IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Appeal From Order No. 801 of 2006 Smt. Sashi Devi & others …Appellants Versus Oriental Insurance Co. Ltd. & another …Respondents Mr. Pramod Tiwari, Advocate for appellants Mr. V.K. Kohli, senior Advocate assisted by Mr. I.P. Kohli, Advocate for respondent no. 1 Mr. Mohd. Azim, Advocate holding brief of Mr. Shashi Kant Shandilya, Advocate for respondent no. 2 Dated: December 15, 2008 Hon’ble B.C. Kandpal, J. This appeal, under Section 173 of Motor Vehicles Act, 1988, has been preferred by the appellants-claimants against the judgment and award dated 30.9.2006 passed by M.A.C.T./1st F.T.C./Additional District Judge, Roorkee, District Haridwar in M.A.C.P. No. 34 of 2005, Sashi Devi & others versus Rajnish Kumar & another. Brief facts of the case, according to the claimants, are that on 25.1.2005 at about 8.00 p.m. deceased-Madan Pal was coming to his village from Jhhabreda through his Scooter No.U.P.11D-4861 and another person Kirpal was also sitting as pillion rider. When the said scooter reached near Man Petrol Pump at G.T. Road, Truck No. U.P.07G-2218 coming from the side of Roorkee in a rash and negligent manner and hit the scooter of deceased, as a result of which deceased-Madan Pal sustained 2 serious injuries on his person. The deceased-Madan Pal was admitted in Civil Hospital, Roorkee but seeing his critical condition he was referred to Jolly Grant Hospital, Dehradun, where he died on 12.2.2005 during his treatment. The claimants have alleged that Rs.2,50,000/- was expended on the treatment of deceased. Deceased-Madan Pal had been working on the post of Meter Reader in Uttaranchal Power Corporation at the time of accident. Opposite party no. 1 i.e. owner of offending truck in question filed his written statement and pleaded that he is the registered owner of Truck No.U.P.07G-2218. The driver of truck in question was not at fault in the accident as Madan Pal along with his companion himself hit the truck which was stationed at the side of pakki road. It has also been pleaded that driver of truck in question was having valid driving licence and truck in question was valid with insurance company w.e.f. 8.10.2004 to 7.10.2005. Therefore, the liability to pay the compensation, if any, is of insurance company. Opposite party no. 2-insurance company filed its written statement and pleaded that claim petition was not maintainable. It has denied the factum of alleged accident, income as Rs.12,500/- and age as 42 years of the deceased. It has also been pleaded that particulars of another vehicle No. U.P.11D-4861 has not been given and its owner and insurer have not been made party in the claim petition. It has further been pleaded that at the time of accident owner of truck in question was not having valid registration, permit, fitness and driving 3 licence and there was breach of conditions of insurance policy, therefore, the claim petition is liable is liable to be dismissed. The Tribunal on the basis of pleadings adduced by the parties framed relevant issues in the claim petition which were discussed in detail. Parties led evidence in support of their case. The learned Tribunal after having considered the entire evidence available on record and hearing learned counsel for the parties, dismissed the claim petition vide judgment and award dated 30.9.2006. Feeling aggrieved by the aforesaid impugned judgment and award, the appellants-claimants have preferred the present appeal before this Court. Heard Mr. Pramod Tiwari, learned counsel for appellants, Mr. V.K. Kohli, senior Advocate assisted by Mr. I.P. Kohli, learned counsel for respondent no. 1, Mr. Mohd. Azim, Advocate holding brief of Mr. Shashi Kant Shandilya, learned counsel for respondent no. 2 and perused the record. It appears from perusal of record that the Tribunal has dismissed the claim petition on a cursory ground holding therein that factum of accident is not proved and there is a collusion between owner of vehicle and claimants. It has also been observed by the Tribunal that none has been produced by the claimants who could have identified the driver of offending truck at the time of accident. 4 Learned counsel for respondent no. 1, Sri V.K. Kohli, senior Advocate has submitted that petition was bad on account of non-joinder of driver of offending truck in question. He has further submitted that had the driver of offending truck in question been made a party, he would have been the best person to throw the light on the factum of the accident. The record reveals that claimants had filed the copy of the First Information Report lodged by Yashpal Singh-brother of the deceased. The First Information Report clearly indicates that number of offending truck in question finds place therein. Further, the police investigated the criminal case and thereafter submitted charge-sheet in the matter against the driver of offending truck in question. The eye witness has also been produced by the claimants as PW-3, Kripal Singh and he has stated about the factum of the accident. It is a summary trial and the Tribunal could not have ignored the aforesaid aspects. The Tribunal should have taken judicial notice of all the papers filed by the claimants in order to come to a definite conclusion with regard to the factum of accident. There is no cogent and reliable evidence in order to show that there was any collusion between the owner of offending truck in question and the claimants. The finding recorded by the Tribunal is baseless on this count. 5 The evidence adduced by the claimants as well as papers available on record clearly indicates that deceased-Madan Pal died on account of injuries sustained by him in the accident which took place on 25.1.2005. As far as involvement of offending truck in question in the accident is concerned, the Tribunal should have taken into account the evidence available on record, carefully and thereafter should have come to the conclusion that whether the factum of accident is considered or not. The dismissal of the petition by the Tribunal appears to be a result of haste action taken by the Tribunal. For the reasons stated above, I set aside the impugned judgment and award dated 30.9.2006 passed by the Tribunal. I direct the Tribunal to decide the claim petition afresh in the light of evidence available on record. The Tribunal, in case, if feels necessary, may direct the claimants to implead the driver of truck in question as respondent in view of decision of the Hon’ble Apex Court rendered in the case of Oriental Insurance Co. Ltd. versus Meena Variyal and others, reported in 2007 (2) T.A.C. 417 (S.C.). Further, if the Tribunal feels necessary, may direct the parties to adduce evidence in support of their case, in order to reach the definite conclusion. The Tribunal shall decide the claim petition, including the point of quantum, expeditiously and without causing any unreasonable delay in the light of the observations made by me in the body of the judgment. 6 With the aforesaid observations, the appeal is allowed. The impugned judgment and award dated 30.9.2006 passed by Tribunal, is set aside. (B.C. Kandpal, J.) SP