IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL A.O. No. 485 of 2010 The Oriental Insurance Company Ltd. - Appellant Versus Pawan Kumar and two others - Respondents WITH A.O. No. 486 of 2010 The Oriental Insurance Company Ltd. - Appellant Versus Savita Thapa and two others - Respondents Mr. Deepak Rawat, Advocate for the appellant. Mr. D.C.S. Rawat, Advocate for respondents 2 and 3. None is present on behalf of respondent No.1 despite service. (Hon’ble B.S. Verma, J.) Since both these appeals arise out against the same accident and similar controversy is involved in these appeals, therefore, they are being decided by this common judgment. A.O. No. 485/2010 has been preferred against the judgment and award dated 29-9-2010, passed by Motor Accident Claims Tribunal/Addl. District Judge/ F.T.C.-I, Haldwani, in MACT Case no. 107/2009, Pawan Kumar Vs. Uttarakhand Transport Corporation and others, whereby a sum of Rs. 96,000/- was awarded as compensation due to injuries suffered by Pawan Kumar in motor accident, against the Oriental Insurance Company along with interest @6% per annum from the date of filing the petition till the date of actual payment. A.O. No. 486/2010 has been preferred against the judgment and award dated 29-9-2010, passed by Motor Accident Claims Tribunal/Addl. District Judge/ F.T.C.-I, Haldwani, in MACT Case no. 107/2009, Pawan Kumar Vs. Uttarakhand Transport Corporation and others, whereby a sum of Rs. 53,000/- was awarded as compensation due to injuries suffered by Smt. Savita in motor accident, against the Oriental Insurance Company along with interest @6% per annum from the date of filing the petition till the date of actual payment. 2 Brief facts giving rise to these appeals are that on 11.12.2008 Smt. Savita Thapa was returning to her house from the house of her friend. In the way Pawan Kumar son of her relative also met her near Nirmala School. When they were talking with each other by the side of the road, Bus no. U.A.07-M-0751 came there in a rash and negligent manner and dashed them due to which they sustained injuries. Smt. Savita got injury on her right leg. She received treatment in Krishna Hospital Haldwani and iron rod was inserted on her leg. She claimed a sum of Rs. 2,00,000/- as compensation. The another injured Pawan Kumar also sustained injury on his right leg and he received treatment in Sidhi Vinayak Hospital Bareilly. Iron rod was also inserted in his leg. This claimant claimed Rs. 8,00,000/- as compensation. The claim petitions were contested by Uttarakhand Transport Corporation and alleged that the bus was insured with Oriental Insurance Company. At the time of accident when the Bus of the Corporation reached near Nirmala Convent School Kathgodam, a max jeep overtook the bus without giving horn and the said jeep dashed with a bike coming from opposite direction. The accident did not occur due to rash and negligence of the bus but it met due to mistake of max jeep. The opposite party No.2 Trilok Singh driver of the Bus also filed his written statement and denied his negligence and reiterated the facts mentioned by the Transport Corporation. The Oriental Insurance Company also filed its written statement and denied the allegations made in the claim petitions. It is alleged that the driver was not having valid driving license and conditions of permit were breached. The learned tribunal framed issues in both the claim petitions. Thereafter parties led evidence in support of their claim. The learned tribunal after hearing parties and considering the evidence on record awarded a sum of Rs. 96,000/- No. 107/2009 and a sum of Rs. 53,000/- in MACT Case No.106/2009, along with interest @6% per annum, against which A.O. No. 485/2010 and A.O. No. 486/2010, respectively have been preferred. 3 I have heard Mr. Deepak Rawat, Advocate for the Oriental Insurance Company and Mr. D.C.S. Rawat, Advocate for respondents 2 and 3, Uttarakhand Transport Corporation and driver of the Bus. None has appeared on behalf of the respondent claimant inspite of service. The first submission raised by learned counsel for the appellant is that the Bus bearing registration No. U.A. 07-M-0571 did not involve in the accident, therefore, no liability of payment of compensation could be fastened upon the appellant/insurance company. The learned Tribunal has framed issue No.1 in both the claim petitions on the point of rashness on the part of driver of Bus U.A. 07-M-0751 and its involvement in the accident. In both the claim petitions injured Pawan Kumar and Smt. Savita have been examined as P.W.1. Both these witnesses have given a categorical statement that on 11.12.2008 at about 7.00 p.m. both of them were talking to each other by the side of the motor road near Nirmala Convent School, suddenly Bus No. U.A. 07-M-0751 came there in a rash and negligent manner and dashed them due to which they sustained injuries. Both these witnesses have denied the suggestion in the cross-examination that some unknown jeep overtook the Bus and dashed with the motorcycle. Driver of the offending Bus Trilok Singh D.W.1, has been produced in MACT Case No. 106/2009. He has deposed that at the place of accident a jeep overtook his Bus without giving horn and dashed with a bike coming from opposite direction, on which a driver and a lady were sitting. He further stated that the jeep driver ran away from the spot and he could not recognize the number of the jeep. Here it will not be out of place to mention that both the injured have denied that they were sitting in motorcycle at the time of accident. Had they been sitting on the motorcycle and dashed with some unknown jeep, then the driver of the Bus could have easily recognized the number of motorcycle occupied by the injured persons. This fact belies the theory set up by the driver of the Bus. Surprisingly enough that some jeep dashes with motorcycle and the driver of the Bus could not remember the number of that jeep. 4 Trilok Singh D.W.1 has admitted that he had not lodged the F.I.R. of the accident. The F.I.R. of the accident has been lodged by Virendra Ram father of injured Pawan Kumar at the Police Station Kathgodam. The F.I.R. has been lodged against Trilok Singh driver of the offending Bus. It has been mentioned in the F.I.R. that the injured persons were talking with each other by the side of the road at the place of accident and the driver of Bus came there in a high speed and dashed them in a rash and negligent manner. Learned counsel appearing on behalf of appellant has submitted that the F.I.R. has been lodged with a considerable delay after due consultation only with a view to make out a case of rashness against the driver of the Bus and no reliance could be placed on such delayed F.I.R. Perusal of F.I.R. shows that delay in lodging the F.I.R. has been explained by Virendra Ram. He has specifically mentioned in the F.I.R. that after accident they brought the injured to Base Hospital and Krishna Nursing Home,Haldwani for treatment and thereafter on the advise of the doctor injured was referred to higher center at Sidhi Vinayak Hospital Bareilly and due to treatment of the injured the F.I.R. could not be lodged earlier. Further the contents of the F.I.R. have not been controverted by the side of the insurance company and there is no plausible reason to discard the F.I.R. In the facts and circumstances of the case the delay in lodging the F.I.R. do not falsify the case of the claimants. Therefore, I find myself in full agreement with the view taken by the tribunal that the claimants got injuries on their person by the rash and negligent driving of the driver of Bus No. U.A. 07-M- 0751 as the driver dashed the injured persons when they were standing by the side of road and talking to each other. The learned tribunal on issue No.2 has recorded a categorical finding that the Bus was insured with Oriental Insurance Company, the driver was having valid driving license and the insurance coverage was also valid at the time of accident. Hence the liability of payment of compensation has rightly been fixed upon the Oriental Insurance Company. 5 So far as the quantum of compensation is concerned, in MACT Case No. 106/2009 (A.O. No. 486/2010), application U/s 170 of M.V.Act filed by Insurance Company has been rejected by the Tribunal, therefore, in view of law propounded by Hon’ble Apex Court in the case of National Insurance Company Ltd. Vs. Nicolletta Rohtagi and others, reported in (2002) 7 SCC page 456, the insurer has no right to file an appeal to challenge the quantum of compensation or finding of the tribunal as regards the negligence of the vehicle. In another case No. 107/2009 (A.O. No. 485/2010), the insurer has filed application U/S 170 of M.V. Act, but no order has been passed on it by the tribunal. Therefore, the submission of learned counsel for the appellant that the tribunal has awarded excess amount of compensation is liable to be considered. In this case the claimant filed medical bills and cash memos paper Nos. 6-C/5 to 6-C/96. The claimant also examined Dr. N.Q. Ansari as P.W.2, who proved the bills and cash memos filed by the claimant. The learned Tribunal has held that the claimant has spent a sum of Rs. 89,994/- rounded to Rs. 90,000/-. The claimant was employed in police department and he was treated during the period 11.12.2008 to 20-1-2009. The tribunal did not award any sum for loss of salary during above period as the claimant remained on medical leave and he would have obtained the salary, but he would have suffered loss of some allowances, therefore, the tribunal has awarded a sum of Rs. 1000/- under this head. Besides this the tribunal also awarded a sum of Rs.5,000/- towards pain and suffering due to grievous injuries sustained by the claimant. In my opinion the tribunal has awarded a just and reasonable amount of compensation and the same do not want interference by this court. For the reasons recorded above, both the appeals are liable to be dismissed. Both the appeals are dismissed. Let a copy of this order be placed in the file of A.O. No. 486/2010. Dated: 24-03-2011 (B.S. Verma, J. ) ISB 6 7 8