1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR : J U D G M E N T : National Insurance Company Ltd., Udaipur Vs. Mustafa & Others (S.B. Civil Misc. Appeal No.810/2010) DATE OF JUDGMENT : November 19, 2010 P R E S E N T HON'BLE MR. JUSTICE GOPAL KRISHAN VYAS __________________________________________ Mr. Sanjeev Johari for the appellant. BY THE COURT : In this miscellaneous appeal filed under Section 173 of the Motor Vehicles Act, 1988, the appellant insurance company is challenging the judgment/award dated 14.05.2009 passed by the Motor Accident Claims Tribunal, Dungarpur (Camp Sagwara) in MAC Case No.25/07, whereby, learned Tribunal awarded a sum of Rs.96,520/- as compensation for the injuries caused to respondent- claimant in the accident which took place on 04.07.2006. In the claim petition filed by respondent No.1, it was specifically pleaded that while he was travelling in jeep 2 No.GJH/9/1014, the said jeep was hit by a truck bearing No.GJ-20-T-3609. In the accident, one Abdul Samad, driver of the jeep died on the spot and respondent-claimant received serious injuries upon his head, hand and leg and he remained under treatment with effect from 04.07.2006 to 10.07.2006. His shoulder was also operated upon and he underwent treatment for three months. In support of his claim, respondent produced various documents and, after trial, learned Tribunal while accepting the income of the respondent-claimant as Rs.2,000/- per month granted compensation of Rs.77,520/- for permanent disability, Rs.15,500/- under the head of medical expenses, for which, medical bills were produced as Ex.-20 to Ex.-38, Rs.2,000/- for nutrition, Rs.1,000/- for physical agony and Rs.500/- for meals. In all, an amount of Rs.96,500/-. Learned counsel for the appellant submits that the compensation awarded by the Tribunal is erroneous because it was case of contributory negligence and, as per facts and evidence of the case, at the time of over-taking the vehicle in question was hit by the truck, therefore, the insurance company which insured the truck alone cannot be held liable for payment of compensation. Learned Tribunal has failed 3 to consider the issue of contributory negligence. Learned counsel for the appellant submits that the vehicle in question which was insured with the appellant insurance company was not having permit in its favour, therefore, the compensation awarded by the Tribunal deserves to be quashed. I have perused the issues framed by the Tribunal, so also, finding of the Tribunal. As per facts and evidence of the case, there is no dispute that the accident took place on 04.07.2006 when the claimant-respondent was travelling in the jeep and said jeep was hit by the truck bearing No.GJ- 20 T-3609 and, in the said accident, respondent-claimant received serious injuries, for which, he took treatment and proved before the Tribunal that he is 22 years of age, therefore, learned Tribunal arrived at the finding that respondent-claimant is entitled for compensation of Rs.96,520/-. The vehicle No.GJ-20-T-3609 was admittedly insured with the appellant insurance company which is not in dispute and the occurrence took place due to rash and negligent driving by the driver of the said vehicle. Learned Tribunal while deciding issue No.1 held that as per Ex.-P/16 and Ex.-P/17 the claimant has proved permanent disability. 4 In this view of the matter, I am of the opinion that the finding given by the learned Tribunal issue-wise for granting compensation in favour of the respondent No.1 is not erroneous and illegal, being based upon sound appreciation of the evidence. The verbal contention of the appellant that there was no permit in favour of the offending truck has no force because this issue was not raised before the Tribunal. For the same, I have perused the judgment of the Tribunal. Upon perusal, it is revealed that there was no such issue raised before the learned Tribunal nor specific issue was framed. In this view of the matter, there is no force in the contention of learned counsel for the appellant that vehicle in question was not having permit in its favour. This appeal, therefore, fails and the same is hereby dismissed. (Gopal Krishan Vyas) J. Ojha, a.