IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Appeal From Order No. 355 of 2006 Dharm Singh … Appellant Versus The New India Insurance Co. Ltd. & another … Respondents Sri Pramod Tiwari, holding brief of Sri Rajendra Singh, Advocate, for appellant Sri R.B. Aggarwal, Advocate, for respondent no. 1 Dated: May 13, 2008 Hon’ble B.C. Kandpal, J. This appeal under Section 173 of Motor Vehicles Act, 1988, has been filed by the claimant- Dharm Singh against the judgment and award dated 18.3.2006 passed by M.A.C.T./1st F.T.C./Additional District Judge, Roorkee, District Haridwar, in Motor Accident Claim Petition No. 20 of 2004, Dharm Singh vs. Ram Ratan & another, thereby dismissing the claim petition. Brief facts of the case as narrated by the claimant are that claimant was doing the business of milk. On 14.1.2004 the claimant was returning after collecting the milk from village by his Hero Puch and when he reached Charkhi of Noorhasan, Tanker No. UA 07A-4921 coming from Depot being driven by its driver rashly and negligently dashed the Hero Puch of claimant, as a result of which claimant sustained serious injuries on his person. The claimant was taken in Roorkee Civil Hospital and thereafter was referred to Meerut Medical College seeing his critical condition. Thereafter claimant was admitted in Shivam Nursing Home. 2 The claimant has pleaded that Rs. One lac has been incurred on his medical treatment. The claimant claimed a sum of Rs.15,50,000/- as compensation. The opposite party no. 1-owner of Tanker No. UA 07A-4921 neither contested his case nor filed any written statement inspite of sufficient service of notice upon him. The driver of Tanker in question was not made party by the claimant. The opposite party no. 2-The New India Assurance Company Limited-insurer of Tanker No. UA 07A-4921 filed its written statement and pleaded that it has no liability to pay the compensation. It has admitted that insurance of Tanker No. UA 07A-4921 was valid from 24.10.2003 to 23.10.2004. The amount of compensation claimed is excessive. It has denied the income and business of the claimant. It has further pleaded that in case if any accident is taken place, that is caused on account of fault of claimant himself. It has also pleaded that the claimant has not adduced any evidence with regard to alleged accident and expenses. It has also pleaded that the claimant did not adduce any cogent evidence for admission in hospital. Therefore, the claim petition is liable to be dismissed. The learned Tribunal on the basis of pleadings of parties framed relevant issues in the claim petition. Parties led evidence in support of their cases. The learned Tribunal after having considered the entire material available on record and hearing learned counsel for the parties dismissed the claim petition vide judgment and award dated 18.3.2006. 3 Feeling aggrieved by the aforesaid impugned judgment and award the appellant–claimant has preferred the appeal before this Court which has been placed before me for final disposal. Heard Sri Pramod Tiwari, holding brief of Sri Rajendra Singh, learned counsel for appellant- claimant, Sri R.B. Aggarwal, learned counsel for respondent no. 1-New India Insurance Co. Ltd.- insurer of Tanker No. UA 07A-4921 and perused the record. The only question for consideration in this appeal is as to whether the claim petition could have been dismissed on the sole ground that the claimant himself was not having valid and effective driving licence with him on the date of accident? It is an admitted fact that the claimant who was driving the Hero Puch on the date of accident was not having the valid and effective driving licence with him on the date of accident. The claimant is a milk vendor and he was carrying the milk on his Hero Puch at the time of accident. It is a case where two vehicles are involved in the accident i.e. Tanker No. UA 07A-4921 and Hero Puch which was being driven by the claimant. As per the evidence available on record there is a head-on collision between Tanker and Hero Puch. The contribution of the drivers of both the vehicles in the accident cannot be brushed aside. Had the claimant been vigilant, he could have very well avoided the accident. The fault on the part of the claimant can be easily assessed on the basis of this particular fact that firstly he was carrying the milk can on the Hero Puch at the time of accident for which he was 4 not permitted and secondly he was admittedly not having the valid and effective driving licence at the time of accident. The evidence on record clearly establishes this fact that it is a case of contributory negligence on the part of the drivers of both the vehicles involved in the accident. It is now to be seen as to what is the proportion of the negligence of the drivers of both the vehicles involved in the accident. The circumstances in the case as well as the evidence which has been adduced by the claimant and the other side available on record, make the picture clear that ratio of negligence on the part of Tanker No. UA 07A-4921 is certainly on higher side. Had the driver of Tanker been vigilant, he could have also avoided the accident. The circumstance in which the accident has taken place clearly indicates that the ratio of rash and negligence on the part of the driver of Tanker appears to be 70%, while remaining 30% rash and negligence is on the part of the driver of Hero Puch i.e. claimant/appellant. As the claimant has not arrayed the insurance company of Hero Puch as a party in the claim petition coupled with circumstance it is an admitted fact that the claimant himself was also rash and negligent at the time of accident and the claimant being driver of Hero Puch cannot get any amount of compensation for the rash and negligence on his part. As I have already observed that the rash and negligence on the part of the driver of Hero Puch is upto the extent of 30%, therefore, the claimant is not entitled to get an amount upto the extent of 30% out of total awarded amount. 5 As far as documents pertaining to the offending vehicle i.e. Tanker No. UA 07A-4921 is concerned, the Tribunal in paragraph 15 of the impugned judgment has specifically observed that driver of Tanker has not been arrayed as a party in the claim petition. It has further alleged that the owner of Tanker has also not filed any written statement against the claim petition. It has further observed that neither the valid permit nor the fitness of the vehicle has been filed before the Tribunal. It has also observed that the photocopy of the registration certificate has been filed but the same was not legible. The Tribunal has also observed that the insurance company did not make any effort for verifying the documents pertaining to Tanker in question from the office of Transport Authority. The inaction on the part of the insurance company clearly indicates towards this aspect of the matter that the insurance company least bothered to contest the case before the Tribunal. This situation rather reflects that the insurance company did not have any objection in making the payment of the amount to be awarded by the Tribunal for the rash and negligence on the part of the driver of Tanker in question. I am of the specific view that the rash and negligence on the part of the driver of Tanker is upto the extent of 70% and out of the total awarded amount, an amount falling to an extent of 30% is to be paid by the insurance company of offending Tanker in question. The Tribunal has come to the conclusion that medical bills filed by the claimants are upto the 6 extent of Rs.71,293/-. The Tribunal further came to the conclusion that the compensation for the mental agony and physical pain comes to an extent of Rs.9,500/- and thereby the total amount of compensation comes to Rs.71,293 + Rs.9,500= Rs.80,793/- (rounded Rs.80,800/-). I do not find any ground to interfere with the amount of compensation calculated by the Tribunal and I am of the view that the claimant is entitled to get the amount upto an extent of 70% from the total calculated amount by the Tribunal, which after calculation comes to Rs.80,800 x 70%=Rs.56,560/-. The amount to be paid to the claimant will be payable by the insurer of the Tanker in question along with interest @ 6% per annum from the date of filing the petition till the date of actual payment. Learned counsel for insurance company has submitted before me that neither the driving licence of the driver of Tanker nor the papers pertaining to vehicle in question were filed by the insured, therefore, the insurance company has no liability to pay the amount of compensation and in any case if the insurance company pays the amount of compensation awarded either by the Tribunal or by this Court, then the insurance company should have been given the recoverable rights from the insured of the vehicle. I do not find any force in this argument. The insurance company did not make any efforts before the Tribunal either to verify the documents pertaining to the vehicle in question from the Transport Authority or to adduce any evidence in order to show that the driver of offending vehicle i.e. Tanker was not having any 7 valid and effective driving licence at the time of accident. The insurance company cannot claim any benefit on account of its own inaction and I am of the view that under these circumstances the insurance company cannot be given any direction for recovering the awarded amount from the insured of the vehicle. It is the liability of the insurance company to pay the amount of compensation to the claimant. On the basis of reasons recorded in the body of judgment, I come to the conclusion that the impugned judgment and award dated 18.3.2006 passed by the Tribunal is liable to be set aside. Accordingly, the appeal is allowed in part. The claim petition is decreed for a sum of Rs.56,560/- in favour of claimant, along with interest @ 6% per annum from the date of filing the petition till the date of actual payment, payable by New India Assurance Co. Ltd.-insurer of Tanker in question. (B.C. Kandpal, J.) SP 8