1 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD FIRST APPEAL NO.559 OF 2011 WITH C.A.NO.5575 OF 2011 WITH C.A.NO.15720 OF 2010. _______________________________________________________________ Office Notes, Office | Memoranda of Coram, | Court's or Judge's orders appearances, Court's | orders or directions | and Registrar's orders | _______________________|_______________________________________ CORAM : S.V.GANGAPURWALA,J. Date : 04.05.2011. 1. Heard. 2. The claimant had filed petition U/s 166 of the Motor Vehicles Act, for compensation on account of permanent disability sustained by him in an accident. The Tribunal awarded total amount of Rs.2,00,000/- (Rupees two lacs only) which is inclusive of medical expenses, medical attendant, special diet, travelling, pains and suffering and loss of earning. The Insurance 2 Company being aggrieved thereby has filed the present appeal. 3. Mr.Deshpande, learned counsel for the appellant submits that in fact, the petition itself was maintainable inasmuch as the driver was not made a party nor any notice was issued to him. In absence of the same the negligence could not have been proved. For the said purpose relies on the judgment of the learned Single Judge of this Court in a case of "New India Assurance Company Ltd., Aurangabad Vs. Suman Bhaskar Pawar and others" reported in 2010 (2) Mh.L.J. 177. The learned counsel further contended that the medical certificate is not proved, the disability is not proved and as such the loss of future earning also could not have been proved. For the said purpose, the learned counsel relies on the judgment of the Apex Court in a case of "Raj Kumar Vs. Ajay Kumar and another" reported in 2010 (12) Scale 265. According to the learned counsel exorbitant amount has been awarded by the Tribunal. 3 4. Per contra, Mr.Kulkarni, learned counsel for the claimant supports the judgment and submits that on the basis of the totality of the evidence, the Tribunal has rightly come to the conclusion about the negligence. The injury has been proved by the oral evidence. There was a fracture of left S.C.femur with partial ankylosis of left knee and left ankle. The Tribunal has awarded the modest amount. Mr.Kulkarni, learned counsel adopts the arguments of Mr.Deshpande, learned counsel for the appellant. 5. With the assistance of the learned counsels I have gone through the judgment and the pleadings and the deposition as made available to me by the learned counsels. 6. No doubt, in proving negligence, the evidence of driver plays a pivotal role and the Tribunal in all fairness should issue notice to the driver. There can not be a straight jacket formula that in absence of the driver the petition has to be dismissed. The same will depend upon the facts and circumstances of each case. If the evidence 4 on record is sufficient to come to the conclusion that the driver of the offending vehicle was negligent then merely because the driver was not added as a party nor was issued notice, that would not vitiate the proceedings itself. In the present matter, the Tribunal has discussed the direction of the road and the offending vehicle coming from the opposite side. The spot of the accident is shown on the extreme northern side of the road. The claimant has given evidence as to how the offending vehicle was taken on the northern side and, therefore, he took the vehicle to the extreme of the northern side to avoid dash and the truck dashed on the rear side of the claimant's vehicle. The Tribunal has discussed the oral evidence being corroborated by the documentary evidence. The Tribunal on threadbare analysis of the evidence has come to the conclusion about the negligence of the driver of the offending vehicle. As such it can be said that the driver of the offending vehicle was negligent. 5 7. The claimant has produced on record the medical bills, so also the disability certificate. The claimant as per the said certificate has suffered fracture to the left S.C. femur with Grade I comp. with implant in situ with TLF joint 1/3rd with implant in situ with partial ankylosis of left knee and left ankle. The medical bills produced also substantiates the fact. In such circumstances, the disability was proved by the claimant. The claimant is a child of 13 years of age. The Tribunal has considered the medical bills and has awarded Rs.30,000/- (Rupees thirty thousand) towards the medical expenses, Rs. 20,000/- (Rupees twenty thousand) towards the travelling, special diet etc. and Rs.10,000/- (Rupees ten thousand) towards pains and suffering and only Rs.1,40,000/- ( Rupees one lac forty thousand only) was towards loss of earning and has awarded the modest amount of Rs. 2,00,000/- (Rupees two lacs only). The judgment and award of the Tribunal does not suffer from any illegality. As such the First Appeal is 6 dismissed. However, there shall be no order as to costs. The amount deposited by the Insurance Company be allowed to be withdrawn by the claimants. The Civil Applications are also disposed of. (S.V.GANGAPURWALA,J.) Dt.04.05.2011. asp/office/fa905.11