IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL. A.O. No. 332/2007 The New India Assurance Company Limited … Appellant. Versus Farhat Ali and another .. Respondent. Sri R.B. Agarwal, learned counsel for the appellant. Sri Z.U. Siddiqui, learned court for respondent/claimant. Dated: 4-12-2008 UHon’ble B.C. Kandpal, J. This appeal, under Section 173 of the Motor Vehicles Act, 1988, arise out against the judgment and award dated 8-6-2007, passed by Additional District Judge/ First F.T.C. Haldwani, in MACT Case No. 149 of 2005, Farhat Ali Versus New India Assurance Company and another. 2- Brief facts of the case giving rise to this appeal are that, on 26-2-2005 the Maruti Vagon R UA 04- A/5827 was coming Haldwani from Delhi. At about 6.30 P.M. when the said vehicle was near Dasana P.S. Singhani Gate, District Ghaziabad, a Tractor Trolley came there and dashed the Maruti Car on wrong side due to which the claimant Farhat Ali and other persons sustained grievous injuries. The people assembled at the spot got admitted the injured in Nagar Hospital, Ghaziabad where the claimed had to undergo operation of his foot. The claimant filed claim petition for a sum of Rs. 9,10,000/-. 3- The New India Assurance Company, insurer of Maruti Vagon R UA 04-A/5827, filed written statement and alleged that the information of the accident has not been given to it. The claimant did not make party to the 2 owner and insurer of the Tractor Trolley in question which involved in the accident therefore the petition is bad for non-joinder of necessary party. It was also alleged that the vehicle owner has to prove the factum that the driver of the vehicle was possessing valid driving license and the documents of the vehicles were valid. 4- The opposite party NO.2, owner of the Maruti Car admitted the accident and denied that the accident has occurred due to the rashness of the driver. However, he alleged that the vehicle was insured with New India Assurance Company and its driver was possessing valid and effective driving license. 5- The learned Tribunal framed issues in the claim petition. Thereafter parties adduced evidence in support of their case. The learned Tribunal after hearing learned counsel for the parties and perusing the material available on record, decreed the claim petition for a sum of Rs. 99,250/- along with interest @ 7% per annum from the date of filing the petition till the date of actual payment, against the New India Assurance Company. 6- Feeling aggrieved the New India Assurance Company has preferred this appeal. 7- The claimant also filed cross objection in the appeal for enhancement of the compensation. 8- I have heard learned counsel for the parties and perused the record. 9- Learned counsel for the appellant has submitted that the accident was the result of rashness on the part of Tractor Trolley and the Tribunal also 3 decided the issue on this point that the accident was caused by the Tractor Trolley by dashing the car on wrong side, therefore, the insurance company, insurer of the car should not have been held liable to pay the compensation. It is further alleged that the owner and insurer of the said Tractor Trolley have not been made party by the claimant, therefore, the claim petition was bad for non-joinder of necessary party. The Tribunal has committed gross error of law in fixing the liability of the insurance company and the impugned award is liable to be set aside. 10- The learned counsel for the claimant/respondent has submitted that the Tribunal has awarded a meager amount of compensation and the same be enhanced. 11- So far as the submission of the learned counsel for the appellant on the point of rash and negligence of the driver of the Tractor Trolley is concerned, the claimant as well as the owner of the Maruti Car have alleged this factum and in the F.I.R. also it has been mentioned that the Tractor Trolley dashed the car on wrong side. Hence it is quite clear that the accident was caused by the Tractor Trolley by going on wrong side. The finding of the Tribunal require no interference on this point. 12- As regards the non-maintainability of the petition, for the reason that the owner/insurer of offending Tractor Trolley were not made party to the claim petition, is concerned, the Tribunal has framed issue No.3 on this point. The Tractor Trolley dashed the car on wrong side and the same could have fled away 4 from the spot and this may be the reason that the number of the said Tractor could not have been detected and in the aforesaid circumstances the owner/insurer of the said Tractor Trolley could not have been made party. Therefore, the reasoning recorded by the tribunal on this point, holding that the petition is maintainable, needs no interference by this Court. 13- From perusal of the record it reveals that the Insurance Company also raised the plea that the accident has occurred due to rash and negligence of the driver of Maruti Car and the claimant cannot be compensated for his own negligence as he was driving the Car at the time of the accident. As has been stated earlier it is amply established that the accident was occurred due to the negligence of driver of Tractor Trolley, and the insurance company also took the plea in its W.S. that the accident was the result of rash and negligence of driver of the Tractor Trolley, therefore, the Tribunal has rightly concluded that the assertion of the insurance company that the accident was due to rash and negligence of driver of Maruti Car, is barred by the principle of Estoppel. The registration, insurance policy etc have been filed on record and it is established that the vehicle in question possessing valid registration and it has valid insurance also. In the aforesaid circumstances the learned Tribunal has rightly fixed the liability upon the insurer of the vehicle. 14- The learned counsel for the appellant also submitted that the tribunal has awarded an exorbitant amount of compensation and it should be reduced. I do not find any force in this submission also. The claimant has filed the bills/cash memos pertaining to purchase of medicines to the tune of Rs. 39,250/-. The tribunal has 5 awarded this sum under the head of medical expenses and I do not find any illegality in doing so. The tribunal further awarded a sum of Rs. 40,000/- towards loss of earning. It has come in evidence that the claimant suffered grievous injuries in the accident, he had to undergo operation and has to remain out of his work, therefore, the amount awarded under the head of economic loss, is justified. The Tribunal further awarded a sum of Rs. 10,000/- towards future expenses and Rs. 10,000/- on account of pain and suffering. In my view the claimant is entitled to get these sums also, as he has suffered grievous injuries in the accident. I am of the view that the Tribunal has awarded a justified amount towards the compensation. The Tribunal awarded interest @ 7% per annum from the date of filing the petition till the date of actual payment on the awarded amount of compensation and the same does not require any interference by this Court. 15- For the discussion made above, the appeal as well as the cross objection lack merit and are liable to be dismissed. 16- Accordingly, the appeal is dismissed. The impugned judgment and award dated 8-6-2007 is hereby confirmed. 17- The cross objection filed by the claimant/respondent is also dismissed. 18- The statutory amount of compensation deposited before this Court be remitted to the Tribunal concerned. (B.C. Kandpal, J.) ISB 6