IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Appeal Against Order No. 143 of 2007 Smt. Beena Vaisnav & others …Appellants Versus The National Insurance Co. Ltd., Nainital & others ... Respondents Sri Amish Tiwari, Advocate for appellants Sri D.S. Patni, Advocate for respondent no. 1 Dated: August 21, 2008 Hon’ble B.C. Kandpal, J. This appeal, preferred under Section 173 of Motor Vehicles Act, 1988, is directed against the judgment and award 24.10.2006 passed by Motor Accident Claims Tribunal/District Judge, Bageshwar, in M.A.C.T. No. 6 of 2006, Smt. Beena Vaisnav & others vs. Mahendra Kumar & others. The claimants filed a claim petition before Claims Tribunal for grant of compensation on account of death of deceased-Divya Chandra Vaisnav in a motor accident alleging therein that on 4.11.2005 deceased had gone to Kukadghad Gadhere Bahuli by Jeep No. UA-02/1409 and while returning to home at about 11.00 p.m. the said Jeep met with an accident by felling into a ditch near Ravaikhal, due to which deceased-Divya Chandra Vaisnav died at the spot itself. It has also been alleged that at the time of accident deceased was 40 years of age and his monthly income was Rs.9,340/-. The claimants claimed a sum of 2 Rs.18,027,80/- as compensation against opposite parties. Opposite party no. 1-Mahendra Kumar, owner of vehicle filed his written statement admitting the factum of accident and pleaded that accident occurred due to sudden lock of steering, in which Divya Chandra Vaisnav died and other passengers were injured. It has also been pleaded that on the date of accident vehicle was insured with National Insurance Co. Ltd. Opposite party no. 2-National Insurance Co. Ltd. filed written statement and pleaded that at the time of accident vehicle was not being plied with valid papers and driver was not having valid driving licence. It has also been pleaded that amount of compensation as claimed by claimants is excessive and claim petition has been filed in collusion with claimants and opposite party no. 1, therefore, the claim petition is liable to be dismissed. Opposite party no. 3 (driver of vehicle) did not file any written statement and therefore an order was passed to proceed exparte against him. The Tribunal on the basis of pleadings of the parties framed relevant issues in the claim petition. Parties led evidence in support of their cases. The learned Tribunal after having considered the entire material available on record and hearing learned counsel for the parties decreed the claim petition for a sum of Rs.11,25,800/-in favour of claimants, against opposite party no. 1-Mahendra Kumar 3 (owner of vehicle), vide judgment and award dated 24.10.2006. Feeling aggrieved by the aforesaid impugned judgment and award, the appellants-claimants have preferred the present appeal before this Court. Heard Sri Amish Tiwari, learned counsel for appellants, Sri D.S. Patni, learned counsel for respondent no. 1 and perused the record. Learned counsel for appellants has firstly argued that learned Tribunal committed an error while passing the award only against owner of vehicle by not keeping the view that the insurer and insured (owner of vehicle) are equally liable to pay compensation to the claimants and interest of claimants cannot be curtailed. The short controversy involved in this case is as to whether the liability to pay the amount of compensation to the claimants is of both the insurer and insured, or of only insured. The impugned judgment and award passed by the court below shows that issue no. 3 was framed in order to decide this point which reads as follows: “Whether on the date of accident vehicle was being plied with valid driving licence? If yes, its effect?” The record reveals that no evidence has been produced before the court below which may show that vehicle in question was being plied with valid 4 driving licence on the date of accident. The insurance company has taken specific plea in its written statement that vehicle in question was not being plied by the driver having valid driving licence and breach of conditions of insurance policy was committed. The record further reveals that case was proceeded exparte against opposite party no. 3, who was the driver of offending vehicle on the date of accident. Therefore, it was the duty of owner of vehicle to make available the driving licence of driver of vehicle in the record, which may show that on the date of accident driver of offending vehicle was having valid driving licence or not, but it has not been done. The Tribunal recorded a categorical finding that on the date of accident vehicle in question was not being plied with valid driving licence and it was being plied in breach of conditions of Motor Vehicles Act. Therefore, owner of vehicle did not comply with the conditions of Motor Vehicles Act and liability to pay the entire amount of compensation is of opposite party no. 1- owner of vehicle in question. I do not find any illegality in the finding recorded by the Tribunal in this regard and same deserves to be confirmed. As far as interest to be awarded to the claimants is concerned, I am of the view that Tribunal awarded a just and proper interest and same does not require any interference. On rest of findings the Tribunal also appears to be justified and does not require any interference. For the reasons stated above, the appeal lacks merit and is liable to be dismissed. 5 Accordingly, appeal is dismissed. The impugned judgment and award dated 24.10.2006 is hereby confirmed. (B.C. Kandpal, J.) SP