IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL. A.O. No. 369 of 2006 Smt. Aman Kaur and 2 others .. Appellants. Vs. Raj Kumar and 2 others ..Respondents. Mr. Upendra Singh Bisht, holding brief of Mr. S.S. Chauhan, learned counsel for the appellants. Mr. Manish Dalakoti, holding brief of Mr. D.S. Patni, learned counsel for respondent No.3. None has appeared for respondent Nos. 1 and 2. Dated: 24-6-2008 Hon’ble B.C. Kandpal, j: This appeal, under Section 173 of the Motor Vehicles Act, 1988, has been preferred against the judgment and award dated 22-3-2006, passed by Additional District Judge/ VII F.T.C., Dehradun, in MACT Case No. 21 of 2003. 2- The facts of the case, in brief, are that on 2.5.2003, Ram Pal was going Charba from Vikasnagar riding in pillion rider in Motorcycle No. U.A. 07-A-7741, when the Motorcycle reached near Gudrich Tea Garden, due to rash and negligence of its driver, it fell in a gully and Ram Pal sustained grievous injuries and he succumbed to the injuries at the spot. The deceased at the time of accident was 31 years of age and he used to earn Rs. 100/- per day from labour work. The claimants filed claim for a sum of Rs. Ten lacs. 3- The opposite party No.1, the driver of the offending Motorcycle, and opposite party No.2, owner of Motorcycle, filed written statement and admitted the death of the deceased in the accident, but alleged that the Motorcycle was being driven at a slow speed and in order to save the money who had come in front of the 2 vehicle, the Motorcycle fell in deep ditch. They also alleged that the Motorcycle was insured with Oriental Insurance Company, hence the liability of compensation is upon the insurer. 4- The opposite party no.3, Oriental Insurance Company filed its written statement and denied the allegations made in the petition. It also alleged that the petition has been filed in collusion with the driver and owner of the Motorcycle and the driver had no valid driving license to drive two-wheeler. 5- The learned Tribunal on the basis of pleading of parties, framed following issues in the petition:- 1- Whether on 2.5.2003 at about 11.00 A.M. near Gudrich, P.S. Vikasnagar, District Dehradun, O.P. No.1 caused the accident by driving Motorcycle No. U.A.-07-A/7741 in a rash and negligent manner, in which the pillion rider Ram Pal has died? 2- To what amount of compensation, the claimants are entitled to get and from which of the party?. 6- Parties led evidence in support of their case. Thereafter, the Tribunal after having heard the learned counsel for the parties and considering the entire material available on record, dismissed the claim petition on the ground that the claimant could not establish the factum of the accident as well as the death of deceased Ram Pal in the accident. 7- Feeling aggrieved by the aforesaid judgment and order, the claimant has preferred this appeal before this Court. 3 8- Heard Sri Upendra Singh Bisht, holding brief of Mr. S.S. Chauhan, counsel for the appellants and Mr. Manish Dalakoti, holding brief of Sri D.S. Patni, Advocate for respondent/Oriental Insurance Company and perused the record. 9- It appears from the record that previously the claim petition was decreed in favour of the claimants for a sum of Rs. 3,00,000/- and the claim Tribunal vide judgment and award dated 6.12.2004 directed the Insurance Company to pay the amount of compensation with the recoverable right from the owner of the offending vehicle. The owner of the vehicle preferred appeal against the aforesaid award before the High Court and the Division Bench of this Court remanded the matter back vide judgment and order dated 23.11.2005 passed in A.O. No. 74/2005, directing the MACT for taking additional evidence and decide the case afresh. When the matter was remanded back, the Tribunal again assessed the entire evidence and then dismissed the claim petition filed by the claimants. The Tribunal did not take this aspect into consideration that previously the claim petition was decreed in favour of the claimants holding therein that the accident had taken place on account of rash and negligent driving of the Motorcycle. Only dispute was as to whether the amount was to be paid by the owner of the Motorcycle or by the Insurance Company and this Court vide judgment dated 23-11- 2005 directed the Tribunal to take the evidence to be adduced by the owner of the offending vehicle and decide the matter afresh, but the order dated 23.11.2005 has been wrongly interpreted by the Tribunal and the Tribunal has thus decided the claim petition thereby dismissing the same on wrong appreciation of the evidence. Once the claim Tribunal came to the 4 conclusion that the accident had taken place on account of rash and negligent driving of the Motorcycle and thereby decreed the claim petition by giving recoverable right to the Insurance Company, then after the matter was remanded back to the Tribunal, the Tribunal was confined only to the aspect that whether the recoverable right given to the Insurance Company was justified or not. The Tribunal should have thus taken into consideration all the evidence to be adduced by the owner of the Motorcycle and thereafter should have decide the claim petition in accordance with evidence available on record. The factum of the accident as has been narrated by the claimants in the claim petition, has not been denied by the opposite parties, i.e. either the Insurance Company or the owner of the Motorcycle, therefore, the tribunal has drawn this conclusion on the basis of conjecture and surmises that the claimants could not establish the factum of accident as well as the death of deceased Ram Pal in the accident. The impugned judgment and award passed by the Tribunal dated 22.3.2006 suffers with material infirmity and is liable to be set aside. 10- I, therefore, set aside the impugned judgment and award dated 22-3-2006, passed by MACT/A.D.J./VII F.T.C. Dehradun, in MACT Case No. 21/2003. The matter is remanded back again before the Tribunal concerned for deciding the matter in issue afresh in the light of the evidence available on record. The Tribunal shall record a categorical finding with regard to the factum of accident and death of deceased Ram Pal in the accident. The Tribunal will also record a categorical finding with regard to the rash and negligence on the part of the driver of the Motorcycle and thereafter the liability to pay the amount of compensation either on the 5 Insurance Company or on the owner of the offending Motorcycle in question. 11- With these observations the appeal is allowed. (B.C. Kandpal, J.) ISB 6