IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL A.O. No. 586/2007 United India Insurance Company Ltd. .. Appellant. Versus Smt. Janki Devi and others .. Respondents. Mr. Pankaj Purohit, learned counsel for the appellant. None has appeared on behalf of claimants/respondents. Sri H.C. Pathak and Sri B.D. Pande, learned counsel for respondent No.4. Judgment [ Hon’ble B.C. Kandpal, J. (oral) ] This appeal under Section 173 of the Motor Vehicle Act, arise out against the judgment and award dated 7- 4-2007, passed by Motor Accident Claim Tribunal/District Judge, Nainital, in MACT Case No.96/2006, Smt. Janki Devi and others Vs. Gaurav Singh and another. 2- Brief facts of the case are that on 25.11.2005, the deceased Chandan Singh Bisht, was driving the Motorcycle Bajaj Pulsar U.A. 04-C-5068 going towards Lamachaur from Pipal Pokhara. At about 10 A.M. near Lamachaur Inter College suddenly an old man tried to cross the road without having a look around the road and the motorcyclist dashed with that person, due to which the motorcyclist sustained grievous injuries. The injured was brought to Krishna Nursing & Research Center Haldwani, where it was found that he sustained grievous injury on his head. Thereafter, he was brought to Sayeen Hospital Moradabad, where he succumbed to injuries during the course of his treatment on 12-12- 2005. According to the claimants a sum of Rs. 2,00,000/- were spent upon the treatment of deceased Chandan Singh Bisht. The deceased at the time of his death was 18 years of age and he used to earn Rs. 5,000/- per month by agricultural work as well as by 2 driving the Tractor. Therefore the claimants filed claim petition for compensation in lieu of death of the deceased. 3- The opposite party no.1, owner of the offending motorcycle contested the claim petition and denied the allegations made in the petition. He, however, alleged that the motorcycle was insured with United India Insurance Company therefore, the liability is upon the shoulder of the insurance company. 4- The opposite party no.2, United India Insurance Company also filed its written statement alleging therein that the deceased himself was driving the motorcycle and the accident has occurred due to own fault of the deceased himself. The deceased was neither owner nor driver of the motorcycle, therefore, the opposite party is not liable to pay any compensation. 5- The learned tribunal, on the basis of pleadings of parties, framed relevant issues in the claim petition. Thereafter, parties led evidence in support of the case. The tribunal after hearing learned counsel for the parties and considering the entire material available on record, decreed the claim petition for a sum of Rs. 1,94,000/- as compensation against the United India Insurance Company along with interest @ 6% per annum from the date of filing the petition till the date of actual payment. 6- Feeling aggrieved, the United India Insurance Company has preferred this appeal before this court. 7- None has appeared on behalf of claimants/respondents in spite of sufficient service. Heard learned counsel for the appellant as well as 3 learned counsel for owner/respondent No.4 and perused the record. 8- The sole contention raised by learned counsel for the appellant is that the deceased was driving the motorcycle of one Gaurav Singh and he met with accident due to his own negligence and under the insurance policy his status is that of a gratuitous passenger but the tribunal failed to appreciate this aspect and has committed error by fixing liability upon the insurer. 9- From perusal of record it reveals that the tribunal while deciding issue no.1, pertaining to the factum of accident, has held that when the deceased was driving the motorcycle on the road near Lamachaur Inter College, suddenly an old man tried to cross the road without having a look here and there, and dashed with the motorcycle, in spite of the efforts made by the deceased to avoid the accident, and the accident has occurred due to the negligence of that old man. 10- On issue no.2 the tribunal has recorded the finding that the motorcycle was being driven with valid and effective documents. The motorcycle was having valid insurance and the deceased was also possessing valid driving license. The tribunal also recorded a categorical finding that the deceased comes in the category of third party, as it has been alleged by the claimants that the deceased was sent by Gaurav Singh, owner of the motorcycle, to fetch oil from the market. The above allegation of the claimants has not been controverted by the insurance company by adducing evidence in this regard. Further, in the schedule of the insurance policy in the column - ‘persons or class of persons entitled to 4 drive’, it has specifically been mentioned that ‘any person including insured provided that a person driving holds an effective driving license at the time of the accident and is not disqualified from holding or obtaining such a license. Provided also that the person holding an effective learner’s license may also drive the vehicle and such a person satisfies the requirements of Rule 3 of Central Motor Vehicle Rule, 1989.’ As stated earlier, in the instant case the deceased was having valid driving license and he was not disqualified from holding or obtaining such a license. Therefore, in the above facts and circumstances of the case, I do not find any ground to interfere with the finding recorded by the tribunal. The submission of the learned counsel for the appellant is not tenable and is rejected. 11- For the aforesaid reasons the appeal lacks merit and is liable to be dismissed. 12- Accordingly the appeal is dismissed. The impugned judgment and award is confirmed. 13- Let the statutory amount of compensation be remitted to the tribunal concerned. Dated: 25-06-2009 (B.C. Kandpal, J.) ISB 5