JUDGMENT :

Vivek Singh Thakur, J.

CMP No.964 of 2018

Main appeal has been preferred by appellant-Insurance Company against Award dated 16.04.2016, passed by Motor Accident Claims Tribunal(I), Kangra at Dharamshala, H.P., in MACP No.(RBT)59-K/13/07, titled as Mukesh Kumar alias Sonnu vs. Sanjay Mehta & others, whereby claim of Mukesh Kumar- petitioner/respondent No.1, has been allowed by the MACT, by awarding compensation of Rs.30,27,400/- payable by appellant-Insurance Company alongwith interest @ 7.5% per annum from the date of filing of petition till the date of actual payment being insurer of the offending vehicle bearing Registration No.HP-53-A-0206 owned by respondent No.2-Sanjay Mehta, being driven by respondent No.3-Sanjeev Kumar.

2. Claim petitioner was pillion rider on the Motorcycle owned and being driven by respondent No.4-Vikas. Respondent No.5-ICICI Lombard General Insurance Company Ltd., is insurer of Motorcycle bearing Registration No.HP-40-A-2729 belonging to respondent No.4-Vikas.

3. As per claimant, on 30.06.2006, he was going from his native Village to Mandi, via Palampur, on Motorcycle HP-40-A-2729 as a pillion rider, being driven by respondent No.4-Vikas and near Veterinary Hospital Holta Camp, Palampur, at about 2.20 p.m. a Jeep bearing Registration No.HP-53-A-0206, owned by respondent No.2-Sanjay Mehta and being driven by respondent No.3-Sanjeev Kumar, in a rash and negligent manner, hit the Motorcycle causing injuries to the claimant leading to 75% permanent disability.

4. As per claimant, before accident, he was earning Rs.10,000/- per month, by running a shop of Goldsmith in Village and Post Office Suni, Tehsil Baroh, District Kangra, H.P., but after the accident he was not able to earn anything and he has to spend Rs.4,00,000/- for his treatment till the date of filing of the petition and at that time treatment was still going on. He has prayed for awarding compensation to the tune of Rs.20,00,000/-from the owner, driver and insurer of the offending Jeep. To substantiate the claim of rash and negligent driving, reliance was also placed on Registration of FIR No.165 of 2006 against respondent No.3-Sanjeev Kumar driver of the Jeep.

5. Appellant-Insurance Company has taken a specific defence that accident occurred due to rash and negligent driving of the driver of the Motorcycle, and driver of the Jeep was not possessing valid and effective Driving Licence at the time of accident and, therefore, for breach and for violation of terms and conditions of the Policy, appellant-Insurance Company was not liable to indemnify the insured. It is further stand of the appellant-Insurance Company that claimant is working normal as before and was not running shop of Goldsmith, rather he was earning nothing and the accident was result of rash and negligent driving of the motorcyclist.

6. Appellant-Insurance Company has assailed the Award also on the ground that quantum of compensation determined by the MACT is on higher side, and is contrary to the parameters and factors propounded by the Supreme Court in its various pronouncements.

7. Owner and driver of the offending Jeep have not preferred any appeal.

8. Alongwith appeal, present application under Order 41 Rule 27 of the Code of Civil Procedure (in short ‘CPC’) has also been filed for leading additional evidence with respect to genuineness and validity of the Driving Licence of Jeep driver respondent No.3-Sanjeev Kumar in order to absolve the appellant-Insurance Company from its liability to indemnify the owner and driver of the offending Jeep. It would be appropriate to adjudicate this application first, before deciding the main appeal.

9. Claim petition was preferred on 07.08.2007, wherein appellant-Insurance Company was impleaded as party in October 2009 on its disclosure as an insurer by the owner of the Jeep and, thereafter, appellant-Insurance Company was served for 8.04.2011 and since then appellant-Insurance Company was duly represented before MACT.

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