IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL. A.O. No. 31 of 2008 Uttarakhand Transport Corporation .. Appellant. Versus Dr. Rajkumar Singh and 3 others .. Respondents. Mr. Rajeev Singh Bisht, learned counsel for the appellant. Mr. D.C.S. Rawat, holding brief of Mr. Deepak Rawat, Advocate for Orietnal Insurance Company/Respondent No.3. UDated: 14-8-2008 UHon’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 20-9-2007, passed by Motor Accident Claims Tribunal/ II Addl. District Judge, Dehradun, in MACP No. 43/2003. 2- The record reveals that the Uttarakhand Transport Corporation ( in short ‘ the Corporation’) filed an application before the M.A.C.T./ II Addl. District Judge, Dehradun for award of damages caused to its bus to the tune of Rs. 1,69,583/- against the opposite parties/respondents. According to the petition on 4.11.2000 at about 3.00 P.M. bus No. U.P. 15/1806, owned by ‘the Corporation’ was coming to Dehradun from Muzaffarnagar and when it reached ahead of Barala College, Maruti Car No. DL 4-CE-9996 came there at high speed from Roorkee side and dashed the bus and caused damage to the bus. The Corporation alleged that Rs. 5,883-48 were spent on the repair of the bus; Rs. 1000/- were spent on the treatment of the injured and Rs. 1,62,700-26 were spent towards operational 2 charges of the bus. In this way a total sum of Rs. 1,69,583/- was claimed as damages. 3- The opposite party No.1, filed his written statement and alleged that he has purchased the offending car from Umesh Sabrawal on 4Pth P February 2001 and at the time of accident neither he was the owner of the car nor the car was being plied under his control, therefore, he is not liable to pay any damages. 4- The opposite party No.2, was driving the car at the time of accident. He alleged that he was driving the car at a slow speed. The offending bus was moving at a high speed and due to high speed the bus first of all hit with the tempo UGI 9797, due to which the tempo overturned and then the bus also dashed the car. He also alleged that the bus did not suffer any loss. The car was insured with Oriental Insurance Company at the time of the alleged accident. 5- The learned Tribunal, on the pleading of parties, framed following issues in the petition:- 1- Whether on 4.10.200, at about 3 P.M., near Barla College, the Car DL 4-CE 9996 driven by opposite party No.2 in a high speed, which was going Delhi from Roorkee, dashed the bus No. U.P. 15/1806, coming to Dehradun from Muzaffarnagar, and caused damages to the bus?. 2- Whether the aforesaid car was insured with Oriental Insurance Company, Branch 111, D.O. 4-E/14 Jhandewala Azad Bhawan New Delhi?. 3 3- To what amount of compensation the petitioner is entitled to get?. 6- The petitioner in support of its case adduced oral as well as documentary evidence, but the opposite parties did not adduce any evidence. 7- The learned Tribunal after considering the facts and circumstances of the case and hearing counsel for the parties, dismissed the petition. 8- Feeling aggrieved the Corporation has preferred this appeal before this Court. 9- Heard learned counsel for the appellant and the counsel appearing on behalf of the Oriental Insurance Company. 10- The sole point involved in this appeal for consideration of the court is, as to whether damage was caused to the bus No. U.P. 15/1806 by the rash and negligence of the driver of the car bearing registration No. DL 4CE-9996 or not?. 11- The onus of proving the rash and negligence on the part of car driver was upon the Corporation and I find the Corporation has not been able to discharge the same, by adducing reliable and cogent evidence in this regard. None of the driver and conductor has been produced to state on oath the actual facts of the accident. Even no one has come forward of the passengers travelling in the offending bus to state the true facts of the accident and this fact remained there disproved that as to by which negligence the accident has occurred. Therefore it 4 cannot be said that the car going to Delhi from Roorkee dashed the bus in a rash and negligence manner. On the other hand in the written statement filed by the driver of the offending car, it has been mentioned that he was driving the car at a slow speed and at the spot the bus came there in a negligent manner and firstly it dashed with the Tempo bearing registration No. UGI 9797, which was moving ahead of the bus, due to which the tempo overturned and was damaged and then the bus hit the Maruti Car, due to which the car was also damaged. In the F.I.R. lodged by the driver of the offending bus, this fact has been mentioned that a tempo also involved in the accident. No eye witness of the accident has been adduced. Therefore, from the material available on record one thing is clear that the collusion took place between Maruti Car, Bus and Tempo, but this fact has not been established that the collusion was the result of rashness on the part of car driver and in absence of proof of rash and negligence, due to which the accident had occurred, the damage claimed by the Corporation cannot be awarded against the opposite parties. 12- I do not find any infirmity in the finding arrived at by the learned Tribunal. The appeal lacks merit and is liable to be dismissed. 13- Accordingly, the appeal is dismissed. The impugned judgment and order dated 20-9-2007 is upheld. (B.C. Kandpal, J.) ISB