IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL A.O. No. 204 of 2006 The Oriental Insurance Company Ltd. …. Appellant. Versus Smt. Rukhsana @ Sani & others ..Respondents Sri V.K. Kohli, learned Senior Advocate, assisted by Sri I.P. Kohli, learned counsel for the appellant. Sri H.C. Pathak, learned counsel for claimants/respondents 1& 2. Sri Ramji Srivastava, learned counsel for respondent No.4. Sri Pawan Kumar, learned counsel for respondent No.5. Sri B.D. Pandey, holding brief of Sri Deep Joshi, learned counsel for respondent No.6. None has appeared on behalf of other respondents. Hon’ble B.C. Kandpal, J (Oral ) This appeal, under Section 173 of the Motor Vehicle Act, arise against the judgment and award dated 25-1- 2006, passed by Motor Accident Claim Tribunal/Addl. Sessions Judge/ I F.T.C. Roorkee, District Haridwar, in MACT Case No. 30/2002, Smt. Rukhsana @ Soni and another Vs. Sandeep Singh and others. 2- Brief facts of the case giving rise to this appeal are that on 10-7-2001, deceased Ravej Alam was returning to his house from Dehradun riding in Tempo Tracks U.P. 07H-3707. At about 11.00 A.M. when the tempo crossed the Police Chauki Mohand and reached ahead of Biharigarh the driver stopped the Tempo at the request of passengers in order to urinate, suddenly Mahindra Pickup U.A. 07- 6511 coming from Saharanpur to Dehradun in a high speed dashed the deceased Ravej Alam, due to which he sustained grievous injuries and died at the spot. The report of the accident was lodged by the driver of vehicle No. U.P. 07H-3707 at P.S. Biharigarh. The claimants filed claim petition for compensation in lieu of death of Ravej Alam. 2 3- The opposite party Nos. 1 and 2, driver and owner of the vehicle Mahindra Pickup U.A. 07-6511, filed the joint written statement and alleged that no accident has occurred by their vehicle. The driver of U.P. U.P. 07H-3707 has lodged wrong F.I.R. against their vehicle. It was further alleged that the accident has occurred due to the rash and negligence of driver of Tempo U.P.07H- 3707 and they have wrongly been made parties in the petition. 4- Opposite party No.3, Oriental Insurance Company, insurer of Mahindra Pickup UA-07-6511, also filed the written statement and denied the allegations made in the petition. The insurance company alleged that the driver of Mahindra Pickup UA-07-6511 was not having valid driving license. The insurance company also alleged that the insurer of another vehicle Tempo Trax UP 07H-3707 was not made party to the petition, hence the petition is bad for non-joinder of necessary party. 5- The opposite party nos. 4 and 5 owner and driver of vehicle U.P. 07H-3707 in spite of service of notice did not contest the claim petition, hence claim petition was heard exparte against them. 6- The opposite party nos. 6 and 7 did not deny the allegations of the claim petition. 7- The learned tribunal on the pleadings of parties framed the relevant issues in the claim petition. Thereafter parties adduced evidence in support of their cases. The learned tribunal after hearing the learned counsel for the parties and considering the entire material available on record, decreed the claim petition 3 for a sum of Rs. 1,67,000/- along with interest @ 6% per annum from the date of filing the petition till the date of actual payment against the Oriental Insurance Company and directed that the insurance company may recover the same from opposite party No.5, Sri Vikrant Sharma, owner of vehicle Mahindra pickup UP-07H-3707. 8- Feeling aggrieved the Oriental Insurance Company has preferred this appeal before this court. 9- Heard learned counsel for the parties and perused the record. 10- So far as the rash and negligence on the part of the drivers of the vehicles involved in the accident is concerned, the tribunal has discussed this point while deciding issue nos. 1, 2 and 5. P.W.2, Nand Kishore is the witness of fact. He is the driver of Tempo Trax UP 07H-3707. According to him at the time of accident his Tempo was standing on kuchha part of the road, as the passengers had requested him to stop the vehicle in order to urinate, suddenly Mahindra vehicle came there from opposite direction in a high speed and dashed with his vehicle from right side due to which two persons sustained grievous injuries. The injured persons were carried to Hospital but one of them succumbed to injuries in the way. The report of the accident has been lodged by this witness. This witness has not deposed even a single word that Mahendra Pickup UA 07-6511 has dashed his Tempo. The learned tribunal has recorded a categorical finding that being a driver it cannot be possible that this witness could not have recognized the another vehicle. The technical inspection of Mahindra Pickup UA 07-6511 has been done and no sign of damage and accident was found. The tribunal also 4 took note of the fact that the owner of Tempo UP 07H- 3707 was a police Head Constable and taking advantage of his position, as his vehicle was not having valid insurance at the time of accident therefore, in order to shirk the liability of compensation, false involvement of Tempo Trax UA 07-6511 has been shown. I do not find any infirmity in the above finding and the same does not require interference by this court. 11- The tribunal while deciding issue No.4 has held that the vehicle UP 07H-3707 has no insurance coverage at the time of accident, hence, the finding recorded by the tribunal with regard to the payment of the amount of compensation by the insurance company appears to be absolutely erroneous and against the evidence on record. The tribunal has given a reasoning for the payment of the amount of compensation by the insurance company on the ground that the insurance company has already paid some amount in another accident claim petition arising out of the same accident, therefore, in the instant case also it is the responsibility of the insurance company to pay the amount of compensation to the claimants and realize the same from the owner of the offending vehicle. The finding recorded by the tribunal does not appear to be justified. Once the insurance company has made the payment to another victim who suffered the injuries arising out of the same accident, even then the rule of estoppel will not apply in the case that the insurance company shall pay the amount of compensation to the claimants, specially under the circumstances when the vehicle was not having any insurance for the period during which the accident occurred. I do not find any justification for the reasoning recorded by the tribunal by which this direction has been made in the impugned award that the insurance 5 company shall pay the amount of compensation to the claimants and then will recover the same from the owner of the vehicle in question. It is pertinent to mention here that the owner of vehicle No. UP 07H- 3707 did not appear to contest the case. After a very fanatic effort made by the court the whereabouts of the owner of the offending vehicle could not be known and it reveals that the owner is a police personnel and is posted some where in U.P. This court after searching the real address of the owner of the vehicle sent notice to him and only thereafter the owner of the offending vehicle appeared before this court through counsel. The tribunal while deciding issue Nos. 1,2 and 5 has also recorded a categorical finding that it is established from the evidence on record that the vehicle No. U.A.-07-6511 has no role in the accident and the vehicle No. U.P. 07H-3707 is responsible for the rash and negligence in causing the accident. Once the tribunal has arrived at the finding that vehicle No. U.P. 07H-3707 is responsible for rash and negligence in causing the accident then the direction given by the tribunal that the insurance company is liable to pay the compensation is erroneous and is liable to be set aside. 12- For the reasons recorded above, I am of the view that the insurance company is not liable to pay the amount of compensation. It is the liability of Sri Vikrant Sharma, the owner of the offending vehicle No. UP-07H- 3707, to pay the amount of compensation along with the interest indicated in the impugned judgment and award. 13- Accordingly, the appeal is allowed. The impugned judgment and award is modified up-to the extent that the amount of the compensation awarded by the tribunal in favour of the claimants shall be paid by respondent No.6 6 Sri Vikrant Sharma, owner of Tempo Trax U.P. 07H- 3707 and insurance company is exonerated from the liability of making the payment of the awarded amount. The claimants may proceed against the owner of the offending vehicle for execution of the impugned judgment and award. 14- Let the statutory amount of compensation be remitted to the tribunal concerned. ( B.C. Kandpal, J.) Dated: 21-7-2009 ISB