IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. FAO NO.4966/2008 Date of Decision:5.3.2009. Sanjeev Kumar ..........Appellant Versus Jagmal Singh and another ..........Respondents CORAM: HON'BLE MR.JUSTICE JASWANT SINGH. Present: Mr.Rakesh Kumar Sharma,Advocate for the appellant-driver. JASWANT SINGH,J Appellant, driver-cum-owner of the offending motorcycle, who is a milk seller by profession, has filed this appeal challenging the award dated 25.7.2008 passed by the learned Motor Accident Claims Tribunal, Yamuna Nagar (hereinafter referred to as the Tribunal), whereby injured respondent no.1-claimant was awarded compensation of Rs.56,000/- alongwith interest @ 7.5% per annum from the date of the filing of the claim petition till realisation of the compensation, in a claim petition under Section 166 of the Motor Vehicles Act, 1988. It is contended by the learned counsel for the appellant that the offending vehicle was insured, the appellant-owner/driver was holding a valid driving licence and as such the learned Tribunal has erred in fastening the liability to pay the compensation upon the appellant/driver-cum-owner. It is further contended that the learned Tribunal has erred in FAO NO.4966/2008 -2- holding that the appellant was driving the offending vehicle in a rash and negligent manner whereas, in fact, it was injured-respondent, who was himself rash and negligent in driving his scooter. The compensation of Rs.56,000/- awarded to the injured-respondent has also been challenged stating it to be on higher side. After hearing the learned counsel for the appellant-owner of the offending motorcycle and perusing the impugned award, I find no merit in the submissions of the learned counsel and the same are rejected. The learned Tribunal, has dealt with this issue in detail in paras 34 to 38 of the impugned award. While fastening the liability upon the appellant, on the basis of oral as well as documentary evidence, it was found by the Tribunal that at the time of accident the offending vehicle i.e motorcycle was fitted with milk drums carrier and the milk drums were protruding about two feet in width on both sides of the motorcycle. Claimant-respondent had categorically stated that he was hit by the carrier of the milk drums attached with the motorcycle. Undoubtedly, the offending vehicle was insured with respondent No.2. However, by using the motorcycle as milk drums carrier, the appellant had violated the condition regarding limitation as to use of the insured vehicle as motorcycle. It is for this reason that the liability to pay the compensation was fastened upon the appellant. No fault can be found with the impugned award on this count. Regarding the negligence it has been proved on the record that after investigating the matter, police has filed a challan against the appellant FAO NO.4966/2008 -3- for the offences punishable under Sections 279/337 and 338 IPC and he is facing trial. From the above, it can safely be inferred that it is the appellant, who was driving the offending vehicle in a rash and negligent manner at the time of accident. It has also come on the record that while the injured-respondent deposed about the rash and negligent manner in which the appellant was driving the offending motorcycle, carrying milk drums, appellant-respondent chose not to step into the witness box to rebut the evidence adduced by the injured-respondent. In these circumstances, in my opinion, no fault can be found with the findings of the learned Tribunal that it was appellant whose negligence led to the accident. So far as the amount of compensation is concerned, learned Tribunal, on the basis of evidence led by the injured-respondent, awarded a sum of Rs.18,500/- towards the amount spent on treatment; Rs.7,500/- on account of pain and sufferings; and a sum of Rs.30,000/- for 15% disability on account of fractured supra condylar right, for which he was operated upon and a rod was inserted in his right leg, restricting movement of his right knee. Thus, in the face of evidence available on record and disability suffered by the injured-respondent the compensation of Rs.56,000/- is just and equitable and cannot be said to be on higher side. No other point has been raised. For the reasons stated above, finding no merit in this appeal the same is hereby dismissed in limine. FAO NO.4966/2008 -4- No costs. 5.3.2009. (Jaswant Singh) joshi Judge