IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Appeal From Order No. 26 of 2006 The Oriental Insurance Co. Ltd. …Appellant Versus Daya Ram Gupta ... Respondent Sri D.K. Sharma, Advocate for appellant Sri B.M. Pingal, Advocate holding brief of Sri Vivek Shukla, Advocate for respondent Dated: October 13, 2008 Hon’ble B.C. Kandpal, J. This appeal, under Section 173 of Motor Vehicles Act, 1988, has been preferred by the appellant-The Oriental Insurance Co. Ltd. against the judgment and order dated 29.10.2005 passed by Additional District Judge/F.T.C. IV/Motor Accident Claims Tribunal, Haridwar in MACT No. 61/2000, Daya Ram Gupta vs. The Oriental Insurance Co. Ltd., whereby the Tribunal awarded a sum of Rs.34,735/- as compensation to the claimant. Brief facts of the case, according to claim petition, are that on 01.06.2000 at about 7.00 a.m. claimant-injured was going to Haridwar on his Auto Rickshaw bearing Registration No. U.P.10D/2783 and on the way in front of Railway Malgodam at main road a cow came in the middle of the road and claimant-injured, who was driving the said Auto Rickshaw, applied brake in order to save the cow, but the said vehicle was overturned. In the said accident, claimant-injured sustained injuries and he was admitted in Badera Nursing Home. The 2 claimant has pleaded that due to said accident bone of his left leg was fractured and he sustained multiple injuries on his person. The claimant has also pleaded that his left leg had undergone operation and a rod was implanted. The claimant has further pleaded that he spent a sum of Rs.70,000/- towards his medical treatment and as per advice of doctors a sum of Rs.10,000/- is likely to be spent in future on his medical treatment. The claimant also pleaded that he had been earning a sum of Rs.4000/- per month by driving his Auto Rickshaw, but due to said accident he will not be able to do his business of driving in future. The claimant claimed a sum of Rs.10,30000/- as compensation along with interest of 18% per annum. The opposite party-The Oriental Insurance Co. Ltd./appellant before this Court, filed written statement refuting the contents of claim petition. It has pleaded that claim petition has been filed by claimant just to harass the opposite party- insurance company and insurance company was not liable to pay any compensation. It has also been pleaded that alleged accident was the result of own negligence of driver/owner of said vehicle himself and driver was not having valid driving licence. It has further been pleaded that claimant has admitted this fact that on the alleged date he himself was driving vehicle in question and when the said vehicle reached at main road in front of Railway Malgodam a cow came in the middle of the road and driver applied brake in order to save it, but the said vehicle was overturned and claimant was crushed under the vehicle. Therefore, the 3 insurance company was not liable to pay any compensation. 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 material available before it and hearing learned counsel for the parties partly allowed the claim petition and awarded a sum of Rs.34,735/- as compensation to the claimant, payable by opposite party-Oriental Insurance Co. Ltd., along with an interest @ 6% per annum from the date of filing the petition till the date of actual payment, vide judgment and award dated 29.10.2005. The Tribunal also directed that the entire amount of compensation is to be paid by insurance company within a period of one month from the date of judgment. Feeling aggrieved by the aforesaid impugned judgment and award dated 29.10.2005, the appellant-insurance company has preferred the present appeal before this Court. Heard Sri D.K. Sharma, learned counsel for appellant-insurance company, Sri B.M. Pingal, holding brief of Sri Vivek Shukla, learned counsel for respondent-claimant and perused the record. As far as factum of accident is concerned, the record reveals that claimant has stated in his oral evidence that on the alleged date, time and place he was driving his Auto Rickshaw carefully with a speed of about 25 Kms. and suddenly a cow came 4 and claimant applied brake in order to save it, due to which his Auto Rickshaw was overturned and claimant was crushed beneath the vehicle and sustained injuries and bone of his left leg was fractured. This witness has been cross examined by the counsel of opposite party/insurance company, but nothing has been brought on record which may discredit the authenticity of evidence adduced by claimant. PW-2 Dharmendra Kumar, who is an eye witness of said accident, has been produced as witness and he supported the version of the claimant in his evidence. This witness is an independent witness, who was present at the spot and he has neither any relation nor has any enmity with the claimant. This witness has also been cross examined by the counsel for opposite party, but nothing has been brought on record which may discredit the authenticity of evidence of this witness. Opposite party did not adduce any oral and documentary evidence in rebuttal which may establish that said accident had occurred due to rash and negligent driving of driver of Auto Rickshaw-Daya Ram (claimant). The Tribunal has discussed all the evidence adduced by the parties and thereafter has come to the conclusion that it is not established for want of evidence that said accident was caused due to rash and negligent driving of driver of Auto Rickshaw-Daya Ram (claimant) and on account of only this reason claimant is not entitled to get any compensation. Accordingly, the Tribunal decided the said issue in favour of claimant. I do not find any reason to disturb the finding recorded by the Tribunal in this regard. 5 The Tribunal further held that on the date of accident claimant was having valid and effective driving licence and said vehicle was insured with Oriental Insurance Co. Ltd. I do not find any infirmity in the finding recorded by the Tribunal in this regard. As far as amount of compensation to be awarded in favour of claimant is concerned, the evidence on record reveals that claimant submitted cash memo, medical bills towards his treatment, which comes to Rs.34,735/-. The Tribunal was of the view that claimant was entitled to get a sum of Rs.34,735/- as compensation and awarded the said amount to the claimant. The interest as has been indicated in the award also does not require any interference. As regards liability of payment of compensation to be awarded in favour of claimant, the Tribunal has given a finding that offending vehicle in question was insured with Oriental Insurance Company Limited at the time of accident, therefore, insurance company is liable to pay the compensation. I do not find any reason to disturb the said finding recorded by the Tribunal in this regard and the same deserves to be confirmed. For the reasons stated above, the appeal lacks merit and is liable to be dismissed. Accordingly, the appeal is dismissed. The impugned judgment and award dated 29.10.2005 passed by the Tribunal, is hereby confirmed. 6 The statutory amount deposited by the appellant at the time of filing the appeal, be remitted to the Tribunal concerned. (B. C. Kandpal, J.) SP