IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL. A.O. No. 537 of 2005 National Insurance Company Limited ..Appellant. Versus Sri Rikeshwar Prasad and 4 others .. Respondents. AND A.O. No.540 of 2005 National Insurance Company Limited .. Appellant Versus Smt. Sumti Devi and 3 others …. Respondents. Mr. B.K. Gupta, Advocate for the appellant. Mr. D.K. Sharma, Advocate for the respondents/claimants. None for respondent/owner of the vehicle. Dated: 5-6-2008 Hon’ble B.C. Kandpal, J. Both the appeals arise out of the same accident and involve similar controversy, therefore, they are being decided by this common judgment. 2- A.O. No. 537/2005 has been preferred against the judgment and award dated 9-9-2005, passed by Motor Accident Claim Tribunal/Vth F.T.C., Dehradun, in MACT Case No. 19 of 2004, whereby a compensation of Rs. 21,54,900/- along with interest @ 6% per annum from the date of filing of petition till the actual date of payment in lieu of death of Ramanand @ Ram Kishore Joshi, was awarded against The National Insurance Company. A.O. No. 540/2005 has been preferred against the judgment and award dated 9-9-2005, passed by Motor Accident Claims Tribunal/ Vth F.T.C., Dehradun, in MACT Case No. 251 of 2003, whereby the Tribunal awarded a sum of Rs. 4,41,500/- as compensation in lieu of death Krishna Dutt Painyuli along with interest @ 6% per annum from the date of filing the petition till the date 2 of actual payment against the National Insurance Company. The Tribunal has given recoverable right to the insurance company against the owner of the offending vehicle in both the claim petitions. 3- The brief facts of the case are that on 10-11- 2003, the deceased Ramanand and Krishna Dutt Painyuli were travelling in Delivery Van Vehicle, bearing registration No. U.A. 07-E-9827 from Dehradun to Rishikesh. When the vehicle reached near village Sawali, 5 kilometers earlier to P.S. Chamba, it fell into deep ditch due to rash and negligence of its driver. In the accident Ramanand and Krishna Dutt along with some other passengers died at the spot. 4- The claimants filed claim petitions for the deaths of Ramanand and Krishna Dutt. It was alleged that Ramanand was a cook in a hotel in Quwait and he was getting salary of Rs. 35,000/- per month in Indian Currency. Deceased Krishna Dutt Painyuli was a Scooter Fitter and used to earn Rs. 5,000/- per month. 5- The opposite party No.1, owner of the vehicle filed her written statements in both the claims and alleged that two passengers and some paddy bags were there in the vehicle at the time of accident. Suddenly steering of the vehicle stopped to work and accident has occurred. The vehicle was insured with National Insurance Company and the liability to pay compensation is of the insurer. 6- The National Insurance Company also contested the claims and denied the facts mentioned in the petitions. It also alleged that the vehicle was insured as delivery van and driver and conductor were authorized 3 to sit in the vehicle but at the time of accident the vehicle was used for transporting the passengers, therefore, breach of insurance policy was committed. 7- The Tribunal framed issues on the basis of pleadings of parties. Thereafter parties adduced oral as well as documentary evidence before the Tribunal. The learned Tribunal after hearing counsel for parties and considering the material on record allowed the petitions for compensation against the insurance company and also given recoverable right to the insurance company against the owner of the offending vehicle. 8- Feeling aggrieved, the National Insurance Company has preferred these appeals before this Court. 9- I have heard learned counsel for the parties and perused the record. 10- Learned counsel for the appellant has submitted that the vehicle involved in the accident was a goods carrier and was registered as Delivery Van, authorized to carry three passengers, driver, cleaner and attendant, whereas at the time of accident it was carrying 6 passengers thereby violating conditions of the policy and the deceased were travelling as gratuitous passengers. He also contended that the driving license was not having endorsement to ply the vehicle on hill routes and this breach was also there. The learned Tribunal also arrived at the conclusion that the vehicle was being run against the terms of policy and the insurance company is not liable to pay compensation but contrary to this the Tribunal directed the insurance company to satisfy the compensation and it will be free to recover the same from the owner of the vehicle. 4 Therefore, learned contended that the claimants/respondents were entitled to recover the amount granted in their favour by the Tribunal from owner of the vehicle and the Insurance Company could not have been held liable to satisfy the compensation. Learned counsel in support of his submission has cited before me the following rulings: 1- National Insurance Co. Ltd. Vs. Prema Devi & Ors, reported in IV (2008) SLT 145. 2- National Insurance Co. Ltd. Vs. Bommithi Subbhayamma & Ors. reported in V(2005) SLT 348. 11- Learned counsel for the respondents has submitted that the driving license of the driver of the offending vehicle was valid and the vehicle was insured with the National Insurance Company. He also contended that for the fault of the driver and owner, the claimant should not suffer and the claimant should be compensated at the earliest, therefore, the Tribunal has rightly directed the Insurance Company to satisfy the award and recoverable right was given to the insurer against the owner of the vehicle. 12- I have considered the arguments advanced by learned counsel for the parties and have gone through the rulings cited on behalf of the learned counsel for the appellant and find that the rulings cited above are not applicable to the facts of the case in hand. 13- Admittedly, the driver of offending vehicle was having valid driving license but it had no endorsement to ply the vehicle on hill routes. The driver nowhere was disqualified to ply the vehicle on hill routes. To have 5 endorsement on the license the driver had to present an application before the licensing authority which appears to have not been filed by the driver and that was the reason that endorsement was not there on the driving license. This minor lapse cannot hold the driver disqualified to drive the vehicle on hill route and it is not going to affect the validity of the driving license. The finding of the Tribunal on this point is justified and does not require interference. 14- So far as the category of the deceased persons in the offending vehicle is concerned, the Tribunal has held that they were gratuitous passengers in the vehicle. It has not been proved that the passengers were travelling along with their goods. The vehicle was authorized to carry in all 3 passengers including the driver and it was carrying more passengers, therefore, there was breach of condition of policy. In this way the learned Tribunal has rightly held that the vehicle was being run against the terms of policy. However, the Insurance Company has not denied the insurance cover of the vehicle. The Tribunal has directed the Insurance Company to satisfy the compensation as the vehicle at the time of accident was insured with it and at the same time the Tribunal has given the recoverable right to the insurer against the owner of the vehicle. It is to be noted here that the claimants have come up with the case that the deceased Krishna Dutt was going to his Sasural along with 3 bags of paddy and some other passengers were along with paddy bags, but no reliable and definite evidence was adduced. In the facts and circumstances of the present case the learned Tribunal was justified in directing the Insurance Company to satisfy the award first and then to recover the same from the owner of the 6 vehicle. I do not find any illegality and infirmity in the impugned judgment and award. 15- In my view the appeals lack merit and are liable to be dismissed. 16- Accordingly, both the appeals are dismissed. The impugned judgment and awards are confirmed. 17- Let the amount of compensation, if any, deposited before this Court, be remitted to the Tribunal concerned. 18- A copy of this judgment be placed in the file of A.O. No.540/2005. (B.C. Kandpal, J.) ISB 7