Neutral Citation No. - 2025:AHC:106445 Court No. - 2 Case :- FIRST APPEAL FROM ORDER No. - 2266 of 2015 Appellant :- National Insurance Co. Ltd. Respondent :- Amit Kumar And 2 Others Counsel for Appellant :- Ajay Singh Counsel for Respondent :- Gyan Chandra Yadav,Praveen Kumar Tiwari,Ram Babu Tiwari Hon'ble Saral Srivastava,J. 1. Heard Sri Ajay Singh, learned counsel for the appellant and learned counsel for the respondents. 2. The appellant by means of the present appeal has challenged the award dated 23.05.2015 passed by the Additional District Judge/Motor Accident Claims Tribunal, Meerut in M.A.C.P. No.85 of 2013 whereby Tribunal has awarded Rs.05,20,140/- alongwith 7% interest as compensation to the claimant/respondent no.1. 3. Challenging the aforesaid award, learned counsel for the appellant has contended that it is a case of accident between two vehicles i.e. Motorcycle No.U.P.-15-AQ-5542 on which the claimant/respondent no.1 was pillion rider and the Car No.DL-9- CY-8217. It is submitted that it is evident from the site plan of the accident that driver of the motorcycle was also negligent in the accident, therefore, the Tribunal has erred in law in deciding the issue of contributory negligence against the appellant-insurance company and holding that the accident was the result of sole negligence of driver of the car. It is further contended that it has come in the testimony of claimant/respondent no.1 that at the time of accident, some lady was driving the car, but the police has filed the charge sheet against one Ravindra Kumar Malhotra after about seven months from the date of the accident, who was impleaded as driver in the claim petition. 4. It is further contended that since the admitted case of the claimant/respondent no.1 that the offending vehicle was being driven by lady, therefore, the lady should have been impleaded as a party in the claim petition, and the owner should have produced the driving licence of that lady, and in absence of driving licence of the lady, who was alleged to have been driving the car, the owner of the car has committed breach of insurance policy. 5. It is contended that the medical certificate was issued by private doctor showing the disability suffered by the claimant/respondent no.1 to be 30%, and the Tribunal did not follow the guidelines laid down in the judgement of the Apex Court in the case of Raj Kumar Vs. Ajay Kumar and Another 2011 (1) T.A.C. 785 (S.C.) for ascertaining the functional disability of the respondent no.1 and the Tribunal on its own has held functional disability of the claimant/respondent no.1 to be 20%. Accordingly, it is submitted that the compensation awarded by the Tribunal is excessive and not sustainable in law. 6. Per contra, learned counsel for the respondent would contend that the charge sheet is not the conclusive proof of evidence with regard to the negligence of the parties in the accident. It is submitted that even otherwise, the claimant/respondent no.1 was a pillion rider and it is a case of composite negligence and it is the choice of the claimant/respondent no.1 to claim compensation from either of the tortfeasors, and if the appellant is of the opinion that the driver of the motorcycle is also negligent, the appellant- insurance company can lay the claim against the owner of the motorcycle, and pray for recovery of awarded amount from the owner of the motorcycle to the extent of negligence of the driver of the motorcycle in the accident. 7. It is further contended that the insurance company did not set up any case in the written statement that at the time of the accident, some lady was driving the car, and therefore, the owner has committed breach of insurance policy. It is further contended that it is the insurance company on whom the burden lies to prove that the driver of the offending vehicle was not holding a valid driving licence, and in the instant case, it was the duty of the insurance company to have set up a case in the written statement that the offending vehicle was being driven by a lady and further the insurance company should have also proved that the lady who was said to have been driving the car was not having a valid driving licence. In such view of the fact, the contention of learned counsel for the appellant with regard to breach of insurance policy is misconceived. 8. Lastly, it is contended that the disability certificate filed by the claimant/respondent no.1 has not been doubted by the appellant- insurance company which was duly proved by the doctor who issued the disability certificate and the Tribunal has held only 20% functional disability whereas as per the disability certificate, the disability of the claimant/respondent no.1 is 30%. It is submitted that the finding in respect of the functional disability is based upon the proper appreciation of evidence on record and does not warrant any interference by this Court. 9. Be that as it may, so far as the contention of learned counsel for the appellant with regard to the contributory negligence is concerned, admittedly, in the instant case, the claimant/respondent no.1 was a pillion rider of motorcycle, and therefore, it was a case of composite negligence. The law is settled by the Apex Court in the case of Khenyei Vs. New India Assurance Company Limited and others (2015) 9 SCC 273 wherein it has been held that in case of composite negligence, it is a choice of the claimant/respondent to claim compensation from either of the tortfeasors. If the insurance company is of the opinion that in the accident, the driver of the other vehicle is also negligent, the insurance company may lay the claim against the owner of the other vehicle seeking recovery of the amount paid by it to the extent of negligence of the driver of the other vehicle, therefore, the aforesaid contention does not stand to merit and is rejected. 10. So far as the issue with regard to the driving licence is concerned, though it has come in the testimony of claimant/respondent no.1 that at the time of the accident, the offending vehicle was being driven by a lady, but the claimant/respondent no.1 did not tell the identity of the lady. The police has filed the charge sheet against Ravindra Kumar Malhotra who has been impleaded as party and his driving licence was produced on record. If the insurance company was of the view that Ravindra Kumar Malhotra has been planted and some lady was driving the car, it ought to have set up a plea in the written statement specifying as to who was driving the offending vehicle at the time of accident and the person who was driving the offending vehicle at the time of accident was not holding a valid driving license. The burden is upon the insurance company to prove the same. 11. The insurance company neither set up any plea in the written statement nor led any evidence on record to prove that the person who was driving the offending vehicle at the time of accident did not have a valid driving license. In such view of the fact, the contention of learned counsel for the appellant with regard to the driving license is misconceived and is not sustainable in law. 12. So far as the finding of the Tribunal with regard to the functional disability is concerned, the doctor who treated the claimant/respondent No.1 gave the disability certificate to the extent of 30% which was proved by the doctor who treated him. The Tribunal did not rely on the disability certificate, but after assessing the nature of injuries suffered by the claimant/respondent No.1, the Tribunal in the instant case held the functional disability to be 20%. 13. Though, the Tribunal has not strictly followed the guidelines laid down by the Apex Court in the case of Raj Kumar (supra) but considering the fact that the alleged accident had taken place on 25.06.2012, after about 13 years from the date of accident, it is very difficult to assess the functional disability. This Court at this stage is not inclined to remand the matter for deciding the functional disability afresh. 14. For the reasons given above, this Court does not find any good ground to interfere with the findings of the Tribunal. 15. For the reasons given above, the appeal lacks merit and is accordingly, dismissed. There shall be no order as to costs. Order Date :- 7.7.2025 SS Digitally signed by :- SUNIL KUMAR SHARMA High Court of Judicature at Allahabad