IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Appeal From Order No. 552 of 2007 Ritesh Rana …Appellant Versus The New India Assurance Co. Ltd. & others …Respondents Sri A.M. Saklani, Advocate for appellant Sri M.K. Goyal, Advocate for respondent no. 1 Dated: November 5, 2008 Hon’ble B.C. Kandpal, J. The appellant-owner of vehicle involved in the accident, has filed this appeal under Section 173 of Motor Vehicles Act, 1988, against the judgment and order dated 23.7.2007 passed by Motor Accident Claims Tribunal/District Judge, Tehri Garhwal, in Motor Accident Claim Case No. 92 of 2005, Smt. Swari Devi & others versus Ritesh Rana & others. Brief facts of the case as narrated in the claim petition are that deceased-Rai Singh, whose age was 50 years at the time of accident, on 13.6.2005 at about 11.30 p.m. was travelling in Tata Sumo bearing Registration No. U.A.09-4779 to Hindolakhal from Agrakhal. The said vehicle fell into a deep ditch One Kilometer ahead from Agrakhal, in which deceased-Rai Singh died. The deceased at the time of his death was earning a sum of Rs.4500/- per month. The claimants claimed a sum of Rs.13,40,000/- as compensation against the opposite parties. 2 Opposite parties no. 1 & 2 (owner and driver of offending vehicle) filed their joint written statement and pleaded that driver of vehicle in question was driving the vehicle slowly and the said accident had occurred due to sudden falling of heavy stone on the vehicle and said vehicle became disbalanced and consequently fell into the ditch and driver was not at fault in the said accident. It has also been pleaded that offending vehicle was insured with opposite party no. 3 at the time of accident and vehicle was having all valid papers and driver was holding valid driving licence. The opposite parties no. 1 and 2 are not liable to pay any compensation and liability to pay the amount of compensation, if any, is of opposite party no. 3-The New India Assurance Co. Ltd. Opposite party no. 3-The New India Assurance Co. Ltd. filed its written statement and pleaded that claimants are not entitled to get any compensation and claim petition has been filed on wrong grounds and amount of compensation as claimed by claimants is excessive and exorbitant. The insurance company has admitted the factum of insurance of vehicle in question, but has pleaded that claim petition has been filed on wrong grounds. It has also been pleaded that vehicle in question was being plied on road at 11.30 in the night, which shows that driver of vehicle was driving the vehicle against the provisions of Motor Vehicles Act. The driver of vehicle in question was not having valid driving licence and vehicle was being plied without valid papers and against the conditions of insurance policy and therefore insurance company is not liable to pay the amount of compensation. It has further 3 been pleaded that all legal heirs of deceased have not been made party and after objection of insurance company claimants have made party mother of deceased-Smt. Kunta Devi as opposite party no. 4, who has not filed her written statement. The learned Tribunal on the basis of pleadings adduced by the parties framed following issues in the claim petition:- 1- Whether the accident in question took placed at about 11.30 p.m. on 13.6.2005 at Kukhtur Agrakhal on Rishikesh-Tehri motor road due to rash and negligent driving of Tata Sumo No. U.A.09/4779 by its driver resulting death of Sri Rai Singh as alleged? 2- Whether the driver of the vehicle in question had no valid and effective R.C. fitness and permit at the time of the alleged accident as pleaded by OP No. 3 in para no. 17 of its W.S.? If so, its effect? 3- To what compensation and from which of the opposite parties are the petitioners entitled? The Tribunal after having assessed the entire evidence available on record has come to the conclusion that the accident took place on account of rash and negligent driving of driver of offending Vehicle No. U.A.09/4779, due to which Rai Singh who was travelling in the offending vehicle in 4 question sustained grievous injuries and succumbed to those injuries. The claimants have produced PW-2 Surendra Singh as an eye witness, who has stated that Tata Sumo in question was being driven with rash and negligence and on account of the same it fell into Khad. Nothing specific has come in the cross examination which may indicate that this witness is telling lie. The finding recorded by the Tribunal with regard to issue no. 1 does not require any interference and I also share my views on this factum that the offending vehicle in question was being driven rashly and negligently at the time of accident. The main and crucial question in this case is as to whether the Tribunal has rightly given the right of recovery of amount of compensation to the insurance company or not. The impugned judgment shows that the driving licence of the driver nowhere indicates that the driver was entitled to ply the vehicle on hill routes. The driving licence of the driver was produced before the Tribunal which shows that it was effective on the date of accident. The only thing is that there was no endorsement on the driving licence that the driver was entitled to ply the vehicle on hill routes. I am of the view that merely absence of this endorsement on the driving licence does not disqualify the driver from plying the vehicle on hill routes unless the insurance company places the evidence before the Tribunal that the driver was disqualified to ply the vehicle on hill routes. The insurance company could not adduce any evidence in order to show that the driving 5 licence filed by the driver was either forged or fabricated or invalid on the date of accident. Merely on account of absence of endorsement on the driving licence to the effect that driver was entitled to ply the vehicle on hill routes, does not make the driving licence invalid. The finding recorded by the Tribunal does not appear to be justified and I do not find any reason that as to why the insurance company should be given the right of recovery of amount of compensation from the insured. Whatever the amount of compensation is to be paid to the claimants, the same would be paid by the insurer of the offending vehicle i.e. The New India Assurance Co. Ltd. Learned counsel for insurance company has submitted that the driver was in a drunken state at the time of accident. He has thus submitted that on account of this situation it can be safely inferred that driver was not having valid driving licence. The submission raised by learned counsel for insurance company is devoid of any force. Once the finding has come that offending vehicle was being driven rashly and negligently at the time of accident, then there is no question for observing that driver was not having valid and effective driving licence at the time of accident. Firstly, the insurance company has not adduced any evidence that driver was actually in a drunken state at the time of accident and secondly in case, for the sake of argument, if it is presumed that driver was in a drunken state at the time of accident, even then the driving licence cannot be held to be invalid on account of the same. 6 As far as amount of compensation to be paid to the claimants is concerned, the Tribunal has adopted absolutely right method for calculating the same and the same does not require any interference. For the reasons stated above, I am of the view that appeal is liable to be partly allowed. Accordingly, appeal is partly allowed. The impugned judgment and award is modified to the extent that amount of compensation to be paid to the claimants along with interest indicated in the impugned judgment and award, shall be paid by the insurer i.e. The New India Assurance Co. Ltd. instead of the owner of vehicle in question. The statutory amount deposited by the appellant with this Court be remitted to the Tribunal concerned. (B.C. Kandpal, J.) SP 7