JUDGMENT

M.S. Karnik, J. (Oral) - When the matter was called out yesterday, none appeared on behalf of the appellant and it was kept today. Even today, no one appears on behalf of the appellant.

2. By the judgment and award dated 20.10.2004 in Motor Accident Claim Petition No. 44/1998, the learned Member of the Motor Accident Claims Tribunal, Wardha allowed the claim petition filed by the claimant and directed the respondent nos.1 and 2 to jointly as well as severally pay compensation to the claimant amounting to Rs. 36,500/on the principle of No Fault Liability.

3. The appellant by filing this appeal is seeking enhancement of compensation to the tune of Rs. Two lakhs. By an application filed under Section 166 of the Motor Vehicle Act, 1988, the injured/claimant had prayed for compensation of Rs.Two lakhs on account of permanent disability suffered by him in vehicular accident which took place on 25.5.1998. It was the claimant''s case before the Tribunal that he is a cultivator by profession and owns irrigated land. He earns net income of Rs. One Lakh per annum. From his dairy business, he earns income of Rs. 2,000/per month. The monthly income of the claimant is Rs. 10,000/. The claimant is 60 years old.

4. On 25.5.1998, the claimant along with other cultivators loaded food grains in a matador bearing registration No. MH32/ B2646 for being transported to the agricultural market at Hinganghat. The appellant/claimant and others were also travelling along with their goods in the said matador. The matador was driven by respondent no.1. The vehicle overturned near mouza Chhoti Arvi due to high speed. The claimant as well as others were injured in the accident. Initially they were admitted in the Cottage Hospital at Hinganghat and thereafter they came to be shifted to District Hospital, Wardha. The claimant was admitted in Kasturba Hospital, Sewagram. He suffered permanent disability in the accident and accordingly the Medical Officer had issued the medical certificate. It is the claimant''s case that he is unable to do any work because of this accident. The matador vehicle was insured with respondent no.2 - Insurance Company. On all these counts, the appellant/ claimant prayed for compensation of Rs. 2,00,000/jointly and severally from respondent nos.1 and 2.

5. The respondent no.1 filed his written statement at Exh.15 opposing the claim. According to the respondent no.1, it is the insurer who is liable to pay the claim. According to the respondent no.1, he was driving the vehicle carefully. As a result of the truck which was coming from opposite direction at a very high speed, he had to go to extreme left side of the road where there was a ditch and therefore, the vehicle turned turtled in that ditch.

6. Respondent no.2 - Insurance Company also filed the written statement at Exh.20. The respondent no.2 admitted that the matador was owned by respondent no.1 and insured with it. According to the Insurance Company, there was a breach of terms and conditions of insurance policy. As per respondent no.2, they are not liable to pay any compensation as the claimant as well as the other persons were traveling in the matador at their own risk. Moreover, the claimant has not described the injuries sustained by him.

7. In order to prove his claim, the claimant examined himself as CW1 at Exh.67 and placed reliance on certified copy of First Information Report, spot panchanama as well as discharge card. None of the respondents entered into the witness box.

8. The learned trial Judge was pleased to frame the following issues and record the findings thereon accordingly :-

1.Does the claimant proves that driver of the offending vehicle i.e. matador No. MH32/ B2646 drove it rashly and negligently on 25.5.1998 and caused the accident ? ......Yes

2. Does the claimant proves that he was injured in the said accident ? ......Yes

3. Does the claimant proves that he is entitled to compensation ? .....Yes

4. What should be the amount of compensation ? ...R