IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL. A.O. No. 241 of 2006 The New India Assurance Company Ltd. .Appellant. Versus Gopal Dutt and another … Respondents. Sri P.C. Maulekhi, learned counsel for the appellant. Sri R.P. Nautiyal, Advocate for the respondent/claimant. Dated: 24-6-2008 Hob’ble B.C. Kandpal, J. This appeal, under Section 173 of the Motor Vehicles Act, 1988, has been preferred against the judgment and order dated 7-1-2006, passed by M.A.C.T./District Judge, Rudraprayag, in MACT Case No. 37 of 2005. 2- Brief facts of the case are that injured Gopal Dutt filed claim petition for award of Rs. 5,00,000/- as compensation for the injuries sustained by him in an accident dated 27.11.2004. According to him on the date of accident at about 6.30 P.M. maxi cab UA 07-G/8053 was carrying marriage party including the injured and was way back to village Kaviltha from Mansoona after attending the marriage celebration. Due to rash and negligent driving of its driver the vehicle dashed with a tree and then became in complete disorder in an agricultural field causing injuries to the persons including the petitioner. 3- The Opposite Party No.1, New India Assurance Company filed written statement denying the averments made in the petition for want of knowledge and has pleaded that the vehicle was being driven in sheer contravention to the condition of insurance policy and 2 permit, so the liability to pay the compensation is of the owner of the vehicle. 4- The owner of the vehicle, Opposite Party No.2, also contested the petition by filing his W.S. and alleged that the accident has occurred due to some technical defects in the vehicle; the driver of the vehicle was holding valid driving license and the maxi cab was possessing registration, permit, fitness and it was insured by New India Assurance Company, so the liability is of the insurer of the vehicle. 5- The learned Tribunal, on the basis of pleadings of parties framed issues in the petition. Thereafter, parties adduced evidence in support of their case. The learned Tribunal, after having heard learned counsel for the parties and perusing the evidence on record, awarded a sum of Rs. 2,10,000/- against New India Assurance Company, with a direction that the amount be deposited by 1.3.2006, otherwise 8% compound interest half yearly rest will be levied from the insurance company. 6- Feeling aggrieved the New India Assurance Company has preferred this appeal before this Court. 7- I have heard learned counsel for the parties and perused the record. 8- Learned counsel for the appellant has submitted that the vehicle was being plied in sheer contravention of terms of insurance policy. The vehicle was carrying 12 persons at the time of accident, whereas as per the terms and conditions of the permit and insurance policy, the jeep was authorized to carry 10 persons in all including the driver. Learned counsel also 3 submitted that the driver was not possessing valid driving license. He also submitted that exorbitant amount of compensation has been awarded by the Tribunal. Learned counsel also submitted that the Tribunal has wrongly awarded compound interest on compensation amount. 9- From perusal of record reveals that the insurance company in its written statement has taken plead that the vehicle was being driven in sheer contravention of insurance policy. The insurance policy was valid for the period 4.2.2004 to 3.2.2005 for all liabilities. The driving license was also valid at the time of accident. Once the driver was issued valid driving license to ply light motor vehicle, then the restriction imposed by licensing authority in the permit has got no relevance. The Tribunal also took note of the fact that the restriction on the permit was not in original scripts and a seal was got prepared and affixed on the permit without any initial and signature by any competent authority. 10- So far as the pleading of overloading is concerned, no efforts were made to prove the same by the insurance company. This plea was not taken before the trial court in specific terms and as no effort was made by the insurer to prove the same, therefore, the submission at the belated stage of appeal cannot be adjudicated. 11- As regards the amount of compensation, it is to be mentioned here that the claimant has not filed any certificate from the competent authority to show his permanent disablement on account of the injuries sustained by him in the accident. It has been pleaded by the claimant that his back bone was fractured but nowhere it has been proved by reliable evidence that his 4 spinal cord was broken. However, the Tribunal has held that on the basis of the medical papers the petitioner could be lying on bed for 16 days in Combined Medical Institute Dehradun and his medication was continued from 14.12.2004 to 31.4.2005 under the supervision of the Doctor while residing at his home and he had to undergo operation of his spinal cord thereby suffered great anguish. The Tribunal awarded a sum of Rs. 68,176/- towards medical expenses and Rs. 14,150/- for taxi charges. I do not find any justification to interfere in the finding recorded by the trial court in this regard. However, it appears to me that the trial court has awarded a sum of Rs. 1,25,000/- to the claimant for mental sufferance and physical pain. This amount awarded by the Tribunal is certainly in an exaggerated form. The claimant is a government servant and due to the injuries sustained by him he would have reduced his capability in doing the work. Therefore, I am of the view that instead of awarding Rs. 1,25,000/- under aforesaid head, as has been given by the Tribunal, an amount of Rs. 50,000/- would be just and proper to meet the ends of justice. I, therefore, direct that the claimant is entitled for an amount of Rs. 68,176/- + Rs. 14,150/- + Rs. 50,000/-= Rs.1,32,326/- rounded to Rs. 1,32,400/-. The Tribunal has directed that the compensation would be paid by the New India Assurance Company along with a compound interest of 8%, which also does not appear to be justified. It should be simple interest @ 7.5% per annum from the date of filing the petition till the date of actual payment. 12- In view of above discussion the appeal is liable to be partly allowed. 5 13- Accordingly, the appeal is partly allowed. The impugned judgment and award dated 7-1-2006 is modified up-to the extent that the claimant is entitled to get a compensation of Rs. 1,32,400/- along with interest @ 7.5% per annum from the date of filing the petition till the date of actual payment, instead of Rs. 2,10,000/- along with compound interest @ 8%, as has been awarded by the Tribunal. 14- The statutory amount of compensation, if any, deposited at the time of admission of the appeal, be remitted to the Tribunal concerned. ( B.C. Kandpal, J.) ISB