IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Appeal From Order No. 474 of 2006 Raja Ram Sati …Appellant Versus The Oriental Insurance Co. Ltd. & others …Respondents Sri R.P. Nautiyal, Advocate for appellant Sri K.K. Shah, Advocate for respondent no. 1 Sri N.S. Negi, Advocate for respondent nos. 2 to 5 Dated: November 20, 2008 Hon’ble B.C. Kandpal, J. This appeal, under Section 173 of Motor Vehicles Act, 1988, has been preferred against the judgment and award dated 17.7.2006 passed by Motor Accident Claims Tribunal, Chamoli, in M.A.C. Case No. 30 of 2005, Smt. Sarojini Devi & others vs. Raja Ram Sati & another. Brief facts of the case as narrated in the claim petition are that on 30.1.2005 deceased-Gajendra Singh was going to Pokhri from Rishikesh in Truck No. U.P.07/6201. The deceased was carrying cement etc. for the construction of his house by the said vehicle. At 10.00 p.m. when the said vehicle reached near Sumerpur, P.S. Rudraprayag, District Rudraprayag, it met with an accident due to rash and negligent driving of its driver, in which Gajendra Singh died at the spot itself. The post mortem of deceased was conducted at District Hospital, Gopeshwar. At the time of accident 2 deceased was 25 years of age and was earning a sum of Rs.6,000/- per month from agriculture and shop-keeping. Opposite party no. 1-Raja Ram Sati (appellant before this Court) is the owner of Truck No. U.P.07/6201 and at the time of accident said vehicle was insured with opposite party no. 2-The Oriental Insurance Co. Ltd. The claimants are legal heirs of deceased-Gajendra Singh and were dependant upon the deceased. Therefore, the claimants claimed proper compensation against the opposite parties. Opposite party no. 1-owner of vehicle in question/appellant before this Court, filed his written statement admitting therein the date, place and time of the accident and pleaded that he is the owner of Truck No. U.P.07/6201. He has also pleaded that the said vehicle was insured with opposite party no. 2 on the date of accident and all the papers of offending vehicle were valid at the time of accident. The claimants claimed an excessive and exorbitant amount of compensation. The claimants did not make party the driver of offending vehicle in the claim petition, therefore, the claim petition filed by the claimants is liable to be dismissed. Opposite party no. 2-insurance company filed its written statement denying the contents of the claim petition and pleaded that at the time of alleged accident, registration certificate, insurance policy, driving licence and permit etc. relating to vehicle involved in the accident were not valid, hence, the claim petition filed by claimants does not deserve to be admitted. 3 The learned Tribunal on the basis of pleadings adduced by the parties framed relevant issues in the claim petition, which were discussed in great detail. Parties led evidence in support of their case. The Tribunal after having considered the entire evidence available on record and hearing learned counsel for the parties, decreed the claim petition for a sum of Rs.3,69,500/- along with interest at the rate of 5% per annum from the date of filing the petition till the date of actual payment. The Tribunal, at the same time, directed the insurance company to recover the amount of compensation from the owner of offending vehicle, vide judgment and award dated 17.7.2006. Feeling aggrieved by the aforesaid impugned judgment and award, the appellant/owner of vehicle in question, has preferred the present appeal before this Court. Heard Sri R.P. Nautiyal, learned counsel for the appellant, Sri K.K. Shah, learned counsel for respondent no. 1, Sri N.S. Negi, learned counsel for respondent nos. 2 to 5 and perused the record. As far as factum of accident is concerned, the Tribunal has discussed all the evidence adduced by the parties and thereafter has come to the conclusion that on 30.1.2005 deceased-Gajendra Singh was going to Pokhri from Rishikesh in Truck No. U.P.07/6201. The deceased was carrying cement etc. for the prupose of construction of his house in the said vehicle. At 10.00 p.m. when the said truck reached near Sumerpur, P.S. 4 Rudraprayag, District Rudraprayag, it met with an accident due to rash and negligent driving of its driver, in which deceased-Gajendra Singh died at the spot itself. Accordingly, the Tribunal decided the said issue in favour of claimants. I do not find any illegality in the above finding recorded by the Tribunal and the same deserves to be confirmed. As far as amount of compensation to be paid to the claimants is concerned, the Tribunal has adopted absolutely right method for calculating the same and the same does not require any interference. Learned counsel for the appellant has emphasized on the point that the Tribunal has wrongly fixed the liability of making the payment of compensation on the shoulder of appellant/owner of vehicle in question. It has been submitted before me that by no stretch of evidence it can be inferred that the deceased was travelling as a gratuitous passenger on the offending vehicle in question at the time of accident. Learned counsel for insurance company has made the rival contention that on the basis of G.D. filed by the claimants it is quite clear that deceased was somebody else and not Gajendra Singh, hence, it can be safely inferred that deceased was travelling as a gratuitous passenger on the vehicle in question at the time of accident. Therefore, right to recover the amount of compensation giving to the insurance company has been rightly accorded by the Tribunal. 5 My attention has been invited towards paragraph 11 of the impugned judgment and award which reads as follows: “11- mijksDr foospuk ds Ik'pkr~ eSa bl fu’d"kZ ij igqWpk fd ;kphx.k ;g fl) djus esa lQy jgs fd fnukad 30-1-2005 dks e`rd xtsUnz flag Vz~d la[;k ;w0ih0&07@ 6201 esa cSBdj _f’kds’k ls iks[kjh vkjgk Fkk A bl Vz~d esa og viuk edku cukus ds fy, lhes.V vkfn lkeku yk jgk FkkA jkf= 10 cts ;g okgu tc lqesjiqj uked LFkku] vUrxZr Fkkuk #nziz;kx] ftyk #nziz;kx ds lehi igqWpk rks blds pkyd }kjk bl okgu dks rsth o ykijokghiwoZd pyk;s tkus ds QyLo#Ik ;g okgu nq?kZVukxzLr gks x;k] ftlesa e`rd xtsUnzflag dh ekSds ij gh e`R;q gks x;hA rn~uqlkj okn foUnq la[;k&1 ;kphx.k ds Ik{k esa fu.khZr fd;k tkrk gSA” The G.D. Entry file available on record of the court below clearly indicates that in this accident deceased was carrying 200 bags of cement on the truck in question and on account of the accident he died at the spot. Although name of one person Deepak, son of Narendra Singh, finds place in the G.D., but there is no evidence that any person with the name of Deepak died in the accident. It is the case of both the parties that Gajendra Singh died in this accident, who was travelling in the truck in question at the time of accident. The case of the claimants is that deceased-Gajendra Singh was carrying 200 bags of cement for the purpose of construction of his own house on the truck in question and on account of the accident Gajendra Singh died at the spot. G.D. entry shows that 6 father’s name of Deepak has been mentioned as Bachan Singh, while other papers i.e. inquest report, Parivar Register, post mortem report clearly indicate that deceased-Gajendra Singh was son of Bachan Singh. Therefore, there is no iota of evidence available on spot that except Gajendra Singh anybode else also died in this accident. It is, thus, very much clear that Gajendra Singh was travelling in truck in question at the time of accident along with 200 bags of cement which he was carrying for the construction of his house. Accordingly, deceased-Gajendra Singh cannot be said to be a gratuitous passenger. The finding recorded by the court below thereby giving recoverable rights to the insurance company is thus perverse and against the law. For the reasons stated above, the appeal is allowed. The finding recorded by the Tribunal relating to the point that insurance company will have the recoverable rights with regard to amount of compensation from the owner of vehicle, is set aside. It is made clear that insurance company shall have to pay the awarded amount of compensation to the claimants along with interest indicated in the impugned judgment and award. (B.C. Kandpal, J.) SP