IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL. A. O. No. 886/2006 Smt. Leela and others … Appellants. Versus Pradyuman Singh Bora and others .. Respondents. Sri S.K. Shah, learned counsel for the appellants. Sri M.K. Goyal, learned counsel for respondent/New India Assurance Company. Dated: 04-03-2009 UHon’ble B.C. Kandpal, ACJ This appeal under Section 173 of the Motor Vehicles Act, arise out against the judgment and award dated 7-11-2006, passed by Motor Accident Claim Tribunal/ District Judge, Nainital, in MACT Case No. 42/2005, Smt. Leela and others Vs. Pradyuman Singh Bora and others. 2- Brief facts of the case are that on 11-11-2003, deceased Jagdish Chandra was driving jeep No. U.P.01/2672 from Mallital, Nainital to Pangoot. The said jeep fell down due to steering failure at about 7.15 P.M. near Tanki Bend due to which the driver as well as the passengers sustained grievous injuries. Driver Jagdish Chandra Pandey was brought to B.D. Pandey Hospital, Nainital in injured condition where he succumbed to the injuries. Therefore, the claimants/legal heirs of the deceased filed claim petition for grant of compensation. 3- The opposite party No.1, owner of the offending jeep filed his written statement and alleged that the jeep was insured with New India Assurance Company and the liability to pay the compensation is upon the shoulder of the insurer. 2 4- The opposite party No.2, New India Assurance Company also filed its written statement and denied the allegations made in the claim petition. However, it admitted the insurance coverage of the offending jeep with it. It has further alleged that the vehicle was being driven by the deceased himself and he does not come in the category of third party, therefore, the claimants are not entitled to get compensation in lieu of the death of the deceased under the provision of Motor Vehicle Act. 5- The opposite party no.3 did not contest the petition and the case was heard and decided exparte against him. 6- The learned tribunal, on the basis of pleadings of parties, framed relevant issues in the claim petition. Thereafter, the claimant adduced evidence in support of her case. The insurance company filed insurance policy. 7- The learned Tribunal after hearing learned counsel for the parties and perusing the material available on record, decreed the claim petition for a sum of Rs. 50,000/- against the New India Assurance Company, along with interest @ 6% per annum from the date of filing the petition till the date of actual payment. 8- Feeling aggrieved, by the aforesaid, judgment and award, the claimants have preferred this appeal for enhancement. 9- Heard learned counsel for the parties and perused the record. 10- Learned counsel for the claimants/appellants has submitted that the accident was caused due to 3 mechanical defect, i.e. failure of the steering wheel of the vehicle and the deceased died during the course of his employment and the death was caused by the use of the motor vehicle, but the learned Tribunal has erred in awarding a meager amount under the provision of Section 140 of the Motor Vehicle Act. 11- On the other hand learned counsel appearing on behalf of the insurance company has supported the impugned judgment and award and alleged that no extra premium was paid for the driver in the instant case and the Tribunal has rightly decided the case under the provision of Section 140 of the Motor Vehicle Act and awarded compensation for no fault liability. 12- From perusal of impugned judgment and award it reveals that the tribunal has given finding that the accident has occurred due to steering failure of the jeep and the deceased died due to the injuries sustained by him in the said accident. The tribunal further held that the driver is not a third party within the meaning of term as used in Section 147 of the Motor Vehicle Act. It is not the case here that extra premium was paid by the owner in respect of the driver to the insurer. It is important to note here that the claim petition before the Tribunal was filed under the provision of Section 140/166 of the Motor Vehicle Act and the tribunal has awarded a sum of Rs. 50,000/- under the head of ‘no fault liability’. The learned Tribunal also held that in the instant case the liability of compensation comes under the Workmen’s Compensation Act, but the claim petition has been filed under the provision of Section 140 of the Motor Vehicle Act and under the head ‘no fault liability’ the claimants are entitled to get a fixed amount of Rs. 50,000/-. The claimants have chosen the forum to file 4 claim petition under the Motor Vehicle Act instead under the provision of Workmen’s Compensation Act, therefore, the only remedy in the instant case remains to award compensation under the head of ‘no fault liability’ U/S 140 of the Motor Vehicle Act. I am in perfect agreement with the finding recorded by the learned Tribunal and I do not find any ground to interfere in the aforesaid finding of the Tribunal. 13- The appeal lacks merit and is liable to be dismissed. 14- Accordingly, the appeal is dismissed. The impugned judgment and order dated 7-11-2006 is hereby confirmed. (B.C. Kandpal, ACJ.) ISB