IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL. A.O. NO. 125/2006 National Insurance Company Limited .. Appellant. Vs. Prabhat Pandey and another .. Respondents. Mr. D.S. Patni, Advocate for the appellant. Mr. H.M. Bhatia, Advocate for claimant/respondent No.1. None for the respondent No.2. Dated: 22-04-2008 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 8-12-2005, passed by Motor Accident Claim Tribunal/District Judge, Tehri Garhwal, in MACP No. 45 of 2004. 2- Brief facts of the case are that on 30-4-2004 the claimant was travelling in Mini Bus No. U.P. 05- 10173. The said bus met with accident due to the rash and negligence of its driver and the claimant sustained grievous injuries. The claimant was admitted in Government Hospital, Srinagar and thereafter, at C.M.I., Dehradun. Therefore, the claimant preferred petition for compensation. 3- The Opposite Party/Owner of the Bus filed written statement and alleged that the accident has occurred due to some mechanical defect. It was also alleged that the vehicle was insured with National Insurance Company and its driver had valid driving license. 4- The National Insurance Company also filed its W.S. and alleged that the bus was carrying more passengers than its capacity, therefore, the insurer cannot be held liable to pay compensation. 5- The Tribunal framed issues in the petition. Thereafter, claimant produced evidence in support of his claim. The Tribunal after hearing learned counsel for the parties and perusing the material on record, allowed the claim for a sum of Rs. 60,000/- along with interest @ 5% per annum from the date of petition till the date of payment, payable by National Insurance Company. 6- Feeling aggrieved the Insurance Company has filed this Court. 7- The injured/claimant being dissatisfied with the amount of compensation, also filed Cross Objection No. 125 of 2006, for enhancement of compensation. 8- Heard learned counsel for the parties and perused the record. 9- The learned counsel for the appellant/insurance company has submitted that the vehicle at the time of accident was overloaded. The vehicle was insured for carrying 30 passengers, whereas it was carrying 35 passengers, therefore, the vehicle was being plied in utter disregard of terms of insurance policy and the Tribunal has ignored this fact while passing award against the insurance company. Learned counsel therefore urged that the impugned award passed against insurance company, be quashed. 10- The Tribunal has framed issue No. 3 on the point of overloading. Perusal of record reveals that the owner of the offending vehicle has brought on record the insurance policy, registration, fitness certificate and driving license, which show that the vehicle had valid documents and its driver was having valid driving license. The Insurance Company has not adduced any evidence in support of its allegation of overloading. The burden to prove the point of overloading was upon the insurance company and the insurance company has not discharged its burden. No one has come forward to state the said fact before the Tribunal. In my opinion, the learned Tribunal, in the above facts and circumstances of the case, has rightly decided the issue against the insurance company, in absence of any kind of evidence. Therefore, the appeal preferred by the Insurance Company has no force and is liable to be dismissed. 11- The learned Counsel for the claimant/respondent No.1, by filing cross objection, has submitted that the Tribunal has awarded a meager amount of compensation. According to him the earning capacity of the claimant has decreased due to the injuries suffered by him, hence the tribunal should have awarded compensation under the head of loss of earning capacity. He therefore, urged that the amount of compensation be enhanced. 12- I do not find any substance in the above submission of learned counsel for the claimant/respondent No.1. The injured/claimant has filed medical bills for an amount of Rs. 34,333/-. The Tribunal has awarded a sum of Rs. 35,000/- under this head. The Tribunal also awarded Rs. 10,000/- for mental and physical pain and Rs. 15,000/- for loss of working capacity and future prospect. It is pertinent to mention here that the injured did not file any disability certificate, which may indicate that he suffered any permanent disability and suffered loss of his earning capacity, due to the injuries sustained by him. However, the Tribunal has awarded Rs.15,000/- for future prospect and adverse effect on earning capacity. Therefore, on the basis of evidence on record, the Tribunal has rightly awarded a total sum of Rs. 60,000/- as compensation. The Tribunal also awarded interest @ 5% per annum and the same does not require interference. The Cross Objection is also liable to be dismissed. 13- For the discussion made above, the appeal as well as the cross objection are liable to be dismissed. 14- Accordingly the appeal is dismissed. The Cross Objection is also dismissed. The impugned judgment and award dated 8-12-2005 is confirmed. 15- The statutory amount, if any, deposited before this Court, be remitted to the Tribunal concerned. (B.C. Kandpal, ) ISB