MAIN POINTS
Tribunal stricto sensu not bound by pleadings of parties. Its function is to determine amount of fair compensation.
Even if Insurance company is not held liable, principle of ‘pay and recover’ can be invoked.

JUDGMENT

A.M. Khanwilkar, J.

In the present appeals, the appellant/claimant has challenged the judgment dated 5th January, 2017 passed by the High Court of Judicature for Rajasthan, Jodhpur Bench, in SB Civil Miscellaneous Appeal Nos.273 of 2001 and 290 of 2001, which set aside the award of the Motor Accident Claims Tribunal ['the Tribunal'] granting compensation to the appellant at the instance of respondent Nos.2 and 3 (driver and owner of the offending vehicle, respectively) as also negatived the appellant's prayer for enhancement of the compensation amount.

2. The appellant alleges that on or about 10th February, 1990, while he was riding his motorcycle, bearing No. RJ-19-6636, he was hit by jeep No. RST-4701, owned by respondent No.3 and purportedly being driven by respondent No.2 at the time, resulting in serious injuries and ultimately, amputation of his right leg above the knee. The appellant subsequently filed an application before the Tribunal, Jodhpur, seeking compensation against the respondents, including the respondent No.1 insurance company. He claimed 40% permanent disability and 100% functional disability, contending that his primary livelihood of driving heavy transport vehicles (HTVs) had been curtailed on account of his amputation, and sought compensation to the tune of Rs. 11,17,000/-. Respondent Nos.2 and 3 denied the accident and the involvement of the jeep in question. The respondent No.1 insurance company argued that the cover note purportedly taken for the jeep in question was fraudulent. The cover note had been given unauthorisedly by its then Development Officer, no premium had been deposited with the company and no policy had been issued in that regard. Thus, the jeep was not validly insured.

3. In its judgment dated 22nd November, 2000, the Tribunal discussed the evidence on record in detail. PW2 (Chainaram) and PW4 (Thanaram), who had taken the appellant to the hospital after the accident, deposed that after the accident, the jeep which caused the accident stopped ahead and they noted the jeep number in the backlight and further, they heard the driver's name being called out by the passengers in the jeep. The Tribunal, however, found that their version of having noted the jeep number and heard the driver's name seemed to be unnatural. The Tribunal also discarded the version of the appellant (PW1) about the details of the vehicle as being not reliable. The Tribunal then noted the evidence of the defence witnesses, that the jeep in question was nowhere near the area of the accident. The Tribunal, however, opined that the accident had been caused by the jeep in question, based on the investigation report filed by the police mentioning that when they seized the jeep after one month of the accident, the jeep bore a scratch on the mudguard of the tyre on the upper footboard on the left side. The Tribunal also relied on the charge sheet (Exh.1) filed by the police, wherein it has been stated that the accident was caused by the jeep in question on the basis of statements made by the appellant and other witnesses (Roopram, Thanaram and Pratap Singh). The Tribunal held that there was no reason to disagree with the conclusion of the police. In short, the Tribunal disbelieved the evidence of the appellant's witnesses, regarding the commission of accident by the jeep in question, as unreliable but nevertheless relied upon the investigation report as also the charge sheet filed by the police in that regard which was supported by two other witnesses who did not depose before the Tribunal.

4. The Tribunal then referred to the site map of the accident (Exh.2), to conclude that the appellant was riding his motorcycle one foot on wrong side from the middle of the road and hence, had contributed to the accident by being negligent. The Tribunal also accepted the plea of the respondent No.1 insurance company that the c