IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR : J U D G M E N T : National Insurance Company Ltd. Vs. Sandari & Others. (S.B. Civil Misc. Appeal No.803/2010) DATE OF JUDGMENT : November 15, 2010 P R E S E N T HON’BLE MR. JUSTICE GOPAL KRISHAN VYAS Mr. Sanjeev Johari for the appellant. BY THE COURT : Instant appeal has been filed by the insurance company under Section 173, Motor Vehicles Act, 1988 against judgment and award dated 15.04.2010 passed by Addl. District Judge (Fast Track) No.4 & Motor Accident Claims Tribunal, Udaipur in MAC Case No.192/08, whereby, the learned Tribunal awarded Rs.38,000/- as compensation along with 9% interest from the date of filing of claim dated 10.04.2007. As per brief facts of the case, respondent- claimant Sushri Sundari, who was 12 years of age, filed claim petition through her natural guardian mother Smt. Savi w/o Ratana for claim of Rs.8,26,000/- on the ground that in an accident which took place on 10.09.2006 when she was going to her house while sitting in tempo No.RJ-27/P-0552, the said tempo hit a troller and the said tempo was being driven rashly and negligently by its driver, in the accident, the claimant received injuries upon her hand. For the above incident, FIR was filed at Police Station Rishabhdev and, after investigation, challan was filed against the accused and claimant filed claim petition before the Motor Accident Claims Tribunal, Udaipur. Learned Tribunal while framing four issues and taking evidence of A.W.-1 Savi and exhibiting as many as 30 documents and recording evidence of NA.W.-1 Kamal Prakash Lohiya exhibited 10 documents in defence. The learned Tribunal decided all the issues in favour of the claimants and held that the insurance company is liable for payment of claim of Rs.38,000/- along with interest at the rate of 9% from the date of filing the claim petition. I have perused the finding of learned Tribunal arrived on all the issues and considered the injury report, so also, perused Ex.-15 which is certificate of permanent disability, in which, the doctor certified that claimant has suffered 14% permanent disability. After considering the entire evidence, learned Tribunal has arrived at the finding that claimant is entitled for compensation of Rs.30,000/- for pain and suffering, so also, Rs.2,000/- were awarded for medical expenses 2 and for the fracture, an amount of Rs.5,000/- as compensation was awarded by the Tribunal. Learned counsel for the insurance company vehemently argued that the Tribunal has committed an error while holding the insurance company liable because the tempo owner was not having permit in his favour, therefore, as per terms and conditions of the policy, the insurance company is not liable to pay the compensation. I have perused the finding of the learned Tribunal. While deciding issue No.3, learned Tribunal has considered the above ground taken by the appellant insurance company before this Court and held that the vehicle in question was inspected by the surveyor of the insurance company but, that report was not produced before the Tribunal to prove the contention that tempo owner was not holding any permit. Learned Tribunal drew the inference for existence of permit on the ground that insurance company has not produced the report of the inspection which is said to be made by the insurance company by its surveyor. In my opinion, the finding given by the learned Tribunal for issue No.3 does not suffer from any infirmity. More so, in my view, it was the duty of the insurance company to lead evidence before the Court that the tempo owner was not possessing valid permit but this fact is not proved by the insurance 3 company, therefore, the finding given by the learned Tribunal does not require any interference by this Court in this appeal. The compensation awarded by the Tribunal is just and proper because in this matter 12 years' old girl received grievous injury upon her hand in the accident while travelling in the vehicle which is admittedly insured with the appellant insurance company. In this view of the matter this appeal fails and, hence, dismissed. (Gopal Krishan Vyas) J. Ojha, a. 4