IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Appeal Against Order No. 66 of 2008 Bharat Heavy Electricals Ltd. … Appellant Vs National Insurance Company Ltd. & another … Respondents Sri Rakesh Thapiyal, learned counsel for the appellant Sri D.S. Patni, learned counsel for the respondent No. 1 Hon’ble B.C. Kandpal, J. (Oral) This appeal under Section 173 of the Motor Vehicles Act, 1988 has been filed by the appellant/owner of the offending vehicle against the judgment and award dated 04.01.2007 passed by Motor Accident Claim Tribunal/District Judge, Haridwar in Motor Accident Claim Case No. 94 of 199, Munney Singh Vs BHEL & others. 2. Brief facts of the case are that on 02.02.1999, the daughter of the claimant – Munney Singh was standing outside the house. Suddenly, a truck bearing registration No. UP10A/1350, which was being driven by its driver in a very rash and negligent manner, hit the daughter of the claimant – Km. Puja, which he died at the spot. The truck in question was being plied under the Bharat Heavy Electrical Ltd. At the time of the accident, Km. Puja was 3 years of age. Hence, an amount of Rs. 3,10,000/- was claimed as compensation. 3. Thereafter, notices were issued to the opposite parties. The opposite parties No. 1 and 2 contested the claim petition by filing their separate written statement before the Tribunal denying the allegation made in the claim petition and it has also alleged that the amount of compensation claimed by the claimant is on the higher side. 2 4. The opposite party No. 3 – Rajpal also contested the claim petition on the ground that the vehicle in question was being plied under the supervision of BHEL and which was being driven by opposite parties No. 1 and 2. It has also alleged that the accident took place on account of the mistake of Km. Puja (daughter of the claimant). 5. The opposite party No. 4 – National Insurance Company Ltd. also contested the claim petition by filing its written statement before the Tribunal alleging therein that the vehicle in question was being plied without having papers pertaining to the vehicle in question. Therefore, the insurer of the vehicle is not liable to pay any compensation. 6. On the basis of the pleadings of the parties, the Tribunal has framed relevant issues in the claim petition. Thereafter, both the parties led evidence in support of their cases. After hearing learned counsel for the parties and perusing the entire material available on record, the Tribunal decreed the claim petition for a sum of Rs. 1,00,000/- vide judgment and award dated 04.01.2007. The Tribunal further directed that the amount so awarded shall be paid by the Insurance Company to the claimant, but the Insurance Company will have a recoverable right from the owner of the offending vehicle. 7. Feeling aggrieved by the aforesaid judgment and award, the appellant/owner of the vehicle has preferred this appeal before this Court. 8. Heard Sri Rakesh Thapiyal, learned counsel for the appellant, Sri D.S. Patni, learned counsel for the respondent No. 1 and perused the record. 3 9. Learned counsel for the appellant has submitted that the Tribunal has committed error while giving the recoverable to the Insurance Company only on the ground that the accident took place on account of rash and negligent driving of the driver. As the appeal has been preferred by the appellant/owner of the offending vehicle against the recoverable rights given against him, therefore, the only point to be discussed in this appeal is as to whether the recoverable rights given against the appellant can be held to be justified or not. 10. In order to resolve the sole controversy, I have gone through the record. From the perusal of the impugned judgment, it reveals that the Insurance Company has not objected or produced any evidence which may show that the driver of the vehicle did not possess the valid driving licence and vehicle was not insured with the Company as well as the vehicle was not having papers pertaining to the vehicle in question. Therefore, I do not find any ground to interfere in the findings recorded by the Tribunal in this regard. The amount of Rs. 1.00 lac awarded by the Tribunal in favour of the claimant also appears to be just and reasonable. However, the Tribunal has committed error while giving recoverable rights to the Insurance Company against the appellant/owner of the vehicle only for this reason that the accident took place on account of rash and negligent driving of the driver. The Tribunal without any authority or evidence available on record, has given the recoverable right to the Insurance Company against the owner, which is liable to be set aside. The recoverable right issued against the appellant appears to be perverse at this stage as in the instant case, there is no breach of policy. 4 11. For the reasons recorded above, the appeal is partly allowed. The impugned judgment is modified to an extent that the liability to pay the amount of compensation rests on the Insurance Company and the direction recorded by the Tribunal in the impugned judgment and award to the effect that the Insurance Company will have a recoverable right from the owner of the vehicle, is hereby set aside. 12. The statutory amount deposited by the appellant before this Court be remitted to the Tribunal concerned. (B.C. Kandpal, J.) 09.07.2009 ASWAL