IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL A.O. No. 316 of 2006 Smt. Bhajjo Devi and another ……. Appellants. Versus Oriental Insurance Company Ltd and two others ……..Respondents. Mr. B.P. Nautiyal, Advocate for the appellants. Mr. M.K. Goel, Advocate for the respondent No. 1. None has appeared on behalf of respondent Nos. 2 and 3. Dated: 6-5-2008 Hon’ble B.C. Kandpal, J. This appeal, under Section 173 of the Motor Vehicles Act 1988, has been preferred against the judgment and award dated 21-3-2006, passed by Motor Accident Claims Tribunal/District Judge, Dehradun, in MACT Case No. 50 of 2005. 2- Brief facts of the case, giving rise to this appeal, are that Bhagat Singh sustained injuries in a motor accident which took place on 4-3-2005 at about 4.30 P.M. near Guru Kripa Hotel situated on Chakrata- Vikasnagar Road, resulting into his death on 6-3-2005 in way to Chandigarh. According to the claimants the deceased was a mason as well as agriculturist earning Rs. 5,000/- per month and he was aged about 45 years at the time accident. 3- Opposite Party Nos. 1 and 2, owner and driver of the offending bus bearing registration No. UA-07F- 3385 filed joint written statement on the ground interalia that the accident did not take place due to the rashness of the bus but it occurred due to the own negligence of the deceased. According to them at the time of accident the deceased was in drunken state and inspite of protest by the passengers of the bus he tried to board the bus from the rear door and lost balance, fell down on the road and sustained injuries. It was also pleaded that the Bus was insured with Oriental Insurance Company and its driver was having valid driving license. 4- The Opposite Party No3, also contested the claim by filing its written statement and denied the contents of the claim petition. The Insurance Company also alleged that the driver of the offending bus was not having valid driving license, therefore, the insurer cannot be held liable to pay compensation. 5- The learned Tribunal, on the basis of pleadings of parties, framed relevant issues in the petition. The claimants to prove their case, adduced oral as well as documentary evidence. The opposite parties did not adduce any evidence in support of their contentions. 6- The learned Tribunal, after hearing learned counsel for parties and considering the material on record, allowed the claim for a sum of Rs. 57,000/- against the Oriental Insurance Company, along with interest @ 6% per annum from the date of petition, i.e. 17.3.2005 till the date of payment and cost of Rs. 2,000/-. 7- Feeling aggrieved the claimants have preferred this appeal before this Court for enhancement. 8- I have heard learned counsel for the parties and perused the record. 9- Learned counsel for the appellants has submitted before me that the Tribunal committed gross illegality in rejecting the claim of the claimants under the provision of Section 166 of the Motor Vehicles Act. He further contended that the Tribunal also committed illegality in passing the impugned award as he failed to consider the material and un-controverted evidence adduced by the claimants in support of the their contention in respect of the manner in which the accident has occurred and the income of the deceased and as such the award is liable to be quashed. 10- On the other hand learned counsel appearing on behalf of the Oriental Insurance Company has opposed the submissions of the learned counsel for the claimants/appellants and submitted that the deceased at the time of accident was in drunken state and he himself dashed with the offending bus from rear side and sustained injuries, therefore, the Tribunal was quite justified in holding the sole negligence on the part of the deceased and thereby not awarding compensation under Section 166 of the Motor Vehicles Act. 11- I have considered the rival submissions of the learned counsel for the parties and perused the material on record. The Tribunal has framed issue Nos. 1 and 2 on the point of negligence. The learned Tribunal recorded a finding that the claimants failed to prove the negligence or rashness of the driver of the bus and similarly the opposite parties also did not discharge the burden to prove the plea taken in written statement that at the spot the deceased tried to board the bus from rear side in a running position and while trying to catch up the rear window of the bus he lost his balance and fell on the road. The tribunal took note of the first information report as well as the discharge summary form that the accident took place on the mattled portion of the road and at the time of accident the deceased was in inebriated condition. The Tribunal, therefore , awarded the compensation under the provision of Section 140 of the M.V. Act under the head of ‘no fault liability’. 12- The sole controversy in this appeal is as to whether the accident had occurred due to own negligence of the deceased or the drive of the offending also contributed his negligence in the said accident or not? 13- The claimants to prove their case have produced three witnesses before the Tribunal. P.W.1. Smt. Bhajjo Devi is the window of deceased Bhagat Singh. She is not an eye witness of the occurrence. P.W.2, Kamal Singh, is also resident of the village of deceased. According to this witness on 4.3.2005 at about 4.30 P.M. he was purchasing articles from the shop of Kashmiri Lal which is situated on the left side of Guru Kripa Complex and all of a sudden, he heard the noise and then he saw that so many persons have assembled there at the place from where noise was coming and then he saw that the injured was his co-villager. This witness has further deposed that the vehicle which caused accident was of white colour and had already gone from the place but the persons present there told him the registration number of the vehicle. From perusal of the above statement of this witness it shows that when the accident took place he was busy in purchasing items in a nearby shop and the accident took place at the backside. When this witness heard noise then he paid attention towards the place of accident and saw that co-villager was in injurned condition. From the entire evidence of this witness gives the impression that he did not see the actual accident, therefore no inference could be drawn from the evidence of P.W.2, that the accident took place on account of rashness and negligence of the driver of the bus. Had the accident been occurred due to the negligence of the driver of the bus the people assembled at the place of accident could not have let the driver go away from that place so easily. P.W.3, Diwan Singh is also not an eye witness of the accident. He has clearly said that he had not seen the accident and has lodged the F.I.R. on the basis of information given to him by Kamal Singh. The claimants have not produced eye witness of the accident in support of their claim. It has come in evidence that at the place of occurrence so many people have assembled and the accident had occurred near Guru Kripa Complex where the vehicle has stopped and some passengers also got down from the said bus. The Claimants could have easily produced eye witness of the accident but they failed to do so. Thus, the claimants have not been able to establish this fact that the accident had occurred to rash and negligence of the bus driver. 14- Perusal of the chick F.I.R. brought on record, shows that the accident had taken place on the mattled portion of the road. The allegation of the opposite parties is that the deceased was in inebriated condition and inspite of protest by passengers of the bus he tried to board the bus from rear side in a running state and while he tried to catch up the rear window of the bus, he lost balance and himself fell down on the road. Discharge summary form paper No. 13-B issued from Herbertpur Christain Hospital Herbertpur, Dehradun has been filed on record. The Doctor has clearly mentioned in the said form that the deceased Bhagat Singh was in an inebriated condition. Therefore, in the aforesaid facts and circumstances of the case it is quite clear that the deceased was under the pressure of alcohol in the day time. This possibility cannot be ruled out that the deceased in drunken state tried to board the bus from rear side in running position inspite of the protest by the passengers, and he himself fell on the mattled portion of the road and sustained injuries. This fact is also mentioned in the chick F.I.R. that the accident has occurred on mettled portion of the road. In the aforesaid facts and circumstances of the case, the driver of the offending bus has rightly not been held liable for contributory negligence by the learned Tribunal. The owner, driver and insurer of a vehicle cannot be held liable to pay compensation in cases where the persons met with accident with their sole negligence. I am in full agreement with the finding recorded by the Tribunal and accordingly hold that the deceased had sustained injuries due to his own negligence and the driver of the offending vehicle was not negligent at all in the said accident. The point is decided accordingly. 15- The learned Tribunal has awarded Rs. 50,000/- under the head of ‘no fault liability’ and further awarded Rs. 2,000/- towards funeral expenses and Rs. 5,000/- for loss of consortium. Interest @ 6% per annum has also been awarded from the dated of filing the petition till the date of actual payment. The Tribunal also awarded Rs. 2,000/- towards cost of litigation. I do not find any ground to interfere with the impugned judgment and award. 16- The appeal lacks merit and is liable to be dismissed. 17- Accordingly, the appeal is dismissed. The impugned judgment and award dated 21-3-2006 is confirmed. (B.C. Kandpal, J.) ISB