1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR ORDER S.B. Civil Misc. Appeal No. 4679/2008 {Alam Noor & Another Versus Leela Bai & Others} Date of Order :: 24th November, 2008 PRESENT HON'BLE MR. JUSTICE NARENDRA KUMAR JAIN Mr. S.L. Songara for the appellants BY THE COURT: Heard learned counsel for the appellants on the application under Section 5 of the Limitation Act for condonation of delay of 122 days in filing the appeal as well as on merits of the appeal also. 2. So far as delay in filing the appeal is concerned, the learned counsel for the appellants stated that he has explained the delay in para 2 of the application, wherein it is mentioned that appellants were not informed by their counsel regarding judgment dated 2nd November, 2007 passed by the Motor Accident Claims Tribunal and they came to know about the same only when they received a notice dated 29th April, 2008 from the Tehsildar under the provisions of Land Recovery Act for recovery of the amount of award. 3. There is no dispute in the case that 2 appellants were served with a notice and they engaged their advocate also. They were represented before the Tribunal and presence of their counsel has been mentioned in the award. It is not a case of the appellants that their counsel had told them not to attend the Tribunal on each and every date and he will call them as and when there will be any necessity. Unless this evidence is available on record, it cannot be presumed that parties to litigation will not come to attend the case in the Tribunal and will not contact their counsel after filing the Vakalatnama on their behalf. There is no affidavit of their counsel also to the effect that he did not inform the appellants about the judgment passed in the Tribunal. It was a duty of the appellants also to go and contact their counsel. In these circumstances, I am of the view that delay in filing the appeal has not been explained properly so as to condone the delay in filing the appeal. 4. So far as the merits of the case are concerned, the appellants have preferred this appeal for setting-aside the impugned award dated 2nd November, 2007 passed by the Tribunal in favour of the claimant-respondents no. 1 and 3 2 for a sum of Rs. 20,000/-. The learned counsel for the appellants contended that the victim Rinku did not die because of injuries sustained by him in the present accident and there was no negligence on the part of the vehicle driver. He further contended that the vehicle was insured, therefore, the right of recovery to recover the amount should not have been given to Insurance Company. 5. I have considered the submissions of learned counsel for the appellants and examined the impugned award passed by the Tribunal. The learned counsel for the appellants could not point out any specific evidence by which it can be presumed that there was no negligence on the part of the vehicle driver. So far as the liability of Insurance Company to indemnify the award is concerned, the learned Tribunal has observed while deciding issue no.3 that driver of the vehicle was holding a driving license of light vehicle, whereas at the relevant time, he was driving the light transportation vehicle. The Tribunal has relied upon the judgment of the Supreme Court, wherein in similar circumstances the Insurance Company was exonerated from its liability. However, it was directed that Insurance Company will make the 4 payment of award and thereafter recover the same from the owner and driver of the vehicle. The finding of the learned Tribunal is based on facts and judgment of the Hon'ble Supreme Court and I do not find any illegality in the same. While deciding issue no.2 relating to quantum of compensation, the Tribunal has observed that as per injury report - Ex. 2, the insurer sustained three grievous injuries and because of these injuries, he suffered paralysis also in both the legs. However, the Tribunal has awarded only Rs. 15,000/- for three grievous injuries, Rs. 3000/- for medicines and Rs. 2,000/- for transportation charges, thus, has awarded only a sum of Rs. 20,000/-, which in no circumstances can be said to be a bonanza. In fact, this amount is a very meager amount, but this appeal is on behalf of the owner of the vehicle for reduction of the amount of compensation, therefore, I do not want to comment any more in this regard. I do not find any force in the contention of the learned counsel for the appellants in respect of quantum of compensation also. 6. In view of above discussions, the application under Section 5 of the Limitation Act is dismissed. Consequently, the appeal is 5 also dismissed being barred by limitation as well on merits also. (NARENDRA KUMAR JAIN),J. DK 6 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR S.B. Civil Misc. Stay Application No. 3044/2008 In S.B. Civil Misc. Appeal No. 4679/2008 {Alam Noor & Another Versus Leela Bai & Others} Date of Order :: 24th November, 2008 PRESENT HON'BLE MR. JUSTICE NARENDRA KUMAR JAIN Mr. S.L. Songara for the appellants BY THE COURT: In view of the dismissal of the misc. appeal, the stay application, filed therewith, does not survive and the same also stands disposed of. (NARENDRA KUMAR JAIN),J. DK