Judgment

Javed Iqbal Wani, J.—The instant appeal filed by the appellant is directed against the award dated 29.09.2004, passed by the Motor Accident Claims Tribunal, Jammu (for short ‘the Tribunal’) in file No. 361/Claim whereby the injured-appellant has been awarded a sum of Rs. 5000/- with interest pendente lite till liquidation against the respondent No. 1, payable by respondent No. 3-Insurance Company. The amount of interim compensation is directed to be adjusted, accordingly.

2. The facts giving rise to the filing of the instant appeal reveals that the appellant filed a claim petition under Section 166 of the Motor Vehicles, Act for the grant of compensation for the disability suffered by him in a road accident on 24.05.1995 at Gole Pulli Near Talab Tillo, Jammu due to rash and negligent driving of the offending vehicle bearing No. JKB/7437 being driven by respondent No. 2, while hitting the scooter of the appellant being on ride with one Rajinder Kumar.

3. The Tribunal upon entertaining the claim is stated to have proceeded ex-parte against respondents 1 and 2 herein, whereas Insurance Company-respondent No. 3 herein is stated to have contested the claim.

4. Following issued are stated to have framed by the Tribunal for determination:-

1. Whether an accident took place on 24.05.1998 at Gole Puli, Near Talab Tillo, Jammu due to the rash and negligent driving of tanker No. 7437-JKB by the respondent No. 2 in which the petitioners Rajinder Kumar and Rakesh Kumar sustained injuries if so of what nature? OPP

2. In case issue No. 1 is proved in affirmative whether the petitioners are entitled to compensation on account of injuries sustained by them in said accident? If so to that amount and from whom? OPP

3. Whether the offending vehicle was not insured with the respondent No. 3 and as such he is not liable to be indemnified? OPR-3.

4. Whether the offending vehicle was not being driven in accordance with the terms and conditions of Insurance policy? OPR-3

5. Whether the driver of the offending vehicle was not having a valid driving licence at the time of the accident? OPR-3

6. Relief. O.P. Parties.

5. The appellant is stated to have led evidence to prove his case, whereas no evidence is stated to have been lead by the respondents for rebutting the claim of the appellant and whereupon Tribunal is stated to have passed the award dated 29.09.2004 (supra).

6. The appellant has sought to challenge the impugned award inter alia amongst other on the grounds that the Tribunal did not consider the evidence adduced by the appellant and instead brushed aside the relevant evidence without taking into consideration the relevant documents and record placed on record before it. It is urged in the grounds that the Tribunal under the provisions of Motor Vehicle Act, while deciding the claim petition was not to put the appellant to strict proof of the facts being social welfare legislation. It is further urged in the grounds that the Tribunal while passing the impugned award contradicted itself with regard to another claimant, namely, Rajinder Kumar and has taken his income on assumption as daily wager at Rs. 3000/- per month and fixed the same at Rs. 4000/- per month while as, in the case of the appellant herein the Tribunal by the same order has observed the appellant not to be earning anything and the Tribunal is stated to have applied two yard sticks for determining the compensation of the similarly situated claimants. It is further urged that the Tribunal while passing the impugned award failed to take into consideration the permanent disability amounting to 17% suffered by the appellant and certified by the concerned Registrar to the effect that appellant has suffered fracture on both the bones of right leg and he has shortening of lower right limb. It is urged that the Tribunal while ignoring the said disability failed to award compe