IN THE HIGH COURT OF UTTARKHAND AT NAINITAL. A.O. No. 117/2008 Rahish Ahmed … Appellant. Versus The New India Insurance Company and another …….. Respondents. Sri Nagesh Agarwal, learned counsel for the appellant. Sri M.K. Goyal, learned counsel for respondent No.1. None has appeared for the respondent No.2. Hon’ble B.C. Kandpal, J. (Oral) This appeal, under Section 173 of the Motor Vehicle Act, has been preferred against the judgment and award dated 4-6-2007, passed by Motor Accident Claims Tribunal/District Judge, Haridwar, in MACT Case No. 79/2006, Rahish Ahmed Vs. Bharat Singh and another. 2- Brief facts of the case are that on 11-12-2005, claimant Rahish Ahmed was employed as conductor on Tata Truck No.U.A. –08E- 9605. The said vehicle met with accident at about 4.30 A.M. due to rash and negligence of the driver in which the conductor sustained grievous injuries. Therefore he filed claim petition for compensation. 3- The opposite party no.1 owner of the truck filed written statement and alleged that he has already extended help to the claimant hence the claim petition is liable to be dismissed. He further alleged that the truck in question was insured with New India Assurance Company. 2 4- The opposite party no.2 also filed written statement and denied the allegations made in the claim petition. The insurance company also alleged that the vehicle in question was not being driven by a valid license holder driver and condition of insurance policy was breached hence the insurance company cannot be held liable to pay the compensation. 5- The learned tribunal on the basis of pleadings of parties framed relevant issues in the claim petition. Thereafter parties adduced evidence before the tribunal. The tribunal after hearing learned counsel for the parties and considering the entire material available on record, decreed the claim petition for a sum of Rs. 1,00,000/- against the New India Assurance Company. 6- Feeling aggrieved the claimant has preferred this appeal for enhancement. 7- I have heard learned counsel for the parties and perused the record. 8- So far as the factum of accident is concerned, the tribunal has discussed this point while deciding issue No.1. The claimant who was posted as conductor on the offending truck has deposed that the accident has occurred due to rashness of the driver. This statement of the claimant has not been controverted by the opposite parties by adducing cogent and reliable evidence, therefore, there was no reason for the tribunal to disbelieve the deposition of the claimant. The tribunal has rightly concluded that the accident has occurred due to rash and 3 negligence of the driver of the vehicle in which the claimant sustained grievous injuries. On issue no.2 the tribunal has recorded a categorical finding that the driver of the offending vehicle was possessing valid and effective driving license and the vehicle was having valid insurance and other documents. 9- As far as the amount of compensation awarded by the tribunal is concerned, the tribunal while deciding issue no.1 has discussed this aspect, but the finding recorded by the tribunal appears to be without any basis. The tribunal has firstly directed that in case the insurance company, if wishes so, it may recover the amount of compensation from the owner of the vehicle on the ground that the vehicle in question was being driven rashly and negligently at the time of accident. I do not find any justification to confirm this finding. Once it was held that the accident has occurred due to rash and negligence of the driver at the time of accident then it is the liability of insurance to pay the awarded amount. The direction issued by the tribunal in this regard does not appear to be justified and is set aside. 10- Further the amount of compensation awarded by the tribunal appears to be quite meager and the same is certainly on lower side. The tribunal without assessing the evidence available on record has awarded a lump sum amount of Rs. 1,00,000/- to the claimant. The tribunal has ignored this aspect that the right leg of the victim has been amputated from the thigh. The victim was 21 years of age at the time of accident and on account of this amputation of the leg his entire life has become 4 miserable and the future expectancy of the victim has certainly been blocked. The tribunal has also not taken into account the bills pertaining to the medical treatment merely on the ground that the owner in his written statement has stated that he has invested the expenses of the medical treatment of the claimant. It is worthy to mention here that neither the owner has come in the witness box in order to prove his contention nor any evidence has been adduced by the owner to prove this fact that he actually borne all the bills of the medical treatment pertaining to the victim. The victim in his cross-examination has specifically denied this aspect that the owner has in fact invested any sum on his medical treatment. There was no justification for ignoring the bills filed by the victim pertaining to his medical treatment. Further if any ex-gratia amount was given by the owner to the victim then the same cannot be taken into consideration for the purpose of awarding the compensation. Perusal of medical bills pertaining to the victim shows to be roughly for a sum of Rs. One lac and the genuineness of these bills has not been denied either by the insurance company or the owner. Therefore, the claimant is entitled to get a sum of Rs. 1,00,000/- under the head of medical treatment. Further this fact cannot be ignore that the right leg of the victim has been amputated from the thigh and his entire life has come to peril. The victim must be suffering from physical pain, mental agony and social embarrassment. For all practical purposes the victim become physically handicapped throughout his life and for this factor I am of the view that a sum of at least one lac rupees would be just and proper. I further feel that the victim 5 should also be awarded at least a sum of Rs. 10,000/- for the transportation charges which might have been occurred by the victim during the course of his treatment. Therefore, the total amount of compensation comes to Rs. 1,00,000/- + Rs. 1,00,000/- + Rs. 10,000/-= Rs. 2,10,000/-. 11- The tribunal has not awarded any interest on the awarded amount. It is not proper. In my opinion the claimant should be awarded interest @ 6% per annum from the date of filing the petition till the date of actual payment. 12- For the reasons recorded above the appeal is liable to be partly allowed. 13- Accordingly, the appeal is partly allowed. The impugned judgment and award is modified up-to the extent that the claimant is entitled to get a sum of Rs. 2,10,000/- along with interest @ 6% per annum from the date of filing the petition till the date of actual payment, instead of Rs. 1,00,000/-, as has been awarded by the tribunal. The amount of compensation shall be paid by New India Insurance Company and the insurance company will have no liberty to recover the same from the owner of offending vehicle. Dated: 29-7-2009 (B.C. Kandpal, J.) ISB 6