IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Appeal From Order No. 811 of 2006 Smt. Sangeeta and others … Appellants Versus Smt. Harender Kaur and another … Respondents Mr. B.S. Parihar, Mr. Mohd. Azim, Advocates for appellants Mr. I.P. Gairola, Advocate for respondent no. 1 Dated: August 7, 2008 Hon’ble B.C. Kandpal, J. This appeal, under Section 173 of Motor Vehicles Act, 1988, has been preferred against the judgment and order dated 07.09.2006 passed by A.D.J./F.T.C. Kashipur, District Udham Singh Nagar, in MACP No. 92 of 2003, Smt. Sangeeta & another vs. Smt. Harender Kaur and another, whereby claim petition filed by claimants was dismissed. Brief facts of the case as narrated in claim petition are that on 23.12.2002, when deceased- Ashok Kumar along with his younger brother Manoj Kumar was waiting for conveyance to reach at home, near Fauji Dhaba by the side of Kashipur- Rudrapur main road, then Tanker No. UP-25/6895, driven by its driver in a very fast and negligent manner came from the side of Bazpur (Rudrapur) and hit deceased-Ashok Kumar, as a result of which Ashok Kumar was grievously injured and died on the way to hospital. At the time of accident, the deceased-Ashok Kumar was earning Rs.4000/- per month from the job of Supervisor. The claimants claimed a sum of Rs.10,00,000/- as compensation 2 along with interest at the rate of 12% per annum from the date of filing the petition till the date of actual payment. Opposite party no. 1-owner of Tanker in question filed written statement denying the contents of claim petition and pleaded that no accident has been caused by her vehicle, but admitted that she is the registered owner of Tanker No. U.P.-25/6895, but no accident has been caused by her said vehicle on 23.12.2002. It has also been stated that her said vehicle was insured with opposite party no. 2-New India Assurance Co. Ltd. and on 23.12.2002 the said vehicle was being plied by driver-Jaswant Singh son of Ratan Lal, who was holding valid and effective driving licence. It has further been stated that amount of compensation demanded is excessive and therefore claimants are not entitled to get any compensation. The claim petition against opposite party no. 1 is liable to be dismissed. Opposite party no. 2-The New India Assurance Co. Ltd. filed written statement and pleaded that no accident has been caused by Tanker No. UP- 25/6895 and therefore insurance company is not liable to pay any compensation. It has also been pleaded that insurance company was not given any information with regard to said accident. It has further been pleaded that claimants have also to prove this fact as to on which date, time and place the said accident had occurred by which vehicle and what was the name of driver and whether he was having valid driving licence or not. It has further been stated that claimants have also to prove this 3 fact that claimants are the legal heirs of deceased and what was the age and income of deceased at the time of accident. The learned Tribunal on the basis of pleadings of parties framed following issues in the claim petition: 1. Whether on 23.12.2002, near Fauji Dhaba by the side of Kashipur- Rudrapur main road, Tanker No. UP- 25/6895 driven by its driver in a very fast and negligent manner, hit Ashok Kumar, as a result of which he died? 2. Whether driver of offending Tanker No. UP-25/6895 was not holding valid and effective driving licence? 3. To what compensation are the claimants entitled and from which opposite party? Parties led evidence in support of their cases. The Tribunal after having considered the material available on record and hearing learned counsel for the parties dismissed the claim petition vide judgment and award dated 07.09.2006. Feeling aggrieved by the aforesaid impugned judgment and award, the claimants-appellants have filed this appeal before this Court. Heard Mr. Mohd. Azim, Mr. B.S. Parihar, Advocates, learned counsel for appellants, Mr. I.P. Gairola, learned counsel for respondent no. 1 and perused the record. 4 The short controversy involved in this case is as to whether the alleged accident had taken place due to rash and negligence of Tanker No. UP- 25/6895, or not. The record reveals that Sri Manoj Kumar, who is the real brother of deceased-Ashok Kumar, has been produced as PW-2 and he stated in his deposition that when he along with his brother Ashok Kumar (deceased) was waiting for conveyance to reach at home, near Fauji Dhaba by the side of Kashipur-Rudrapur main road, then Tanker No. UP- 25/6895, driven by its driver in a very fast and negligent manner came from the side of Bazpur (Rudrapur) and hit deceased-Ashok Kumar, as a result Ashok Kumar (deceased) was grievously injured and died on the way to hospital. The driver of offending Tanker ran away from the spot along with Tanker towards Kashipur and this witness also stated that number of offending tanker was seen by himself in the light of Fauji Dhaba just after the said accident. The report of the said accident has been lodged on 26.12.2002 at Police Chowki I.T.I. P.S. Kashipur. This witness has also been cross examined and he has reiterated the factum of accident. Sri Jaswant Singh-driver of offending vehicle has been produced by opposite parties as DW-1, who has stated in his deposition that on 23.12.2002 he was the driver of Tanker No. UP- 25/6895 and he had departured from India Glycols Ltd. Kashipur for Khatima on 22.12.2002 at 5-6 p.m. after loading the Tanker and loaded Tanker reached at the gate of M/s Easter Inustries Ltd. Khatima on 23.12.2002 at 4.00 a.m. and entered the loaded Tanker in the factory premises on 5 23.12.2002 at 8.00 a.m. and the Tanker was weighed on 23.12.2002 at 10.00 a.m. and after that Tanker No. UP-25/6895 was unloaded on 23.12.2002 at about 3.00 p.m. and then unloaded Tanker return back from the factory on 23.12.2002 at about 4.00 p.m. This witness has also been cross examined and he has deposed that he had not produced any document on record regarding entering and exiting of Tanker from the factory premises. The learned Tribunal after having considered the entire evidence adduced before it came to the conclusion that Tanker No. UP- 25/6895 had gone to Khatima on 23.12.2002 and was in the premises of M/s Easter Industries Ltd. Khatima at 15.32 p.m. (03.32 p.m.) and filled oil in the Tanker at Bazpur on 24.12.2002. The Tribunal has further held that it has been proved by the statement of DW-1 that Tanker No. UP-25/6895 was not involved in the said accident. Learned Tribunal further held that PW-2 Manoj Kumar is an interested witness being the real brother of deceased and presence of PW-2 on the spot and testimony of DW-1 has not been substantiated by another witness. The learned Tribunal has recorded a categorical finding that claimants had failed to prove that the said accident had occurred due to rash and negligent driving of driver of Tanker No. UP-25/6895. I am, therefore, of the view that the Tribunal was justified in dismissing the claim petition filed by claimants. I do not find any illegality in the finding recorded by the Tribunal in this regard and same deserves to be confirmed. In view of above discussion, the appeal lacks merit and is liable to be dismissed. 6 The appeal is accordingly dismissed. The impugned judgment and award dated 07.09.2006 is hereby confirmed. (B.C. Kandpal, J.) SP 7