IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Appeal From Order No. 376 of 2005 The Oriental Insurance Company Ltd. … Appellant Vs Imran Hussain & 2 others … Respondents Sri Deepak Rawat, learned counsel for the appellant Sri Mohd. Azim holding brief of Sri B.S. Parihar, learned counsel for the respondents Hon’ble B.C. Kandpal, J. This appeal under Section 173 of the Motor Vehicle Act has been filed by the appellant/Insurance Company against the judgment and award dated 31.05.2005 passed by M.A.C.T./Fast Track Court, Kashipur in M.A.C. Case No. 178 of 2002 whereby the Tribunal awarded a sum of Rs. 1.00 lacs in favour of the claimants. 2. Brief facts of the case are that on 04.06.2002 at about 03:30 p.m., Sri Imran Hussain was standing on the road side near Wariyam Singh Farm House at Kashipur – Gadarpur Road, suddenly a Maruti Car bearing Registration No. DL3CD/4237 which was bring driven by its driver in a very rash and negligent manner, hit with Imran Hussain due to which he sustained serious injuries. The injured was admitted in the Sai Hospital, Moradabad. At the time of the accident, the injured was 5 years of age, a school going child. According to the claim petition, the claimants have spent Rs. 50,000/- on his medical treatment, therefore, the claim petition was filed before the Tribunal concerned to the tune of Rs. 2,00,000/- along with interest @ 12% per annum. 2 3. The Oriental Insurance Company contested the claim petition by filing its written statement denying the allegation made in the claim petition. The owner of the vehicle in question in spite of sufficient service did not submit any written statement before the Tribunal concerned, therefore, the Tribunal decided the claim petition ex-parte against the owner of the vehicle in question. 4. On the basis of the pleadings of the parties, the Tribunal has framed relevant issues which were discussed at a great length. Both the parties, led evidence in support of their cases. After hearing learned counsel for the parties and perusing the entire evidence led by the parties, allowed the claim petition to the tune of Rs. 1.00 lacs against the Oriental Insurance Company Ltd. vide judgment and award dated 31.05.2005. 5. Feeling aggrieved by the aforesaid judgment and award, the Insurance Company preferred this appeal before this Court. 6. Heard Sri Deepak Rawat, learned counsel for the appellant, Sri Mohd. Azim holding brief of Sri B.S. Parihar, learned counsel for the respondents and perused the record. 7. Perusal of the impugned judgment and award as well as record shows that the Tribunal relied upon the statement of P.W.2 – Mohd. Asif who has stated in his statement that he and his nephew were standing on the roadside. Suddenly Maruti Car No. DL3CD/4237 which was 3 being driven by its driver in a very rash and negligent manner, hit his nephew as well as dunlop and the driver of the car left the car over there and ran away. The opposite parties did not controvert the above statement of P.W.2, therefore, the Tribunal has rightly decided the issue with regard to the rash and negligence of the vehicle in question against the opposite parties. 8. Learned counsel for the appellant/Insurance Company has submitted before the Court that the Tribunal has committed error in fixing the liability of compensation upon the Insurance Company, in the absence of valid driving licence of the driver of the vehicle in question. He has further submitted that the insured did not produce the driving licence before the Tribunal which is a complete breach of the terms and conditions of the policy on the part of the insured for which the Insurance Company cannot be penalized. Therefore, the impugned judgment and award liable to be set aisde. 9. After going through the impugned judgment and award as well as going through the record, I come to the conclusion that the respondent/Insurance Company has raised this plea in its written statement that the driver was not having the valid and effective driving licence but no efforts whatsoever were made to prove this fact before the Tribunal concerned. The onus to prove this fact was upon the insurer, as the plea was taken by it in its written statement. The driver was also not made party and his driving licence could not be brought on record. Therefore, I do not find any force in the submission advanced by learned 4 counsel for the appellant and the learned Tribunal has rightly decided the issue against the Insurance Company. 10. So far as the amount awarded by the Tribunal is concerned, after going through the entire record available before me, I am of the view that the Tribunal has rightly awarded the amount of compensation. Paper No. 26C is the bill for Rs. 24,650/- pertaining to his operation held at Sai Hospital and other bills for Rs. 3,884.25 also enclosed. Therefore, the claimant is entitled to get Rs. 28,534/- towards medical and bills. The Tribunal towards the mental and physical loss of the claimant, awarded to Rs. 50,000/-. The Tribunal also recorded a finding that the claimant must have incurred some amount on his diet and conveyance and looking to all circumstances, awarded a total lump sum amount of 1.00 lac in all heads including medical bills and physical pain and suffering. The Hon’ble Apex Court in Kaushalya Devi Vs Karan Arora & others reported in 2007(3) T.A.C. 16 (S.C.) has held after detailed discussion, found the cmpensation for a sum of Rs. One lac in case of an infant death, is quite justified. It is clear from the paper No. 5C, which reveals that the vehicle in question was insured with the Oriental Insurance Company Ltd., therefore, the Tribunal has rightly imposed the liability of compensation upon the Insurance Company. As far as the interest part is concerned, it does not require any interference. I do not find any ground to interfere in the impugned judgment and award. The amount of compensation as has been awarded by the Tribunal is perfectly justified. 5 11. Accordingly, the appeal is dismissed. No order as to costs. 12. The statutory amount deposited before this Court by the appellant at the time of filing the appeal be remitted to the Tribunal concerned. (B.C. Kandpal, J.) 21.05.2008 ASWAL