Suresh Chandra Kestwal vs National Insurance Company Ltd.& Another

Lok Pal Singh, J

This appeal is directed against the judgment and order dated 15.09.2012 passed by 5th Additional District Judge/M.A.C.T., Dehradun in Motor Accident Claims Case No.20 of 2011, whereby the Tribunal has rejected the claim petition filed by the claimants/appellant.

Brief facts of the case are that on 6.01.2010 at about 06:30 am when the appellant was travelling from Dehradun to Kandi, Pauri Garhwal by Mahendra Max Car bearing no.UK07-TA1330, in an attempt to avoid the collision with the truck which was coming from the opposite side and was being driven by its driver rashly and negligently, appellant's vehicle met with an accident. Vehicle of the appellant fell into a gorge and the truck driver fled away from the spot. F.I.R. of the accident was given to the police via 108 emergency number whereupon the injured was taken to the hospital. Said accident occurred due to rash and negligent driving of the truck driver. The appellant is a driver and was earning his livelihood by driving taxi. In the said accident, the appellant suffered a fracture in his right hand and the hand has been left useless. He cannot work and drive as usual and has been deprived from earning his livelihood. With these averments, the appellant filed the claim petition before the Tribunal claiming a sum of Rs.7,20,000/- along with interest @ 18% per annum.

Respondent no.1-National Insurance Company Ltd., which is the insurer of Mahindra Max Car., filed its written statement and denied most of the averments made in the claim petition and contended that the claim petition is legally not maintainable. It was also contended that the driver was not holding any valid license at the time of accident.

Respondent no.2-Lalit Mohan Kestwal is the owner of Max Car and father of the appellant. He has admitted the contents of the claim petition.

On the basis of pleadings of parties, the Tribunal framed following issues in the matter:-

i) Whether on 06.01.2010 at about 06:30 am at Laxmanjhula Kandi motor road near Ghatugad (Neelkanth) District Pauri Garhwal due to the rash and negligent driving by the truck driver which was coming from opposite side the vehicle of the appellant fell into a deep gorge in an attempt to avoid the collision with the truck?

ii) Whether the claimant was holding a valid driving license to drive the Mahindra Max Car UKTA1330?

iii) Whether there was a breach of policy conditions at the time of accident?

iv) Whether the claim petition is legally not maintainable?

v) Whether the appellant is entitled to receive any compensation? If yes, to what extent and from which party?

Thereafter the parties led their oral and documentary evidence. The Tribunal after hearing the parties and on perusal of entire evidence on record, dismissed the claim petition. While arriving to such conclusion, the Tribunal recorded a finding that the appellant/claimant has not made the driver, owner and insurance company of the offending truck as party in the claim petition. Rash and negligence driving has been alleged against unknown truck and driver; neither registration number of the offending vehicle is mentioned in the claim petition nor any F.I.R. or charge-sheet has been produced; none of the four witnesses have disclosed the registration number of the truck or particulars of the truck driver.

I have heard learned counsel for the parties and perused the entire record.

In the present case, claim petition has been filed under Section 166 of Motor Vehicles Act. It is well-settled in law that proof of rashness and negligence on the part of the driver of the vehicle is sine qua non for maintaining an application under section 166 of the Act. Thus, the initial onus lies upon the claimant to prove that the alleged accident occurred due to rash and negligent driving by the driver of the offending vehicle, however, he has failed to do so. Neither the owner nor the driver nor the Insurance Company of the offending vehicle is known to the claimant nor has been made party in the claim petition. This Court cannot pass an award against a non-existing party. In such circumstances, Tribunal has rightly dismissed the claim petition. Learned counsel for the appellant also could not point any illegality or perversity in the impugned judgment and order.

For the reasons recorded above, appeal lacks merit. Same is hereby dismissed. No order as to costs.

Lower court record be sent back.