IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Appeal From Order No. 4 of 2008 National Insurance Co. Ltd. …Appellant Versus Smt. Sangeeta Devi & others …Respondents Sri Prabhat Pande, Advocate for appellant Sri Dinesh Chauhan, holding brief of Sri N.S. Negi, Advocate for claimants-respondents 1 & 2 Dated: October 16, 2008 Hon’ble B.C. Kandpal, J. This appeal, under Section 173 of Motor Vehicles Act, 1988, has been preferred by appellant- National Insurance Company Limited against the judgment and award dated 11.10.2007 passed by Motor Accident Claims Tribunal/District Judge, Chamoli, in MACC No. 07 of 2007, Smt. Sangeeta Devi & another versus National Insurance Co. Ltd. & others. Brief facts of the case as narrated in claim petition are that on 30.1.2007 deceased-Shekhar Kumar was playing on the side of the road with other children. At about 12.30 p.m. deceased was dashed by Truck No. UA 04D-3139 resulting serious injuries on his person and he was died on the way to hospital. The post mortem of deceased was conducted at District Hospital, Gopeshwar. The deceased was 6 years of age at the time of his death and was studying in primary class. At the time of said accident opposite party no. 2-Yashpal Lal and opposite party no. 3-Sanjay Singh were owner and 2 driver of vehicle No. U.A.04D-3139 respectively. The claimants are legal heirs of deceased and are dependants upon him. Opposite party no. 1-National Insurance Co. Ltd./appellant before this Court, filed its written statement refuting all the contents of claim petition. It has been pleaded that at the time of alleged accident vehicle involved in the accident was not having valid registration certificate, insurance policy, driving licence, fitness certificate, permit etc. Therefore, the claim petition deserves to be dismissed. Opposite party no. 2-owner of vehicle in question filed his written statement and admitted the date, place and time of accident as stated by the claimants. He has pleaded that at the time of accident driver of offending vehicle in question was holding valid driving licence and was comprehensively insured with opposite party no. 1- National Insurance Co. Ltd. He has also pleaded that all the papers of offending vehicle No.U.A.04D/3139 were valid at the time of accident. This accident had not taken place due to rash and negligence of its driver, rather it occurred due to technical fault in the vehicle, therefore, the claimants are not entitled to get any compensation. Opposite party no. 3-driver of vehicle in question filed his written statement and admitted the date, place and time of accident as stated by the claimants. He has pleaded that at the time of accident he was holding valid driving licence and vehicle in question was comprehensively insured 3 with opposite party no. 1-insurance company. He has further pleaded that at the time of accident all the papers of vehicle No. U.A.04D/3139 were valid. He was plying the said vehicle cautiously and carefully, but deceased ran away fast towards the truck due to which deceased sustained injuries, therefore, the claimants are not entitled to get any compensation. The learned Tribunal on the basis of pleadings of parties framed relevant issues in the claim petition. Parties led evidence in support of their cases. The learned Tribunal after having considered the material available before it and hearing learned counsel for the parties partly allowed the claim petition and awarded a sum of Rs.1,52,000/- as compensation to the claimants, payable by opposite party no. 1-National Insurance Co. Ltd., along with interest at the rate of 5% per annum from the date of filing the petition till the date of actual payment, vide judgment and award dated 11.10.2007. Feeling aggrieved by the aforesaid impugned judgment and award dated 11.10.2007, the appellant-insurance company has preferred the present appeal before this Court. Heard Sri Prabhat Pande, learned counsel for appellant-insurance company, Sri Dinesh Chauhan, holding brief of Sri N.S. Negi, learned counsel for claimants-respondents no. 1 & 2 and perused the record. Learned counsel for appellant-insurance company has submitted that findings of learned 4 Tribunal are based on mere conjectures and surmises in as much as no cogent evidence with regard to rash and negligent driving was adduced before the Tribunal by the claimants. He has further submitted that learned Tribunal has wrongly held that driving licence of driver was valid while the fact is that the driver was not authorized to drive heavy transport vehicle on the date of accident. Therefore, the appellant is not liable to indemnify the insured due to breach of conditions of insurance policy. As far as rash and negligence of driver of offending vehicle in the accident is concerned, the record reveals that claimants produced Smt. Sangeeta Devi as PW-1, who has stated in her deposition that vehicle No. U.A.04D/3139 hit her son-Shekhar Kumar, which was being driven by its driver rashly and negligently, as a result of which her son was grievously injured and died on the way to hospital. Opposite party no. 2 owner of vehicle stated in his written statement that the said accident had taken place due to technical fault in the vehicle, but neither he had adduced any cogent and reliable evidence in support of his statement nor driver of vehicle in question was produced before the Tribunal by the owner of vehicle inspite of sufficient opportunity being afforded to him. The Tribunal was of the view that it would be presumed against the driver of vehicle involved in the accident that at the time of said accident he was driving the vehicle in question rashly and negligently. Since the accident had taken place, hence this circumstance itself establishes this fact that driver of said vehicle would have driven the vehicle rashly and negligently, otherwise this accident had not been 5 taken place. The Tribunal has discussed all the evidence adduced by the parties and thereafter has come to the conclusion that claimants have been successful in establishing this fact that on 30.01.2007 at about 12.30 p.m., vehicle No. U.A.04D/3139 being driven by its driver rashly and negligently, hit the deceased-Shekhar Kumar at Maithana, within P.S. Chamoli, due to which deceased sustained injuries and died on the way to hospital. Perusal of record reveals that the said finding does not require any interference. The reasons recorded by the learned Tribunal are cogent and clear. I am completely in agreement with the finding recorded by the Tribunal with regard to rash and negligent driving of vehicle No. U.A.04D/3139 at the time of accident. As far as authenticity of driving licence of driver of offending vehicle No. U.A.04D/3139 is concerned, the record reveals that all the papers relating to said vehicle were valid on the date of accident. The attested copy of driving licence (paper no. 29C) has been filed on record, which shows that on the date of said accident i.e. 30.01.2007 the driver of offending vehicle was holding valid driving licence. The Tribunal has given a categorical finding that on the date of accident all the papers of vehicle in question were valid and driver of said vehicle was holding valid driving licence. I do not find any reason to disturb the said finding recorded by the Tribunal in this regard and the same deserves to be confirmed. No other point has been pressed. 6 For the reasons stated above, the appeal lacks merit and is liable to be dismissed. The appeal is accordingly dismissed. The impugned judgment and award dated 11.10.2007 is hereby confirmed. The statutory amount deposited by the appellant with this Court be remitted to the Tribunal concerned. (B.C. Kandpal, J.) SP 7