IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL A.O. No. 396 of 2003 United India Insurance Company Ltd. .. Appellant. Vs. Shyam Sunder and 3 others .. Respondents. Mr. Naresh Pant, Advocate for the appellant. Mr.A.K. Joshi, Advocate for respondent Nos. 1 and 2. Mr. Ashish Joshi, Advocate for respondent No.3 None for respondent No.4. Dated: 25-04-2008 Hon’ble B.C. Kandpal, J. This appeal, under Section 173 of the Motor Vehicles Act 1988, has been preferred against the judgment and award dated 3-9-2003, passed by Motor Accident Claim Tribunal/Addl. District Judge/IV F.T.C., Haridwar, in MACT Case No. 89 of 2001. 2- Brief facts of the case are that on 16-6-1989, Km. Deepmala along with her relative, was travelling in vehicle No. T.N. 65-A-9599 and the vehicle at 3.15 P.M. dashed with Bus No. T.N. 58-A-0002 due to which Km. Deepmala died at the spot. The deceased at the time of accident was 18-19 years of age and she along with her studies used to do the sewing and tuition work. Her income was about Rs. 4,000/- per month. The claimants filed petition for compensation in lieu of death of Km. Deepmala. 3- The United India Insurance Company filed its written statement and alleged that the drivers of both the vehicles, Maxi Cab No. TN65-A-9599 and Bus No. TN- 58-A-0002, had no valid driving license at the time of accident. The Insurance Company also pleaded that the 2 Maxi Cab Car had no fault in the accident, hence the claim against the insurer of the Maxi Cab is liable to be dismissed. 4- The offending Bus is owned by Tamilnadu State Transport Corporation Madurai. The owner also contested the claim by filing his written statement. According to it, the bus was being driving at a moderate speed. The accident has occurred due to own fault of Maxi Cab Car as the said Car tried to overtake the Maruti Van and collided with the Bus coming from opposite direction. The Bus driver tried to avoid the accident and dashed the Bus to the Railing of the Bride on left side. Therefore, the Bus owner cannot be held liable to pay compensation. 5- The learned Tribunal on the basis of pleadings of parties framed issues in the claim petition. Thereafter parties led evidence in support of their cases. The Tribunal after hearing learned counsel for the parties and perusing the material on record, allowed the claim petition for a sum of Rs. 1,52,000/- payable by United India Insurance Company. Interest @ 9% per annum from the date of petition till the date of final payment was also awarded. 6- Feeling aggrieved the United India Insurance Company has preferred this appeal before this Court. 7- Heard the learned counsel for the parties and perused the record. 8- The learned counsel for the appellant has submitted that the Tribunal has misinterpreted the evidence on record, while fixing the sole negligence of the 3 Maxi Cab for causing the accident. The Tribunal has ignored the evidence adduced on record and thereby committed manifest error in passing the award against the appellant. 9- From perusal of record reveals that the Tribunal has framed issue No.1 pertaining to the rash and negligence on the part of driver of Bus No. T.N. 58-A- 0002 and issue No. 6 for negligence on the part of driver of Maxi Cab No. T.N. 65-A-9599. Both these issues have been dealt with together and the sole negligence on the part of Maxi Cab was held. The only point which is to be seen in this appeal is as to whether the accident had occurred due to negligence of driver of Maxi Cab or the driver of the Bus. Rival contention has been raised on behalf of insurer/owner of both the vehicles. According to Maxi Cab the accident was the result of negligence of the driver of the Bus whereas Bus owner raised the point that the accident had occurred due to sole negligence of Taxi Cab. In this accident both the vehicles had dashed from driver side. The F.I.R. was lodged by Govind Raj, driver of Maxi Cab. The driver of Bus also faced criminal case regarding this accident in which his negligence was not proved and he has been acquitted of the charges. 10- On behalf of respondent/ owner of offending Bus, its driver has been examined, who denied his negligence and alleged that the accident was result of sole negligence of driver of Maxi Cab as it tried to over take the vehicle going ahead to Maxi Cab. The site plan, paper No. 60-C prepared by the Investigating Officer during investigation of criminal case has been filed. It is an important piece of evidence. Perusal of the site plan reveals that the Bus was on its left side and at the time of accident it went on mud side of the road, and the Maxi 4 Cab dashed with the Bus on right side, travelling beyond the road. In the technical report of the Maxi Cab, it was mentioned that its window glasses, glass of right side and seat of right side were damaged and this might have happened due to reason that the Maxi Cab in order to over take the vehicles went right side and got damaged by hitting the Bus. Against the aforesaid documentary evidence brought on record, the owner/insurer of the Maxi Cab could not adduce any reliable and cogent evidence. The interested statement of D.W.2, Govind Raj driver of the Maxi Cab cannot be believed. The Tribunal has rightly come to the conclusion that the accident was the result of sole negligence of the driver of Maxi Cab, as the Maxi Cab moved towards right side in order to over take the vehicle and dashed with the bus on wrong side. I do not find any infirmity in the finding recorded by the Tribunal. 11- No other point has been raised. 12- For the foregoing reasons the appeal lacks merit and is liable to be dismissed. 13- Accordingly, the appeal is dismissed. The impugned judgment and award dated 3-9-2003 is confirmed. 14- The statutory amount, deposited in this court, at the time of admission of the appeal, be remitted to the Tribunal concerned. (B.C. Kandpal, J.) ISB