IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL. A.O. No. 98/2007 Smt. Nandini Bhatt and 2 others … Appellants. Versus Madu De and another .. Respondents. Sri Lok Pal Singh, learned counsel for the appellants. Sri P.C. Maulekhi, learned counsel for respondent/New India Ass. Co. Dated: 4-12-2008 UHon’ble B.C. Kandpal, J. This appeal, under Section 173 of the Motor Vehicles Act, has been preferred against the judgment and order dated 3.1.2007 passed by Motor Accident Claims Tribunal/ District Judge, Haridwar, in MACT Case No. 109/2004. 2- The relevant facts of the case are that on 2-9- 2004 in the night when Rajesh Bhatt @ Tulasi Ram was coming to Haridwar with his friend riding in Bajaj Pulsar bearing registration No. U.A. 08-A-8281 he met with an accident and he died due to the injuries sustained by him in the said accident. The claimants filed claim petition against the New India Assurance Company, which was the insurer of the vehicle in question. According to the claimants the deceased was 31 years of age and his monthly income has been shown as Rs. 4,000/-. 3- The owner of the Motorcycle UA 08-A- 8281 filed his written statement and alleged that the vehicle was insured with New India Assurance Company, therefore, the liability to pay the compensation is upon it. 4- The New India Assurance Company also filed its written statement denying the allegations made in the petition. The insurer also alleged that the petition has 2 been filed in collusion with the owner of the Motorcycle and the driver of the Motorcycle was not having valid driving license, therefore, the petition is liable to be dismissed. 5- The tribunal framed issues in the claim petition. Thereafter, the claimants adduced evidence in support of their claim. The Tribunal after hearing learned counsel for the parties and perusing the material available on record, dismissed the claim petition vide impugned judgment and order. 6- Feeling aggrieved the claimants have preferred this appeal before this Court. 7- Learned counsel for the claimants/appellants has submitted that the death of Rajesh Bhatt was proved in a motor accident and the tribunal has committed a manifest error in dismissing the claim petition, therefore, the impugned judgment and order is liable to be set aside. 8- The sole question involved in this appeal is as to whether the claimants are entitled to get any compensation in lieu of alleged death of Rajesh Bhatt in a Motorcycle accident or not?. 9- From perusal of impugned judgment it is quite clear that the learned tribunal has framed issue No.1 on the point of death of Rajesh Bhatt in a motorcycle accident. To prove the factum of death of Rajesh Bhatt in motor accident, the claimants have filed copy of F.I.R. given to Deoprayag Police. According to the F.I.R. the accident had occurred on 31.8.2004 whereas in the claim petition the date of accident has been mentioned as 2-9- 3 2004. Smt. Nandini Bhatt widow of the deceased has deposed that the accident has occurred in the night of 31-8-2004. Therefore, there is major contradiction with regard to the date of accident and death of Rajesh Bhatt as mentioned in the F.I.R. and in the claim petition as well as in the statement of P.W.1, Smt. Nandini Devi. 10- Ashok Kumar Darmoda, P.W.2, who was pillion rider in the Motorcycle, is an important witness. He has not given the date of accident in his statement. Rather he has deposed that when they were returning from Rudraprayag, suddenly stone fell on the Motorcycle near village Sodiyani and accident took place. Thus in view of above statement of P.W.2, it is quite clear that the accident did not occur due to rash and negligence of the deceased or on account of some technical defect in the vehicle, but the cause of the accident was the ‘Act of God’. For this sole reason also the insurer/ insured of the Motorcycle in question cannot be held liable to pay compensation in lieu of death of the deceased due to falling of stone from the hill side. However, as stated in the earlier paragraph of this judgment, the claimants could not prove the date of accident, therefore, the learned Tribunal was justified in holding that the claimants have not been able to prove the death of Rajesh Bhatt in a Motorcycle accident in the night of 2-9- 2004 as has been mentioned in the claim petition. In the aforesaid facts and circumstances of the case, the claimants cannot be held entitled to get any compensation in lieu of alleged death of Rajesh Bhatt. I do not find any infirmity in the impugned judgment passed by the tribunal dismissing the claim petition. 4 11- For the reasons recorded above the appeal lacks merit and is liable to be dismissed. 12- Accordingly, the appeal is dismissed. The impugned judgment and order is hereby confirmed. (B.C. Kandpal, J.) ISB 5