IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL. A.O. No. 849 of 2006 Ali Hasan .. Appellant. Versus Reetesh Chaudhary and others .. Respondents. WITH A.O. No. 848 of 2006 Mohd. Alam … Appellant. Versus Reetesh Chaudhary and others .. Respondents. Sri Mohd. Azim, learned counsel for the appellants. Sri B.K. Gupta, learned counsel for the respondent/National Insurance Company. Dated: 11-12-2008 Hon’ble B.C. Kandpal, J. Both these appeals under Section 173 of the Motor Vehicles Act, 1988, arise out against the same accident, hence they are being decided by this common judgment. 2- A.O. No. 849/2006 has been filed against the judgment and order dated 19-9-2006, passed by Motor Accident Claims Tribunal/ District Judge, Udham Singh Nagar, in MACT Case No. 275/2004, Ali Hasan Vs. Reetesh Chaudhary and others. A.O No. 848/2006 has been filed against the judgment and order dated 19-9- 2006, passed by Motor Accident Claims Tribunal/ District Judge, Udham Singh Nagar, in MACT Case No. 276/2004, Mohd. Alam Vs. Reetesh Chaudhary and others. 3- Brief facts of the case are that, on 5-9-2004, at about 4.30 P.M. claimants Mohd. Alam and Ali Hasan 2 were going to Thakurdwara from Kashipur in a Scooter and when they reached near Sarbarkhera Moar, suddenly Indica Car bearing registration No. DL-2-CM- 3994 came there from Moradabad side and in order to save the buffalo the said Indica Car came towards the side of the Scooter and dashed it in a rash and negligent manner, due to which both the scooter riders sustained grievous injuries. The injured persons were admitted in L.D. Bhatt Government Hospital, Kashipur and got treated there. The F.I.R. of the accident was lodged at P.S. Kashipur on 7-9-2004. In both the claim petitions the claimants have stated that they were doing the work of mason at the time of accident and their daily wage was Rs. 130/- and monthly wages were Rs. 3,900/-. The claimants therefore filed claim petitions before the learned Tribunal for compensation in lieu of injuries sustained by them in the accident. 4- The opposite party Nos. 1 and 2, owner of the offending Indica Car bearing registration No. DL-2- CM- 3994, did not contest the claim petitions inspite of sufficient service, therefore the claim petitions were proceeded exparte against them. 5- However, the opposite party No.3, National Insurance Company have contested both the petitions by filing its written statement. The Insurance Company alleged that the petitions are bad for non-joinder of owner/insurer of the offending Scooter as necessary party, therefore, the petitions are liable to be dismissed. It further alleged that the driver of the Indica Car, involved in the accident was not having valid driving license and for that reason also the insurance company cannot be held liable to pay any compensation. It has 3 further been alleged that the exorbitant amount of compensation has been claimed on invalid grounds. 6- The learned Tribunal on the basis of pleadings of parties, framed necessary issues in the petitions. Thereafter, claimants adduced evidence in support of their cases. The Tribunal after hearing learned counsel for the parties and perusing the material available on record, dismissed both the claim petitions. 7- Feeling aggrieved the claimants have preferred these appeals before this Court. 8- Heard learned counsel for the appellants as well as learned counsel for the respondent/insurance company and perused the record. 9- Learned counsel for the appellants has submitted that the Tribunal has failed to consider this fact that the accident took place due to rash and negligent driving of the driver of Indica Car bearing registration No. D.L. 2CM-3994, and the petitions have wrongly been dismissed. 10- On the other hand learned counsel for the insurance company/respondent No.3 has opposed the above submission of learned counsel for the appellants/claimants and alleged that the claimants have not been successful in establishing the rash and negligence on the part of driver of Indica Car No. DL- 2CM-3994, therefore, learned Tribunal has rightly dismissed both the petitions. 11- From perusal of impugned judgment and orders passed by the Tribunal it reveals that the 4 Tribunal has framed issue No.1 on the point of rash and negligence of the driver of Indica Car involved in the accident. The burden to prove this issue was upon the claimant/appellants, but they have failed to discharge their burden. The claimants Ali Hasan and Mohd. Alam have examined themselves in their respective claim petitions as P.W.1 and have deposed that the driver of Indica Car in order to save the buffalo came on wrong side and dashed the scooter in a rash and negligent manner, due to which accident took place. According to them they were riding in the Scooter at the time of accident, but the aforesaid deposition is contradictory to the facts mentioned in the F.I.R. lodged at P.S. Kashipur by Afsar Ali and Gopal Chaudhary. In the F.I.R. it has been mentioned that when the claimants were going in Scooter No. U.P. 2-B-8130 the Indica Car dashed with it in order to save the buffalo on the road and the driver of the said Indica Car has no negligence in the accident and they do not want to take any action in the matter as compromise has arrived between the parties. In the cross-examination these witnesses have alleged that after compromise the Car owner has died and they did not receive the compromise money, therefore, they have filed the claim petitions. The above statement is also self- contradictory. The petitions have been filed against owner of the Indica Car Sri Gopal Chaudhary himself and he has died after filing of the claim petitions. In the aforesaid facts and circumstances of the case, the learned Tribunal has recorded a finding that the accident has occurred suddenly and the Indica Car driver had no negligence in causing the accident. Accordingly, both the claim petitions were dismissed. I do not find any illegality in the finding recorded by the learned Tribunal, thereby, dismissing the claim petitions. 5 12- For the discussion made above, the appeals lack merit and are liable to be dismissed. 13- Accordingly, both the appeals are dismissed. The impugned judgment and orders dated 19-9-2006 are hereby confirmed. 14- Let a copy of this judgment be placed in the file of A.O. No. 848/2006. (B.C. Kandpal, J.) ISB 6