HIGH COURT OF UTTARAKHAND AT NAINITAL (Court’s order whether the case is or not approved for reporting) Description of the Case A.O. No. 14 of 2008 Old No. 879 of 1999 Smt. Hem Lata Shah Vs. Smt. Chandra Kala Joshi and others Approved for reporting Date of Decision – 08-01-2008 Initial of Judge: ………………. ………………. ………………. HIGH COURT OF UTTARAKHAND AT NAINITAL A.O. No. 14 OF 2008 (Old No. 879 of 1999) Smt. Hem Lata Shah, R/o Pichari Bazar, Talli Tal, Nainital (Owner of the Vehicle) ….Defendant/Appellant. Versus 1. Smt. Chandra Kala Joshi, W/o Sri Naveen Chandra Joshi, R/o 258 Cheena Khan Line, Tallital, Nainital. ….Claimant/Respondent. 2. United India Insurance Co. Ltd., Nainital Road Haldwani, District Nainital. 3. Naveen Lal Shah, R/o Pichari Bazar, Tallital, Nainital. …Defendant/Respondents. Dated : 8.1.2008 Hon’ble Rajesh Tandon, J. Heard Sri J.C. Pandey, counsel for the appellant and Srij Prabhat Pandey, counsel for the respondent no. 2. 2. By the present A.O. filed under Section 173 of the Motor Vehicles Act, 1988, appellant has prayed for setting aside the judgment and order dated 25.8.1999 passed by the Motor accident Claims Tribunal/Special Judge, (E.C. Act) Additional District Judge, Nainital in M.C.A. No. 167 of 1993 Smt. Chandra Kala Joshi Vs. Naveen lal Shah and others. 3. Briefly stated, a claim petition was filed by the claimant/respondent no. 1 being M.C.A. No. 167 of 1993 Smt. Chandra Kala Joshi Vs. Naveen Lal Shah claiming a sum of Rs. 1,50,000/- towards compensation on account of the accident occurred on 10.9.1992. 4. According to the claimant, on 10.2.1992 at about 5.15p.m., when the claimant was going to her residential house, Roadways Station along with her daughter and husband, a truck No. U.P. 02-A/3025, which was going towards Haldwani and being driven rashly and negligently by its driver dashed the daughter and husband of the claimant. Due to the stroke of the truck, the claimant and her daughter fell down into a gorge of about 40 feet deep and both the legs of her husband were crushed. The claimant and her family members were admitted to the B.D. Pandey Hospital, Mallital, Nainital, where the treatment was done. Since the condition of her husband was serious, therefore, the claimant went to Lucknow along with her husband for treatment, where the treatment of her husband was done at Balramur Hospital. According to the claimant, a sum of Rs. 15,000/- was spent on the treatment and treatment is still continuing. 5. On behalf of the Defendants no. 1 and 2, one Sri M.C. Tiwari appeared in the Court, but on behalf of the defendant no. 1 Naveen Lal Sah, no written statement was filed. 6. Owner of the Vehicle/appellant filed her written statement Paper No. 29 Kha through her Advocate Sri M.C. Tiwari, where it has been admitted that she is the owner of the Truck No. UI.P. 02A/3025 and has further stated that at the time of accident, the truck in question was insured with the United India Insurance Company. It has further been stated that at the time of accident, the truck in question was being driven in a moderate speed by a driver holding a valid driving licence and the claimant and her family members are themselves responsible for the said accident. 7. Insurance Company has also filed a written statement Paper No. 26 Ga, where it has been admitted that the truck in question was owned by the appellant and at the time of accident, the truck in question was insured with it. It has been stated that the amount claimed towards compensation is excessive and the Insurance Company will be responsible to pay the same, if the claimant and the owner of the vehicle in question prove that the Truck in question was being driven under the terms and conditions of the Insurance Policy. 8. On the pleadings of the parties, the claims Tribunal has framed following issues: ^^1- D;k nq?kZVuk Vªd la0 & ;w0ih0 02&,@3025 ds pkyd }kjk mDr Vªd dks rsth o ykijokgh ls pyk;s tkus ds dkj.k ?kfVr gqbZ] ftlesa Jherh pUnzdyk tks’kh dks pksVsa vkbZ \ 2- ;kph izfrdj dh fdruh /kujkf’k o fdl i{k ls izkIr djus dh vf/kdkfj.kh gS \ ** 9. On behalf of the claimant, Smt. Chandra Kala Joshi herself has been examined as P.W.1. Towards the documentary evidence, the claimant has filed copy of the FIR Paper No. 7Ga/2 and copy of the Driving Licence Paper No. 32 Ga. 10. On behalf of the defendant no. 3, Sri Chandra Pal Singh, Investigator has been examined as D.W.1. On behalf of the defendants no. 1 and 2, no one has been examined. Towards the documentary evidence, the defendant no. 2/owner of the truck has filed Copy of the Insurance Policy Paper No. 31 Ga. 11. While deciding the issue no. 1 as to whether the accident took place due to rash and negligent driving of the driver of Truck No. U.P. 02-A/3025, in which Smt. Chandra Kala Joshi received injuries, the claims tribunal has recorded a finding that the accident took place due to rash and negligent driving of the driver of the Truck No. U.P. 02-A/3025 and due to the accident Smt. Chandra Kala Joshi (claimant) received injuries. The claims tribunal has taken into consideration the statement of D.W.2/owner of the truck in question/appellant, statement of Insurance Company, statement of Smt. Chandra Kala Joshi, D.W. 1 Chandra Pal Singh Tomar and the First Information Report. Sri Chandra Pal Tomar, Investigator has stated that the accident had taken place, in which the family of the claimant and the claimant had received injures. In the statement of Chandra Pal Singh Tomar, it has come that the Truck in question was parked and the same was unloaded and in order to stop the truck, a piece of stone was fixed in the tire, but it some how the stone came out and due to which the truck dashed the family of the claimant which were coming from the back side. In the cross examination f Smt. Chandra Kala Joshi, the fact has come that as his husband had got injured and she was engaged in the treatment of him, therefore, the FIR was got lodged late. This, issue has been decided in favour of the claimant. 12. While deciding the issue no. 2 with regard to quantum of compensation, the claims tribunal after taking into consideration all the aspects and evidence available on record has awarded a sum of Rs. 10,000/- (Ten Thousand) to the claimant towards compensation to be paid by the owner of the vehicle in question. Claims tribunal has further recorded a finding that since the driver of the truck in question was not authorized to drive the Heavy Transport Vehicle on the date of accident, therefore, there is violation of terms and conditions of the policy and thus, the owner of the vehicle in question shall be liable to pay the compensation. 13. Counsel for the appellant has submitted that the driver of the vehicle in question had no valid licence for driving the said vehicle in the Hill road on the relevant date of the alleged accident is quite erroneous, perverse and against the material on the record. It has further been argued that the documents and evidence produced by the Insurance Company goes to show that the driver has a valid licence to drive the said vehicle which was as per document filed by the Insurance Company was as Medium Goods Vehicles. 14. Counsel for the appellant has referred The New Assurance Co. Ltd. Vs. Smt. Kala Devi alias Kalawati Devi and others 2007 (2) U.D. 57, where the Division Bench of this High Court has observed as under:- “11. We have considered the submissions in the light of the above rules and we find that if there was no endorsement of authorizatin to drive the vehicles in hills, the licence cannot be held invalid. The copy of the licence of the driver shows that it was valid for LMV (T) Light Motor Vehicles (Transport). The definition of Light Motor Vehicle has been given under section 2(21) of the Motor Vehicle Act, 1988 as under: (21)” light motor vehicle” means a transport vehicle or omnibus the gross vehicle weight of either of which or a mtoro car or tractor or road roller the unladen weight of any of which, does not exceed 7500 kilograms. 12. The Insurance cover note shows that the vehicle was Truck No. 407, whose Gross weight was 5300 kg. and as such it was Light Motor Vehicle. Thus, we find that the driver of the vehicle had valid driving licence.” 15. In view of the aforesaid submission as well as the judgment passed by the Division Bench of this Court, the driving licence without hill endorsement cannot be said to be fake and, therefore, since the driving licence was not fake and was genuine, the owner of the vehicle in question shall not be entitled to pay any compensation to the claimant, but the Insurance Company shall be liable to pay compensation to the claimant. If, the amount of compensation has already been given by the owner of the truck, she shall be entitled to recover the same from the Insurance Company. 16. Consequently, A.O. is allowed. No order as to costs. (Rajesh Tandon, J.) 8.1.2008 Avneet