HIGH COURT OF UTTARAKHAND AT NAINITAL A.O. NO. 118 OF 2003 Shri Lokesh Mall @ Lok Bahadur Mall, S/o J.P. Mall, R/o Raiwala, District Dehradun, At present address 8 Grenadiers, C/o 56 A.P.O. …Appellant-Opposite Party. Vs. 1. Smt. Shanti Devi, W/o late Shri Kal Bahadur, 2. Amar Singh, S/o late Shri Kal Bahadur, 3. Yuvraj, S/o late Shri Kal Bahadur, All R/o Village Ghaghonda, Chandmari, P.S. Cantt., District-Dehradun. 4. The New India Assurance Company Limited, through Divisional Manager, Divisional Office, Dehradun. …………………..Respondents. Dated: 3.8.2007 Hon’ble Rajesh Tandon, J. Heard Sri Sandeep Tandon, counsel for the appellant and Sri K.K. Shah, counsel for the respondent no. 4. 2. By the present A.O. filed under Section 173 of the Motor Vehicles Act, 1988, appellant has prayed for setting aside the award dated 17.2.2003 passed by the District Judge Dehradun /Motor Accident Claims Tribunal in Motor Accident Claim Petition No. 92 of 2001 Smt. Shanti Devi & Ors. Vs. New India Assurance Company Limited & Ors, whereby a 2 sum of Rs. 57,000 has been awarded to the claimants- respondent nos. 1 to 3 along with interest @ 9% per annum against the appellant. 3. Briefly stated, a claim petition was filed by the claimants – respondents no. 1 to 3 being Motor Accident Claim Petition No. 92 of 2001 Smt. Shanti Devi & Ors. Vs. New India Assurance Company Limited & Ors praying to the following effect: “It is, therefore, prayed that the aforesaid amount of compensation amounting Rs. 10,00,000/- (Rupees Ten Lacks only) along with 18% interest from the date of accident till its payment be awarded in favouir of the petitioner and against the O.Ps. Jointly and severely.” 4. According to the claimants, on 19.3.2001, the deceased Kal Bahadur was pillion rider along with his wife Smt. Shanti Devi of Scooter No. U.P. 07-J 8828, which was being driven by Sovit Bahadur Chetri @ Sovit Shahiin a rash and negligent manner, as soon as the Scooterist arrived at Veerpur Central School at about 10.00 p.m. there was a breaker at Sovit Shahi could not slow down the Scooter and lost control over the Scooter. They along with scooter fell down on the road and got serious and multiple injuries and were taken to Doon Hospital. Kal Bahadur was admitted at Doon Hospital, where the deceased Kal Bahadur died at late night and his post mortem was conducted at Coronation Hospital. At the time of accident, the deceased was 45 years of age and was working as a Mason and was earning a sum of Rs. 4,000/- per month. The deceased is survived by his wife-Smt. Shanti Devi and two sons; Amar Singh (aged about 18 years at the time of the accident), Yuvraj Goorang (aged about 16 years at the time of accident). The 3 scooter was insured with New India Assurance Company and belongs to one Lookesh Mall. 5. Opposite parties have contested the case by filing a written statement. 6. Insurance Company has filed his written statement stating therein that he is not liable to pay any compensation and the amount claimed is excessive. It has further been stated that at the time of accident, the rider of the scooter was not having valid driving licence. It has further been stated that the Insurance Company will take up all the defences permissible under Section 149(2) of the Motor Vehicles Act. 7. Owner of the Scooter has filed a written statement stating therein to the following effect: “;g fd okfnuh dk okn >wBk gS rFkk dkuwuu ikS"k.kh; ugha gS D;ksafd izfroknh la0 2 ftl le; ;g nq?kZVuk gq;h Fkh] Hkkjrh; lsuk esa Jhuxj esa rSukr Fkk rFkk izfroknh la0 2 dk mDr LdwVj uacj ;w0-ih0 7 ts 8828 izfroknh ds ?kj fLFkr jk;okyk esa [kM+k Fkk rFkk izfroknh dh vuqifLFkfr esa oknuh dk ifr izfroknh 2 dh vuqefr ds fcuk mldk LdwVj ekaxdj ys x;k Fkk rFkk lkFk gh izfroknh la0 2 ds lkys 'kksfcr 'kkgh dks Hkh cqykdj ys x;kA LdwVj okfnuh dk ifr Lo;a pyk jgk Fkk] ftldh ykijokgh ds dkj.k mDr nq?kZVuk ?kfVr gq;h] ftlesa izfroknh la0 2 dk Hkh lkyk ekjk x;k] ftl dkj.k oknuh dksbZ izfrdkj ikus dk gdnkj ugha gSAÞ 8. On the pleadings of the parties, the claims tribunal has framed following issues: “1& D;k fnukad 19&3&2001 dks le; 10 cts jkr LFkku ohjiqj dsUnzh; fo|ky; ds ikl ftyk nsgjknwu esa 4 okgu LdwVj la0 ;w0ih0 07 ts 8828 ds pkyd }kjk LdwVj dks rsth o ykijokgh ls pykus ds dkj.k ml ij cSBs dycgknqj dh nq?kZVuk esa e`R;q gks x;hA 2& D;k mDr nq?kZVuk esa fyIr LdwVj pkyd ds ikl ?kVuk ds le; oS| M~zk;foax ykbZlsal ugha Fkk tSlk fd vfrfjDr dFku esa dgk x;k gS ;fn gkWa rks izHkkoA 3& D;k mDr nq?kZVuk esa dycgknqj dh e`R;q ds dkj.k mldh ifRu ;kph {kfriwfrZ ikus dh vf/kdkjh gS] vkSj fdl i{kdkj lsAÞ 9. On behalf of the claimants, Smt. Shanti Devi has been examined as P.W.1. Towards documentary evidence, copy of First Information Report, Copy of Post Mortem Report and Copy of Panchnama have been filed. 10. Opposite Party No. 2 –owner of the Scooter has examined one Smt. Shalini Mall as D.W.1. Towards documentary evidence, Original Driving Licence of late Sovit Bahadur Chetri @ Sovit Sahi has been filed. 11. While deciding the Issue No. 1., the claims tribunal has relied upon the statement of Shanti Devi-ocular witness, who has stated that at the time of accident, Sovit Bahadur Chetri was riding the scooter rashly and negligently and on the Speed Breaker, the Scooter got disbalanced, in which Kal Bahadur and Sovit Bahadur Chetri received grievous injuries. The claims tribunal has disbelived the contention of the Oppoiste Party No 2-Lokesh Mall, who has stated that at the time of accident, the scooter was being ridden by Kal Bahadur as in the statement of his wife it has come that she is not aware of the fact that at the time of the accident, who was driving the scooter. Opposite Party No. 2 has also not filed any document, which can support his contention. Thus, the claims tribunal has 5 recorded a finding that at the time of accident, Sovit Kumar Chetri @ Sovit Shahi was riding the Scooter rashly and negligently, due to which accident took place and Kal Bahadur died. Thus the issue was decided accordingly. 12. While deciding the Issue No. 2, the claims tribunal has recorded a finding that which driving licence has been produced before the court that is only for the Military Motor Vehicle and is not a valid licence, and has recorded a finding that if a vehicle is given to an unauthorised person, who has no valid licence to ride the same, the owner of the vehicle will be fully responsible for the accident. Thus the issue was decided accordingly. 13. While deciding the Issues No. 3 and 4, the claims tribunal has recorded a finding that there is no documentary evidence has been filed to reflect the income of the deceased and the age of the deceased was 45 years. Further it has been stated that it does not appear that the accident was a motor accident or anything else, thus under Section 163 of the Motor Vehicle Act, a sum of Rs. 50,000/- will be enough for compensation. Apart from that the claims tribunal has awarded a sum of Rs. 5,000/- towards loss of love and affection and a sum of Rs. 2,000/- towards funeral expenses. Thus the claims tribunal has awarded a total sum of Rs. 57,000/- along with interest @ 9% per annum. After relying upon the statement of Smt. Shalini Mall, who is the wife of the scooter owner and who has stated that the keys of the Scooter were in their house, the trial court has recorded a finding that it is the duty of the wife of the scooter -owner to enquire as to whether the person to whom she is giving her scooter has valid driving licence and thus the person who took his scooter had no valid driving licence, 6 therefore, the owner of the Scooter is fully liable to pay the compensation and New India Assurance Company is not liable to pay compensation. Thus the issues no. 3 and 4 were decided accordingly. 14. I have perused the record and have examined the evidence Smt. Shanti Devi was the witness of the spot. She has also received the injuries. The FIR has been lodged on 20.3.2001 and the Post Mortem was conducted at 4.15 p.m. on 20.3.2001. She has deposed that on 19th March, 2001 at about 10.00 p.m. she was coming to her own house. 15. The claims tribunal has recorded a finding that at the time of accident Scooter was being driven by one Sovit Bahadur Chetri @ Sovit Shahi rashly and negligently, therefore, the judgment of the claims tribunal is modified to this extent that the claim for no fault liability under Section 140 of the Motor Vehicle Act, 1988 is allowed against the Insurance Company. So far as the award of a sum of Rs. 57,000/- is concerned, which has been awarded by the claims tribunal against the defendant no. 2 Lokesh Mall, the same is confirmed. 16. Subject to aforesaid modification, Appeal is dismissed with costs. (Rajesh Tandon, J.) 3.8.2007 Rathour