GHANSHYAM DAS CHOUDHARY Vs. MANOJ KUMAR

JUDGEMENT

(1.) HAVING lost one of his legs, having been granted a compensation of Rs. 1,45,000/- by the Motor Accident Claimstribunal, Bharatpur ('the Tribunal', for short), vide award dated 10th february, 1997, the appeltant has filed the present appeal for enhancement of the compensation amount. The Insurance company, on the other hand, has filed a cross-objection arising out of the same impugned award, both the appeal and the cross-objection are being decided by this common judgment.

(2.) THE brief facts of the case are that on 17th December, 1995 the appellant-Ghanshyam das Choudhary, was riding his scooter in the evening at 5. 30 p. m. on National Highway no. 11. While he was riding his scooter, a truck, bearing REgsitration No. HP 33/2358, being driven rashly and negligently came and hit the scooter from the front side. Consequently, the appellant's right leg had to be amputated and he also sustained fracture in his right hand. Subsequently, the appellant filed aclaim petition against the ownerand the driver of the offending truck as well as against the Insurance Company, the National insurance Co. Ltd. The appellant Nos. 1,2 and 3 submitted their written statement and denied their liability for the payment of damages to the appellant. The learned Tribunal framed five issues. In order to prove his case, the appellant examined three witnesses including himself and submitted 106 documents. The respondent, on the other hand, did not examine any witness, but did submitasingle document, namely, the Insurance Company Cover Note before the learnedtribunal. After going through the oral and documentary evidence, vide award dated 10th March, 1997, the learned Tribunal granted the appellant the compensation as aforementioned. However, the appellant, who has suffered a disability of 63%, has filed this appeal for enhancement of the compensation amount.

(3.) MR. R. S. Agarwal, the learned Counsel for respondent No. 3, the Insurance Company, has raised a preliminary objection: according to him, vide order dated 29th August, 1997 this court had issued notice to all the three respondents. However, vide order dated 9th march, 2004, this Court had dispensed with the service of notice on respondent Nos. 1 and 2, the owner and the driver of the offending truck. Mr. Agrawal has contended that once the owner and the driver are dispensed with, then the compensation cannot be enhanced and the Insurance Company cannot be held liable for payment of the enhanced amount. In case the compensation amount were to be enhanced, then it is imperative that notice be served on the owner and the driver. According to him, since the liability of the payment of the compensation amount is severely and jointly placed upon the driver, ownerandthe Insurance company, it is imperative that the owner and the driver be heard prior to the passing of any judgmentfor enhancement. In order to support his contention, he has relied upon the case of mehrun v. Samin Akhatar; SMT. Kalabai choubey and others v. Rajabahadur Yadav and another; Raghavendra Naik and another v. Mahavir and others; and Mrs. Jamunabai and others v. Chhote Singh and others.