HIGH COURT OF UTTARAKHAND AT NAINITAL (Court’s order whether the case is or not approved for reporting) Description of the case A.O. No. 66 of 2007 Mohan Singh Vs. Oriental Insurance Co. and another Approved for reporting. Date of Decision:- 26-02-2008 Initial of Judge ....................... ........................ ........................ HIGH COURT OF UTTARAKHAND AT NAINITAL A.O. NO. 66 OF 2007 Mohan Singh, S/o Sri Puran Singh, R/o Buwakhal, Patti Paidulswe, District Pauri Garhwal. ..Appellant/Claimant. Versus 1. Oriental Insurance Co. Ltd., Through its Divisional manager, Divisional Office, Garhwal University Campus, District – Pauri Garhawal. 2. Smt. Surama Devi, W/o Sri Dalveer Singh, R/o Khandusain, Patti Idwalswe, District Pauri, Owner Truck No. U.P. 06/931. .............Respondents. 26.2.2008 Hon’ble Rajesh Tandon, J. Heard Sri M.C. Kandpal, Sr. Advocate, assisted by Sri S.S. Chaudhary, counsel for the appellant and Sri D.S. Patni, counsel for the respondent. 2. By the present A.O. filed under Section 173 of the Motor Vehicles Act, 1988, appellant has prayed for setting aside the award dated 27.11.2006 passed by the Motor accident Claim Petition No. 124 of 2004 Mohan Singh Vs. Oriental Insurance Co. Ltd. Others, whereby the claim petition of the claimant has been rejected. 3. Briefly stated, a claim petition was filed by the claimant / appellant being Motor Accident Claim Petition No. 124 of 2004 Mohan Singh Vs. Oriental Insurance Co. Ltd. & Others under Section 166/140 of the Motor Vehicles Act claiming a compensation on the ground that he got injured in the accident, which was taken place on 7th July, 2007. 4. According to the claimant, on 7.7.2002 he was carrying goods of his shop by Truck No. U.P. 06-931 and was going to Budhakhal. The truck in question was being driven rashly and negligently by its driver, it caused accident and fell down into a gorge and the claimant got grievously injured in the said accident. He was admitted at District Hospital, but he was advised to go for treatment to Combined Medical Institute, Dehradun. The claimant has stated that he has spent a sum of Rs. 80,000/- on his treatment and still there is hope of future expenses to the extent of Rs. 25,000/- on the treatment. The claimant used to earn a sum of Rs. 7000/- per month but on account of the injuries received in the accident, the claimant is not able to run the shop. According to the claimant, the truck in question belongs to Smt. Surma Devi and the same is insured with Oriental Insurance Company. 5. Insurer has filed a written statement stating therein that the claimant is not entitled for any relief from the Claims Tribunal inasmuch as the driver of the vehicle in question has not produced the Driving Licence and Fitness Certificate etc. The driver has not been made party in the claim petition and further the claimant was not a bonafide passenger in the truck in question. It has further been stated that at the time of accident, the driver of the truck in question was holding valid driving licence and the papers of the truck in question were not valid and effective. It has further been stated that there was no insurance of the truck in question and the truck in question was being driven in violation of the terms and conditions of the policy and the permit. 6. Owner of the truck has also contested the claim by filing a written statement stating therein that at the time of accident, the truck in question was insured with the Oriental Insurance Company for unlimited liabilities. It has further been stated that at the time of accident, the driver of the truck in question was not at fault, but due to some mechanical fault in the truck in question, the truck in question became disbalanced and accident took place. It has further been stated that at the time of accident, the driver of the truck in question was holding valid driving licence. 7. On the pleadings of the parties, the claims tribunal has framed following issues: “1 & D;k fnukad 7-7-2002 dks 9 cts jkf= LFkku ikSM+h dksV}kj eksVj ekxZ ij bZ0Vh0lh0 ds ikl okgu la0 ;w0ih0 06@931 esa tc e`rd d.MDVj ds :i esa dk;Z dj jgk Fkk rks pkyd }kjk okgu dks rsth o ykijokgh ls pyk dj nq?kZVuk gqbZ ftlds ifj.kkeLi:i eksgu flag dks xaHkhj pksVsa vkbZ\ 2& D;k nq?kZVuk ds fnukad dks mDr okgu chekd`r ugha Fkk\ 3& D;k nq?kZVuk ds fnu okgu pkyd ds ikl oS/k pkyd ykbZlsUl ugha Fkk\ 4& D;k nq?kZVuk ds fnu mDr okgu ijfeV dh 'krkZs ds fo:) pyk;k tk jgk Fkk\ 5& D;k ;kph mDr okgu esa ln~Hkkoh ;k=h ugha Fkk\ 6& D;k ;kph dksbZ izfrdj ikus dk vf/kdkjh gS ;fn gka rks fdruk o fdlds fo:)\ 8. On behalf of the claimant, he himself has been examined as P.W.1 Towards the documentary evidence, the claimant has filed copy of the First Information Report, Receipt of Purchase of Goods, Driving Licence and bills regarding treatment. 9. Insurer has filed two documents per List 34 Ga. Owner of the vehicle has filed per list 16 Ga four documents. Insurer has also filed written arguments 38 Ga. 10. While deciding the issues no. 1 to 5, finding was recorded that in the G.D., the name of the driver has been mentioned as Mohan Singh and therefore, the claims tribunal has concluded recording a finding that Mohan Singh himself was the driver of the vehicle in question and he had no valid driving licence and all the papers were valid and intact. Relevant portion of the finding is quoted below: “10- mijksDr foospuk ds vk/kkj ij ;g lkfcr gks tkrk gS fd nq?kZVuk ds le; iz’uxr Vªd dks Lo;a izkFkhZ eksguflag pyk jgk Fkk vkSj iqfyl dh th0Mh0 esa Hkh pkyd dk uke eksgu flag fy[kk x;k gSA iqfyl dks pkyd dk xyr uke fy[kus dk dksbZ vkSfpR; ugha FkkA izkFkhZ eksgu flag ds ikl oS| pkyd ykblsUl ugha Fkk] ;|fi okgu dk chek ijfeV lc oS| gS exy ykblsUl u gksus ds dkj.k fdlh ujsUnz flag uked O;fDr dks pkyd ds :i esa is’k fd;k x;k vkSj Lo;a dks crkSj eky Lokeh is’k djds {kfriwfrZ ikus ds fy;s ;g ;kfpdk nkf[ky dh xbZ] izkFkhZ ln~Hkkoh ;k=h Hkh ugha FkkA eky Lokeh gksus ds rF; ij xokgksa ds c;kuksa esa fojks/kkHkk"k gS rFkk nLrkosth lk{; ls Hkh eky Lokeh gksuk fl) ugha gSA pwafd ;g lkfcr gks x;k gS fd izkFkhZ Lo;a gh okgu pyk jgk Fkk vr% Lo;a dh ykijokgh ds fy;s pkyd @ izkFkhZ dksbZ izfrdj ikus dk vf/kdkjh ugha gSA Dyse fifVlu xyr rF;ksa ds vk/kkj ij nkf[ky dh x;h gSA ” 11. On the basis of the aforesaid finding, issue no.2 was decided against the appellant and the claim petition has been rejected. 12. In the statement of P.W.1, it has come that he was carrying goods in the truck and the truck was booked from Pauri According to the claimant / appellant and after the accident, the truck was transferred in the name of the father of the claimant. 13. On the other hand, Sri D.S. Patni, counsel for the respondent has submitted that the vehicle in question was being driven by Mohan Singh himself and no compensation, therefore, be given to him as there was no evidence of carrying goods and the vehicle was transferred in the name of the father of Mohan Singh, which was being driven in the direction of his father. 14. In view of the aforesaid rival arguments, matter requires re-consideration by the claims tribunal concerned to the following effect “1) Whether the vehicle was transferred in the name of the father of Mohan Singh when the accident took place? 2) Whether there is any evidence on record that Sri Mohan Singh was carrying goods of his master. 15. Apart from the aforesaid two points, all the points shall be decided as fresh by the claims tribunal after giving opportunity to the parties to adduce additional evidence. 16. Consequently, A.O. is allowed. No order as to costs. (Rajesh Tandon, J.) 26.2.2008 Rathour