Reference No. 687 of 2008 In A.O. No. 581 of 2005 Hon’ble Rajesh Tandon, J. Presiding Officer has filed this reference seeking time for deciding the matter in pursuance of the judgment of this Court dated 9th August, 2007. Presiding Officer is directed to decide the aforesaid matter expeditiously. Aforesaid reference is disposed of. (Rajesh Tandon, J.) 23.6.2008 Rathour 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. 581 of 2005 National Insurance Co. Ltd. Vs. Pramod Kumar Chabra Approved for reporting Not approved for reporting Date of Decision: - 09.08.2007 Initial of Judge: HIGH COURT OF UTTARAKHAND AT NAINITAL A.O. No. 581 OF 2005 National Insurance Company Limited, Through its Divisional Manager, Divisional Office, Canal Road Haldwani, District-Nainital. …………Appellant. Vs. 1. Pramod Kumar Chabra, S/o Sri Harish Chandra, 2. Smt. Lakki Chabra, W/o Pramod Kumar Chabra, Both R/o Village- Malsa Giradhpur, Tehsil Kichha, Thana-Rudrapur, District-Udham Singh Nagar. 3. Sri Narendra Singh, S/o Sri Suren Singh R/o Khalda, District-Amratsar, Punjab, 4. Balvinder Singh S/o Lakhvir Singh, R/o Village Kale, Thana Vikkhi Band, District-Amratsar, Punjab. ………..Respondents. Dated: 9.8.2007 Hon’ble Rajesh Tandon, J. Heard Sri D.S. Patni, counsel for the appellant and Sri G.C. Kandpal, counsel for the respondents. 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 30.6.2004 passed by the Motor Accident Claims Tribunal/Addl. District Judge, Udham Singh Nagar in M.A.C.P. No. 9 of 2000 Pramod Kumar Chhavra and antoehr Vs. Sri Narendra Sing and others whereby a sum of Rs. 82,000/- has been awarded to the claimants along with interest @ 5% per annum. 3. Briefly stated, a claim petition was filed by the claimants-respondents no. 1 and 2 being M.A.C.P. No.9 of 2000 Pramod Kumar Chhavra and antoehr Vs. Sri Narendra Singh and others claiming a sum of Rs. 7,00,000/- towards compensation. 4. According to the claimants, on 12.11.1999 at about 2.30 Ankit Chhavra (hereinafter referred to as the deceased) was coming to his Village Girdharpur along with the claimants, as soon as he come down from the Matador and Matador went at some distance, all of a sudden, a Truck No. P.B. 02C/9935, which was coming from the Rudrapur-side and being driven by its driver rashly and negligently crushed the deceased and he died on the spot. At the time of accident, the deceased was only 7 years of age. 5. Opposite party No.3-owner of the vehicle in question has filed the written statement, wherein it has been stated that the accident had occurred due to own fault of the deceased and the driver was driving the vehicle in question in a moderate speed and was going by his side. It has further been sated that at the time of accident, the vehicle in question was having valid Registration, Fitness and Insurance and the driving licence of the driver was valid at the time of accident. 6. Opposite Party No.3- National Insurance Company has filed a written statement, wherein it has been stated that the Company never received any information from the claimant and insured regarding the occurrence and the amount claimed towards compensation is excessive. It has further been stated that the accident had occurred due to own fault of the deceased, therefore, the Insurance Company is not liable to pay any compensation. In the additional pleas, it has been stated that at the time of accident, the driver of the vehicle in question was not holding valid driving licence and vehicle in question was not having valid permit and registration certificate. Therefore, the Insurance Company is not liable to pay any compensation. 7. Opposite party did not contest the case by filing written statement, therefore, the proceedings proceeded ex parte against him. 8. On the pleadings of the parties, the claims tribunal has framed following issues: “1. Whether the deceased Ankit Chhavra had died on 12.11.1999, due to rash and negligent driving of the driver of Vehicle No. P.B. 02c/9935, which crushed him, if yes, its effect? 2. Whether at the time of accident, the driver of the vehicle in question was not holding valid driving licence? if yes, effect? 3. Whether the claimants are entitled to get compensation? 9. On behalf of the claimants, Sri Pramod Chhavra, Smt. Lakki Chhavra and one Prem Lal Chhavra have been examined as P.W.1, P.W.2 and P.W.3. respectively. Towards documents evidence, First Information Report, Death Certificate, Driving Licence of driver - Balvinder Singh 10. On behalf of the Opposite parties, Narendra Singh has produced copy of the Registration Certified and Photostat copy of the Insurance Policy of the Vehicle in question. 11. While deciding the Issue No. 1 as to whether the deceased Ankit Chhavra had died on 12.11.1999, due to rash and negligent driving of the driver of Vehicle No. P.B. 02c/9935, which crushed him, the claims tribunal has relied upon the statement of P.W.1, P.W.2 and P.W.3 and paper No. 6Ga/3 to 6Ga/4 First Information Report P.W.2.-Lakki Chhavra is the ocular witness, she has stated that on the date of accident, the Truck No. P.B. 02/C 9935 was being driven rashly and negligently, which crushed his son and he died on the spot. P.W.3 has supported the story narrated by the P.W.2 and has stated that he had lodged the First Information Report at P.S. Rudrapur. This, reply upon the aforesaid statement and documents, the claims tribunal has recorded a finding that on 12.11.1999, the vehicle No. P.B. 02c/995 crushed the deceased Ankit Chhavra due to rash and negligent driving of its driver. This Issue has been decided accordingly. I find no infirmity with the impugned finding while deciding the aforesaid issue. 12. While deciding the Issue No. 2 as to whether at the time of accident, the driver of the vehicle in question was not holding valid driving licence, the claims tribunal has relied upon the Driving Licence of Balvinder Singh –Paper No. 53Ga/2, which shows that the same was valid up to 16.2.2002 and the same has not been rebutted by the opposite parties. Thus, the claims tribunal has recorded a finding that at the time of accident, the driver of the vehicle in question was holding valid driving licence. Aforesaid finding is hereby confirmed. 13. While deciding the Issue No.3 as to whether the claimants are entitled to get compensation, claims tribunal has recorded a finding that since the deceased was a good student and there were many expectations with him and due to his death, there would have been mental and physical agony to the family, therefore, a sum of Rs. 80,000/- will be sufficient towards compensation. Apart from that the claims tribunal has awarded a sum of Rs. 2,000/- towards funeral expenses. Thus, a total sum of Rs. 82,000/- has been awarded to the claimants towards compensation. 14. Counsel for the appellant has submitted that at the time of accident, the driver of the vehicle in question was not holding a valid and effective driving licence and as such no liability of payment of compensation can be fastened upon the Insurance Company. Further, it has been stated that the claims tribunal concerned has not considered the report of the Surveyor of the Insurance Company Mr. Swaran Pal Singh, who has stated in his report that the driving licence of Balvinder Singh, which is present on the record was fake and therefore, the liability to pay compensation can only be fastened upon the owner-insured. 15. In view of the submission of the counsel for the appellant since the claims tribunal has not considered the report of the Surveyor of the Insurance Company regarding genuineness of the licence, therefore, the matter deserves to be remanded to the claims tribunal concerned for deciding the issue No. 2 after taking into consideration the report of the Surveyor of the Insurance Company. 16. Thus, the matter is sent back to the claims tribunal concerned for deciding the Issue No.2 after taking into consideration the report of the Surveyor of the Insurance Company within a period of four months form the date of receipt of the certified copy of the order. The claimant is exonerated form appearance before the claims tribunal concerned. Amount, if any, deposited in the court shall be transmitted to the claims tribunal concerned for its disbursement. 17. Consequently, Appeal is allowed. No order as to costs. (Rajesh Tandon, J.) 9.8.2007 Rathour