MOHD. BILAL Vs. HARI PRAKASH

JUDGEMENT

(1.) This appeal has been preferred by claimant dissatisfied with award dated 09.10.2003 of learned Motor Accident Claims Tribunal, Kota, in MAC Case No.168/1999, by which learned Tribunal has rejected claim petition filed by appellant.

(2.) Learned counsel for appellant submitted that the appellant was a constable in police department and he was travelling in a Jeep No.RJ-20-P-2431, which was being driven by respondent no.2 Rajendra Kumar in a rash and negligent manner. The jeep hit another Jeep, which could not be identified. Learned Tribunal has rejected the claim petition on two grounds; firstly that in parcha-bayan (Exhibit-1), the appellant has attributed negligence to driver of another jeep, which could not be identified and secondly that the appellant submitted an application before the District Collector under provisions of Section 161 of the Motor Vehicles Act, claiming compensation on account of accident by unknown vehicle, which could not be identified, and has already received a sum of Rs.12,500/- as compensation on that account, which is proved from the order of the insurance company Exhibit NA/14 and its Photostat copy Exhibit NA-14A, which is proved by Fateh Chandra Agrawal, the witness of the insurance company. Learned counsel submitted that the learned Tribunal has also found it proved that the appellant was travelling in vehicle Jeep No.RJ-20-P-2431 but learned Tribunal, solely on the ground that the appellant has received the amount of Rs.12,500/- under the provisions of Section 161 of the Act for default on the part of the unidentified vehicle, has not granted any compensation to the appellant. It is submitted that the permanent disability sustained by the appellant is 22%, which is proved by permanent disability certificate Exhibit-9. The appellant was a constable and the accident was of the year 1998. The accident involved two vehicles and the Tribunal, at the maximum, would be justified in holding it to be a case of composite negligence apportioning the equal liability of both the drivers. The vehicle in which the appellant was travelling was completely exonerated. The appellant was in comma after accident and, therefore, he was not in a position to give parcha bayan (Exhibit-1), which may have been recorded at the instance of any attendants with him.

(3.) Learned counsel for respondent has argued that once the appellant has chosen to receive the compensation by recourse of Section 161 of the Act, he cannot be permitted to claim further compensation in the claim case particularly when in parcha bayan (Exhibit-1) the appellant has attributed the negligence to the other vehicle, which could not be identified. Since the appellant was in government service and working as a constable in police department, disability of 22% may not have actually caused loss of income proportionately to that extent and, therefore the award of compensation of Rs.12,500/- already received by him in a case arising out of same accident took place in the year 1998 would be perfectly justified.