IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA FAO (MVA) No. 125 of 2005 Date of Decision: 22nd December, 2008 Brij Mohan Sharma and another Appellants Versus Ajay Gautam and another Respondents Coram The Hon’ble Mr. Justice Sanjay Karol,J. Whether approved for reporting1? No. For the appellant: Mr.Rahul Mahajan, Advocate, vice counsel for Mr.Vishal Panwar, Advocate. For respondent No.1: Mr.Anup Rattan, Advocate. For respondent No.2: Ms. Sunita Sharma, Advocate. Sanjay Karol, J. (Oral) The owner and the driver have filed the present appeal challenging the award dated 17.8.2004 passed by the Motor Accident Claims Tribunal-I, Sirmaur District at Nahan, in MAC Petition No.17- MAC/2 of 2004, titled as Ajay Gautam vs. Brij Mohan Sharma and others. In a road accident, claimant Ajay Gautam, respondent No.1 herein, suffered an injury. The accident took place on 18.10.2003 near Thuran Kalaghat, District Sirmaur. The offending vehicle (bus) bearing No. HP-14-4058 owned by Brij Mohan Sharma, appellant No.1 herein was being driven by Shri Om Parkash, appellant No.2 herein. Whether the reporters of Local Papers are allowed to see the Judgment? 2 A claim petition was filed under Section 166 of the Motor Vehicles Act, 1988 (hereinafter referred to as the Act) by the claimant claiming compensation for the injuries sustained by him in the said accident. Appellants herein filed reply admitting the occurrence of the accident but alleging contributory negligence on the part of the claimant, who was also driving the scooter at the time of the accident. The vehicle being insured, the Insurer filed a separate reply and denied any liability for the reason that the material terms and conditions of the Insurance Policy stood breached. Based on the pleadings of the parties, the Tribunal framed the following issues:- 1. Whether the petitioner sustained injuries as a result of rash and negligent driving of bus No.HP-14-4058 being driven by respondent No.2 on 18.10.2003 near Thuran Kalaghat? OPP 2. Whether the claim petitioner is entitled to compensation, if so what amount and from whom? OPP 3. Whether the petition is not maintainable? OPR3 4. Whether the petition is collusive? OPR3 5. Whether the respondent No.2 was not having valid and effective driving licence? OPR3 While deciding Issue No.1, based on the statements of the claimant (PW-1), Shri Ajay Sharma (PW-2) as also FIR Ext.PA, the Tribunal found appellant No.2 to have driven the vehicle in a rash and negligent manner which caused the accident in which the claimant sustained injury. 3 On Issue No.5 the Tribunal found that since no driving licence had been placed on record either by the Insurer or the appellants herein, therefore, the driver was not possessing a valid and effective driving licence, hence the material terms and conditions of the insurance policy stood breached. Issues No.3 and 4 were decided in favour of the Insurer. On the question of compensation while deciding Issue No.2, taking into account the disability certificate Ext.PB showing that the claimant had received permanent disability to the extent of 5% as also the bills Ext.P-1 to Ext.P-29 produced on record by PW-1 to prove the medical expenses incurred by him, a sum of Rs.25,000/- only was awarded in favour of the claimant as compensation. I have heard the learned counsel for the parties. From the statement of PW-1 as also PW-2, it is evident that the accident took place due to the fault of appellant No.2 Shri Om Parkash. It is a matter of record that Shri Om Parkash did not even step into the witness box to depose to the contrary. FIR Ext.PA was also registered against him. In my view, the Tribunal has rightly arrived at its conclusion that the accident occurred due to rash and negligent act on the part of the driver of the Bus. The findings of the Tribunal on the said issue are upheld. On the question of compensation, the injury sustained by the claimant stands proved. As per Ext.PB he sustained permanent disability to the extent of 5%. The total compensation awarded is only Rs.25,000/-. In my view, the same is inadequate considering the age of the claimant (39 years), but, however, since the claimant has not filed any appeal nor assailed the same today, I am not inclined to interfere. Therefore, the findings on the question of quantum are also upheld. 4 With regard to the liability, the appellants herein have now filed an application under Order 41 Rule 27, CPC seeking to place on record the copy of driving licence. The explanation given is that the driving licence was lying in the case file arising out of FIR No.61/2003, which is pending trial in the Court of Judicial Magistrate, Ist Class, Rajgarh. No reply to the application inspite of direction dated 6.6.2005 has been filed. Considering the entire circumstances of the case, it will be in the interest of the parties i.e. the appellants and the Insurance Company, that the said document is taken on record and the matter is remanded back to the Tribunal for leading additional evidence on the limited point of liability. The matter is, therefore, remanded back for adjudication of the said issue afresh. The findings on Issue No.3 are set aside. The parties shall not take more than two opportunities to lead evidence, which shall be produced at their own responsibility and costs. The claimant need not appear before the Tribunal any further. The parties through their learned counsel are directed to appear before the Tribunal concerned on 16.2.2009. After affording opportunity to the parties the Tribunal shall decide the matter as expeditiously as possible. Record be sent back immediately. With the aforesaid observations, the appeal is disposed of. 22nd December, 2008 (Sanjay Karol), (C) Judge.