HIGH COURT OF CHHARTTISGARH AT BILASPUR Single Bench:- Hon'ble Shri R.N. Chandrakar. J M.A. (ONo.1449 of 2008 Appellant Respondent/ Claimants 1. Non-Applicants 2. The Oriental Insurance Company, Malviya Nagar, Durg (C.G.) Versus Harkhan Lal Dewangan, S/o Bhuneshwar Prasad Dewangan, age 50 yrs., Resident of Harinagar Junwani Road, Thana - Mohan Nagar, Tahsil & District - Durg. Subrato Da, S/o Montu Kumar Da, age 18 yrs., resident of behind of Mirmal School, Dalli Raj Hara, Thana - Dalli Raj Hara, District- Durg (Owner & Driver of Vehicle MISCELLANEOUS APPEAL UNDER SECTION 173 OF THE MOTOR VEHICLES ACT. Appearance : Mr. P. Dutta, Advocate for the appellant. Mr. R.K. Pali, Advocatefor respondent No. 1 OraLQrder (Passedon 25th April, 2011) Heard. 1. This isinsurer's appeal against the award dated 04.08.2008 passed in Claim Case No. 40/2007 by 2nd Upper Motor Accident Claims Tribunal (for short 'the Tribunal'), Durg (C.G.) whereby and whereunder the learned Tribunal has awarded an amount of Rs. 2,04,361/- with interest @ 6% per annum from the date ot' filing of the claim petition till the date of actual payment in favour of the claimant/respondent No. 1 r^^^^ ["'';• and against the owner and insurer of the vehicle and fastened the liability on the appellant/lnsurance Company to pay the amount of compensation to the claimant. 2. Brief facts, in a nutshell, are that on 27.02.2005at about 3.45 p.m. when claimant was on his way to Durg by driving motor cycle bearing No. CG-07-J-3052, all of a sudden, motor cycle bearing No. C.G.07-L- 9396 driven by its driver - respondent No.2 Subrato Da rashly and negligently, came from opposite side and dashed the claimant Harkhan Lal Dewangan, as a result of which the claimant sustained injury. 3. The claimant being injured person filed a claim petition seeking compensation of Rs. 19,50,OOO/-. tt was pleaded therein that at the time of accident, the claimant was aged 50 years. He was earning Rs. 5,000/- per month by doing tailoring job. 4. i^ler contra, appellant and non-applicant No.2 herein denied the pleadings of the claim petition by filing their written statements respectively. 5. All the parties led their evidence before the learned Tribunal. 6. Learned Tribunal on a close scrutiny of the submissions made, evidence led and material placed by the parties, held that the driver of the said motor vehicle was negligent in driving the said offending motor cycle and claimant sustained injury due to rash and negligent driving of respondent No. 2 Subrato Da. 7. Shri P. Dutta, learned Advocate for the appellant assailed the impugned award on the grounds that respondent No. 2 was having learning license at the time of accident and no trainer was present and ^c^ i^ftsf J '^..'"y despite the above fact the learned Tribunal fastened the liability on the appellant/insurance company and further that the learned Tribunal has erroneously assessed the income of the claimant as Rs. 5,000/- per month and awarded excess compensation in all heads. 8. On the other hand, learned counsel appearing for respondent No. 1 supported the impugned award. 9. I have heard the learned counsel forthe parties, perused the impugned award and record ofthe Tribunal. 10. So far as the first ground raised by the appellant/lnsurance Company is concerned,NAW/1 - N.K. Sangewar has deposed thaton the date of accident, driver was having learning licence, but no licence holder was with him when the incident took place, hence the condition of insurance policy is violated. This witness has categorically deposed in his cross examination that this fact has not been mentioned in the written statement. He further deposed that he cannot say any reason as towhy the aforesaid fact has not been mentioned in the written statement. 11. AW/1 Harkhan Lal Dewangan has deposed that on the date of accident when he was returning to his home from Bhilai, driver of the offending vehicle came from wrong side rashly and negligently and dashed him as a result ofwhich he sustained injury and got fractures in four places. He has categorically deposed in his cross-examination that at the time of accident he was alone on his vehicle. 12. So far as second ground raised by the appellanVinsurance company is concerned, 1 have perused the evidence adduced by the claimant. AW/1 Harkahlal Dewangan has deposed that he was earning 'y' '--V. Rs.5000/- per month by doing the tailoring job. This fact has not been rebutted in his cross-examination. There is no evidence by the appellant/insurance Company that the claimant was not earning Rs.5000/- per month by doing the tailoring job. Hence, without rebuttal ofthe evidence ofAW/1 Harkhan Lal Dewangan, it is proved that atthe time of accident, the claimant was earning Rs. 5000/- per month from doing the tailoring job. 13. For the foregoing discussion, l am of the considered opinion that the amount awarded by the Tribunal is just and reasonable and the same does not call for any interference in this appeal. 14. Cpnsequently, the appeal being devoid of merit is liable to be dismissed and is hereby dismissed. Sd/- R.N. Chandrakar Judge Vijay/raju