IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Appeal Against Award No. 169 of 2004 The New India Assurance Company Ltd. … Appellant Vs Shankar Dutt Jagta & others … Respondents Sri T.A. Khan, learned counsel for the appellant Sri D.S. Patni, learned counsel for the respondent No. 5 Sri Deepak Sharma, Advocate, holding brief of Sri Ramji Srivastava, learned counsel for the respondent No. 6 Hon’ble B.C. Kandpal, J. This appeal under Section 173 of the Motor Vehicle Act, 1988 has been filed by the appellant against the judgment and award dated 26.02.2004 passed by Motor Accident Claims Tribunal/Additional District Judge, Haridwar in Motor Accident Claim Petition No. 67 of 1997, Shankar Dutt Jagti Vs Narendra Kumar & others. 2. Brief facts of the case are that on 28.03.1997, the claimant – Shankar Jagta was going on a scooter bearing registration No. UP10B/2711 as a pillion rider, which was being driven by Arvind Jagta. They were going from Haridwar to Bhaguwala for official work. At about 11:10 a.m. when they reached near Rasiawara Bridge, a bus bearing No. UP20C/0211, which was being driven by its driver in a very rash and negligent manner dashed against the said scooter due to which, Arvind Jagta died at the spot and the Shankar Jagta sustained serious injuries. According to the claim petition, Shankar Jagta has spent Rs. 55,000/- on his medical treatment and he was still under treatment. Therefore, he has filed the claim petition before the Tribunal for a sum of Rs. 2,00,000/- as compensation. 2 3. Opposite parties No. 1 and 2 are the joint partner of bus No. UP20C/0211 who have filed their joint written statement before the Tribunal in order to contest the claim petition. It has pleaded that the documents pertaining to the bus are genuine and the bus in question was insured with New India Assurance Company Ltd. 4. Opposite party No. 3 – New India Assurance Company Ltd. also contested the claim petition by filing its written statement before the Tribunal alleging therein that the driver of both the vehicles were not having the valid papers. 5. On the basis of the pleadings of the parties, the Tribunal has framed relevant issues, which are 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 has decreed the claim petition for a sum of Rs. 45,000/- against the New India Assurance Company Ltd. 6. Feeling aggrieved by aforesaid by the aforesaid judgment and award, the appellant preferred this appeal before this Court. 7. Heard Sri T.A. Khan, learned counsel for the appellant, Sri D.S. Patni, learned counsel for the respondent No. 5, Sri Deepak Sharma, Advocate, holding brief of Sri Ramji Srivastava, learned counsel for the respondent No. 6 and perused the record. 8. From the perusal of the record, it reveals that the accident took place due to rash and negligent driving of the bus No. UP20C/0211. The Tribunal while deciding this issue 3 considered the evidence of Anuj Kumar (P.W.2) who has stated that on the date of accident, he was going along with his friends in two scooters towards Bhaguwala. When they crossed the Rasiyawada bridge, they saw that bus No UP20C/0211 was coming on the wrong side, which was being driven by its driver in a very rash and negligent manner and the said bus hit the scooter of Arvind, due to which they fell down on the road and sustained serious injuries. The opposite parties did not produce any witness in support of their case, which may show that the bus was not being driven in a rash and negligent manner. Therefore, the Tribunal on the basis of the material available on record rightly held that the accident took place due to rash and negligent driving of the bus in question. 9. Learned counsel for the appellant has challenged this appeal only on the point that the driver of the bus was having the valid and effective driving licence only to drive the Light Motor Vehicle whereas the bus in question was a heavy passenger vehicle, therefore, the Tribunal has committed illegality while deciding the issue relating to the driving licence and has decided the same on the basis of presumption. 10. Sri Deepak Sharma, learned counsel for the respondent No. 6 has stated that the Insurance Company could not make efforts to prove this fact before the Tribunal that the driver of the bus in question was not having the valid and effective driving licence. He has further invited my attention towards the finding recorded by the Tribunal, in which it has categorically recorded that the owner of the bus checked the driving licence of Keshav Sharma (driver of the bus) and the Insurance Company could not object this fact before the Tribunal and could not produce any document 4 which may show that the driver of the bus was not having the valid and effective driving licence. 11. After hearing learned counsel for the parties and going through the entire record available before, I do not find any force in the submission advanced by learned counsel for the appellant. The document which the appellant wants to show before this Court has to produce the same before the trial court. It is the onus of the Insurance Company to prove that the driver of the bus was not having the valid and effective driving licence. The owner of the bus has stated that the driver of the bus was having the valid and effective driving licence on the date of accident. It is not disputed that on the date of accident, the bus in question was insured with the New India Assurance Company Ltd., therefore, the Tribunal imposed liability of compensation upon the Insurance Company. Further the Tribunal has recorded in its finding that the Insurance Company at the time of issuing the Insurance Certificate checked the registration certificate, driving licence etc. therefore, it cannot be said that on the date of accident, the driver of the bus was not having the valid and effective driving licence. The New India Assurance Company could not raise any objection before the court below on this point and the finding recorded by the Tribunal appears to be reasonable in this regard. There is no dispute relating to the Insurance of the bus in question. I am in total agreement with the finding recorded by the Tribunal. 12. No other point has been pressed by the learned counsel for the appellant. 13. As far as the amount of compensation is concerned, the Tribunal considered the cash receipt of the medicines 5 which was deposited by the claimant before the Tribunal. The claimant deposited the receipts for Rs. 35,000/- before the Tribunal and further the Tribunal considering the mental and physical pain of the claimant awarded Rs. 5,000/- under this head and further the Tribunal also awarded Rs. 5,000/- towards damage of scooter. In this way, the Tribunal awarded a sum of Rs. 45,000/- as compensation to the claimant and against the New India Assurance Company Ltd. The Tribunal also directed that the amount of compensation shall be paid to the claimant within a period of sixty days failing which the same shall be paid along with interest @ 7% per annum from the date of filing the claim petition. I am in total agreement with the finding recorded by the Tribunal. The amount awarded by the Tribunal appears to be quite reasonable. The appeal lacks merit and is liable to be dismissed. 15. Accordingly, the appeal is dismissed. No order as to costs. 16. 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.) 15.09.2008 ASWAL