IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL. A.O. NO. 487 OF 2005 The New India Assurance Company Limited. .. Appellant. Vs. Kawar Pal @ Kawar Singh and three others …Respondents. Mr. M.K. Goel, Advocate for the appellant. Mr. Pramod Tewari, Advocate for claimant/respondent No.1. Mr.N.C. Gupta, Advocate for respondent No.4. Dated: 08-04-2008 Hon’ble B.C. Kandpal, J. This appeal, under Section 173 of the Motor Vehicles Act, 1988, has been preferred against the judgment and award dated 30-8-2005, passed by Motor Accident Claim Tribunal/Addl. Sessions Judge/I F.T.C. Roorkee, in MACP No. 46 of 2001. 2- Briefly stated the facts of the case are that on 20-4-2000, the claimant was coming Roorkee from Muzaffarnagar in Ambassador Car bearing registration No. C.H.-1-L-3665 along with Kanaiya and one Ved Pal. The driver of the case was driving it in a rash and negligent manner. Tractor H.R.O. 2053 coming from Roorkee side in a high speed lost control and collided with the car near Faloda Inter College, due to which Car driver died at the spot. The claimant also sustained injuries. The claimant was brought to Roorkee Hospital from where he was carried to Chandigarh. He spent about Rs. 1,90,000/- in his treatment and about Rs. 40,000/- are expected to be spent in future also. 2 Therefore, the claimant filed claim petition for award of Rs. 3,65,000/- as compensation. 3- The O.P. No.1 filed his written statement and alleged that he has no concern with the offending Tractor, as he had already sold it to O.P. Narendra Singh. 4- The O.P. No.2 also filed written statement and alleged that he was driving the vehicle on the instructions of O.P. No.1. According to him the driver of the Car was driving it in a high speed and suddenly the accident has occurred. He also denied the ownership of the car. 5- The O.P. No.3 Rajbir Singh did not contest the petition in spite of service, hence the petition was heard exparte against him. 6- The O.P. No.4, Insurance Company, filed its W.S. and denied the contents of the petition and alleged that the acceded had occurred due to the fault of Tractor driver and the claimant was not an authorized passenger in the offending car. 7- The Tribunal framed issues on the pleadings of the parties. Thereafter, parties led evidence before the learned Tribunal. The Tribunal after assessing the evidence on record and hearing learned counsel for the parties allowed the petition for compensation of Rs. 77,000/- against the New India Assurance Company, along with interest @ 6% per annum from the date of petition till the date of final payment. The Tribunal, however, has given recovery right to the Insurance Company against O.P. No.3, Rajveer Singh, owner of the vehicle. 3 8- Feeling aggrieved, the Insurance Company has preferred this appeal before this Court. 9- Heard learned counsel for the parties and perused the record. 10- The learned counsel for the appellant has submitted that the accident was the result of sole negligence of Tractor driver and the Tribunal fell in error in fixing the liability on the insurer of the Car met with accident. 11- I do not find any force in the submission raised by the learned counsel for the appellant. The Tribunal has framed issue No.3 on the point of contributory negligence and has held the sole liability of the Car driver in the accident. The claimant has stated on oath that the driver of the car was driving the vehicle at a fast speed in rash and negligent manner. He was cautioned by the occupiers of the said vehicle to drive it at moderate speed, but he did not pay any heed to it. This witness has categorically stated that at the place of accident the car driver had himself dashed the tractor. According to this witness, the car was being plied in the middle of the road whereas the tractor was on its left side. The learned Tribunal has rightly concluded that the contributory negligence on the part of tractor driver cannot be fixed merely on the basis of site plan and charge sheet, filed against the driver of the tractor, as the said papers have not been got proved from the side of the opposite parties. 12- Here it may also be noted that the Insurance Company has pleaded before the Tribunal that the driver of the car was not having valid driving licence and the 4 vehicle had no valid R.C. and fitness and the same was being run against the policy. The owner of the said vehicle did not contest the claim and that is the reason that the Tribunal has directed the Insurance Company to pay compensation, but recovery right against the owner of the said Car has been given. 13- No other point has been raised on behalf of the appellant. 14- For the reasons recorded above, I do not find any force in the appeal and the same is liable to be dismissed. 15- Accordingly, the appeal is dismissed. The impugned judgment and award dated 30-8-2005 is confirmed. 16- The statutory amount of compensation, if any, deposited before this court at the time of admission of the appeal, shall be remitted to the Tribunal concerned. (B.C. Kandpal, J.) ISB 5