IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL. A.O. No. 408/2007 The Oriental Insurance Co. Ltd. … Appellant. Versus Smt. Tripati Panwar and others .. Respondents. Sri Deepak Rawat, learned counsel for the appellant. Sri Yogesh Pacholia, learned counsel for the claimant/ respondent No.1. Dated: 18-3-2009 Hon’ble B.C. Kandpal, J. This appeal, under Section 173 of the Motor Vehicle Act, has been preferred by the insurer of the offending vehicle against the judgment and award dated 21-11-2005, passed by Motor Accident Claim Tribunal/ District Judge, Pauri Garhwal, in MACP No. 8 of 2005, Smt. Tripati Panwar Vs. Puran Singh and others. 2- Brief facts of the case are that on 24-4-2004, Smt. Tripti Panwar was coming to Pauri from Agroda riding in Bus bearing registration No. D.L.- 1-P/7300. At about 11.30 A.M. near Ghantaghar between Buwakhal and Dandapani, the Bus met with accident due to rash and negligence of its driver, in which Smt. Tripti Panwar sustained grievous injuries. She was admitted in District Hospital Pauri. Thereafter she was referred to C.M.I. Dehradun where she received treatment. According to the claimant at the time of accident she was pregnant and she had to undergo operation for premature delivery. The claimant alleged in her petition that she spent about Rs. 1,50,000/- on her 2 treatment. She demanded a sum of Rs. 5,10,000/- as compensation. 3- The opposite party No.1, owner of the offending Bus contested the claim petition by filing his written statement and alleged that the Bus was insured with Oriental Insurance Company and it met with accident due to some mechanical defect. The driver of the Bus was possessing valid and effective driving license, therefore, he is not liable to pay any compensation. 4- The opposite party No.2, driver of the offending Bus also filed his written statement and alleged that the accident took place due to some mechanical defect in the vehicle and he has no hand in causing the accident. He was having valid driving license. 5- The opposite party no.3, Oriental Insurance Company also contested the claim petition and denied the allegations made in the claim petition. The insurance company also alleged that the vehicle was being driven against the terms of insurance policy. The driver was not having valid and effective driving license. Therefore the insurance company is not liable to pay any compensation. 6- The Tribunal, on the pleading of parties framed the following issues in the claim petition:- 1- Whether on 22-4-2004 at about 11 A.M. on Buwakhal-Pauri Motor Marg near Ghantaghar vehicle bearing registration D.L.-1-P/7300 met with an accident due to rash and negligence of its driver in which Smt. Tripti Panwar sustained grievous injuries?. 3 2- Whether the driver was not having valid and effective driving license at the time of accident?. 3- Whether the offending vehicle was not having valid insurance on the date of accident?. 4- Whether the vehicle was being driven against the terms of insurance policy?. 5- To what amount of compensation, if any, the claimant is entitled to get and from which of the party?. 7- The trial Court after having heard learned counsel for the parties and considering the evidence on record, awarded a sum of Rs. 2,50,000/- as compensation along with conditional interest @ 9% per annum against the Oriental Insurance Company. 8- Feeling aggrieved, the Oriental Insurance Company has preferred this appeal before this Court. 9- Heard Sri Deepak Rawat, learned counsel for the appellant and Sri Yogesh Pacholia, Advocate for respondent No.1. None has appeared on behalf of respondent Nos. 2 and 3 in spite of sufficient service upon them. 10- As far as the factum of accident is concerned, the trial court has dealt with the same on issue No.1. The trial court after considering the evidence on record came to the conclusion that the driver of the offending vehicle was rash and negligent at the time of the accident and on account of the same the bus fell in a khud, due to which the claimant sustained injuries who was pregnant at the time of the accident. The eye-witness account produced by the claimant was considered in detail by the trial court and the trial court came to the conclusion that the 4 accident was the result of rash and negligence of the driver of the offending bus. I do not find any ground to interfere with the finding recorded by the tribunal with regard to the factum of accident. 11- So far as this aspect of the matter that whether the driver of the offending bus was having valid and effective driving license at the time of accident, as well as the factum that the offending vehicle was insured with the Oriental Insurance Company, and as to whether the vehicle was being plied against the terms of insurance policy, are concerned, the same have also been dealt with by the tribunal while deciding issue Nos. 2, 3 and 4. The tribunal after having detailed discussion of the evidence available on record came to the conclusion that the driver of the offending vehicle was having valid and effective driving license on the date of the accident. There is no iota of evidence available on record, which may indicate that the license possessed by the driver was not effective and valid on the date of accident. As regards the insurance of the offending vehicle in question is concerned, it is abundantly clear from the record that the vehicle in question was insured with Oriental Insurance Company on the date of the accident. The insurance company did not produce any evidence rebutting the same. There is also no iota of evidence available on record, which may indicate that the offending vehicle was being plied against the conditions of the insurance policy. The above findings of the trial court appear to be justified. 12- As far as the amount of compensation awarded by the tribunal in favour of the claimant is concerned, it appears to me that the tribunal has awarded the amount of compensation on the basis of 5 surmises and conjectures. The amount awarded by the tribunal cannot be said to be proper and justified in any manner. The tribunal has recorded a categorical finding that the claimant produced the bill pertaining to the medical treatment for a sum of Rs. 42,000/-, but has awarded Rs. 1,00,000/- under this head on the basis of surmises. I do not find any reason as to why the tribunal could come to the conclusion that the claimant must have spent Rs. One lac on her medical treatment without any reasonable and plausible evidence in this regard. In case if the claimant had undergone operation for her delivery and the delivery was also premature on account of the injuries sustained by her in this accident, even then the medical expenses could not travel more than Rs. 70,000/- including the bills filed by the claimant before the tribunal. I, therefore, am of the view that the claimant is entitled for a sum of Rs. 70,000/- against the expenditure for medical treatment. 13- The record further reveals that on account of the injuries sustained by the claimant and for the reason that she had to undergo operation, and had to remain admitted in the hospital for a period of about one month, the claimant must have suffered physical pain as well as mental agony during this period. The amount awarded by the tribunal under the aforesaid head also appears to be exorbitant. The trial court has awarded a sum of Rs. 1,50,000/- for pain and suffering and mental agony, which cannot be said to be just and proper in any manner. I am, therefore, of the view that keeping in view this fact into account, that the claimant had to be admitted in the hospital for a period of about one month and she must have suffered mental and physical pain and agony during the aforesaid period, the amount 6 awarded under this head could be up-to a maximum limit of Rs. 30,000/- and not beyond this. 14- For the reasons stated above, I am of the view that the claimant is entitled for a sum of Rs. 1,00,000/- as compensation instead of Rs. 2,50,000/- as has been awarded by the tribunal. However, the claimant is entitled to get the amount of compensation along with interest @ 6% per annum from the date of filing the petition till the date of actual payment, instead of conditional interest awarded by the tribunal. 15- The appeal is partly allowed. The impugned judgment and award is modified upto the extent that the claimant is entitled to get a sum of Rs. 1,00,000/- as compensation along with interest @ 6% per annum from the date of filing the petition till the date of actual payment instead of Rs. 2,50,000/- along with 9% conditional interest, as has been awarded by the tribunal concerned. 16- Let the statutory amount of compensation, deposited with this court at the time of filing the appeal, be remitted to the tribunal concerned. (B.C. Kandpal, J.) ISB