IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL A.O. No. 868/2006 New India Assurance Company Ltd. .. Appellant. Versus Sri Surjeet Singh and others .. Respondents. With A.O. No. 188/2007 Sri Surjeet Singh .. Appellant. Versus Sri Sanjha Singh and others .. Respondents. Mr. T.A. Khan, learned counsel for New India Assurance Company. Mr. Lalit Sharma, learned counsel for claimant. Mr. G.C. Lakhchaura, learned counsel for owner of the offending vehicle. Dated: 20-10-2008 Hon’ble B.C. Kandpal, J. The above appeals arise out of the same judgment and award dated 21-9-2006, passed by Motor Accident Claims Tribunal/District Judge, Udham Singh Nagar, in MACT Case No. 90/2000, Surjeet Singh Vs. Sanjha Singh and others, therefore, they are being decided by this common judgment. 2- Brief facts of the case are that on 20-11-98, at about 9.30 A.M., when the claimant Surjeet Singh was standing on the rough part of the bypass road near his house, the Tractor Mahendra D.I. U.P. 02-7712 came there at a high speed and dashed the claimant and climbed the tractor over his right leg, due to which he sustained grievous injuries. He was carried to Community Health Center, Bajpur in injured condition. Thereafter he was shifted to Sirohi Hospital, where he received treatment. At last the right leg of the claimant was to be amputated from above the knee. Now he is fitted with artificial leg. According to the claimant he has become permanently disabled. He, therefore, filed claim petition for a sum of Rs. Twelve lacs. 3- The opposite party Nos. 1 and 2, driver and owner of the offending tractor No. D.I.- U.P. 02-7712, filed joint written statement and denied the allegations made in the claim petition. They alleged that the tractor did not occur the accident. The tractor was insured with New India Assurance Company and they are not liable to pay the compensation. 4- The opposite party No.3, New India Assurance Company also contested the claim petition and alleged that the offending tractor was not having valid documents and its driver was also not possessing valid driving license and the petition is liable to be dismissed. 5- On the pleadings of parties, the Tribunal framed the following issues in the claim petition:- 1. Whether on 20-11-1998, at about 9.30 A.M. the accident was occurred, near Village Gajrola, within the P.S. Bajpur, District Udham Singh Nagar, due to the rash and negligence of the driver of Tractor Mahendra D.I.-U.P. 02-7712, in which the claimant Surjeet Singh sustained grievous injuries? If so, its effect?. 2. Whether on the date of accident the driver of the tractor was not possessing valid driving license? If so, its effect?. 3. Whether the claimant is entitled to get any compensation? If so, how much and from whom?. 6- The claimant in support of his claim filed the affidavits of Surjeet Singh (claimant), P.W.1, Bariyam Singh, P.W.2, Resham Singh, P.W.3, and Ramesh Singh as P.W.4. The opposite party No.1, produced Chandra Pal Singh Tomar as D.W.1. Parties also filed documentary evidence. 7- The learned Tribunal, after hearing learned counsel for the parties and considering the evidence on record, awarded a sum of Rs. 1,63,527/- as compensation, against the New India Assurance Company, along with interest @ 5% per annum from the date of filing the petition till the date of actual payment. The Tribunal also held that the driver of the tractor was not having valid driving license therefore the Insurance Company will be free to recover the amount of compensation from the owner of the offending tractor. 8- Feeling aggrieved the New India Assurance Company has filed the A.O. no. 868/2006 for setting aside the award, whereas the claimant Surjeet Singh has preferred A.O. No. 188/2007 for enhancement. 9- Heard learned counsel for the parties and perused the record. 10- Learned counsel for the New India Assurance Company has submitted that the claimant sustained injuries in some other accident and he has filed the false and fabricated claim. He also submitted that the Tribunal has committed manifest error in decreeing the claim against the Insurance Company as the driver of the offending tractor was not having driving license. 11- The learned counsel for the claimant has submitted that the learned Tribunal has awarded a meager amount of compensation. The notional income assessed by the tribunal is on lesser side and the same should be enhanced. 12- So far as the factum of accident is concerned, the injured Surjeet Singh has filed his affidavit and deposed that Sanjha Singh was driving the tractor at the time of accident and he dashed him with the tractor due to which he sustained grievous injuries. P.W.2, Bariyam Singh has lodged the F.I.R. of the accident on 28-12- 1998. P.W.3 Resham Singh and P.W.4, Ramesh Singh also deposed that Sanjha Singh dashed Surjeet Singh by Mahindra Tractor D.I. U.P. 02-7712 due to which he sustained grievous injuries. P.W.4, Ramesh Singh in the cross-examination has alleged that he himself had seen the accident. These witnesses had brought the injured to the Hospital from the place of accident. There is no reason against these witnesses as to why they will falsely depose against the offending tractor. Copy of F.I.R. paper No. 7-C/13 filed on record has the recital that Sanjha Singh had dashed the offending tractor with the injured on 20-11-1998. The opposite parties produced D.W.1 Chandra Pal Singh Tomar. This witness has deposed that according to the records available at P.S. Bajpur on 28- 12-98 no case was got registered there. This statement of D.W.1, does not create any doubt, so far as the factum of the accident is concerned. According to the F.I.R. Surjeet Singh was treated at Delhi on 6.5.99 and thereafter the F.I.R. was lodged at the Police Station whereas in the F.I.R. the date has been mentioned as 28.12.98. This can be a typing mistake. The learned Tribunal has recorded a categorical finding that the eye witnesses have clearly deposed that the driver of offending tractor caused the accident in which Surjeet Singh sustained grievous injuries. On behalf of the opposite parties no cogent and reliable evidence has been adduced to show that the accident has been shown by fabricating false and concocted story. Therefore, in view of the material available on record, the learned Tribunal has drawn a justified conclusion and has held that the driver of Tractor Mahindra D.I. U.P.-02- 7712 caused the accident by rash and negligence driving in which Surjeet Singh sustained grievous injuries. I do not find any ground to interfere in the above conclusion of the learned tribunal. 13- From perusal of record it reveals that no driving license was produced before the learned tribunal in order to show that the driver at the time of accident was possessing valid driving license. Therefore, the tractor was being plied against the terms of insurance policy. At the same time the Tribunal has held that the insurance company cannot be exonerated with its liability to pay the compensation and the insurer will be entitled to recover the amount of compensation from the owner of the offending tractor for this breach. 14- As far as the quantum of compensation is concerned, the claimant has filed paper No. 19-C/11, which is the disability certificate, issued by Chief Medical Officer, showing 60% disability. The claimant at the time of accident has shown his age as 26 years. He has shown his monthly income of Rs. 5,000/- from agriculture and flour mill, but no cogent and reliable evidence has been adduced. Therefore, the Tribunal has assessed the loss on the notional income of Rs. 18,00/- per month and after deducting 1/3rd towards personal expenses, it comes to Rs. 1,200/- per month. The injured suffered permanent disability upto an extent of 60% therefore, the annual loss comes to Rs. 8,640/-. The accident has occurred in the year of 1998, hence, the notional income assessed by the Tribunal cannot be said to be on lesser side. The Tribunal has adopted the multiplier of 16 at the age of 26 years and the same does not require any interference by this Court. Therefore, the loss of income due to disability has been assessed as Rs. 1,38,240/-, which does not require interference by this Court. The tribunal also awarded a sum of Rs. 20,287/- towards medical expenses. The claimant has filed the bills to the tune of above amount, therefore, the amount awarded towards medical expenses by the tribunal is quite reasonable. Besides above, the tribunal also awarded a sum of Rs. 5,000/- towards pain and suffering due to the injuries sustained by the injured/claimant. In my opinion the tribunal has awarded a reasonable amount under this head. In this way the total amount comes to Rs. 1,38,240/- + 20,287/- + 5,000/-= Rs. 1,63,527/-. I do not find any ground to enhance the amount of compensation. Therefore, the appeal filed by the claimant for enhancement has no substance and the same is liable to be dismissed. 15- As stated in the earlier part of the judgment, the driver and the owner of the offending tractor, have not filed driving license in order to establish this fact that the driver at the time of accident was having valid driving license, therefore, the tribunal has rightly given the recovery right to the insurance company against the owner of the vehicle. This fact is established on record that the tractor involved in the accident was insured with New India Assurance Company, therefore, the tribunal was justified in directing the insurance company to satisfy the award first and it may recover the same from the owner of the offending vehicle. The appeal filed by the insurance company also does not bear any force and the same is liable to be dismissed. 16- Accordingly, both the appeals are dismissed. The impugned judgment and award dated 21-9-2006 passed by the Tribunal, is hereby confirmed. 17- The statutory amount deposited before this court, be remitted to the tribunal concerned. 18- Let a copy of this order be placed in the file of A.O. No. 188/2007. (B.C. Kandpal, J.) ISB