IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Appeal From Order No. 258 of 2008 Swarn Singh … Appellant Versus Ashirwad Filling Station & another … Respondents Sri Pratiroop Pandey, Advocate for appellant None for respondents Dated: August 12, 2008 Hon’ble B.C. Kandpal, J. This appeal, preferred under Section 173 of Motor Vehicles Act, 1988, is directed against the judgment and award dated 12.12.2007 passed by Motor Accident Claims Tribunal/District Judge, Udham Singh Nagar (Rudrapur), whereby claim of claimant was allowed for a sum of Rs.1,48,074/- and opposite party no. 2-Oriental Insurance Co. Ltd. was directed to pay the same. Brief facts of the case as narrated in claim petition are that on 21.6.2005, claimant-Swarn Singh was employed as driver over Tanker No. U.P.07F-2789 owned by opposite party no. 1- Ashirwad Filling Station and he was holding valid driving licence. On 21.6.2005 at about 10.20 p.m. claimant along with Tanker was going Roorkee for filling the oil and when claimant reached in between village Udhowala and village Jigariwala, P.S. Afzalgarh, District Bijnor, suddenly a vehicle having heavy flash came there and an antelope also came there and in order to save it Tanker of claimant collided with trees standing at the side of road, due to which claimant sustained grievous injuries on his 2 person. The claimant alleged that treatment of his injuries has been done in Vivekanand Hospital and Shreya Hospital, Moradabad and uptil now about Rupees Three Lacs was spent on his treatment. The claimant was 43 years of age at the time of accident and claimant has become mentally disabled. He further alleged that he is unable to do pairavi of his case and to give statement and therefore, claim petition is being filed by wife of claimant-Smt. Mahendra Kaur. The claimant claimed a sum of Rs.12,00,000/- as compensation along with interest against the opposite parties. Opposite party no. 1-Ashirwad Filling Station has filed written statement admitting the factum of registration of vehicle in question in his name and insurance with opposite party no. 2 and denied the contents of claim petition for want of knowledge. In the additional pleas, it has been pleaded that on the date of accident his driver was holding valid and effective driving licence and papers of his vehicle were valid. Therefore, the liability to pay the compensation, if any, is of the insurance company. Opposite party no. 2-Oriental Insurance Co. Ltd. has filed written statement denying the contents of claim petition. It took additional plea that no information was given to it with regard to accident and F.I.R. has been lodged after a delay of hundred days and on the date of accident driver of vehicle in question was not holding valid driving licence and claim petition is based on wrong and fabricated facts. Therefore, the claim petition filed against opposite party no. 2 is liable to be dismissed. 3 The learned Tribunal on the basis of pleadings of parties framed following issues in the claim petition: 1. Whether on 21.6.2005 at about 10.20 p.m., in between village Udhowala and village Jigariwala, P.S. Afzalgarh, District Bijnor, the driver of Tanker No. UP-07F-2789 collided with trees in order to save another vehicle having heavy flash and an antelope, coming from opposite side, due to which claimant sustained grievous injuries? 2. Whether at the time of accident driver of Tanker No. UP-07C-2789 was not holding valid driving licence? 3. To what amount of compensation is the claimant entitled and from whom of the parties? Parties led evidence in support of their cases. The Tribunal after having considered the material available on record and hearing learned counsel for the parties decreed the claim petition for a sum of Rs.1,48,074/- in favour of claimant, against opposite party no. 2-Oriental Insurance Co. Ltd., along with interest at the rate of 7% per annum from the date of filing the petition till the date of actual payment, vide judgment and award dated 12.12.2007. Feeling aggrieved by the aforesaid impugned judgment and award, the claimant-appellant has 4 filed this appeal before this Court for enhancement of amount of compensation. Heard Sri Pratiroop Pandey, learned counsel for the appellant and perused the record. None has appeared on behalf of respondents inspite of sufficient service of notice upon them. As far as issue no. 1 with regard to factum of accident is concerned, as per claim petition the said accident had occurred due to collision of Tanker No. UP-07F-2789 with trees in order to save another vehicle having heavy flash and an antelope coming from opposite side. Smt. Mahendra Kaur, who is the wife of claimant, has been produced as PW-1 and she has supported the contents of claim petition in her oral evidence. In the cross-examination, this witness has stated that she herself did not see the accident. Thus, this witness is not the eye witness of this accident. The claimant filed carbon copy of F.I.R. (paper no.8C/2), in which it has been mentioned that the said Tanker collided with trees standing at the side of road due to coming of another vehicle having heavy flash and an antelope from opposite side and in order to save them. The Tribunal after having considered the entire evidence adduced before it came to the conclusion that on 21.6.2005 at about 10.20 p.m., in between village Udhowala and village Jigariwala, P.S. Afzalgarh, District Bijnor, the driver of Tanker No. UP-07F- 2789 collided with trees in order to save another vehicle having heavy flash and an antelope, coming from opposite side, due to which claimant sustained grievous injuries. I do not find any illegality in the 5 finding recorded by the Tribunal and same deserves to be confirmed. As far as issue no. 2 is concerned, opposite party no. 2 did not adduce any evidence in this regard, while claimant filed copy of driving licence of driver-Swarn Singh (paper no. 26C/5), which shows that on the date of accident driver of Tanker in question was holding valid driving licence. As far as issue no. 3 regarding quantum of compensation is concerned, the claimant filed medical bills (paper nos. 8C/5 to 8C/91) amounting to Rs.1,43,074/- and Tribunal has taken into consideration that amount towards medical expenses of claimant. The claimant filed disability certificate (paper no. 8C/4) issued by C.M.O. Udham Singh Nagar and in order to prove it claimant produced Pooran Singh Adhikari as PW-4, who stated in his deposition that disability certificate has been issued from C.M.O. Office on 25th January, 2008 and has proved the signatures of Dr. A.S. Son. From perusal of disability certificate filed by claimant, it reveals that the said disability certificate has not been prepared by panel of doctors and claimant has not produced C.M.O. in order to prove the said document. The Tribunal has recorded a finding that since disability certificate could not be proved, therefore, the claimants are not found to be entitled to get any amount of compensation towards the head of disability. I do not find any illegality in the finding recorded by the Tribunal and same deserves to be confirmed. The Tribunal further awarded a sum of Rs.5,000/- under the head of physical and mental agony, which appears to be 6 justified. Thus, the Tribunal awarded a total sum of Rs.1,43,074 + Rs.5,000=Rs.1,48,074/- as compensation, which appears to be a just and reasonable amount of compensation and needs no interference. I do not find any illegality in the method adopted by the Tribunal in calculating the amount of compensation. For the reasons stated above, the appeal lacks merit and is liable to be dismissed. The appeal is accordingly dismissed. The impugned judgment and award is hereby confirmed. (B. C. Kandpal, J.) SP