1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S.B. CIVIL MISC. APPEAL NO.1406/05 Smt. Saroj Devi vs. The Oriental Insurance Co. Ltd. & Anr. Date of order : 22/4/2008. HON'BLE MR.JUSTICE MOHAMMAD RAFIQ Shri D.K. Garg for the appellant. Shri Anil Jain ) Shri M.K. Goyal ) for the respondents. ****** Heard learned counsel for the parties. This appeal is directed against the award of the Motor Accident Claims Tribunal, Dholpur whereby the claim petition of the appellant was rejected. Learned counsel for the appellant argued that it was in fact a joint claim petition by two injured namely; Hem Chandra Gupta and Smt. Saroj Devi, who both were travelling in the same bus which due to the rash and negligent driving met with an accident on 1.3.2002. It was argued that the Tribunal while recording the finding on Issue no.1, as to whether the accident of the bus took place due to rash and negligent driving, has relied on the statements of both the injured, who stated that the accident took 2 place due to rash and negligent driving of the bus by the driver, yet the very same Tribunal on Issue no.2 that as to what compensation the injured claimants are entitled to, decided that since the name of the appellant did not figure in the FIR and the injury report produced does not indicate that the appellant was referred to the hospital by the police, the injury does not appear to have been caused in the accident. It was argued that merely because the appellant did not produce the disability certificate, did not mean that the injury was not caused to her in the accident. Learned counsel argued that mere non- production of certificate of disability does not distract from the fact that the appellant has in fact suffered fracture of her hip bone, even then the Tribunal disbelieved this fact. However, the learned Tribunal has proceeded entirely on surmises and conjectures by doubting that the fracture was in fact not sustained by the appellant due to the accident in question. Learned counsel referred to the statement of AW-1 Hem Chandra Gupta, who has also stated 3 that the appellant was travelling in the same bus and sustained serious injuries. He also referred to Ex.31, X-ray report and Ex.39, the prescription of the medical doctor and also various medical bills. Learned counsel for the respondents opposed the appeal and argued that even if it is accepted that some injuries were sustained by the appellant, but those injuries have to be linked with the accident in question and there was no evidence to show that the appellant was referred to the hospital by the medical officers with reference to the FIR lodged for the accident. Learned counsel argued that the award of the Tribunal does not call for any interference. Having heard the learned counsel for the parties and perused the impugned award as also the record, I find that the X-ray report does indicate the fracture sustained by the appellant and also expenses actually incurred and various medical prescriptions in that behalf have also been produced on record. In the face of the statement of co- claimant Hem Chandra Gupta, who has been 4 awarded the compensation for simple injuries in the self same award and that the appellant was also travelling in the same bus and sustained injuries in the same accident, there was no basis for the Tribunal to hold that the injuries were not sustained by the appellant in the accident in question. Merely because the appellant could not procure and file the certificate of disability. The genuineness of his version could not be disbelieved. The evidence on record clearly prove that the appellant did sustain fracture of the hip bone and that fact was not even disputed in the award by the contesting parties. What is doubted is that this injury was not sustained by her in the accident caused by the bus on 1.4.2002, but that version stands disproved from the evidence that was available on record, especially that of AW-1 Hem Chandra Gupta. In my view, therefore, the Tribunal has erred in law in not awarding the compensation whatsoever to the appellant. The appellant is therefore held entitled to compensation. Since the appellant sustained 5 fracture of hip bone, she is entitled to a sum of Rs.5,000/- as compensation for that fracture and for the actual medical expenses and prescription of doctor which, have been placed on record, she is awarded Rs.3,000/- and she is also awarded a sum of Rs.2,000/- towards mental agony suffered by her. Thus, a total of Rs.10,000/- shall be paid to the appellant with interest at the rate of 7.5% per annum from the date of filing of the claim petition. The appeal is accordingly allowed. (MOHAMMAD RAFIQ), J. RS/