JUDGMENT :

The appeal is taken up for hearing by consent of parties, when it is brought to my notice that the Claimant has moved an application for withdrawal of the amount deposited by the Insurance Company in MACT, Thane, in furtherance of the judgment and award passed by MACT, Thane on 12/05/2017 in MACP No. 703 of 2011. The respective counsel submit that they are ready to proceed with the appeal finally, since the relevant papers are already placed on record in the form of compilation.

2. In filing the appeal, there is a delay of 123 days, which is sought to be condoned by taking out Civil Application No. 1559 of 2018.

3. Heard learned counsel for the applicant and the respondent. The delay being sought to be sufficiently justified in the application, I deem it appropriate to condone the same. Civil Application is made absolute in terms of its prayer.

4. Appeal is admitted. By consent of parties, taken up for final hearing.

5. “The future belongs to those who believe in beauty of their dreams.” The aforesaid quote may not hold good for a little girl Kum. Rizwana Khatoon Mehoob Khan, aged 5 years, who met with a ghastly accident on the fateful day being, 9-4-2011. On the said day, the little girl was returning home along with her uncle and when they reached near Avchitpada Police Chowky, a truck, literally chased them in high speed and since it was being driven in rash and negligent manner, it ran on the Claimant resulting into multiple grievous injuries. The negligence on part of the driver of the truck resulted in registration of C.R. No. I-113 of 2011 in Shantinagar Police Station. From this day onwards, agony of the little girl never stopped. She was admitted in a private hospital in Thane and was shifted to several hospitals, which offered no solace and she suffered a permanent disability. On account of the said accident, her educational career was doomed and so also her future prospects.

6. The claim came to be lodged on behalf of Kum. Rizwana Khan through her natural guardian Mehboob Alam Khan against the driver of the offending truck and since the vehicle was insured with the Reliance General Insurance Company Limited, it was impleaded as opponent No. 2. The claim was set up before the MACT, Thane. In spite of service, the owner of the offending truck did not put appearance and the claim proceeded against him ex-parte.

The Insurance Company opposed the claim by filing written statement (Ex-16) and attributed negligence to the Claimant and also disputed the expenses incurred for her medical treatment. A statutory defence is raised to the effect that the driver was not holding a valid and effective driving licence and the vehicle was plied without valid permit and fitness certificate, amounting to breach of terms and conditions of the policy. It is pleaded that the accident took place because of the fault and negligence of the applicant herself as she was careless in walking on the wrong side of the road and, therefore, the Insurance Company claimed that it is entitled to be absolved of the liability.

7. The claim petition proceeded before the Tribunal, which framed the following issues :

“1] Whether applicant proves that on 9-4-2011 at about 10.10 hours, on Avchitpaa road, near Avchit pada Police Chowky, Bhiwandi, impugned accident occurred due to rash and negligent driving of truck bearing No. MH-04-EL-9753 by its driver?

2] Whether applicant proves that in the impugned accident she has sustained the injuries?

3] Whether there is breach of terms and conditions of the policy?

4] Whether applicant is entitled for compensation? If yes, what amount and from whom?

5] What order and award?”

8. In support of the claim, the guardian of the injured stepped into the witness box, on filing his evidence on affidavit. The evidence of Dr. Narresh Madanlal Khanna was also recorded as CW-2 and the two other witnesses examined are Mahesh Ragho Patil (CW-3) and Eunice Joel Dive (CW-4), CW-3 being the Assistant Manager in Billing Department of Jup