IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL. A.O. NO. 102 OF 2006 The New India Assurance Company Ltd. Through its Division Manager, Divisional Office, Nainital Road, Haldwani, District Nainital .... Appellant. Vs. 1- Sri Bishan Singh Bisht @ Jeevan Singh S/o Sri Man Singh Bisht, R/o Ranibag Tehsil and District Nainital. 2- Smt. Ajay Kumar Agrawal S/o Sri Manak Chand Agrawal, M/S Manak Chandra Ajay Kumar, Scooter, Mukhani Police Chowki Haldwani, District Nainital ..Respondents. Sri P.C. Maulekhi, Advocate for the appellant. Sri D.S. Patni, Advocate for the respondent No. 1. None appeared for respondent No.2. Dated: 2-4-2008 Hon’ble B.C. Kandpal, J. This appeal, under Section 173 of the Motor Vehicles, Act, has been preferred against the judgment and award dated 9-11-2005, passed by Motor Accident Claim Tribunal/District Judge, Nainital, in MACP No. 139 of 2005. 2- Brief facts of the case are that on 24-4- 2005, at about 10.15 P.M., when claimant Bishan Singh, along with one Jitendra Singh was standing at Ranibag Check Post Barrier, truck bearing registration No. U.A. –04/8764 came there at a high speed and hit the barrier, due to which the barrier broke down and fell on the head of the claimant and he sustained grievous injuries. Jitendra Singh also sustained injuries. The jaw and teeth of the injured were also broken in the accident. He was admitted in Krishna Nursing Home, Haldwani and thereafter 2 he was admitted in Ram Murti Smarak Institute of Medical Science, Bareilly where he remained admitted for about 15 days. The claimant filed claim petition for a sum of Rs. 3,50,000/-/. 3- The Opposite Party No.1, owner of the truck, filed his written statement, denying the contents of the petition and alleged that the accident had occurred due to own negligence of the claimant and the truck driver was not responsible for the same. He also alleged that the vehicle was insured with New India Assurance Company and it had valid registration, fitness permit etc and the driver had valid driving license. 4- The Opposite Party/New India Assurance Company filed its written statement and denied the contents of the petition. It alleged that the Truck was not being driven in accordance with the terms of insurance policy and exaggerated compensation has been claimed. 5- On the pleadings of parties, the learned Tribunal has framed the following issues in the petition:- 1- Whether on 24.4.2005 at 10.15 P.M. the claimant Bishan Singh sustained grievous injuries near Ranibagh Check Post Barrier due to the reason that the Truck bearing registration No. U.A. 04-8764, his him? 2- Whether the terms of insurance policy have been breached at the time of accident and whether the Insurance Company is not liable to pay the compensation?. 3 3- Relief?. 6- Thereafter, claimant adduced evidence in support of his claim. The owner of the truck also filed documentary evidence, but the Insurance Company did not adduce any evidence. The Tribunal, after hearing learned counsel for the parties and considering the evidence on record, allowed the claim for compensation of Rs. 75,000/- to be payable by New India Assurance Company along with interest @ 6% per annum from the date of filing of the petition till the date of date of actual payment. 7- Feeling aggrieved, the New India Assurance Company has preferred this appeal before this Court. 8- I have heard learned counsel for the parties and perused the record. 9- Learned counsel for the appellant has submitted that at the time of accident Banwari Lal was driving the truck, whereas the owner of the truck has brought on record the driving licence of Kripal Singh. According to him, in the F.I.R. the informant, Bahadur Singh has noted that the truck was being driven by Banwari Lal. Therefore, there was breach of insurance policy and the Insurance Company could not been held liable to pay the compensation. 10- I have considered the above submission and have perused impugned award. According to the owner of the offending Truck, Kripal Singh was 4 the driver of the Truck and he was driving the said truck at the time of accident. He has filed the driving license of Kripal Singh on record. The claimant in his cross-examination has alleged that the truck being driven by its own driver and not by some other person. To rebut the above facts, no evidence has been adduced by the insurance company before the Tribunal. 11- Further, this plea has not been taken by the Insurance Company, in its W.S. filed before the Tribunal, and for the first time it is being raised in this appeal, hence the contention in this regard is not tenable at a belated stage, particularly, for the reason that the written statement on behalf of the Insurance Company has been filed more than four months later of the date of filing the said F.I.R. at the Police Station. The learned Tribunal has recorded categorical finding that the offending truck was having valid registration, permit and its driver was possessing valid driving license and the vehicle was validly insured with the New India Assurance Company. It may also be noted here that the Insurance Company has not adduced any type of evidence before the learned Tribunal. In the above facts and circumstances of the case, I do not find any force in the submission advanced by the learned counsel for the appellant and the same is rejected. 12- From perusal of impugned award it reveals that the claimant has produced medical bills and receipts of taxi charges, amounting to about Rs. 65,000/- expended by him. The Tribunal has awarded this sum in the head of medical expenses 5 and Rs. 10,000/- for mental and physical pain and suffering due to the injuries sustained by the claimant in the accident. In the above circumstances, I find that the Tribunal has awarded a reasonable amount of compensation in the instant case and the same does not require interference by this Court. 13- In view of above discussion, I find that the appeal lacks merit and is liable to be dismissed. 14- Accordingly, the appeal is dismissed. The impugned judgment and award dated 9-11-2005 is confirmed. No order as to cost. 15- The statutory amount, if any, deposited by the Insurance Company at the time of admission of the appeal, be remitted to the Tribunal concerned. (B.C. Kandpal, J.) ISB