JODHPUR : : S.B. Civil Misc. Appeal No.2084/2011. (United India Insurance Co v. Kishore) DATE OF JUDGMENT : November 11 & Ors.

November 11, 2011 P R E S E N T HON'BLE MR. JUSTICE GOPAL KRISHAN VYAS _________________________________________

Mr. Anil Kaushik for the appellant. Mr. Arun Dadhich for the respondent. BY THE COURT : The appellant insurance company preferred this appeal under Section 173 of the Motor Vehicles Act, 1988 against the judgment and award dated 01.04.2011 passed by the Judge, Motor Accident Claims Tribunal, Parbatsar in Claim Case No.76/2010, whereby, the learned Tribunal awarded Rs.1,41,105/- as compensation in favour of the claimant Kishore Kumar. The main grievance of the insurance company is that in the FIR filed after the accident the registration number of the vehicle 2 in question was not disclosed and, later on, in the investigation the police filed challan against the driver Mahendra Singh of vehicle No.RJ 21-R-2165. In the trial also no documentary evidence is placed on record to prove that the vehicle No.RJ 21- R-2165 was involved in the accident. The second ground raised in the appeal is that the assessment made by the Tribunal for damages is also erroneous because no doctor was produced in evidence for supporting the injury report, X-ray report and discharge ticket and to prove the fact of operation in which iron rod was alleged to be fixed in the tibia and fabula of left leg, therefore, the award impugned deserves to be quashed.

Learned counsel appearing on behalf of the insurance company vehemently argued that a concocted story with regard to accident and involvement of the aforesaid vehicle was framed and, thereafter, with collusion of the owner of the Pick-Up this claim has been filed, therefore, the award impugned may be quashed. It is also argued that if this Court accepts the fact then, in that event, quantum of compensation may be assessed which is erroneously awarded in favour of the claimant- respondent. Per contra, learned counsel appearing on behalf of the claimant-respondent submits that the plea of the appellant with regard to involvement of vehicle No.RJ 21-R-2165 cannot be 3 accepted because a notice under Section 133 was given to the owner of the said vehicle and in pursuance of the said notice reply Ex.-7 was filed by the owner in which the fact of accident with the said offending vehicle was accepted, therefore, the argument advanced by learned counsel for the appellant insurance company is not tenable.

With regard to quantum of compensation, it is submitted that as per the medical evidence operation of left leg was made and necessary certificates were issued which were placed on record in the trial viz., injury report, Ex.-4, X-ray report, Ex.-5, in which, it was categorically mentioned by the doctor that there was fracture in the ankle joint of the right leg and ankle-joint of tibia bone of left leg. Further, the evidence of operation was also placed on record and disability certificate, Ex.-31 was also placed on record; and, after taking on record the fact that claimant sustained 24% permanent disability the Tribunal awarded compensation of Rs.1,41,105/- in which there is no error. After hearing learned counsel for the parties, I have perused the award impugned. It is admitted position of the case that notice under Section 133 was given to the owner of the vehicle in question and in the reply to that it is accepted by him that his vehicle met with accident in which the claimant sustained injuries.

This fact is 4 sufficient to prove that the vehicle in question which was insured with the appellant insurance company was involved in the accident, therefore, the plea of the appellant insurance company is rejected that there is no evidence to prove the factum of involvement in the accident of the vehicle in question. With regard to the second ground of the appellant, it is the admitted position of the case that so many documents to prove the injuries and fact of operation in which iron rod was fixed in the left leg of the claimant were placed on record for consideration. It is also worthwhile to observe that a certificate was issued to the effect that the claimant sustained 24% permanent disability due to the injuries received by the claimant in the accident; meaning thereby, the Tribunal after taking into consideration all the factors so also income of the claimant gave finding that the claimant is entitled for compensation of Rs.1,41,105/-. In my opinion, both the ground taken by the appellant insurance company in this appeal are not sustainable in law because the amount is in the lesser side looking to the injuries sustained by the claimant in the accident. There is thus no force in this appeal and the same is hereby dismissed. Ojha, a. (Gopal Krishan Vyas) J.