IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL. A.O. No. 81 of 2006 National Insurance Company Ltd. .... Appellant. Vs. Sri Rakesh Kumar and another ... Respondents. Mr. K.K. Sah, Advocate for the appellant. Mr. Amrish Aggarwal, Advocate for respondent No.1. Mr. S. Siddiqui, Advocate for respondent No.2. Dated: 24-04-2008 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 22-3-2005, passed by Motor Accident Claim Tribunal/Additional District Judge/F.T.C. Kashipur, in MACT Case No. 42 of 2000. 2- Brief facts, giving rise to this appeal are that claimant Rakesh Kumar has filed claim petition for the injuries sustained by him in a motor accident. According to him on 17.7.1995 he along with one Radhey Shyam riding in a scooter was going towards Gadi Negi side. When at about 10.30 A.M. they reached in village Sarvarkheda, bus bearing registration No. UHC-230 coming from Moradabad side in a rash and negligent manner dashed the scooter, due to which the claimant sustained grievous injuries. He was treated in Government Hospital, Kashipur and finding his precarious condition, he was referred to Vivekanand Hospital, Moradabad. Thereafter, he was also treated at Safdarganj Hospital, New Delhi. He spent about two lacs rupees on his treatment. The injured also sustained grave factures in his both legs. The claimants also alleged that the accident had occurred due to rashness of the driver of the bus. He therefore claimed Rs. Ten Lacs as compensation. 3- The Opposite Party No.1 filed his written statement and alleged that the scooter was being driven against the traffic rules. The scooter driver had no valid driving license and the accident has occurred due to own fault of the scooter driver. 4- The Opposite Party No.2, National Insurance Company also contested the case by filing written statement and alleged that the accident did not occur due to the fault of the bus driver, but the scooter driver was at fault as he was driving the scooter at a high speed. Plea of non-joinder of owner, driver and insurer of the scooter as party to the claim, has also been raised. 5- The Tribunal framed relevant issues in the petition. Thereafter parties led evidence in support of their claims. The Tribunal after hearing learned counsel for the parties and perusing the material on record, allowed the claim for a sum of Rs. 1,00,000/- as compensation payable by National Insurance Company along with interest @ 9% per annum from the date of filing of petition and in case the compensation is not paid within two months, then the rate of interest shall be 12% per annum from the date of filing the petition till final payment. 5- Feeling aggrieved, the National Insurance Company has filed this appeal. 6- Heard Mr. K.K. Sah, learned counsel for the appellant, Mr. Amrish Agarwal learned counsel for respondent No.1 and Mr. S. Siddiqui, learned counsel for the respondent No.2 and perused the record. 7- The first submission raised by learned counsel for the appellant is that there was no insurance of the offending bus in question on the date of the accident. He has submitted that the accident took place on 17-7-1995, while the policy paper indicates that the offending bus was insured with effect from 20-7-1995, therefore, according to his submission the offending bus in question was not insured on the date of the accident, hence the Insurance Company is not liable to pay the amount of compensation awarded by the Tribunal. 8- The record reveals that the written statement filed by the owner of the offending bus in question clearly establishes this aspect that he paid the amount of the insurance pertaining to the offending bus in question to Sri A.K. Singh, Field Officer of the Insurance Company, on 16-7-1995. The amount of insurance was Rs. 1,329/- and the cover note pertaining to the insurance of the offending bus was given to him on 17-7-1995. He has further pleaded in the written statement that the insurance policy papers were also handed over to him subsequently and as per insurance policy papers the offending bus in question was insured with effect from 17-7-1995 to 16-7-1996. 9- The written statement filed by the Insurance Company indicates that the insurer has taken the plea therein that the cover note and policy were issued to the insured which indicates that the offending bus in question was insured with effect from 20-7-1995. The insurer has further pleaded that whatever cover-note and the insurance policy papers have been filed by the owner of the offending bus in question, the same are forged and fabricated. The learned counsel for the insurer/appellant has invited my attention towards the statement of D.W.3, Sri A.K. Singh, who has stated that the alleged policy papers filed by the owner of the bus are forged and fabricated and these papers have not been issued from the office of the Insurance Company. It is worthy to mention here that the Insurance Company neither filed any duplicate copy of the cover-note nor has taken any steps against the insured for preparing the alleged forged and fabricated documents pertaining to the insurance of the offending bus in question. The Tribunal has categorically recorded a finding that the policy paper which has been filed by the Insurance Company does not contain any ticket over it, while the policy paper filed by the insured, contains the ticket over the same. D.W.3, has although stated that the policy paper contain forged and fabricated signature of Sri Prem Sagar Puri, the then Branch Manager, but it is important to mention here that Sri Prem Sagar Puri has not been produced as a witness in order to establish the fact that the alleged signatures of Sri Prem Sagar Puri are forged and fabricated. I do not find any reason to disbelieve the finding recorded by the Tribunal with regards to this aspect that the offending bus in question was insured with National Insurance Company on the date of the accident. I, therefore, do not find any force in the argument raised by the learned counsel for the appellant. 10- Learned counsel for the appellant has next submitted that the driver of the scooter was driving the same in breach of insurance policy. He has also submitted that in view of the provision of Section 128 of the Motor Vehicles Act, 1988, the driver of the scooter could not driver the scooter having 3 person over the same on road. He has further invited my attention towards the evidence available on record which indicates that at the time of the accident, the scooter was carrying 3 persons. He has thus submitted that the driver of the scooter has contributed the negligence in this case and the Tribunal has committed an illegality by ignoring this aspect that it is a case of contributory negligence. 11- In order to appreciate the arguments advanced by the learned counsel for the appellant, it would be relevant to quote the provisions of Section 128 of the Motor Vehicles Act, 1988, which read as follows:- “128. Safety measures for drivers and pillion riders. – (1) No driver of a two-wheeled motor cycle shall carry more than one person in addition to himself on the motor cycle and no such person shall be carried otherwise than sitting on a proper seat securely fixed to the motor cycle behind the driver’s seat with appropriate safety measures. (2) In addition to the safety measures mentioned in sub-section (1), the Central Government may, prescribed other safety measures for the drivers of two-wheeled motor cycles and pillion riders thereon.” 12- From bare perusal of the aforesaid provision, it appears that the driver of the motor cycle shall not carry more than one person in addition to himself in a motor cycle. While in the instant case the evidence of P.W.1, injured Rakesh Kumar indicates that on 17.7.95 at about 10-30 A.M. when he was standing at Jaspur Bus Stand, then he saw that his relative was coming on a scooter along with Radhey Shyam. He also sat on the said scooter as a third rider and when the scooter was carrying 3 persons on the road, it dashed with a bus No. U.H.C. 230, coming from the opposite direction in a rash and negligent manner. Although the witness has stated that the bus in question was being driver rashly and negligently but at the same time keeping in view the evidence available on record it cannot be ignored that the scooter driver also contributed the negligence in this accident. The scooter driver could not drive the scooter while carrying more than one person in addition to himself on the same. Rakesh Kumar injured/claimant in this case was admittedly third rider on the scooter, therefore, he, being third rider on the scooter, also contributed the negligence himself in causing this accident. It is the well known rule of ‘Law of Tort’ that no one is entitled to get the amount of compensation of his own fault. It is also important to mention here that in this case neither the owner nor the driver, nor the insurer of the scooter have been arrayed as defendant/respondents, therefore, the claimant/respondent Rakesh Kumar is not entitled to get the amount of compensation for the negligence committed by him. 13- In order to ascertain the ratio of the negligence between the bus and the scooter driver, as well as the owner and insurer, it appears to me that the scooter being smaller vehicle plying on the road at the time of the accident, has a lesser part of the negligence, while the negligence on the part of the bus is on the higher side, therefore, I am of the view that the bus in question has caused the rash and negligence upto an extent of 70% while the scooter driver as well as the injured/claimant being third rider on the scooter, have caused the negligence upto an extent of remaining 30%. 14- For the aforesaid reasons, I am of the view that the injured/claimant in this case is not entitled to get the amount of compensation upto an extent of 30% and he is entitled to get the amount of the compensation of remaining 70% which is on the part of the insurer of the offending bus. 15- As far as the amount of compensation awarded by the Tribunal is concerned, I do not find any ground to interfere in the same. The amount of compensation along with interest indicated in the impugned judgment and award shall remain intact. However, out of the total amount of compensation awarded by the Tribunal, the injured/claimant shall not get 30% of the same on account of his own negligence. 16- Accordingly, the appeal is partly allowed. The impugned judgment and award dated 22-3-2005 is modified up to the extent that the claimant/respondent No.1 is entitled to get the amount of compensation, after deducting 30% of the same, on account of his own negligence. 17- The statutory amount of compensation, if any, deposited before this court at the time of admission of the appeal, be remitted to the Tribunal concerned. (B.C. Kandpal, J.) ISB