IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Appeal From Order No. 175 of 2007 National Insurance Company Limited. … Appellant. Versus Paras S/O Sri Dinesh Chandra and another. … Respondents. Mr. D.S.Patni, Advocate, learned counsel for the appellant. Mr. Z.U.Siddiqui, Advocate, learned counsel for the respondent No.1-Cross Objector. WITH Cross Objection (CLMA No. 1463 of 2007) Date March 15, 2011. Hon’ble B.S.Verma, J. This appeal under Section 173 of the Motor Vehicles Act, 1988 (for short the Act) is directed against the award dated 19- 2-2007 passed by the Motor Accident Claims Tribunal/District Judge, Nainital (for short the Tribunal) in Motor Accident Claim Petition No. 78 of 2006, Paras Vs. Shatrughan Pandey andanother whereby an amount of Rs. 1,90,000/- has been awarded as compensation to the claimant-respondent no.1 along with interest @ 6% per annum, as mentioned in the impugned award. Relevant facts giving rise to the present appeal in brief are that a claim petition was moved by the father of respondent no.1 before the Tribunal alleging therein that on 4-7-2005, the son of the claimant Paras sustained grievous injuries in a motor vehicle accident which occurred due to rash and negligent driving by the motor cyclist of motor cycle no. UA-4B-1163. According to the claimant on the fateful day, at about 1 p.m., his son was waiting for a bus near the motor road at village Lodhia when the offending motor-cycle coming from the side of Almora hit the son of the claimant, who sustained grievous injuries on various parts of his body. The injured was brought to Government Hospital Almora and he was admitted there for treatment. But due to his critical 2 condition, the injured was taken to Haldwani and was admitted at Krishna Hospital for treatment. Blood was arranged for the injured on payment from Sushila Tiwari Hospital’s Blood Bank. The injured was also given treatment at Deena Hospital Almora. In his treatment about Rs. 1,50,000/- had already been spent and the treatment is still continuing. At the time of accident, the injured was aged 17 years and he was a student of Class XI. The injured was having keen interest in the games at school level and he was awarded many prizes and medals. The injured is the only son of the claimant. The claim petition was moved for grant of compensation worth Rs. 5,90,000/- along with interest. The owner of the vehicle-respondent no.2 herein resisted the claim petition by filing his written statement. The respondent no. 2 admitted the date, time and place of motor accident and he also admitted himself to be owner of the motor- cycle and that the motor cycle was duly insured with the insurance company. He denied the negligence on the part of the driver of the motor cycle rather asserted that the accident in question occurred due to own negligence of the injured. He also asserted that the motor cyclist was having all valid papers including a valid driving licence and that the liability if any rest upon the insurance company. The appellant-insurance company also filed its written statement and asserted that no information was given to the insurance company regarding the motor accident, hence the insurance company is not liable for compensation. The insurance company also pleaded that compliance of Section 64(5) of the Act had not been made. On the pleadings of the parties, the learned Tribunal framed as many as four issues in the case. Issue no. 1 was framed on the point of rash and negligent driving by the driver of the motor cycle. Issue no. 2 related to negligence on the part of the injured 3 Paras. Issue no. 3 related to violation of policy conditions and Issue No. 4 was framed on the point of relief. After hearing both the parties, the learned Tribunal took up Issue nos. 1 and 2 together for disposal. In support of his case, the claimant filed his affidavit (paper no. 23-B). He has categorically stated the entire story leading to the motor accident and injuries having been sustained by him due to rash and negligent driving by the motor-cyclist. The claimant also proved the documents pertaining to his operation during the course of treatment. In the cross-examination, he denied the suggestion that the accident occurred due to his own negligence on the date of accident. It appears that no evidence was led by the owner of the motor-cycle and the appellant to controvert the evidence led by the claimant. Ultimately, the learned Tribunal decided both Issue No. 1 and 2 in favour of the claimant and it has been held that the accident in question occurred due to rash and negligent driving by the driver of the motor cycle and there was no negligence on the part of the injured. On issue no. 3 the learned Tribunal on the basis of the evidence on record found that the owner of the offending motor cycle was having all valid documents including a valid driving licence. It was also held that the vehicle was duly insured with the appellant-insurance company on the date of accident. It was also held that there was no violation of any policy condition. Learned Tribunal has categorically held that the insurance company failed to adduce any oral or documentary evidence which would suggest that there had been violation of policy condition. Issue no. 3 was decided against the appellant-insurance company. On Issue No. 4, the learned Tribunal has held that medical expenses bill worth Rs. 1,50,000/- are available on record and the treatment of the injured was still continuing. The learned Tribunal has observed that about an amount of Rs. 2,00,000/- would be spent towards medical treatment of the injured, out of 4 which bills worth Rs. 1,50,000/- were already on record. Ultimately, the learned Tribunal has awarded compensation of Rs. 1,90,000/- along with simple interest @ 6% per annum against the appellant insurance company as mentioned in the impugned award dated 19-2-2007, which gave rise to the present appeal. Aggrieved by the award dated 19-2-2007, the claimant Paras has filed cross-objection for enhancement of the compensation. Learned counsel for the appellant has contended that the application under Section 170 of the Act was moved, which was allowed by order dated 7-11-2006, therefore, the insurance company is entitled to contest the petition on all grounds available to the owner of the vehicle. It has also been contended that the bills and receipts relied upon by the learned Tribunal were not legally proved, therefore, those bills and vouchers could not have been taken into consideration and the compensation awarded is on the higher side. On the other hand, learned counsel for the claimant- cross-objector has contended that the approach of the learned Tribunal in calculating the compensation was not justified as the injured has become permanently disabled. I have heard learned counsel for the parties and perused the record including the lower court record. At the outset, it may be mentioned that there is no such finding of the learned Tribunal that there has been collusion between the injured or claimant and the owner of the offending vehicle. Section 170 of the Act reads as under:- “170. Impleading insurer in certain cases.- Where in the course of any inquiry, the Claims Tribunal is satisfied that- 5 (a) there is collusion between the person making the claim and the person against whom the claim is made, or (b) the person against whom the claim is made has failed to contest the claim. It may, for reasons to be recorded in writing, direct that the insurer who may be liable in respect of such claim, shall be impleaded as a party to the proceeding and the insurer so impleaded shall thereupon have, without prejudice to the provisions contained in sub-section (2) of section 149, the right to contest the claim on all or any of the grounds that are available to the person against whom the claim has been made.” I have perused the application under Section 170 of the Act moved by the appellant before the Tribunal. In this application, the insurance company has alleged that there is collusion between the claimant and the owner of the vehicle and the owner is not properly contesting the claim petition. However, the application under Section 170 of the Act moved by the appellant insurance company was allowed by the learned Tribunal without recording any finding on the point of collusion between the claimant and the owner of the vehicle. The application has been allowed in a routine manner. Be that as it may, this appeal is being decided on merits. It may be noted that the claimant-injured has not filed any certificate issued by the competent doctor to show that he has suffered permanent disability. Moreover, the learned Tribunal has already accepted the medical expenses bills worth Rs. 1,50,000/- available on record for computing the compensation. I have perused the affidavit filed by the injured before the learned Tribunal. In this affidavit, there is no averment to the effect that the injured has become permanently disabled. Moreover, no medical evidence has been led to substantiate this aspect before the Tribunal. 6 It is well settled that while computing compensation, the Tribunal has to apply some guess work and has to take into consideration the duration of treatment coupled with other factors. In the case at hand, the accident in question occurred on 4-7-2005. The affidavit was filed by the injured in the month of November 2006. Thus, it can be very well visualized from the evidence on record that the injured remained under treatment at different hospitals and his treatment has to be continued even on the date of impugned award. The learned Tribunal has considered all the evidence led before it. The negligence on the part of the motor- cyclist is fully proved on record as the appellant or the respondent no. 2 herein (owner of the vehicle) has not led any evidence to establish that the accident did not occur due to rash and negligent driving by the motor-cyclist or that there has been contributory negligence on the part of the injured. From the evidence brought on record, it can safely be held that there was no violation of any policy condition. The offending motor cycle was duly insured on the date of accident with the appellant-insurance company. Moreover, it is settled law that strict prove of this fact is not required in the claim petition. It is settled principle of law that the compensation should be fair and adequate. Taking into consideration the all the facts, circumstances and the evidence led by the parties before the Tribunal, I am of the considered view that the motor accident in question had occurred due to rash and negligence on the part of the motor cyclist. I also find that the injured was taken to different hospitals for treatment and he was also operated upon and that the process of treatment had not lasted till the date of impugned award. Taking into consideration the nature of injuries suffered by the injured and the long span of treatment and the medical expenses already incurred by the injured, I find that the award of compensation of Rs. 1,90,000/- along with 6% per annum simple interest is the fair and adequate compensation and in any view of 7 the matter it cannot be said that the amount of compensation and the rate of interest are on the higher side. The findings recorded by the learned Tribunal on Issue Nos. 1 to 4 do not require any interference in the present appeal. In view of the discussion above, the cross-objection filed by the injured lacks merit and is liable to be dismissed. In the result, the appeal has no force is liable to be dismissed outright. The appeal is dismissed. The impugned award dated 19-2-2007 passed by the Tribunal is upheld. The cross-objection filed by the claimant is also dismissed. No order as to costs. The amount, if any, deposited with the Registry of this Court in this appeal be remitted to the Tribunal concerned for being paid to the injured-respondent no.1. Interim order dated 15-5-2007 is vacated. (B.S.Verma, J.) RCP