IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL A.O. No. 131 of 2006 Smt. Kanta Sharma and another ….Appellants. Vs. Ashok Kumar Dass and 2 others … Respondents. Mr. R.B. Aggarwal, Advocate for the appellants. Mr. Deepak Rawat, Advocate for Oriental Ins. Co./respondent No. 3. Mr. B.N. Maulekhi, holding brief for Sri Lalit Belwal, Advocate for National Insurance Co./respondent No.2. None appeared for respondent No.1. Dated: 22-4-2008 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 25-11-2005, passed by Motor Accident Claim Tribunal/District Judge, Nainital, in MACP No. 116 of 2005. 2- The brief facts of the case are that Ashok Kumar, claimant is the registered owner of Maruti Car No. U.P. 22-A-1677. On 30-11-2004 at about 7.30 A.M. he along with Smt. Vimla Devi and her daughter started from Kaladhungi to Nainital in the above car. When the car was 100 meters away from Kaladhungi Tiraha, Tata Qualis came there at a high speed and dashed the car on wrong side due to which the car fell in the deep stream. The claimant sustained injuries. The injured was brought to Daladhungi Hospital, from where he was sent to Haldwani. The claimant alleged that he spent about Rs. 60,000/- in taking out the car from the Khud by crane and carrying the same to the workshop. He also claimed that about Rs. 40,000/- will be spent on repair of the car, therefore he claimed Rs. 1,50,000/- as compensation. 3- The Opposite Party No.1 Owner of Qualis UA 04- A 6760 filed written statement and alleged that the vehicle was insured with National Insurance Company and its driver had valid driving license. 4- The driver of the Qualis UA 04-A-6760 also filed written statement and reiterated the facts mentioned by the owner in his written statement. 5- The National Insurance Company, insurer of Qualis UA 04-A-6760 has contended in its W.S. that the claimant has claimed an exorbitant amount and the Company is liable to pay compensation upto Rs. 6,000/- 6- The Oriental Insurance Company, insurer of Maruti Car U.P. 22-A-1677, also filed written statement and alleged that the accident has occurred due to sole negligence of Tata Qualis UA 04-A-6760, therefore, the company is not liable to pay compensation. 7- The Tribunal, on the basis of pleadings of parties, framed following issues:- 1- Whether the vehicle U.P. 22-A-1677 was damaged as Tata Qualis UA 04-A-6760 dashed it due to rash and negligence driving of its driver? 2- To what amount of compensation the claimant is entitled to get from the opposite parties? 8- The claimant, in support of its case, produced Ashok Kumar P.W. 1 and filed documentary evidence. The owner of Tata Qualis filed documentary evidence. The other opposite parties did not adduce any evidence. 9- The Tribunal after hearing learned counsel for the parties and considering the material on record, allowed the petition for compensation of Rs. 38,000/-, out of which Rs. 6,000/- were directed to be paid by National Insurance Company and for rest Rs.32,000/- Opposite Parties 1 and 2, owner and driver of Tata Qualis were held liable to pay the said amount. 10- Feeling aggrieved the owner and driver of Tata Qualis involved in the accident have preferred this appeal. 11- Heard learned counsel for the parties and perused the record. 12- The learned counsel for the appellants has submitted that the accident has occurred due to contributory negligence of the Maruti Car driver involved in the accident. Further the vehicle Tata Qualis was insured comprehensively with National Insurance Company, therefore, the liability should have been fixed on the Insurance Company and the Tribunal has committed manifest error in fixing the liability upon the owner and driver of the Tata Qualis. 13- On the other hand, learned counsel appearing on behalf of National Insurance Company, insurer of Tata Qualis, has contended that according to the insurance policy, in the even of the vehicle being damaged, the liability of the insurer is upto Rs. 6,000/- and the learned Tribunal has rightly held the insurer liable to pay that much amount. 14- Perusal of record reveals that the claimant has specifically pleaded in the claim petition that the accident had occurred due to the rash and negligence of the driver of Tata Qualis involved in the accident. According to the claimant the driver of the Tata Qualis has fled away from the spot, leaving the vehicle there. The opposite parties did not adduce any evidence to controvert the above fact narrated by the claimant. The learned Tribunal has recorded a categorical finding that the driver of Qualis, Sharif Ahmad, would have been a best witness to tell about the accident, but he could dare to come to the witness box. In the above circumstances the Tribunal has rightly held that the accident has occurred due to the negligence on the part of the driver of Tata Qualis. 15- So far as the liability to pay the compensation was concerned, the learned Tribunal has fixed the same upon the owner, driver and insurer of the vehicle Tata Qualis, as the Maruti Car had fallen in the deep Khud and got damaged, due to the negligence of the driver of Tata Qualis. The Tribunal also rightly held the liability of National Insurance Company up-to the extent of Rs. 6,000/-, as the liability towards third party property damage is limited to the statutory amount of Rs. 6,000/- only under the policy. In the above circumstances the owner and driver of the Tata Qualis were held liable to pay the remaining sum of Rs. 32,000/-. I do not find any infirmity in the finding recorded by the learned Tribunal and the impugned judgment and award does not require any interference by this Court. 16- In view of above discussion the appeal lacks merit and is liable to be dismissed. 17- Accordingly the appeal is dismissed. The impugned judgment and award dated 25-11-2005 is confirmed. (B.C. Kandpal, J.) ISB