IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Appeal From Order No. 456 of 2006 Smt. Kamla Devi & others …. Appellants. Versus Dr. Ishaq Khan & another .. Respondents. Mohd. Azim, on behalf of Sri B.S. Parihar, Advocate for appellants Sri Pankaj Purohit, Advocate for respondent no. 2 Dated: 30-6-2008 Hon’ble B.C. Kandpal, J. This appeal, under Section 173 of the Motor Vehicles Act, 1988, has been preferred against the judgment and order dated 03.05.2006 and decree dated 09.05.2006 passed by Motor Accident Claims Tribunal/1st A.D.J., Udham Singh Nagar in MACP No. 151 of 2004, Smt. Kamla Devi & others vs. Dr. Ishaq Khan & another. The claimants-Smt. Kamla Devi and others filed a claim petition before Claims Tribunal for grant of compensation on account of death of deceased-Ram Das in a motor vehicle accident. According to the claimants, on 30.01.2004 at about 9.00 p.m. deceased-Ram Das along with Sri Bihari Lal was coming from Rice Mills towards Bilaspur by a scooter. When they reached in front of Bansal Rice Mills, a Green Colour Santro Car No. DL-7CA/8679 driven by its driver rashly and negligently came from the side of Rudrapur and hit the scooter from front side, with the result deceased-Ram Das sustained injuries and died during treatment. The deceased at the time of accident was 30 years of age 2 and had been earning Rs.4000/- per month by working of labour contract in Rice Mills. The claimants claimed a sum of Rs.5,83,400/- along with interest, as compensation against the opposite parties. The opposite party no. 1-Dr. Ishaq Khan filed written statement admitting the factum of owner of vehicle in question-Santro Car No. DL-7C/A-8679, but denied rest of the contents of claim petition. He took additional plea that F.I.R. has been lodged against unknown vehicle. The alleged accident has not been caused due to Santro Car No. D.L.-7C/A- 8679. He has further pleaded that said vehicle- Santro Car was insured with United India Insurance Co. Ltd., which cover note no. was 0729548 and was valid with effect from 1.7.03 to 30.6.04. The registration certificate of vehicle and driving licence were also valid at the time of accident. Therefore, opposite party no. 1 is not liable to pay any compensation. The opposite party no. 2-United India Insurance Co. Ltd. filed written statement denying the contents of the claim petition. It took additional plea that claim petition was not maintainable as certified valid registration, pollution control certificate, valid insurance policy, valid driving licence of driver, F.I.R., charge sheet, post mortem report etc. were not filed under the provisions of M.V. Act and Civil Procedure Code. The claim petition was also bad for non-joinder of owner of scooter in question and insurance company and claim petition was also not maintainable as driver of scooter in question was not having valid driving 3 licence. It has further pleaded that Santro Car was wrongly made party by mentioning its colour as green, whereas it was mentioned on the basis of report of police and statements that collision was caused by Maruti Car of white colour. It has also pleaded that it was not given any information with regard to alleged accident. Thus, the claim petition has been filed by claimants on wrong and baseless grounds and same is liable to be dismissed. The learned Tribunal on the basis of pleadings of parties framed following issues in the claim petition: (i) Whether the accident occurred on 30.1.2004 at about 9.00 p.m. at Rudrapur-Kashipur road, in front of Bansal Rice Mills, P.S. Rudrapur due to rash and negligent of driver of Santro Car No. DL 7C/A-8679 due to collision with scooter of deceased by Santro Car being driven by its driver rashly and negligently and deceased-Ram Das succumbed to injuries sustained in the accident? (ii) Whether on the date and time of accident in question Santro Car No. DL 7C/A-8679 was insured with opposite party no. 2? (iii) Whether on the date and time of accident in question driver of Santro Car No. DL 7C/A-8679 was having valid and effective driving licence? (iv) Whether claim petition is bad for non- joinder of necessary parties? 4 (v) Whether claimants are entitled to get any compensation? If yes, what amount of compensation and from whom? Parties led evidence in support of their cases. The learned Tribunal after having considered the entire material available on record and hearing learned counsel for the parties dismissed the claim petition vide judgment and award dated 3.5.2006. Feeling aggrieved by the aforesaid impugned judgment and award the appellants–claimants have preferred the appeal before this Court. Heard Mohd. Azim, Advocate, on behalf of Sri B.S. Parihar, learned counsel for appellants- claimants, Sri Pankaj Purohit, learned counsel for respondent no. 2-insurance company and perused the record. While deciding issue no. 1 the Tribunal on the basis of evidence adduced by opposite parties held that the vehicle in question i.e. Santro Car No. D.L.7C-A-8679 was not involved in the accident. Thus, the claimants have not been able to prove this fact that said accident was caused due to collision with scooter of deceased by Santro Car No. DL- 7C/A-8679 being driven by its driver rashly and negligently. I do not find any illegality in the finding recorded by the Tribunal in this regard. As far as issue no. 2 with regard to insurance of said Santro Car on the date and time of accident is concerned, the record reveals that policy paper no. 12C/3 of Santro Car No. DL-7C/A-8679 is 5 available on record which establishes that on the date of accident vehicle in question i.e. Santro Car was insured with opposite party no. 2-United India Insurance Co. Ltd. during the course of arguments, no such argument was raised by counsel for opposite party no. 2-insurance company before the Tribunal which may suggest that vehicle in question was not insured with United India Insurance Co. Ltd. The Tribunal decided this issue accordingly. I do not find any illegality in the finding recorded by the Tribunal in this regard. As far as issue no. 3 with regard to valid and effective driving licence of driver of Santro Car No. DL-7C/A 8679 at the time of accident is concerned, paper no. 12C/4 is available on record which is driving licence of driver of vehicle in question. The driver of car in question-Kamaluddin was produced as a witness DW-3 by the opposite parties who proved the fact of driving licence in his deposition. The Tribunal held that driver of Santro Car No. DL- 7C/A-8679 was having valid and effective driving licence at the time of accident. The finding recorded by the tribunal in this regard is perfectly justified and needs no interference. As far as issue no. 4 is concerned, the counsel for opposite parties contented before the Tribunal that owner and insurer of scooter in question, to which the deceased was driving, were not made party in the claim petition. As per the claim petition, the accident was a head-on collision. The claimants have not disclosed this fact in the claim petition as to who was the owner of the scooter, to which the deceased was driving. PW-2 Kamla Devi admitted 6 this fact that scooter was registered in the name of her husband and she did not have remembered the number of scooter and she did not made party to insurer of scooter and her husband was having valid and effective driving licence. The claimant- Smt. Kamla Devi did not file any certificate with regard to income of her husband. Thus, it is proved that scooter was being plied by deceased who was the owner of scooter, but no documents relating to registration certificate etc. were filed on record by the claimants. The Tribunal held that in case, if this argument is accepted that scooter in question was registered in the name of deceased, then in such situation deceased-owner/driver of scooter cannot be made party. As far as question of making the party of insurer of scooter in question is concerned, PW-1 Smt. Kamla Devi admitted the fact of non- making the insurer of scooter as party. The Tribunal held that since the accident was head-on collision, therefore, insurer of scooter was necessary party and thus the said claim petition is bad for non- joinder of insurer party as necessary party. I do not find any illegality in the finding recorded by the Tribunal in this regard. As far as issue no. 5 with regard to entitlement of award of amount of compensation is concerned, it has already been decided in issue no. 1 that said accident did not take place due to rash and negligence of driver of Santro Car No. DL-7C/A- 8679. As per police investigation, the said accident was caused by unknown vehicle of white colour. The claimants did not produce driving licence of deceased-Ram Das which proves that deceased was not plying the scooter authorized at the time of 7 accident. The Tribunal on the basis of evidence available on record held that deceased was not having valid and effective driving licence at the time of accident. The Tribunal also held that it is not proved that accident was caused due to rash and negligence of driver of Santro Car No. DL-7C/A- 8679 and therefore claimants are not entitled to get any compensation against the opposite parties. I do not find any illegality in the finding recorded by the Tribunal in this regard. For the reasons stated above, the appeal lacks merit and is liable to be dismissed. Accordingly, the appeal is dismissed. The impugned judgment and award dated 3.5.2006 is confirmed. (B.C. Kandpal, J.) SP