HIGH COURT OF UTTARAKHAND AT NAINITAL A.O. NO. 151/2006 National Insurance Company Ltd. ..... Appellant Vs. Mukesh Kumar and another ...Respondents 17.4.2008 Hon’ble Rajesh Tandon, J. Heard Shri Prabhat Pandey , counsel for the appellant and Shri Lok Pal Singh, counsel for the respondent no. 1. 2. This is insurer’s appeal. 3. By the present appeal, filed under Section 173 of Motor Vehicles Act, 1988, the appellant has prayed for setting aside the judgment and award dated 17.12.2005 passed by the Motor Accident Claims Tribunal, Pauri Garhwal in M.A.C.P. No. 83 of 2004 by which a sum of Rs. 2,31,000/- has been awarded towards compensation. 4. Briefly stated, a motor accident claim petition no. 83 of 2004 was made under Sections 166/140 of the Motor Vehicles Act for compensation of Rs. 6,50,000/-. According to the claimant, on 27.11.2003 he was coming to Kotdwar from village Kesta Mahabagarh by Jeep No. UP 20 B-7245. When the Jeep was standing in the left side of the road at Aamsaud at Kotdwar-Dugadda Marg, the claimant was crossing the road for urinal. Suddenly, the Jeep No. UP 064940 dashed the claimant by driving rashly and negligently. As a result of the said accident, the claimant sustained injuries and his right knee and bones of right thigh got damaged. The claimant has become permanently disabled. The claimant has also sustained injuries over his head and left hand. The claimant was treated at Government Hospital, Kotdwar. Thereafter he was treated at Himalayan Institute, Jollygrant and the treatment is still going on. The claimant has spent a sum of Rs. 1,00,000/- towards medical expenses and Rs. 1,00,000/- is expected to be spent towards future medical expenses. It has been stated that Sushil Kumar Bhatt was the owner of the said Jeep and the said Jeep was insured with the National Insurance Company Limited. 5. The insurance company has filed a written statement admitting therein that the vehicle in question was insured with the insurance company. It has been submitted that the claimant was not a bona fide passenger. The driver was not holding a valid driving license and the insurance company is not liable to indemnify the claim as the driver of the jeep has violated the insurance policy. The fitness certificate, registration certificate, permit, etc. were not in order. The compensation has been claimed in exaggeration. The owner of the offending vehicle is liable to indemnify the claim. The claim petition is liable to be dismissed. 6. The owner of the offending vehicle has filed a written statement. It has been submitted that the vehicle was insured with the National Insurance Company Limited for all the liabilities. The driver was not driving the offending vehicle rashly and negligently. It has been submitted that the claimant was traveling in the another Jeep and suddenly came in side of Jeep No. UP 20 B-7245. It has been submitted that the driver was having valid driving license and the vehicle was insured. The insurance company is liable to indemnify the claim. 7. On the pleadings of the parties, the claims tribunal has framed the following issues:- 1. As to whether the accident in question had taken place due to rash and negligent driving by the driver of Jeep No. UP 06-4940 by dashing the claimant as a result of which the claimant sustained grievous injuries? 2. As to whether the accident had taken place due to own negligence of the claimant? 3. As to whether the driver of the offending Jeep was not having valid driving license 4. As to whether the offending vehicle was being driven in contravention of the insurance policy? 5. As to whether the claimant is entitled for any compensation? If yes, to what extent and from which of the parties? 8. The claimant has examined himself as A.P.W.1. Towards the documentary evidence, the claimant has produced one document per list 31 ga, 4 documents per list 5 ga, 42 documents per list 17 ga and 8 documents per list 23 ga. 9. The owner of the offending vehicle has produced three documents per list 13 ga. 10. While deciding as to whether the accident had taken place due to rash and negligent driving by the driver of Jeep No. UP 06-4940 by dashing the claimant as a result of which the claimant sustained grievous injuries, as to whether the accident had taken place due to own negligence of the claimant, as to whether the driver of the offending vehicle was not having valid driving license and further as to whether the offending vehicle was being driven in contravention of the insurance policy, the claims tribunal has taken into consideration the first information report i.e. paper no. 6 ga. The claims tribunal has also considered the statement of the claimant. On the basis of the aforesaid, the claims tribunal has recorded the finding that the accident had taken place due to rash and negligent driving by the driver of Jeep No. UP 06-4940 and there was no negligence on the part of the claimant. Further, the claims tribunal has taken into consideration the driving license of S.K. Bhatt, the driver of the offending vehicle which was valid from 1.9.2003 to 31.8.2006 and registration certificate and fitness certificate as well. All these papers were valid at the time of accident. Therefore, the claims tribunal has come to the conclusion that the driver of the offending Jeep was holding valid driving license at the time of accident and the Jeep in question was not being driven in contravention of the insurance policy. 11. While deciding with regard to quantum of compensation, the claims tribunal has taken into consideration the injury report i.e. paper no. 32 ga, which shows that the claimant has sustained seven injuries, in which the injury no. 7 is a grievous one. The claims tribunal has also taken into consideration the receipts with regard to medical treatment which comes to Rs. 31,700/-. The claims tribunal has awarded the same to the claimant. Further, taking into consideration the fact that the claimant has been fitted with a steel rod in right thigh and he remained admitted in the hospital for a long period, the claims tribunal has awarded a sum of Rs. 2,00,000/-. Thus, a sum of Rs. 2,31,700/- has been awarded towards compensation. 12. A perusal of the record shows that the accident had taken place on 27.11.2003 and the claimant was treated at Kotdwar Hospital and thereafter he was referred to Himalayan Institute, Jollygrant for better treatment. The claimant remained admitted in hospital till 17.12.2003. The claimant has deposed in his statement that he has received grievous injuries on his hand and head. The knee of the claimant has broken and a steel rod has been fitted in his thigh. The claimant has also sustained injuries below his eyes and chin. In order to prove his statement the claimant has produced the injury report i.e. paper no. 32 ga and the receipts with regard to medical treatment, which are available on the record. 13. In view of the aforesaid evidence on records, both the parties have agreed that let a sum of Rs. 1,00,000/- be awarded towards mental pain and suffering, which the appellant has suffered due to long illness and remained admitted in the hospital. Further, both the parties have agreed that the award may be confined to Rs. 1,25,000/- instead of Rs. 2,31,700/- along with the interest which has already been awarded at the rate of 9 per cent. 14. In view of the matter, the award passed by the claims tribunal is modified to the extent that the claimant shall be entitled for a sum of Rs. 1,25,000/- along with interest at the rate of 9 per cent. 15. Subject to the aforesaid modification, appeal is allowed. No order as to costs. (Rajesh Tandon, J.) 17.4.2008 Avneet