1 73 fa.1431.11 ndm IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO. 1431 OF 2011 National Insurance Company Limited. ... Appellant Versus 1. Sandip Jivandas Bhor. 2. Rizwan A.R.Bubere. ... Respondents ----- Mr. Rahul Mehta i/b KMC Legal Venture for the Appellant. ----- CORAM : A.S.OKA, J. DATE : 02 nd August, 2011. P.C. 1 Heard the learned counsel appearing for the Appellant. 2 The Appellant is the insurer of the offending vehicle. The Respondent No.1 – claimant filed a claim petition under Section 166 of the Motor Vehicle Act, 1988 claiming compensation on account of injuries sustained in the accident. By the impugned judgment and award, the compensation of Rs.97,000/- (inclusive of no fault liability) with interest at the rate of 6% per annum has been granted by the 2 73 fa.1431.11 Tribunal. 3 The first submission of the learned counsel appearing for the Appellant is that after discarding the disability certificate showing disability of 35%, the Tribunal has granted a lumpsum compensation of Rs.70,000/- for permanent partial disability by accepting disability of 35%. He submitted that once disability certificate is discarded, no compensation could have been granted on account of permanent disability. His second contention is that the police papers on record show that the driver of the offending vehicle was not holding a valid licence. 4 I have carefully considered the submissions. As far as last submission is concerned, it is true that in the written statement the said contention has been agitated. However, the burden was on the Appellant to prove the fact that the driver was not holding a valid licence. Perusal of the reasons recorded by the Tribunal show that at the time of final hearing of the claim application, the contention 3 73 fa.1431.11 regarding absence of licence has not been agitated. There is no issue framed on the basis of the said contention. Only on the basis of the police papers, in absence of any other substantive evidence, a finding cannot be recorded regarding absence of driving licence. 5 As far as quantum of compensation is concerned, it is true that the evidence of the disability certificate has been discarded by the Tribunal and therefore, a sum of Rs.70,000/- on account of disability could not have been awarded. 6 However, the Respondent No.1 suffered compound fractures of radius and ulna and the fractures of right and left humerus. The Respondent No.1 was firstly treated at Central Hospital, Ulhasnagar and thereafter, at Sion Hospital, Mumbai. The Respondent No.1 was required to be operated. A sum of Rs.7,000/- has been granted on account of medical expenses. It is true that a sum of Rs.20,000/- granted for special diet, attendance and conveyance appear to be on the higher side and also the amount of 4 73 fa.1431.11 Rs.70,000/- for disability. However, the Respondent No.1 has suffered one compound fracture and two other fractures apart from other injuries. The accident is of the year 1998. Considering the compensation payable on account of three fractures and the nature of injuries, on taking overall view, the total compensation of Rs.97,000/- granted by the Tribunal cannot be said to be unreasonable. Interest granted is only 6% per annum. 7 Hence, no case is made out for interference. The appeal is accordingly dismissed with no order as to costs. 8 A sum of Rs.25,000/- deposited by the Appellant in this Court shall be refunded to the Appellant. 9 Civil Application No.2747 of 2011 does not survive and the same is disposed of. [ A.S.OKA, J ]