IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL. A.O. No. 542 of 2007 National Insurance Company Ltd. … Appellant. Versus Roop Singh Kanyal and another … Respondents. Sri B.K. Gupta, learned counsel for the appellant. Sri Pooran Singh Rawat, learned counsel for the claimant/respondent. Dated: June 24, 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 22-9-2007, passed by M.A.C.T./ District Judge, Nainital, in MACT Case No. 10 of 2006. 2- The facts of the case, in nutshell, are that on 17.6.2004 at about 2.15 P.M. the claimant Roop Singh Kanyal was moving on the road towards Haldwani. Maruti Car bearing registration No. U.P. 32-AU 2442 came there at a high speed and dashed the claimant, due to which he sustained grievous injuries. The injured was operated in Haldwani Hospital and he spent about Rs. 1,50,000/- on his treatment. Therefore, the claimant filed claim petition for warded of Rs. 12,35,649/-. 3- The Opposite Party No.1 did not appear before the Tribunal despite service of summons, therefore, the petition was heard exparte against him. 4- The Opposite Party No.2, National Insurance Company has filed the written statement and alleged that the accident has occurred due to the negligence of driver of Scooter involved in the accident and the driver of the 2 Maruti Car had no negligence. The petition is bad for non-joinder of owner and insurer of the Scooter as party to the claim. The Insurance Company also pleaded that the Maruti Car was being plied against the terms of insurance policy. 5- The learned Tribunal on the pleadings of parties, framed relevant issues in the petition. Thereafter, the claimant adduced documentary as well as oral evidence in support of his case. The Opposite Party did not adduce any evidence. 6- The Tribunal after considering the evidence on record and hearing learned counsel for the parties, awarded a sum of Rs. 94,000/- as compensation payable by Insurance Company and it was directed that the compensation should be deposited within 60 days, failing which interest @ 6% per annum shall be payable from the date of filing the petition till the date of actual payment. The insurance company was also given recoverable rights against the owner of the vehicle. 7- Feeling aggrieved the National Insurance Company has preferred this appeal before this Court. 8- Heard learned counsel for the parties and perused the record. 9- The learned counsel for the appellant has challenged the impugned judgment and award by submitting that the accident was caused due to contributory negligence of two vehicles Maruti Car and the Scooter and it was head-on collision, but the owner and insurer of the Scooter were not made party to petition, and the Tribunal has committed an error by 3 holding sole negligence of Maruti Car. Learned counsel also submitted that the driving license of the driver of Maruti Car has not been proved and there was breach of insurance policy, hence, the Tribunal straightaway should have directed the owner to pay the amount of compensation. 10- Perusal of record shows that the tribunal on the point of negligence has framed issue Nos. 1 and 2 in the claim petition. Both the issues were dealt with together. In the claim petition the petitioner has alleged that the driver of the Maruti Car UP 32AU-2442 dashed him on wrong side. The claimant has produced himself as P.W.1 and has deposed this fact on oath. In his cross- examination this witness has alleged that he had valid driving license and he was driving the Scooter in a moderate speed. The F.I.R. of the accident was lodged by the claimant which is paper No. 5-C/22 in the file of trial court, in which the claimant has mentioned this fact that the driver of the Maruti Car dashed him on wrong side, driving the Car in a high speed. This evidence is un- rebutted. The Insurance Company has not adduced any evidence in the contrary to show that there was head-on collision and the Scooter driver was also responsible for causing the accident. The insurer has not made any effort to produce the site-plan, which would have been prepared during the investigation by the police, in order to substantiate its submission that the Scooterist was not dashed on wrong side and the accident was head-on collision. In the absence of any evidence from the side of insurance company, the learned Tribunal was justified in holding the sole negligence on the part of Car driver and absolving the Scooterist from the liability. I do not find any infirmity in the conclusion drawn by the Tribunal on the point of negligence. 4 11- As regards the other part of submission of learned counsel for the appellant that the insurance company should not have been directed to pay the amount of compensation, is concerned, I do not find any illegality in the impugned award on this point also. If the driving license of the driver of Maruti Car, involved in the accident, was not proved before the Tribunal, the Tribunal has given recoverable rights to the insurer against the owner. The owner did not contest the petition before the Tribunal. The Tribunal has rightly directed the insurer to make payment of the award to the claimant first and then recover the same from the owner. The recovery of the amount of compensation is the matter between the insurer and the insured and the claimant should not suffer unnecessary for his no-fault. 12- In view of above discussion, I do not find any merits in the appeal and the same is liable to be dismissed. 13- Accordingly, the appeal is dismissed. The impugned judgment and award dated 22-9-2007 is confirmed. 14- Let the statutory amount, deposited by the appeal at the time of filing the appeal, be remitted to the Tribunal concerned. (B.C. Kandpal, J.) ISB