IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL. A.O. NO. 439 of 2006 National Insurance Company Ltd. ..Appellant. Versus Smt. Vimla Devi and 4 others ..Respondents. Mr. D.S. Patni, learned counsel for the appellant. Mr. Amrish Agarwal, learned counsel for claimants/respondents. None has appeared on behalf of respondents 4 and 5. Dated: 08-05-2008 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 30-3-2006, passed by Motor Accident Claim Tribunal/Addl. District Judge/F.T.C., Kashipur, in MACT Case No. 54 of 2005. 2- Brief facts giving rise to this appeal are that on 25-1-2005, Yogendra Singh, was going to Delta Company Haldua, riding in Maruti Zen Car No. U.A. 06- C/2977, driven by this landlord Deepak Kumar. The said car due to rash and negligence of the driver dashed with a tree near pipalsana Haldua, and Yogendra Singh sustained grievous injuries and died instantaneously at the spot. The deceased was 27 years of age and was doing job in Haldua Factory getting a salary of Rs. 3,000/- per month. The claimants parents and sister of the deceased Yogendra Singh have filed claim for compensation in lieu of his death. 3- The Opposite Party, owner of the Zen Car contested the claim by filing his written statement and alleged that the accident has occurred due to the fact that at the place of occurrence a cow suddenly came in front of the car and in order to save the said cow, the car was dashed with a tree. He alleged that driver was having valid driving license and the car was insured with national insurance company. 4- The National Insurance Company filed its written statement and denied the allegations made in the claim petition. According to it, the case falls within the category of no fault liability. The vehicles was being driven against the terms of insurance policy, therefore, the insurance company cannot be held liable to pay compensation. 5- The Tribunal on the basis of pleadings of parties framed following issues in the claim petition:- 1- Whether on 25.1.2005 at about 3:00 P.M. at Pipalsana near Dev Singh Farm Haldua P.S. Ram Nagar, District Nainital, Maruti Car Zen U.S. 06- C/2977 dashed with a tree due to the rash and negligence on the part of its driver and Yogendra Singh has died? 2- Whether the driver of Maruti Car Zen U.S. 06- C/2977 was having valid driving license at the time of accident? 3- To what amount of compensation, the claimants are entitled to get and from which party? 6- The claimants in support of their case produced oral as well as documentary evidence. The Tribunal after hearing learned counsel for the parties and considering the evidence on record allowed the petition for a sum of Rs. 2,85,600/- against the National Insurance Company along with interest @ 9% per annum and in case if the amount is not paid within two months then the interest shall be payable @ 12% per annum from the date of petition till the date of actual payment. 7- Feeling aggrieved, the National Insurance Company has preferred this appeal before this Court. 8- Heard learned counsel for the parties and perused the record. 9- The learned counsel for the appellant has challenged the impugned judgment and award on the sole ground that the Maruti Zen involved in the accident is registered and insured as private car, as such the deceased was the occupant in the said car and no extra premium was paid by the owner to cover the risk of the occupant in the car, therefore, the insurer could not have been held liable to pay compensation for the death of the deceased. 10- Perusal of record shows that the death of deceased Yogendra Singh in the accident has been admitted by the owner of the Car. P.W. 3 Jagdish Singh is the eyewitness of the accident. He has stated that at the time of accident he was coming to Kashipur from Ramnagar and had seen the accident. He has specifically deposed that the offending Maruti Car took over his motorcycle in a high speed and dashed with a tree. This witness also deposed that the speed of the car was so high that the driver could not control it. From the side of opposite parties no evidence has been adduced to rebut the eyewitness account given by P.W.3. Therefore, it has been established on record that the accident has occurred due to rash and negligence of the driver of offending car. The owner of the car also field copies of driving license paper No.14-c and copy of cover note and proved that the car was insured with National Insurance Company and its driver had valid driving license. 11- From perusal of written statement of the Insurance Company it is quite clear that no specific plea has been taken that the deceased was occupant in the car and no extra premium was paid by the owner to cover the risk of deceased and the insurer cannot be held liable to pay compensation and that was the reason that no issue has been framed by the Tribunal and parties did not contest the petition on that point. The insurer cannot agitate this point belatedly at the stage of appeal. However, perusal of the insurance policy filed before the Tribunal paper No. 15-C shows that in the description column carrying capacity has been shown for 4 passengers and in the premium computation column premium in all Rs. 11,178/- has been obtained. In the policy filed by the learned counsel for the appellant during appeal, paper No. 40-A, shows that premium has been obtained under two heads, A- OD-Basic and B- T.P. Basic. Under head OD-Basic Rs. 9,724-80 were obtained. Under head B- T.P. Basic Rs. 500/-, further Rs. 100/- for compulsory personal accident to owner/driver and Rs. 25/- for one employee has been obtained. Under the head ‘limit of liability’ in the said policy, company’s liability in respect of any one claim or series of claims arising out of one event has been shown upto Rs, 7,50,000/-. Therefore, in above peculiar facts and circumstances of the case, the submission raised by learned counsel for the appellant/insurance company has no substance and is hereby rejected. 12- I do not find any force in the appeal and the same is liable to be dismissed. 13- Accordingly, the appeal is dismissed. The impugned judgment and award dated 30-3-2006 is confirmed. 14- The statutory amount of compensation deposited during the hearing of appeal, be remitted to the Tribunal concerned. (B.C. Kandpal, J.) ISB