IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Delay Condonation Application No.1521/2001 with A.O. No. 84 of 2011 Reliance General Insurance Company … Appellant Versus Smt. Vikrama Devi Panwar and 4 opthers … Respondents (Hon’ble B.S. Verma, J.) Heard Mr. Sarvesh Agarwal, Advocate for the appellant on delay condonation application and perused the contents of affidavit filed in support thereto. The appeal has been filed beyond limitation of 11 days delay. The grounds shown in the affidavit are sufficient. The delay condonation application is allowed and the delay in filing the appeal is hereby condoned. I have also heard the appeal on admission. This appeal has been preferred against the judgment and award dated 23-11-2010, passed by Motor Accident Claims Tribunal, Uttarkashi in MACT Case No. 40 of 2010, Smt. Vikrama Devi and others Vs. Manoj and two others, whereby the claim petition was allowed for a sum of Rs. 1,30,000/- as compensation along with interest 6% per annum from the date of filing the claim petition till the date of actual payment, payable by Reliance General Insurance Company Ltd. The relevant facts of the case are that claimants filed claim petition for compensation in lieu of death of deceased Balam Singh Panwar U/S 163-A of Motor Vehicles Act. According to the claimants on 9-12-2009 at about 8.45 A.M. deceased Balam Singh was travelling in Max U.A. 10-4941 from Barkot to Uttarkashi and the said vehicle fell in deep ditch due to rash and negligence of its driver near Nalipani Bend on Gangotri National High Way, and the deceased Balam Singh died at the spot. The deceased was 64 years of age and he was earning Rs. 5000/- per month from pension and agriculture. The claimants claimed Rs. 6,20,000/- as compensation. 2 The opposite party Nos. 1 and 2 driver and owner of the offending vehicle filed written statement and alleged that the accident had occurred due to some mechanical defect in the vehicle. The driver was having valid driving license and the vehicle was insured with Reliance General Insurance Company. The accident did not occur due to negligence of driver hence the claim petition is liable to be dismissed. The Reliance General Insurance Company also contested the petition and alleged that the accident did not occur due to rash and negligence of the driver but it was due to some mechanical defect in the vehicle. It also alleged that the driver was not having valid driving licence and the vehicle was not having valid fitness and permit, hence the petition is liable to be dismissed. The tribunal, on the pleadings of parties framed relevant issues. Thereafter claimants produced evidence in support of their claim petition. However, the opposite parties did not adduce any evidence. The learned tribunal after considering the entire material on record, held that the accident had occurred due to rash and negligence of driver of the offending vehicle; the vehicle was insured with Reliance General Insurance Company; the driver was having valid driving license and the documents of the vehicle were valid and effective at the time of accident. Therefore the tribunal awarded a sum of Rs. 1,30,000/- as compensation against the insurance company along with interest @ 6% per annum from the date of filing the petition till the date of actual payment. Feeling aggrieved the insurance company has preferred this appeal. I have perused the impugned judgment of the learned tribunal. The learned tribunal has calculated the compensation on a notional income of Rs. 36,000/- per annum and 1/3rd was deducted towards personal expenses of the deceased. The tribunal found that the deceased was 65 years of age and a multiplier of 5 was adopted. I do not find any infirmity in the above finding of the learned tribunal. On issue No.1 the learned tribunal has recorded a categorical finding that the offending vehicle was being driven by its 3 driver rashly and negligently. The driver as well as the owner of the vehicle in their written statement has admitted the accident and death of the deceased in the said accident. Although they have pleaded in the written statement that the accident had occurred due to some mechanical defect in the vehicle but no evidence was adduced on this point. The driver and owner of the vehicle did not lodge any report of the accident and after the accident one Biju Lal lodged the report of the accident at P.S. Dharasu. The finding of learned tribunal holding that the accident has occurred due to rash and negligent of the driver is perfectly justified. In para No.13 of the award the learned tribunal has recorded a categorical finding that permit of vehicle paper No. 14-C, registration certificate paper No. 15-C, driving license paper No. 16-C and insurance cover-note paper No. 17-C (Ext. Ka.1) have been filed on recorded and the insurance company has admitted these papers. Therefore, learned tribunal has rightly recorded a finding on issue No.2 that driver of the vehicle was possessing valid driving license and the vehicle was insured with Reliance General Insurance Company during the period 27.2.2009 to 26.2.2010 and all the documents of the vehicle were valid and effective. It is also pertinent to mention here that the insurance company has not filed any application U/S 170 of the Motor Vehicle Act before the M.A.C.T. concerned, therefore, in view of law propounded by Hon’ble Apex Court in the case of National Insurance Company Ltd. Vs. Nicolletta Rohtagi and others, reported in (2002) 7 SCC page 456, the insurer has no right to file an appeal to challenge the quantum of compensation or finding of the tribunal as regards the negligence of the vehicle. In view of foregoing reasons the appeal lacks merit and is liable to be dismissed at the admission stage. The appeal is dismissed. The statutory amount deposited by appellant in appeal shall be remitted to MACT concerned. Dated: 09-03-2011 (B.S. Verma, J.) ISB