IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Appeal From Order No.572 of 2006 United India Insurance Co. Ltd. ...Appellant Versus Km. Champa Bisht and others …Respondents Mr. Naresh Pant, Advocate for the appellant Mr. Jagdish Singh Bisht, Advocate for respondents no.1 & 2 Mr. Deep Ch. Joshi, Advocate for respondent no. 3 Dated: 10-07-2009 Hon’ble B.C. Kandpal, J. (Oral) This appeal, under Section 173 of Motor Vehicles Act, 1988, has been preferred by the appellant i.e. United India Insurance Co. Ltd., against the judgment and award dated 24.11.2003passed by the Motor Accident Claims Tribunal/ District Judge, Almora, in M.A.C.T. Case No. 52 of 2000, Km. Champa Bisht and another versus Narayan Singh and others, whereby the claim petition has been decreed for a sum of Rs.1,00,000/- and Rs.1,10,000/- respectively with simple interest @ 9% per annum. The claimants-Km. Champa Bisht and Km. Tulsi Bisht filed the claim petition for compensation for their individual injuries, which they sustained in a motor accident on 4.4.2000 at 10.30 a.m. alleging therein on the date of accident they as pillion riders of scooter no. U.P.01-1276 were going to attend their B.A. Final Examinations of Kumaon University. The scooter was being driven by Sanjay Tewari, opposite party no. 2. He was driving the scooter carefully and properly; but when they 2 reached near Deodar Hotel, on Mall Road, one Jeep No. UP 01-1913, belonging to opposite party no. 1 and insured with opposite party no. 3, reached there from Haldwani side. The driver of the jeep was driving the vehicle rashly and negligently and due to his rash and negligent driving, the vehicle (jeep) hit the scooter with the result both the claimants sustained simple as well as grievous injuries. They were rushed to Base Hospital, Almora, admitted in the hospital and x-ray examination was conducted. On such x-ray examination fracture was found in both the legs of claimant no. 2 and two of her teeth were also found broken and it was found that claimant no. 1 suffered fracture of one of her legs. Opposite party no. 1 has contested the claim petition by filing written statement on the ground inter alia that the driver of the jeep was driving the vehicle properly and the accident took place due to rash and negligent driving of the scooter driver. Opposite party no. 2, inspite of service of summons/notice, did not file any written statement and, therefore, the case against him proceeded exparte. Opposite party no. 3, the insurance company of Jeep, also contested the claim petition on the ground inter alia that the vehicle (jeep) was not properly insured with a Company. Driver was not holding a valid driving licence, the accident took place due to rash and negligent driving by the driver of the jeep and at any rate, it was the result of contributory negligence of both the drivers. The petition was also contested on the ground that more 3 than prescribed passengers were travelling on the scooter, therefore, the claimants themselves were negligent as they were travelling in violation of Motor Vehicles Act, therefore, they are not entitled to any compensation. The learned Tribunal on the basis of pleadings of the parties framed necessary issues in the claim petition. Partied led evidence in support of their case. The learned Tribunal having considered the entire evidence available on record and hearing learned counsel for the parties decreed the claim petition for a sum of Rs.1,00,000/- and Rs.1,10,000/- in favour of claimant no. 1 and claimant no.2 respectively, against opposite party no. 1 and opposite party no. 3 jointly and severally, along with interest at the rate of 9% per annum from the date of filing the petition till the date of payment and costs of Rs.1,000/- each, vide impugned judgment and award dated 24.11.2003. Feeling aggrieved by the aforesaid impugned judgment and award, the appellant i.e. United India Insurance Co. Ltd. has preferred the present appeal before this Court. Heard Sri Naresh Pant, learned counsel for the appellant, Sri Jagdish Singh Bisht, learned counsel for respondents no. 1 & 2, Sri Deep Ch. Joshi, learned counsel for respondent no. 3 and perused the record. None has appeared on behalf of respondent no. 4 despite sufficient service of notice. As far as factum of accident, the Tribunal while deciding issue nos. 1 and 2 in the impugned 4 judgment and award, discussed this aspect. The Tribunal has taken into consideration the statement of Km. Tulsi Bisht (PW-1). This witness has deposed that driver of scooter, namely, Sanjay Tiwari, was driving the scooter very cautiously in slow speed, but the accident took place due to rashness and negligence of the driver of the Jeep. This witness has also been cross examined by opposite party no. 1. In the cross examination, PW-1 has deposed that examination was to begin at 11 a.m. She expressed her ignorance about the driving licence of Sanjay Tiwari and said that the Jeep came from Haldwani side. She further deposed that she does not remember whether the jeep was coming from its left side or not. Thus, from the deposition of PW-1, it is quite clear that according to her, accident took place due to sole negligence of the driver of the jeep. Although a suggestion was given by opposite party no. 1 to the effect that accident was the result of rash and negligence of the driver of scooter; but this suggestion was denied by PW-1. No evidence has been adduced by the opposite party in order to contradict the evidence of PW-1. As there is no evidence of negligence by the driver of the scooter, there is no question of any contributory negligence by both the vehicles. The site plan prepared by the police also shows that jeep driver was negligent and scooterist was not negligent. The Tribunal having considered the evidence available on record came to the conclusion that accident was result of sole negligence of driver of jeep. Neither the scooterist was responsible for the negligence nor in any way contributed in the accident. The said finding recorded by the Tribunal in this regard appears to be completely justified and I am also in total 5 agreement with the same. The findings recorded by the Tribunal to the effect that driver of offending jeep was having valid driving licence; offending jeep was insured with opposite party no. 3-United India Insurance Co. Ltd. on the date of accident, and therefore, opposite party no. 3 is under legal obligation to pay entire compensation, appear to be completely justified and I am also in total agreement with the findings recorded by the Tribunal in this regard. As far as amount of compensation to be awarded in favour of claimants is concerned, the learned Tribunal has discussed this aspect while deciding issue no. 7 in the impugned judgment and award. The claimants although filed medical bills and receipts etc. of the treatment to the tune of Rs.9,000/- only, but the Tribunal recorded the finding that injured are not expected to keep intact and file the entire bills, receipts etc. of their expenditure. The Tribunal keeping in view the nature of injuries, period of hospitalization etc. has rightly awarded a sum of Rs.20,000/- to claimant no. 2-Km. Tulsi Bisht and a sum of Rs.15,000/- to claimant no. 1-Km. Champa Bisht. The Tribunal further awarded a sum of Rs.15,000/- to claimant no. 2 and a sum of Rs.10,000/- to claimant no. 1 under the head of mental and physical pain, which also appears to be justified and needs no interference. The Tribunal further awarded a sum of Rs.75,000/- each to the claimants for loss of one academic year on account of accident, which also appears to be just and reasonable. Thus, a sum of Rs.1,00,000/- and Rs.1,10,000/- have been 6 awarded by the Tribunal to claimant no. 1 and claimant no. 2 respectively, as total amount of compensation. The rate of interest as 9% per annum awarded by the Tribunal on the compensation amount and cost of Rs.1,000/-, needs no interference and the same shall remain intact. I do not find any infirmity in the method of calculation in awarding the amount of compensation. For the reasons stated above, appeal lacks merit and is liable to be dismissed. Accordingly, appeal is dismissed. The impugned judgment and award dated 24.11.2003, is hereby confirmed. The statutory amount and other amount, if any, deposited by the appellant with this Court be remitted to the Tribunal concerned. (B.C. Kandpal, J.) SP 7