REALIANCE GENERAL INSURANCE CO LTD Vs. BALVEER

JUDGEMENT

(1.) This appeal has been preferred by Reliance General Insurance Company Limited challenging the award dated 23.07.2011 passed by learned Motor Accident Claims Tribunal, Fast Track, Kotputali, District Jaipur, in MAC Case No.273/2011, by which learned Tribunal has awarded compensation of Rs.12,00,000/- to the claimant Balveer. The claimant, aged 34 years, met with an accident when he was hit by Truck No.RJ-32-GA-1389, that was insured with the appellant insurance company and, as a result of the accident, both his legs were amputated. The disability certificate (Exhibit-12) proves that claimant sustained 98% disability, which was almost 100%. Being dissatisfied with the aforesaid award, the appellant insurance company has filed present appeal.

(2.) Shri Virendra Agrawal, learned counsel forthe appellant insurance company, has argued that learned Tribunal has erred in holding driver of the truck to be solely negligent. There was no eye witness to the incident. Mere filing of charge-sheet in the court concerned against him by the police for offence under Section 304A IPC, does not conclusively prove the factum of negligence on his part. The claimant has to independently prove that the accident took place due to negligence of driver of the vehicle. Neither father of the claimant nor investigating officer has appeared as witness in the witness box. No one has appeared as an eye witness.

(3.) Reliance was placed by learned counsel for the appellant on the judgment of the Supreme Court in Oriental Insurance Company Vs. Meena Variyal,2007 1 MACD 390 (SC), to argue that it is the claimant who has to prove his case. In the present case involvement of the truck has not been satisfactorily proved and, in absence of direct evidence, it cannot be accepted. Learned Tribunal has erred in law in accepting income of the claimant to be Rs.5000/- per month merely on the basis of oral testimony. No documentary evidence with regard to agricultural fields and on that basis claiming agriculture income, has been produced. In absence of evidence, the income should have been assessed at Rs.15000/- per annum as notional income as has been given in second schedule to the Motor Vehicles Act, 1988. The disability certificate by itself does not prove the disability unless it is satisfactorily proved by oral evidence of medical-officer/doctor. It has not been proved whether there is loss of earning capacity. Learned counsel also relied on the judgment of the Supreme Court in Raj Kumar Vs. Ajay Kumar and Another,2011 MACD 33. Per contra, Shri Dheeraj Tripathi, learned counsel appearing for claimant-respondent, opposed the appeal and argued that fact about amputation of both legs of the claimant is satisfactorily proved.