IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL A.O. No. 559 of 2005 The New India Assurance Co. Ltd. …Appellant Versus Sarif Ahmad & another … Respondents Sri M.K. Aggarwal, holding brief of Sri R.B. Aggarwal, Advocate for appellant Sri B.D. Upadhyaya, Advocate for respondent no. 1 Dated: September 12, 2008 Hon’ble B.C. Kandpal, J. This appeal, under Section 173 of Motor Vehicles Act, 1988, has been filed against the judgment and award dated 20.9.2005 passed by Motor Accident Claims Tribunal/District Judge, Pauri Garhwal in Motor Accident Claim Petition No. 180 of 2003, Sarif Ahmad versus Shambhoo Prasad and another. Brief facts of the case as narrated in claim petition are that on 17.4.2003 claimant-injured Sarif Ahmad was returning from his contract business from Najimabad, on the way near Kotwali Jalalabad Bye-pass Tiraha, a truck bearing Registration No. U.P.06-2835 which was driven by its driver rashly and negligently, turned down, due to which claimant-injured came into the contact of said truck and got injuries on his left had and left palm. It has been alleged that claimant-injured remained admitted in hospital upto 30.4.2003 and the treatment is going on. It has also been alleged that apart from mental agony and pain suffering the claimant-injured had spent about Rs. One Lac and 2 due to this accident he got himself disabled. The claimant claimed a sum of Rs.11,00,000/- as compensation against the opposite parties. Opposite party no. 1 i.e. owner of vehicle in question contested the claim by filing written statement and admitted the factum of accident. In the additional pleas, it has been pleaded that on the date of accident no pedestrian came into contact of his truck and sustained any injuries. It has further been pleaded that on the date of accident driver of vehicle in question was having valid driving licence and all the papers relating to said vehicle were valid and said vehicle was insured with opposite party no. 2-The New India Assurance Co. Ltd. Therefore, the liability to pay the amount of compensation, if any, is of insurance company and claim petition against opposite party no. 1 is liable to be dismissed. Opposite party no. 2-insurance company filed written statement denying the contents of claim petition. It has also denied the factum of insurance of vehicle in question. In the additional pleas, it has been pleaded that driver of said vehicle was not having valid driving licence and papers of vehicle in question were not produced, which were not valid on the date of accident and vehicle was being plied in breach of conditions of insurance policy. It has further been pleaded that claimant-injured was travelling by the said vehicle and due to fact of overloading in the said vehicle the claimant-injured was not bonafide passenger. Therefore, the liability to pay the amount of compensation, if any, is of owner of vehicle and not of insurance company. The 3 claim petition filed against opposite party no. 2 is liable to be dismissed. The learned Tribunal on the basis of pleadings of parties framed relevant issues in the claim petition. Parties led evidence in support of their cases. The learned Tribunal after having considered the entire material available on record and hearing learned counsel for the parties decreed the claim petition for a sum of Rs.1,76,000/- and directed that amount so awarded shall be paid by The New India Assurance Co. Ltd. to the claimant and in case if the said amount is not paid within a period of two months, the awarded amount shall be paid to the claimant along with interest at the rate of 9% per annum from the date of filing the petition till the date of actual payment. Feeling aggrieved by the aforesaid impugned judgment and award, the appellant-insurance company has preferred the present appeal before this Court. Heard Sri M.K. Aggarwal, holding brief of Sri R.B. Aggarwal, learned counsel for appellant, Sri B.D. Upadhyaya, learned counsel for respondent no. 1-claimant and perused the record. As far as factum of accident is concerned, the claimant has pleaded in the claim petition that on 17th April, 2003 he had gone to Najimabad and at Jalalabad Bye-pass Truck No. UP-06-2835, which was being driven by rashly and negligently, hit the claimant-injured resulting in injuries on his person. The claimant was taken to hospital where he was 4 found that his bones of hands and legs were fractured. Nothing has been put forward by the insurance company or the owner of offending vehicle which may suggest that accident did not take place on account of rash and negligent driving of driver of offending truck. The Tribunal after having considered the entire material evidence available on record has come to the conclusion that on 17.4.2003 claimant sustained injuries on his person on account of rash and negligent driving of offending vehicle. It is therefore the factum of accident is established. The Tribunal has further held that the offending vehicle was insured with The New India Assurance Co. Ltd. on the date of accident. No evidence has been adduced by the insurance company to controvert the factum of insurance policy. As far as amount of compensation awarded by the Claims Tribunal is concerned, the Tribunal has awarded a sum of Rs.26,000/- against the expenses incurred on medical treatment of claimant as well as Rs.50,000/- further amount has been awarded by the Tribunal for expenses incurred in operations. The Tribunal has thus awarded a total sum of Rs.76,000/- against the expenses incurred on medical treatment of claimant. The Tribunal has further awarded a sum of Rs.1,00,000/- for suffering pain and mental agony of the claimant. 5 I have to consider as to whether the amount awarded by the Tribunal to the claimant appears to be reasonable and justified or not. The record reveals that the claimant has stated that he remained admitted in private nursing home of Dr. Harish Kumar Mittal for 14 days where his hands and legs had gone operations and a rod was implanted. The claimant has stated that he spent a sum of about Rs.35,000/- on his medical treatment and a total sum of Rs.1,35,000/- was indicated by him on his medical treatment, but the claimant could not adduce any evidence before the Tribunal in order to establish as to whether he actually remained admitted in private nursing home for 14 days. The claimant did not care either to produce any employee of concerning private nursing home which could have brought the record of nursing home to show that the claimant had in fact remained admitted in private nursing home for 14 days. Further, the claimant could not adduce any plausible and reliable evidence in order to show as to what actual amount had been incurred by him on his medical treatment. Whatever the amount has been awarded by the Tribunal, the same is absolutely based on conjectures and surmises and not on material evidence available on record. The Tribunal has held that claimant could produce the bills for a sum of Rs.26,000/- incurred on his medical treatment. As the claimant could not file any document indicating that as to what amount was incurred by him on the fees of doctors as well as expenses incurred in operations and the bills pertaining to private nursing home, therefore, whatever the amount is to be awarded against this 6 head either by the Tribunal or by this Court would be merely on the basis of conjectures and surmises. However, I am of the view that the claimant has pleaded that a sum of Rs.1,35,000/- was incurred by him on his medical treatment, but the same does not appear to be convincing. I am, therefore, of the view that the claimant must have incurred maximum a sum of Rs.50,000/- against his medical expenses including the purchase of medicines and expenses incurred by him on his operations. The Tribunal has further awarded a sum of Rs.1,00,000/- against pain and suffering which also does not appear to be justified and proper. If it is admitted that the claimant had been remained admitted in private nursing home for 14 days on account of injuries sustained by him, even then the claimant was entitled for a sum of Rs.20,000/- for pain and mental suffering. The amount awarded by the Tribunal is without any basis and evidence available on record. For the reasons stated above, I am of the view that the claimant is entitled for a sum of Rs.50,000 + Rs.20,000=Rs.70,000/- as compensation on account of injuries sustained by him in the accident. The record further indicates that the claimant did not suffer any permanent disability on account of injuries sustained by him in the accident. The Tribunal itself had discarded the medical certificate filed by the claimant in order to show his disability. Once the Tribunal has discarded the medical evidence in order to show the disability by the claimant, then there was no justification with the Tribunal to have awarded the exorbitant amount. 7 Accordingly, the appeal is partly allowed. The impugned judgment and award is modified to the extent that claimant is entitled for a sum of Rs.70,000/- (Rupees Seventy Thousand), instead of Rs.1,76,000/- awarded by the Tribunal. However, the claimant is entitled for an interest of 7% per annum from the date of filing the petition till the actual payment (instead of conditional interest of 9% per annum awarded by the Claims Tribunal). The statutory amount deposited by the appellant before this Court be remitted to the Tribunal concerned. The excess amount, if any, has been deposited by the appellant, the appellant shall be entitled to withdraw the same. If the claimant has withdrawn any excess amount, the insurance company shall be at liberty to proceed for recovery of the same from the claimant. (B.C. Kandpal, J.) SP