IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Appeal From Order No. 306 of 2007 National Insurance Company Ltd. ...Appellant Versus Sri Piyush Kumar Mittal & another ...Respondents Sri Lalit Belwal, Advocate for the appellant None for the respondents Dated: 28-04-2009 Hon’ble B.C. Kandpal, J. This appeal, under Section 173 of Motor Vehicles Act, 1988, has been preferred by the appellant i.e. National Insurance Co. Ltd., against the judgment and award dated 02.06.2007 passed by Motor Accident Claims Tribunal/Additional District Judge/First Fast Track Court, Haldwani, District Nainital, in M.A.C.C. No. 7 of 2006, Piyush Kumar Mittal versus Sanjiv Joshi and another, whereby claimant has been awarded a sum of Rs.29,100/- as compensation along with 7% interest per annum from the date of filing the petition till the date of actual payment. 2- Brief facts of the case as narrated in the claim petition are that on 01.05.2005 when claimant- Piyush Kumar Mittal was coming from Tanda, Ram Nagar, District Nainital on his Motorcycle No. U.A.04B/3200, near village Telipura his motorcycle got out of control in the process of coming a child on the road and applying the brakes in order to child and collided with another Motorcycle No. U.A.04B/6853 coming from opposite direction. In the said accident, claimant was grievously injured. It has been alleged that owner/driver of Motorcycle No. U.A.04B/6853 is responsible for causing the said accident. It has also been alleged that a sum of Rupees two lacs has been spent on medical treatment of the claimant. 3- Opposite party no. 1-Sanjeev Joshi, owner/driver of Motorcycle No. U.A.04B/6853 contested the claim by filing his written statement and stated that on the date of accident he was driving Motorcycle No. U.A.04B/6853 in moderate speed and motorcycle of claimant itself collided with his motorcycle in order to save a child coming on the road. It has been stated that at the time of accident opposite party no. 1 was having valid driving licence and his motorcycle was insured with National Insurance Co. Ltd. and insurance of vehicle was valid w.e.f. 10.12.2004 to 09.12.2005. Therefore, liability to pay the compensation, if any, is of opposite party no. 2-insurance company. 4- Opposite party no. 2-National Insurance Co. Ltd. filed its written statement and stated that claimant has not given full details of insurance policy of Motorcycle No. U.A.04B/3200 and driving licence, in the claim petition. It had not been given any information by the claimant with regard to the accident. Opposite party no. 1-Sanjeev Joshi, owner of Motorcycle No. U.A.04B/6853, neither clearly mentioned registration certificate etc. relating to his motorcycle nor owner of vehicle established this fact that at the time of accident he has not breached the conditions of insurance policy. The claimant claimed an exaggerated and exorbitant amount of compensation. The answering opposite party is not liable to pay any compensation. The said accident occurred on account of own negligence of claimant himself. The claimant has already been awarded compensation and thus claimant cannot be awarded compensation twice on the same ground. The accident did not take place on account of rash and negligent driving of driver of U.A.04B/6853, rather claimant himself by plying his motorcycle rashly and negligently collided with motorcycle of opposite party. Therefore, claim petition deserves to be dismissed. 5- The learned Tribunal on the basis of pleadings of the parties framed relevant issues in the claim petition. Parties led evidence in support of their case. The learned Tribunal after having considered the entire material evidence available on record and hearing learned counsel for the parties decreed the claim petition for a sum of Rs.29,100/- along with interest @ 7% per annum from the date of filing the petition till the date of actual payment, against opposite party no. 2-National Insurance Co. Ltd., vide impugned judgment and award dated 02.06.2007. 6- Feeling aggrieved by the aforesaid impugned judgment and award, the appellant i.e. National Insurance Co. Ltd. has preferred the present appeal before this Court. 7- Heard Sri Lalit Belwal, learned counsel for the appellant and perused the record. None has appeared on behalf of respondents inspite of sufficient service of notice upon them. 8- Learned counsel for the appellant has confined his argument to this aspect that learned Tribunal has committed manifest error of law by fixing the liability to pay the compensation upon the appellant as motorcycle of claimant itself collided with another motorcycle insured with appellant in order to save a child coming on the road and as such there was no occasion for the learned Tribunal to hold that motorcycle insured with the appellant was liable for the accident. 9- I have gone through the impugned judgment and award thoroughly. From perusal of impugned judgment and award it reveals that factum of accident has been discussed by the learned Tribunal while deciding issue nos. 1 and 2. The record shows that claimant-Piyush Kumar Mittal himself has been produced as PW-1. This witness has stated in his deposition that this accident occurred on 01.05.2005 at 1.00 p.m., in village Telipura, Ram Nagar, when claimant was coming to home on his Motorcycle No. U.A.04B/3200, all of a sudden a child came on the road and in order to save the child his motorcycle got out of control and collided with another Motorcycle No. U.A.04B/6853 coming from opposite direction rashly and negligently, due to which claimant sustained grievous injuries. This witness further stated that F.I.R. of this accident has been lodged by his brother-Akhil Mittal, on 29.5.2005 at P.S. Ram Nagar, copy of which is on record, in which factum of collision of unknown vehicle with motorcycle of claimant is mentioned. Another F.I.R. was lodged on 03.07.2005 at P.S. Ram Nagar, in which Akhil Mittal, brother of claimant, again stated that when claimant regained consciousness, he told the number of vehicle by which accident was caused, as U.A.04B/6853. On the other hand, learned counsel for insurance company did not adduce any evidence which may prove that said accident did not take place on account of rash and negligent driving of driver of Motorcycle No. U.A.04B/6853, rather it occurred on account of own rash and negligence of claimant himself. Therefore, the learned Tribunal after having considered the entire evidence available on record and hearing learned counsel for the parties came to the conclusion that in the said accident claimant was not at fault at all, rather all of a sudden a child came on the road and in process of saving the child, Motorcycle No. U.A.04B/6853 coming from opposite direction and which was being driven by rashly and negligently, hit the motorcycle of claimant, due to which claimant sustained injuries. I do not find any illegality in the said finding recorded by the Tribunal and same deserves to be confirmed. 10- No other point has been pressed by learned counsel for the appellant. 11- For the reasons stated above, appeal lacks merit and is liable to be dismissed. 12- Accordingly, appeal is dismissed. The impugned judgment and award dated 02.06.2007 passed by the Tribunal, is hereby confirmed. 13- The statutory amount deposited by the appellant with this Court be remitted to the Tribunal concerned. (B.C. Kandpal, J.) SP