IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL. A. O. No. 302/2005 Smt. Vimla Devi and others …. Appellants. Versus S.L. Malhotra and another ………… Respondents. Sri S.S. Chaudhary, learned counsel for the appellants. Sri M.K. Goyal, learned counsel for the respondent No.2. None has appeared on behalf of respondent No.1, in spite of publication made in the daily Newspaper. Hon’ble B.C. Kandpal, J. (Oral) This appeal under Section 173 of the Motor Vehicle Act, has been preferred against the judgment and award dated 14-2-2003, passed by Motor Accident Claim Tribunal/Addl. District Judge/I F.T.C. Udham Singh Nagar, in MACP No. 63 of 2002, Smt. Vimla Devi and others Vs. S.L. Malhotra and another. 2- Brief facts of the case are that on 13-11-2000 Har Gyan Singh along with his friend Kailash was going to village Sultanpur from his village Gajera Alam, riding in a motorcycle and in the way at about 5.00 P.M. on Kashipur- Moradabad Motor Road, Maruti Car No. DL-8 CB- 5726 coming from front side dashed with the motorcycle due to which Har Gyan Singh sustained grievous injuries and during his treatment he succumbed to the injuries on 11.1.2002. At the time of the death the deceased was 27 years of age and he was earning Rs. 4,500/- per month, therefore, the claimants filed the claim petition for compensation. 3- The opposite party No.1, in spite of service of notice, did not contest the petition. 4- The opposite party No.2, Oriental Insurance Company filed the written statement and alleged that 2 the owner and insurer of the motorcycle should have been made party in the claim petition. The insurance company also alleged that the motorcycle was having three persons at the time of accident and in the F.I.R. number of the motorcycle has not been mentioned. There is no proof that the driver of Maruti Car was having valid driving license. Therefore, the insurer denied its liability. 5- The learned tribunal framed relevant issues in the claim petition. Thereafter claimants adduced evidence in the claim petition. Thereafter the learned tribunal after hearing learned counsel for the parties and considering the entire material available on record, decreed the claim petition for a sum of Rs. 75,000/- along with interest @ 9% per annum from the date of filing the petition against the opposite party No.1, owner of the offending Maruti Car. 6- Feeling aggrieved, the claimants have preferred this appeal before this court for enhancement. 7- I have heard learned counsel for the appellants and the learned counsel for respondent No.2 and perused the record. None has appeared on behalf of the respondent No.1, in spite of publication made in the Newspaper. 8- So far as the factum of accident is concerned, the learned Tribunal has discussed this point on issue No.1. The learned tribunal has recorded a finding that the owner of the offending Maruti Car did not appear in the court and this fact has not been established as to whether the driver of the Maruti Car was having valid and effective driving license or not at the time of accident and for this reason the owner of the offending Maruti Car is liable to pay the compensation. This direction issued 3 by the tribunal holding liable the owner of the Maruti Car, i.e. S.L. Malhotra, is liable to be set aside for the reason that in the connected case arising out of the same accident, the tribunal has specifically held that the offending car owned by S.N. Malhotra was insured by the Oriental Insurance Company at the time of the accident. The judgment placed by the claimants before this court pertains to MACT Case No. 235 of 2001, Smt. Omwati and others Vs. S.L. Malhotra and another, which indicates that the Car dashed with the motorcycle on 13.11.2001 at about 5.00 P.M. in village Laungi, and the motorcycle was being driven by its driver Har Gyan Singh and Kailash Singh was pillion rider on the motorcycle who died in the accident. The tribunal in that case while deciding issue No.2 has specifically held that at the time of the accident Maruti Car had all the valid papers as well as the driver of the Maruti Car had also valid and effective driving license. I do not find any reason that in the instant case, which is arising out of the same accident, how the different finding could be arrived by the tribunal without taking the note of the evidence adduced by the parties in the connected case arising out of the same accident. 9- It is, thus, quite clear that the driver of the offending car was having valid and effective driving license on the date of the accident. 10- Learned counsel for the appellant has invited my attention towards the driving license of Amar Singh Pal, driver of the Maruti Car, involved in the accident, which indicates that the driver was having valid and effective driving license. The judgment cited by the learned counsel for the claimant/appellants before this court with regard to the same accident, in which pillion rider 4 Kailash succumbed to injuries, could not be rebutted from the side of the insurance company. Therefore, I do not find any reason to record a dissenting note from the judgment passed by the tribunal in the connected case arising out of the same accident in which it has been held that the driver of the offending car was having valid and effective driving license. 11- So far as the impugned judgment and award pertaining to quantum of compensation is concerned, the same is just and reasonable and does not require interference by this court. 12- For the reasons recorded above the appeal for enhancement of compensation is liable to be dismissed. 13- Accordingly, the appeal for enhancement of compensation is dismissed. However, the impugned judgment and award is modified up-to the extent that the amount of compensation awarded in favour of the claimants, against the owner of the offending car, shall be paid by the Oriental Insurance Company instead of the owner of the offending Maruti Car. ( B.C. Kandpal, J.) Dated: 13-7-2009 ISB 5