1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD FIRST APPEAL NO.342 OF 1997 Shabana Begum D/o Shaikh Baban Age:Minor, U/g of her real father – Shaikh Baban s/o Shaikh Hiraji, Age: Adult, occu. Service, r/o Pardi Makta, Tq. and Dist. Nanded. .. APPELLANT VERSUS 1) M.K.Gudgilla, Age:Adult, occu.Business, R/o Bafna Road Khalsa High School, Nanded. 2) The New India Assurance Company Ltd., through its Branch Manager, Nanded ..RESPONDENTS ***** Mr.RS Deshmukh, Advocate for Appellant; Respondents though served absent. ----- CORAM : K.U.CHANDIWAL, J. DATE : 14th July, 2009. ORAL JUDGMENT : 1) Heard Counsel for the appellant extensively. Counsel for Respondents absent. 2) The appeal is admitted on 7th May, 1997. 3) The dismissal of petition under Section 2 166 of the Motor Vehicles Act for injuries suffered by ten years’ old claimant is subject of challenge. It is canvassed, the learned Judge erred in not appreciating the evidence of father of the injured and eye-witness. The FIR is not considered in its true spirit. The compensation should have been at Rs.1,50,000/- instead of dismissal. 4) Though the accident is stated to be of 16th May, 1994, the report at Exhibit-25 is dated 3.6.1994. The panchanama is naturally subsequent to such report. The panchanama would not depict exact position at the place of accident due to lapse of time. There could not be any preservation of marks of involvement of the vehicle or brake-marks. 5) The evidence of father – Shaikh Baban was analyzed and it could be seen that they were at a distance of more than 50 feet at the material time. Though witnesses stated that the vehicle came in a speed from Nanded side and it dashed against the victim, a ten-years old child was left abandoned at the road and the father was at a distance of 50 feet. This is unexplained. Then the learned Judge found that the negligence on the part of motor driver is not established. There is no reason to doubt such observations of the learned Judge (as then he was). 6) I have gone through the medical papers of the injured. There is no permanent 3 disablement certificate, as is pre-requisite of Section 142 of the Motor Vehicles Act. The Discharge Card and the Certificate cumulatively do not lead to infer that there could have been a permanent disablement to the ten-years old child, as the certificate indicates there was a fracture to the injured. Fracture by itself, would not be a paramount aspect to establish permanent disablement. The claimant or her father did not tender any bills for medical expenses. The Discharge Card indicates that the claimant was admitted in Government Hospital. In the absence of any details of expenses incurred on account of so-called treatment of the injured, there could not be any beneficial award on this count. 7) The claimant had received Rs.12,000/- under Section 140 of the Motor Vehicles Act (NFL). The assessment of the evidence and the loss that could have been suffered by the injured was in tune to the record. In fact, the injury certificates are not proved. There is no evidence of medical officer nor there is indication of any permanent disablement. In the result, the appeal lacks merit, it is dismissed. sd/- ( K.U.CHANDIWAL ) JUDGE bdv/fa342.97 Authenticate copy (BD VADNERE,PS)