has a driving licence. If the driver
produces a licence which on the face of it looks
genuine, the employer is not expected to further
investigate into the authenticity of the licence unless
there is cause to believe otherwise. If the employer
finds the driver to be competent to drive the vehicle
and has satisfied himself that the driver has a driving
licence there would be no breach of Section
149(2)(a)(ii) and the Insurance Company would be
liable under the policy. It would be unreasonable to
place such a high onus on the insured to make
enquiries with RTOs all over the country to ascertain
the veracity of the driving licence. However, if the
Insurance Company is able to prove that the
owner/insured was aware or had notice that the
licence was fake or invalid and still permitted the
person to drive, the insurance company would no
longer continue to be liable.
9. Perusal of the record available on the file including the copy of the
statement of the petitioner produced by the counsel for the
petitioner during the hearing of the instant review petition tends to
show that the petitioner before the tribunal had in explicit categoric
and unambiguous terms deposed that the driver of the offending
vehicle is a resident of his village and that the said driver was
previously driving the tipper of one namely Ghulam Mohi ud In
Khan s/o Mohammad Rafiq Khan and upon sale of the said tipper
by the said Ghulam Mohi ud In Khan and after purchase of a tipper
by the petitioner, the said driver was entrusted by him to drive/ply
the said tipper and at the time of the engagement of the said driver,
the petitioner examined his driving licence possessed a photo copy
of which licence is on the record before the tribunal and as per the
endorsement made in the said licence, the said driver was found to
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CMAM 20/2017
be competent to ply a tipper and it is only thereafter that the
petitioner allowed the said driver to drive the said tipper and even
associated himself for 15 days with the said driver during the
driving of the said tipper as the said tipper was involved in carrying
the earth filling for the Railway Station, Pattan, and that during the
said period, the said driver was found by the petitioner fit to drive
the tipper and that, he, the petitioner cannot say as to whether the
licence is fake as there is an appropriate seal and signature on the
licence as is used on the licence. During his cross-examination, the
petitioner before the tribunal has however, admitted that he did not
get the licence verified from the office of the RTO which had
issued it because had it been issued from Pulwama or Srinagar, the
petitioner would have got it verified from the office of RTO of the
said places and that the petitioner cannot say that whether the
licence is fake.
10. As has been held by the Apex Court in the judgment of Nirmala
Kothari supra, an employer while hiring a driver has been held to
only verify if the driver is having a driving licence and that if a
licence is produced before the employer by the driver which on the
face of it looks genuine, in that event, the employer is not expected
to further investigate into the authenticity of the licence unless
there is cause to believe otherwise and that if the employer finds
the driver to be competent to drive the vehicle and has satisfied
himself that the driver has a driving licence there would be no
breach of the Policy of Insurance or Section 149(2)(a)(ii) of Motor
Vehicles Act although the Apex Court has also simultaneously
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CMAM 20/2017
observed that if the insurance company is able to prove that the
owner/insured was aware or had notice that the licence was fake or
invalid and still permitted the driver to drive the vehicle, the
insurance company would no longer to continue to be liable.
11. Further perusal of the record available on the file reveals that the
insurance company-respondent 1 herein though have had got an
issue No. 2 framed by the tribunal on the basis of its defense set
up against the claim petition that the owner-petitioner herein
permitted the driver to drive the offending vehicle without being
possessed of a valid and effective licence, and that the owner
committed breach of the insurance contract absolving the insurance
company from its liability to indemnify the owner, yet the
insurance company-respondent 1 herein only produced one witness
namely Maroof Ahmad, the Licensing Clerk/Statistical Assistant
of the office of ARTO Poonch, who deposed before the tribunal
that the numbered licence available on the claim petition in facts
stands issued in the name of one Mohd Azaan S/o Mohd Shafi R/o
Mendhar Poonch, and not in the name of Rafiq Ahmad Kuchay the
driver engaged by the petitioner, yet the insurance company-
respondent 1 herein has not led any evidence to support the plea
that the owner-petitioner herein had the knowledge that the licence
possessed by the driver is fake and despite that allowed the driver
to ply the offending vehicle and consequently failed to prove the
breach of the conditions of the insurance policy.
12. In view of the aforesaid position obtaining in the matter, it is
manifest that a patent mistake and error has crept in judgment under
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CMAM 20/2017
review while dismissing the appeal filed by the petitioner herein
mis-placing the principles of law laid down in judgment passed by
the Apex Court Nirmala Kothari supra in as much as overlooking
the evidence led by the petitioner herein.
13. Viewed thus, for aforesaid reasons, the instant review petition
succeeds as a consequence whereof, the judgment and order dated
02-12-2021 is set aside and the appeal preferred by the petitioner
herein being CMAM No. 20/2017 as a consequence whereof is
allowed, setting aside the award dated 26-12-2016 passed by
MACT Srinagar, in claim petition titled as “Mst. Shahzada and
Ors. V. Rafiq Ahmad Kuchay and Ors”, to the extent, the tribunal
has granted liberty to the insurance company-respondent herein to
recover the award amount from the owner-petitioner herein after
satisfying the award.
(JAVED IQBAL WANI)
JUDGE
SRINAGAR
11.03.2026
Sarvar
Whether the order is Speaking Yes.
Whether the order is reportable Yes/No.
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CMAM 20/2017