IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL. A.O. NO. 105 OF 2006 The New India Assurance Company Ltd. ……Appellant. Vs Abdul Hai and another …..Respondents. Mr. B.K. Gupta, learned counsel for the appellant. Mr. Raman Kumar Sah, learned counsel for the claimant/respondent No.1. Dated: 22-04-2008 Hon’ble B.C. Kandpal, J. This appeal, U/S 173 of the Motor Vehicles Act, 1973, has been preferred against the judgment and award dated 21-12-2005, passed by Motor Accident Claim Tribunal/District Judge, Pauri Garhwal, in MACP No. 150 of 2003. 2. The brief facts of the case are that on 22-12- 2002, at about 6 P.M. claimant Abdul Hai, along with his friend was going towards Badrinath Road, Kotdwara, riding in a Scooter, suddenly Truck bearing registration USY 3212, coming from opposite directing came there at a high speed and dashed the claimant, due to which he sustained injuries. He was admitted in Community Hospital Kotdwar and finding his condition precarious, he was referred to C.M.I. Dehradun, where he received treatment. He remained admitted there from 22.12.2002 to 12.1.2003. He spent about one and half lacs rupees on his treatment and about fifty thousands are expected to be spent in future. The claimant at the time of accident was earning his livelihood from a Theli. His income was about Rs. 5,000/- per month. The claimant has filed the petition for compensation of Rs. Nine lacs. 3- The insurer of the Truck filed its written statement has alleged that the vehicles was being driven against the terms and conditions of insurance policy. It is also alleged that the claim is bad for non-joinder of owner, driver and insurer of the offending Scooter, as party. 4- The owner of offending truck also contested the claim and alleged that the vehicle was insured with New India Assurance Company and its driver was possessing valid driving licence, therefore, the liability to pay compensation, if any, is upon the insurer. 5- The Tribunal, on the basis of pleadings of parties, framed issues in the claim petition. Thereafter the claimant examined himself and also filed documentary evidence in support of his case. 6- The Tribunal after hearing learned counsel for the parties and considering the evidence on record, allowed the claim petition for a sum of Rs. 3,02,000/- along with interest @ 9% per annum from the date of petition till the date of final payment, payable by the New India Assurance Company. 7- Feeling aggrieved, the insurer has preferred this appeal. 8- Heard Sri B.K. Gupta, learned counsel for the appellant, Mr. E.K. Sah, Advocate for claimant/respondent No.1, and Mr. Sudhir Kumar learned counsel for the respondent No.2, the truck owner and perused the record. 9- The Tribunal has framed issue Nos. 1 and 2 as follows:- 1- Whether the applicant sustained injuries in an accident occurred on 22-12-2002 at about 6 P.M. near Jhanda Chauk, Kotdwara, arising out of the use of the motor vehicle No. USY 3212 due to rash and negligent driving by its driver? 2- Whether the petition is bad for non- joinder of necessary party, as alleged in para 10 of W.S.?. 10- The record reveals that the owner and the insurer of the Scooter, on which the claimant/injured was travelling at the time of accident, have not been arrayed as party defendant before the lower court. The issue was framed in this regard by the Tribunal and the Tribunal recorded a finding that the petition is not bad for non-joinder of necessary parties. Although this finding does not require any interference in appeal, but while deciding issue No.1, the Tribunal has ignored this aspect that it is a case of head-on collision. The Scooter on which the injured was traveling, as well as the offending truck, were going in opposite directing to each other at the time of accident. The scooter driver had sufficient opportunity to see the truck from a long distance. Had the scooter driver been vigilant, he could have very much avoided the accident. By applying the dictum of ‘Res ipsa loquitor’ it is quite clear that it is a case of contributory negligence and the negligence on the part of the scooter driver, in any case, could not overlooked. The Tribunal has committed a manifest error in ignoring this aspect of the matter and did not decide the matter in accordance with the provisions of Law of Tory as well as the evidence available on record. It is true that the offending truck was rash and negligent and on account of the rash and negligence on the part of the offending truck the accident took place, but at the same time this aspect also cannot be ignored that the scooter driver also contributed his negligence in this accident. 11- Considering the evidence on record, I am of the view that the ratio of negligence on the part of the truck driver is on higher side. The driver of the truck should have been vigilant and should have driven the vehicle on the road with great caution and care. The Truck being the bigger vehicle, its driver has greater responsibility in plying the vehicle on the road. Therefore, the ratio of negligence on the part of the truck driver comes to the extent of 70% while the rest of the negligence of 30% comes on the part of scooter driver. 12- As the owner and insurer of the scooter have not been arrayed as party to the case, therefore, the claimant is not entitled to get the amount of compensation upto the extent of 30% in view of the observation made by me in earlier paragraph of the judgment. 13- Considering the facts and circumstances of the case, I come to the conclusion that the amount of compensation in this case, comes to Rs. 3,02,000-00(-) Rs. 90,600-00=Rs. 2,11,400-00. 14- Accordingly, the appeal is partly allowed. The impugned judgment and award dated 21-12-2005 is modified upto the extent that the claimant is entitled to get a compensation of Rs. 2,11,400/- instead of Rs. 3,02,000/- as has been awarded by the tribunal. The interest part shall remain intact. 15- The statutory amount, if any, deposited before this Court, shall be remitted to the Tribunal concerned. (B.C. Kandpal, J.) ISB