IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL. A.O. No. 623/2006 Pan Singh ….. Appellant. Versus Smt. Geeta Pathak and others … Respondents. Mr. Ajay Singh Bisht, learned counsel for the appellant. Mr. Prabhakar Joshi, learned counsel for the claimants/respondents. Mr. T.A. Khan, learned counsel for the respondent/Insurance company. Dated: 19-11-2008 UHon’ble B.C. Kandpal, J. This appeal, under Section 173 of the Motor Vehicle Act, 1988, has been preferred against the judgment and award dated 15-7-2004, passed by Motor Accident Claims Tribunal/District Judge, Pithoragarh, in MACT Case No. 74/2002, Smt. Gita Pathak and others Vs. Pan Singh and another. 2- Brief facts of the case are that on 19-6-2002 at about 11.30 A.M. Tata Spacio bearing registration No. U.A. 04/4464 met with accident near the Kasad bend situated at place Patti Ligdat, due to the cash and negligence of the driver. In the said accident Naveen Chandra Pathak also sustained grievous injuries and he lateron succumbed to the injuries. The deceased at the time of accident was employed as a soldier in Indo Tibetan Boarder Police and was getting Rs. 5,775/- per month salary. Therefore, the claimants, being the dependents of the deceased, filed claim petition. 3- The opposite party No.1, owner of the offending vehicle filed written statement and denied the assertions of the claim petition for want of knowledge. He also 2 alleged that the driver of the vehicle was driving the vehicle cautiously at a slow speed and it met with accident due to the mechanical defect emerged in the vehicle. He also asserted in the written statement that the driver of the vehicle was possessing valid driving license and the vehicle in question was insured with the New India Assurance Company and he has no liability to pay any compensation. 4- The opposite party No.2, the New India Assurance Company also filed its writhen statement denying the particulars mentioned in the claim petition. It also alleged that the driver of the offending vehicle was not having valid driving licence and it was being driven in contravention of terms of insurance policy, therefore, the petition is liable to be dismissed. 5- The Tribunal, on the pleadings of parties, framed issues in the claim petition. Parties adduced evidence before the learned Tribunal. Thereafter the learned Tribunal on hearing the learned counsel for the parties and perusing the material available on record, awarded a sum of Rs. 6,07,600/- as compensation and directed that 20% of the compensation, i.e. Rs. 1,21,520/- shall be payable by the owner of the offending vehicle and 80% of the compensation, i.e. Rs. 4,86,080/- shall be paid by the New India Assurance Company. Interest was also awarded @ 9% per annum from the date of filing the petition till the date of actual payment. 6- Feeling aggrieved the appellant owner of the offending vehicle has preferred this appeal before this Court. 3 7- Heard Sri Ajay Singh Bisht, learned counsel for the appellant, Sri T.A. Khan, learned counsel for the respondent- New India Assurance Company and Sri Prabhakar Joshi, learned counsel for the claimants/respondents. 8- The only dispute involved in this appeal is that the tribunal has fixed the liability of the owner of the vehicle upto an extent of 20% and as per the submission of the learned counsel for the appellant this liability has been wrongly fixed upon the shoulder of owner/appellant. The tribunal while discussing issue No.3 has recorded a finding that no fundamental breach of the policy has been committed by the insured, but since the vehicle was overloaded at the time of the accident, therefore, a 20% liability to pay the amount of compensation has been fixed upon the shoulder of the owner/appellant. 9- I do not find any force in the finding recorded by the tribunal as the evidence available on record clearly shows that P.W.2, Sundar Singh is the eyewitness of the accident who has deposed that in all 9 to 10 passengers were travelling in the offending vehicle. This witness has further deposed that 7 persons including the driving had succumbed to injuries. This witness has denied the suggestion of the insurance company that at the time of accident 16 persons were travelling in the offending vehicle. 10- The insurance company has produced Chandra Pal Singh Tomar, Investigator as D.W.1, who has stated that in this accident 6 persons had died and 10 persons sustained injuries but in the cross- examination this witness has deposed that he had 4 neither visited the spot of the accident nor recorded the statement of the Patwari. He has further deposed that he has asked Sundar Singh and other persons, who are the eyewitnesses of the occurrence, to give statement but they denied. The statement of this witness nowhere positively indicates that the vehicle in question was overloaded at the time of the accident. I do not find any ground to disbelieve the statement of the eyewitness P.W.2, Sundar Singh, as this witness has no reason to either tell lie or to depose otherwise. Further, this witness is not an interested witness. Therefore, in the light of the evidence, it is quite clear that the insurance company could not adduce any positive and reliable evidence in order to show that the vehicle in question was carrying 16 passengers at the time of the accident. Thus, the finding recorded by the tribunal that the liability of the owner/appellant to pay the amount of compensation upto an extent of 20%, appears to be perverse and deserves to be set aside. 11- As far as the rate of interest awarded by the tribunal is concerned, it is on higher side. The Tribunal awarded interest @ 9% per annum. In my opinion the interest should be awarded @6% per annum on the awarded amount of compensation instead of 9%. 12- For the reasons stated above the appeal is allowed. The impugned judgment and award dated 15-7- 2004 pertaining to the direction issued therein against the owner/appellant of the offending vehicle in question to pay the amount of compensation upto the extent of 20% is set aside. The insurer of the vehicle, i.e. New India Assurance Company, in the aforesaid circumstances, is liable to pay the entire amount of the compensation awarded by the tribunal along with an interest @ 6% per 5 annum from the date of filing the petition till the date of actual payment, instead of @ 9% per annum as has been indicated in the impugned judgment and award. 13- The amount whatsoever has been deposited by the appellant before this court at the time of filing the appeal be remitted to the tribunal concerned. ( B.C. Kandpal, J.) ISB 6