IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL. A.O. No. 452 of 2006 Smt. Shamim Ara and others .. Appellants. Vs. Sri Imran and others .. Respondents. Mr. Chhatrapati Pant, Advocate holding brief of Mr.T.A. Khan, learned counsel for the appellants. Mr. D.S. Patni, Advocate for the respondent/insurance company. Dated: 25-9-2008 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 4-5-2006, passed by Additional District Judge/VI F.T.C./Motor Accident Claims Tribunal, Dehradun, in MACT Case No. 81 of 2003. 2- Brief facts of the case giving rise to this appeal are that on 18-1-2003 the deceased Sajid along with his friend Mohd. Ahmad and his mother was going to Delhi in Car No. U.A. 07-0786. At about 10.30 A.M. when they reached near village Sahpur, tanker bearing registration No. H.R.-38/6080 came there from opposite direction in a negligent manner and hit the car on left side, due to which Sajid sustained grievous injuries and he was declared dead by the doctors in Dev Hospital, Roorkee. The report of the accident was lodged on the next day of the accident by the brother of the deceased. According to the claimants the deceased used to do the work of property dealing and his monthly income was 10 to 15 thousands. The claimants filed the claim petition for compensation of Rs. 14,00,000/-. 2 3- The opposite party Nos. 1 and 2, driver and owner of the offending Tanker have alleged that the accident was the result of rash and negligence on the part of the driver of Car bearing registration No. H.R. 38- 6080. The driver of the Tanker was having valid driving license and the Tanker was insured with United India Insurance Company. They further alleged that liability of compensation, if any, is found, the same is upon the insurance company. 3- Opposite party Nos. 3 and 5 is the United India Insurance Company from whom both the vehicles, i.e. the Maruti Car and the Tanker involved in the accident, were insured, has denied the accident and alleged that both the drivers were not having valid driving license, therefore, there was breach of insurance policy, and the insurance company cannot be held liable to pay the compensation. 4- The opposite party No.4 Mohd. Ahmad also filed his written statement and alleged that he was not driving the Maruti Car at the time of accident and the said vehicle was being driven by opposite party No.6 Noor Mohammad. 5- The opposite party No.5 Noor Mohmmad also filed his written statement and alleged that he was driving the Maruti car at the time of accident. He also alleged that the accident has occurred due to the sole negligence of the driver of the Tanker No. H.R. 38- 6080. He also alleged that at the time of accident he was possessing valid driving license. 6- The Tribunal, on the basis of pleadings of parties, framed issues in the claim petition. Thereafter, 3 parties adduced evidence before the Tribunal. The Tribunal after hearing learned counsel for the parties and perusing the material on record, allowed the claim petition for a sum of Rs. 5,35,000/- along with interest @ 6% per annum from the date of petition till the date of final payment against the United India Insurance Company. 7- Feeling aggrieved, the claimants have preferred this appeal before this court. 8- Heard learned counsel for the claimants/appellants and the respondent United India Insurance Company and perused the record. 9- Learned counsel for the appellants has submitted that the accident had occurred due to the sole negligence of the Tanker and the Tribunal has committed a manifest error in holding the 25% contributory negligence on the part of the driver of Maruti Car involved in the accident. He further contended that the driver of the Maruti Car was having valid driving license, therefore, the total liability of compensation should have been fixed upon the United India Insurance Company, with whom both the vehicles were insured. 10- On the other hand learned counsel for the United India Insurance Company has submitted that the Maruti Car was being driven by opposite party/respondent Mohd. Ahmad, who had no valid driving license and the accident has occurred due to contributory negligence of both the drivers, therefore, the Tribunal has rightly deducted 25% of the compensation amount towards the contributory negligence of the Maruti Car involved in the accident. 4 11- After having considered the submissions of the learned counsel for the parties, I do not find any force in this appeal. The F.I.R. of the accident was lodged on the next day of the accident by the brother of the deceased, in which this fact has been mentioned that the car was being driven by Mohd. Ahmad. Although Mohd. Ahmad in his written statement has denied this fact but he neither appeared before the tribunal to depose this fact nor adduced any other evidence in this regard. The copy of charge sheet filed by the police against the driver of offending Tanker and site-plan have been filed on record. From perusal of the site plan it reveals that the Car was moving from west to east whereas the Tanker was coming from east to west. The car was going towards its left side and at the spot the tanker after taking turn went towards right side of the road at the corner where the accident took place. The Car driver also turned the car towards right side in order to save the car and collided with the Truck in question. Here it is to be mentioned that the accident was not a head-on collision but both the vehicles collided at their left side. Therefore, looking to the situation at the spot, both the drivers of the vehicles were negligent. The learned Tribunal has determined the ratio of contributory negligence at 75% and 25% on the Truck and Car respectively and in my opinion looking to the size of the vehicles the same is justified. 12- Here it will not be out of place to mention that the owner of the Maruti Car has died in this accident. It has not been established by cogent and reliable evidence that the Maruti Car was being driven by a person having valid driving license, as in the F.I.R. it has been mentioned that the car was being driving by Mohd. Ahmad, who had no valid driving license. In the 5 investigation carried out by the Insurance Company also it was found that Mohd. Ahmad was driving the Maruti Car at the time of accident. Although Noor Mohammad has alleged that he was driving the Maruti Car, but no independent and reliable evidence has been adduced in this regard and the interesting statement of Noor Mohmmad cannot be relied. Therefore, the learned tribunal was justified in deducting the amount of compensation amount due to the contributory negligence on the part of car driver up-to 25% and the insurance company cannot be held liable to pay this amount of compensation up-to 25% as there was breach of insurance policy on the part of car owner. I do not find any infirmity in the finding recorded by the learned Tribunal and the same is liable to be confirmed. 13- The appeal lacks merit and is liable to be dismissed. 14- Accordingly, the appeal is dismissed. The impugned judgment and award dated 4-5-2006 is hereby confirmed. ISB (B.C. Kandpal, J.) 6