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2009 DIGILAW 104 (UTT)

YOGENDRA PAL SINGH v. SOMTI DEVI

2009-03-17

B.C.KANDPAL

body2009
JUDGMENT Hon’ble B.C. Kandpal, J. This appeal, under Section 173 of Motor Vehicles Act, 1988, has been preferred by the owner of offending vehicle in question, against the judgment and award dated 3.1.2007 passed by Motor Accident Claims Tribunal/District Judge, Haridwar in M.A.C.C. No. 30/2006, Smt. Somti Devi and another vs. Yogendra Pal Singh and another. 2. The claimants filed a claim petition before the Tribunal under Section 140/166 for grant of compensation to the tune of Rs. 11,10,000/- in lieu of death of deceased-Bishambar Singh (husband of claimant no. 1 – Smt. Somti Devi) alleging therein that Sri Bishambar Singh died in an accident on 6.2.2006 which occurred at 6.00 p.m. near Singhdwar P.S. Jwalapur due to rash and negligent driving of driver of vehicle No. UP. 11K 1879. It has also been alleged that monthly income of deceased was Rs. 7,100/- and his age was 59 years at the time of his death. 3. Opposite party no. 1 i.e. owner of vehicle in question/appellant before this Court filed his written statement denying the contents of the claim petition and stated that accident is the result of rash and negligence on the part of deceased and liability to pay the compensation, if any, is of opposite party no. 2 – New India Assurance Co. Ltd. with whom the said vehicle was insured at the time of accident. 4. Opposite party no. 2 – New India Assurance Co. Ltd. filed its written statement denying the contents of the claim petition and stated that vehicle in question was not being plied with valid papers and valid driving licence and in this circumstance claim petition filed by claimants is liable to be dismissed. 5. The learned Tribunal on the basis of pleadings adduced by the parties framed necessary issues in the claim petition. Parties led oral as well as documentary 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. 2,45,000/- along with interest @ 5% per annum from the date of filing the petition till the date of actual payment. 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. 2,45,000/- along with interest @ 5% per annum from the date of filing the petition till the date of actual payment. The Tribunal also directed that as the accident is a result of rash and negligence on the part of driver of offending vehicle in question, therefore, if insurance company wishes so, it may recover the awarded amount of compensation from the owner of offending vehicle in question. 6. Feeling aggrieved by the aforesaid direction issued by the Tribunal, the owner of offending vehicle in question has preferred this appeal before this Court. 7. Heard Sri Sharad Sharma, learned counsel for the appellant, Sri Bhuwanesh Joshi, Advocate holding brief of Sri Vivek Shukla, learned counsel for claimants-respondents no. 1 & 2, Sri M.K. Goyal, learned counsel for respondent no. 3 – insurance company and perused the record. 8. Having considered the submissions advanced by learned counsel for the parties, I am of the view that impugned judgment and award suffers with inherent infirmity. The Tribunal has directed insurance company to recover the awarded amount of compensation from the owner of vehicle only for the reason that accident is the result of rash and negligence on the part of driver of offending vehicle in question. This direction in any case cannot be held to be justified. The Tribunal on one hand has given the finding while deciding issue nos. 2 and 3 that papers available on record nowhere indicate that the driver was not holding any valid driving licence at the time of accident or any other document pertaining to vehicle including insurance policy suffers with any shortcoming. In case, if all the papers filed by the driver and the owner of vehicle were found to be valid and justified on the date of accident, then there was no occasion to issue direction by the Tribunal for recovery of the awarded amount of compensation from the owner of vehicle in question. 9. I am of the view that this direction issued by the Tribunal that insurance company may recover the awarded amount of compensation from the owner of vehicle, is liable to be set aside. 10. Learned counsel for respondent no. 9. I am of the view that this direction issued by the Tribunal that insurance company may recover the awarded amount of compensation from the owner of vehicle, is liable to be set aside. 10. Learned counsel for respondent no. 3 – insurance company has submitted that income taken into account by the Tribunal cannot be said to be justified in the instant case. It is worthy to mention here that insurance company has not filed any appeal or cross-objection in this case, therefore, the insurance company cannot raise this argument at this stage. 11. Learned counsel for the appellant has not pressed any other point. 12. Accordingly, appeal is partly allowed. The impugned judgment and award is modified to the extent that awarded amount of compensation is to be paid by the insurance company instead of owner of vehicle in question. The direction issued by the Tribunal that insurance company may recover the amount of compensation from the owner of vehicle, is hereby set aside.