JUDGMENT
U.C. Maheshwari, J.
1. Being aggrieved by award dated 31.8.2004 passed by First Additional Motor Accident Claims Tribunal, Betul (hereinafter referred to as ‘the Tribunal’), in M. V.C. Case No. 30 of 2004, whereby Rs. 1,72,200 along with interest at the rate of 9 per cent per annum has been awarded against the appellant and in favour of respondent No. 1, insurer appellant has preferred this appeal.
2. The facts giving rise to this appeal are that on 3.1.2004, claimant-respondent No. 1 was travelling in a Tempo Trax bearing registration No. MP 28-H-1527, from Pathakheda to Multai. When Tempo Trax reached near Labhsingh Dhaba, Fansigarh Mazar and crossing a small bridge at that time a truck bearing registration No. MP-22 4295 came from opposite side in a rash and negligent manner driven by respondent No. 2 and collided with said Tempo Trax, resultantly, respondent No. 1 got injured and received injuries on head, right thigh, leg and hip. During that period respondent No. 3 was the registered owner of the said truck while the same was insured with appellant.
3. That, this incident was reported to the police. On registration of the offence, after investigation respondent No. 2 was charge-sheeted. Regarding treatment, the respondent No. 1 was shifted to a hospital at Padhar. Initially respondent No. 1 was admitted in hospital on 3.1.2004 where he was operated on 6.1.2004 and was kept in hospital till 2.2.2004. He was again admitted in the hospital in between 10.3.2004 and 19.3.2004 and discharged on 19.3.2004. Meanwhile bone-grafting was carried out and remained under observation and treatment with physiotherapy. As alleged 50 per cent permanent disability was sustained due to injuries of hip and knee. A claim for compensation to the tune of Rs. 10,00,000 was submitted before the Tribunal.
4. Driver and owner of the off ending truck, respondent Nos. 2 and 3, remained ex parte in the Tribunal, while filing reply the appellant raised the plea that the accident took place due to rash and negligent driving of the Tempo Trax not the truck and also denied the permanent disability of respondent No. 1. The pecuniary loss of respondent No. 1 was also denied. In the alternative it was also said that the incident was result of contributory negligence of both the vehicles and driver of the truck was not having valid and effective driving licence. A permission under Section 170 of Motor Vehicles Act for cross-examination of the witnesses of respondent No. 1 was also prayed in the absence of respondent Nos. 2 and 3 and such permission was granted.
5. On framing the issues respondent No. 1 led his evidence and examined himself and Dr. N.R. Padhi, AW 2, who treated him in private hospital, Padhar. No evidence was led on behalf of appellant, driver and owner. On appreciation of the evidence, the Tribunal concluded that the offending act was caused by truck and its driver and also found 50 per cent permanent disability to respondent No. 1 owing to injury of hip and awarded Rs. 1,72,200 by describing the different heads. Hence insurer has filed this appeal.
6. Counsel for the appellant vehemently argued that accident was not the result of any negligent act of the alleged truck while it was caused by a Tempo Trax in which the respondent No. 1 was travelling. In any case, the accident took place in a narrow bridge as a result of contributory negligence of drivers of both the vehicles. It was further submitted that the driver of the truck was not having valid and effective driving licence. He also challenged the quantum of awarded amount as per his submission, it is on higher side. His submission was that the respondent No. 1 got his salary regularly even for the period of leave during treatment and no pecuniary loss is caused to him. Instead, Tribunal has awarded Rs. 20,000 against leave. He also challenged the compensation as awarded for permanent disability for mental and physical pain and suffering and for future treatment and submitted that it has been wrongly awarded. And prayed for setting aside the award and also submitted that incident took place because of contributory negligence of both the vehicles. So, liability be saddled accordingly.
7. On consideration of the submission of the learned Counsel for parties and on perusing the record it appears that the accident took place because of rash and negligent act of the said offending truck driven by respondent No. 2. This fact was sufficiently proved not only by the injured person but by documents of criminal case like F.I.R., Exh. P2, police report, Exh. P1, spot map, Exh. P4 and some other documents. And non-examination of the driver and owner of the offending truck on behalf of appellant is also a circumstance to draw an adverse inference against the appellant and respondent Nos. 2 and 3. So sufficient evidences are available against offending truck, so submission regarding contributory negligence cannot be sustained, so this objection fails.
8. So far violation of any terms and conditions of the policy or regarding absence of valid and effective driving licence with truck driver are also negatived because in this regard no evidence has been adduced on behalf of the appellant. So the Tribunal has not committed any infirmity to decide these issues against the appellant, so on this count the appellant is not entitled for any relief in this appeal.
9. So far quantum of compensation is concerned, the Claims Tribunal has given proper and appropriate reasons to award the amount on each and every heads which do not require any interference, although during leave period the respondent No. 1 received his salary from his employer but such leave could have been utilized for some other purpose, so in this way he got this loss. Tribunal has also not committed any error in awarding Rs. 50,000 in the head of loss of future income in view of 50 per cent permanent disablement, besides Rs. 25,000 compensation regarding permanent disability. It has come in the evidence that still treatment of respondent No. 1 is going on with physiotherapy and other manner. Hence, no error has been committed in awarding Rs. 10,000 for future treatment.
10. We are of the considered view that looking to 50 per cent permanent disability to the respondent No. 1 who was also subjected to surgery twice in which a very huge amount has been spent. Besides such treatment he has to suffer physical and mental pain for remaining life so the compensation is awarded by the Tribunal is adequate and do not require any interference in the appeal. Hence, this appeal has no merits. Thus, in view of the aforesaid discussion, this appeal is dismissed.
11. In view of the dismissal of appeal M.C.P. No. 5264 of 2004, an application for stay is also dismissed.