IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Appeal From Order No. 104 of 2005 National Insurance Company Ltd. … Appellant Vs Smt. Deveshwari Devi & 7 others … Respondents Sri D.S. Patni, learned counsel for the appellant Sri P.S. Danu, learned counsel for the respondents Hon’ble B.C. Kandpal, J. This appeal under Section 173 of the Motor Vehicle Act, 1988 has been filed by the appellant/Insurance Company against the judgment and award dated 03.12.2004 passed by Motor Accident Claim Tribunal/District Judge, Rudraprayag in Motor Accident Claim Case No. 15 of 2003, whereby the Tribunal awarded a sum of Rs. 2,50,000/- to the claimants. 2. Brief facts of the case are that on 15.03.2004 at about 03:00 p.m., Sri Bhagat Singh (deceased) was traveling in Mahindra Jeep No. UP05/0304 from Thopla Udamanda Marg to village Thapla, when the said jeep reached near the said village, it met with an accident. In this accident, Sri Bhagat Singh died at the spot. At the time of the accident, he was 44 years of age and doing the job of teacher and used to earn Rs. 11,581/- per month. The claimants are the dependants upon the deceased, hence, they filed the claim petition to the tune of Rs. 25,00,000/- before the Tribunal concerned for compensation. 2 3. The opposite party – Muli Lal Tamta contested the claim petition by filing written statement before the Tribunal concerned. He has admitted himself to be the owner of the vehicle in question. It has further pleaded that the vehicle in question was insured with National Insurance Company Ltd., therefore, the liability, if any, to pay compensation lies upon the Insurance Company and not the owner of the vehicle. 4. The National Insurance Company Ltd. also contested the claim petition by filing written statement before the Tribunal concerned. It has alleged that the claimant did not array the party to the driver of the vehicle in question and the passengers were traveling much more then its capacity. It has further alleged that the driver of the vehicle in question was also not having the valid and effective driving licence. 5. On the basis of the pleadings of the parties, the Tribunal has framed relevant issues, which were discussed in great detail. Both the parties led the evidence in support of their cases. The Tribunal after having assessed the evidence on record and hearing learned counsel for the parties decreed the claim petition for a sum of Rs. 2,50,000/- in favour of the claimants which is to be paid the by Insurance Company of the offending vehicle vide judgment and award dated 03.12.2004. 6. Feeling aggrieved by the aforesaid judgment and award, the Insurance Company has filed the present appeal before this Court. 3 7. Heard Sri D.S. Patni, learned counsel for the appellant, Sri P.S. Danu, learned counsel for the respondents and perused the record. 8. Learned counsel for the appellant has confined his argument to this aspect that the Tribunal itself has recorded a categorical finding that the driver of the offending vehicle was not having valid and effective driving licence at the time of the accident. Learned counsel for the appellant has invited my attention towards the observation made by the Tribunal while deciding issue No. 2 in the impugned judgment and award. 9. The impugned judgment and award clearly reveals that the Tribunal has come to the conclusion that the owner has not filed any document in order to show that the offending vehicle was being driven by the driver who was having the valid and effective driving licence at the time of the accident. Having considered the entire material available on record and hearing learned counsel for the appellant, I am of the view that when the court below has recorded a categorical finding that the driver of the vehicle was not having the valid and effective driving licence on the date of the accident then the Tribunal in fact was not justified in fixing the liability upon the shoulder of the Insurance Company to pay the amount of compensation awarded. In case, if the Tribunal comes to the conclusion that the amount to be awarded in favour of the claimants is to be paid by the Insurance Company, even then the Insurance Company should be given a liberty to recover the 4 amount from the owner of the vehicle in question, which the Tribunal has not done in the instant case. The Tribunal, therefore, has fell in error in issuing the direction to the Insurance Company to pay the entire amount of compensation to the claimants. 10. On the basis of the aforesaid discussion, I come to the conclusion that the impugned judgment and award is liable to be modified to the extent that the Insured of the offending vehicle shall have the recoverable right for recovering the amount of compensation to be paid in favour of the claimants from the owner of the offending vehicle – respondents No. 7 and 8. 11. With the aforesaid observation, the appeal is partly allowed. The impugned judgment is modified up to the extent that the Insurance Company shall have the recoverable right from the owner of the vehicle i.e. respondents No. 7 and 8. 12. The amount, if any, deposited before this Court be remitted to the Tribunal concerned. (B.C. Kandpal, J.) 02.06.2008 ASWAL 5