IN THE HIGH COURT OF UTTARAKHANT AT NAINITAL Appeal From Order No. 121 of 2008 M/s Raja Transport Private Ltd. … Appellant Vs National Insurance Company Ltd. & others … Respondents Sri Ramji Srivastava, learned counsel for the appellant Sri Prabhat Pande, learned counsel for respondent No. 1 Hon’ble B.C. Kandpal, J. This appeal under Section 173 of the Motor Vehicle Act has been filed by the appellant against the judgment and award dated 09.01.2008 passed by Motor Accident Claims Tribunal/District Judge, Haridwar in Motor Accident Claim Petition No. 76 of 2006, Smt. Raisaa Vs Raja Transport & others. 2. Brief facts of the case are that on 10.04.2006 at about 06:00 p.m., Sri Yaseen was coming on his bicycle near Pitanjali Yogpith, Thana Jwalapur, District Haridwar, suddenly a vehicle bearing registration No. UA07C/9992 which was being driven by its driver in a very rash and negligent manner hit the cyclist due to which he has died on account of injuries sustained by him in the accident. The claimant is wife of the deceased and dependent upon him. Therefore, she filed a claim petition before the Tribunal for a sum of Rs. 18,47,000/- as compensation. 3. The opposite parties contested the claim petition by filing their written statement before the Tribunal concerned. The opposite party Nos. 1 and 2 denied the allegation made in the claim petition and stated that the accident took place due to negligence of the deceased. It has also pleaded that the Insurance Company is liable to pay compensation, if any. The opposite party No. 3 – National Insurance Company Ltd. also contested the claim petition admitting this fact that the vehicle 2 in question was insured with the National Insurance Company Ltd. It has alleged that the vehicle in question was being plied in breach of policy, therefore, the Insurance Company is not liable to pay any compensation. 4. On the basis of the pleadings of the parties, the Tribunal has framed relevant issues, which were discussed in a great detail. Thereafter, both the parties led evidence in support of their case. After hearing learned counsel for the parties and perusing the entire material available on record, the Tribunal decreed the claim petition for a sum of Rs. 1,95,000/- along with interest @ 5% per annum from the date of filing the claim petition till the actual date of payment vide judgment and award dated 09.01.2008. The Tribunal further awarded the recoverable right to the Insurance Company from the owner/appellant. 5. Feeling aggrieved by the aforesaid judgment and award the appellant/owner of the vehicle in question preferred this appeal for setting aside the recoverable right passed against him. 6. Heard Sri Ramji Srivastava, learned counsel for the appellant, Sri Prabhat Pande, learned counsel for respondent No. 1 and perused the record. 7. The only point involves in this case is that the owner of the offending vehicle in question has challenged the impugned judgment and award that the National Insurance Company has been given a recoverable right to recover the amount of compensation from the owner of the offending vehicle which is absolutely erroneous. 3 8. The bare reading of the impugned judgment and award shows that the Tribunal while deciding the issue No. 4, which reads as under:- “SD;k nq?kZVuk ds le; okgu la[;k ;w0,0 07 lh & 9992 oS/k izi=ksa ,oa oS/k okgu pkyu izek.k i=ksa ds lkFk pyk;eku ugha Fkk cfYd chek dh 'krksaZ ds foijhr pyk;eku Fkk tSlk fd foi{kh la0 3 ds fyf[kr mRrj ds vfrfjDr dFku ds izLrj 11 esa mfYyf[kr gS\” 9. From the finding recorded by the Tribunal, on the perusal of the aforesaid issue it appears that the Tribunal has categorically observed that the vehicle was being plied in accordance with the conditions of the insurance policy. The Tribunal has further observed that the Insurance Company could not produce any evidence or document on record which may suggest that any breach of policy was occurred at the time of the accident. The Tribunal has concluded the finding of issue No. 4 by observing that the offending vehicle in question was being plied at the time of accident with the proper insurance policy and the driver of the vehicle was also having valid and effective driving licence. 10. Once the Tribunal has recorded a finding that the driver of the vehicle was having valid and effective driving licence and there has not been any breach of policy in the accident, then there was no occasion for the Tribunal to direct the Insurance Company to recover the amount of compensation from the owner of the vehicle. The finding recorded by the Tribunal in the operative portion of the judgment is absolutely erroneous and against the provision of law. 4 11. Once it has been held that there was no breach of policy at the time of the accident and the vehicle was being driven by the driver who was having the valid and effective driving licence, then the liability to pay the amount of compensation rest on the shoulder of the Insurance Company with which the vehicle in question was insured at the time of the accident. Admittedly, the vehicle in question was insured with the National Insurance Company Ltd. at the time of the accident, hence, the liability to pay the amount of compensation is with the National Insurance Company Ltd. who is the insurer of the vehicle in question. 12. For the reasons stated above, the appeal is allowed. The impugned judgment and award is modified to an extend that the amount of compensation awarded by the Tribunal shall be paid by the Insurance Company i.e. National Insurance Company Ltd. with which the vehicle was insured at the time of accident not by the owner of the offending vehicle as has been directed by the Tribunal in the impugned judgment and award. There is no question of giving the recoverable right to the Insurance Company. In fact, the owner/appellant who is the insured is not liable to pay the amount of compensation any amount awarded by the Tribunal. 13. With the aforesaid observation, the appeal is allowed. The portion of impugned judgment giving the recoverable right to the Insurance Company against the owner of offending vehicle, is set aside. Rest part of the award is upheld. 5 14. The statutory amount deposited by the appellant before this Court at the time of filing the appeal be remitted to the Tribunal concerned. (B.C. Kandpal, J.) 01.09.2008 ASWAL