(1) CMA-672/98 (National Insurance company Ltd. Vs. Shri Dashrath Mal Mehta & Ors.) (2) CMA -673/98- (Dashrath Mal Mehta Vs. Manoj Kumar & Ors. Judgment dt.29.10.09 1/5 1. S.B. CIVIL MISC. APPEAL NO.672/1998 (National Insurance company Ltd. Vs. Shri Dashrath Mal Mehta & Ors.) 2. S.B. CIVIL MISC. APPEAL NO.673/1998 (Dashrath Mal Mehta Vs. Manoj Kumar & Ors. Date of order : 29th October, 2009 PRESENT HON'BLE DR. JUSTICE VINEET KOTHARI Mr. Jagdish Vyas for the appellant-Insurance Company. Mr. Rajesh Panwar for the respondent-claimant. ------- 1. Heard learned counsels. 2. Both these appeals by the appellant-insurance company and claimant arise out of the award of MACT, Jodhpur dated 14.8.1998. 3. In an accident which took place on 13.10.1992 when the claimant Dashrath Mal Mehta was going on scooter RNS 320 was hit by the Matador, Registration No.RPK 876 being driven in rash and negligent manner by its driver and on account of said accident due to fall from scooter, the claimant as well as his two relatives fell down and the claimant suffered injuries on the right hand and right hand side leg and head injury and also on the hips. The claim petition was filed by the claimant and after examining the relevant medical evidence and injury reports, the Tribunal awarded the compensation (1) CMA-672/98 (National Insurance company Ltd. Vs. Shri Dashrath Mal Mehta & Ors.) (2) CMA -673/98- (Dashrath Mal Mehta Vs. Manoj Kumar & Ors. Judgment dt.29.10.09 2/5 of Rs.72,200/- for the said injuries suffered by the claimant which was directed to be paid with interest at the rate of 12% per annum. 4. The stay application filed by the appellant-insurance company was rejected by this Court on 20.12.2001 and consequently the entire awarded sum has been deposited by the appellant-insurance company with the Tribunal which has been disbursed to the claimant. 5. The learned counsel for the appellant-insurance company Mr. Jagdish Vyas submitted that the appellant insurance company was not bound to pay the said compensation as the driver of the Matador had no valid licence to drive the said vehicle as his licence was only to drive light motor vehicles whereas the vehicle in question was a public transport vehicle and, therefore, the appellant insurance company should be given the right to recover the amount already deposited from the owner of the said vehicle. 6. The learned counsel for the respondent-claimant Mr. Rajesh Panwar on the other hand submitted that no such objection was taken by the appellant-insurance company in its written statement filed before the learned Tribunal and, therefore, the violation of the policy conditions depended upon such condition being proved by the appellant-insurance company and since the appellant-insurance (1) CMA-672/98 (National Insurance company Ltd. Vs. Shri Dashrath Mal Mehta & Ors.) (2) CMA -673/98- (Dashrath Mal Mehta Vs. Manoj Kumar & Ors. Judgment dt.29.10.09 3/5 company failed to prove any such violation of the condition nor any such objection was taken by them in the written statement, the learned Tribunal was justified in fixing the liability to pay compensation on the appellant-insurance company. He urged for dismissal of the appeal of the insurance company. 7. The learned counsel for the claimant further submitted that the compensation awarded by the Tribunal calls for enhancement as in view of the certificate of Doctor showing 10.5% permanent partial disability on account of hip injury to the claimant the compensation awarded by the Tribunal is on lower side. 8. Having heard learned counsels and upon perusal of the record of the case and reasons given by the learned Tribunal in the impugned award, this Court is of the opinion that both the appeals of the appellant-insurance company as well as one filed by the claimant deserve to be dismissed. 9. That as far as policy condition is concerned, it was open to the appellant-insurance company to raise such objection in the written statement and prove before the learned Tribunal that there was violation of the said condition, therefore, it was not liable to pay the compensation in question. In the absence of any such objection (1) CMA-672/98 (National Insurance company Ltd. Vs. Shri Dashrath Mal Mehta & Ors.) (2) CMA -673/98- (Dashrath Mal Mehta Vs. Manoj Kumar & Ors. Judgment dt.29.10.09 4/5 taken, the ground taken by the learned Tribunal that the appellant- insurance company failed to discharge its burden for proving the violation of the condition of policy cannot be validly assailed in the present appeal. The judgments relied upon by the learned counsel for the appellant-insurance company cannot be applied unless the insurance company took proper care to raise objection right in the beginning and prove its case and discharge its burden for decision of issue No.3 before the learned Tribunal with regard to liability of the appellant-insurance company. Having failed to do so, this Court finds no reason to upset the findings of the learned Tribunal in the present appeal. 10. The appeal of appellant-insurance company is, therefore, liable to be rejected and is hereby rejected. 11. That as far as the claimant's appeal is concerned, also this Court finds no force in the same as looking to the nature of injuries and medical opinion, the total compensation of Rs.72,200/- along with interest which is to be paid after about 8 years of the said accident taking place in the year 1992 is considered to be sufficient compensation. The claimant was 60 years of age in the year 1992 and by now himself have crossed 80 years of age. Though the learned counsel for the respondent-claimant does not have any instruction in (1) CMA-672/98 (National Insurance company Ltd. Vs. Shri Dashrath Mal Mehta & Ors.) (2) CMA -673/98- (Dashrath Mal Mehta Vs. Manoj Kumar & Ors. Judgment dt.29.10.09 5/5 the matter as to whether the claimant is still alive or not, irrespective of this fact, this court is of the opinion that compensation awarded by the Tribunal does not call for any enhancement and was just and reasoned. 12. Consequently, this appeal of the claimant is also liable to be dismissed and the same is hereby dismissed. No order as to costs. [ DR. VINEET KOTHARI ], J. item No.20 & 21 babulal/