Hon'ble Aditya Nath Mittal,J.

We have heard Shri A.A. Khan, learned counsel for the New India Assurance Co. Ltd., the appellant. Shri A.T. Pandey appears for the respondent claimant.

The insurance company has filed this FAFO under Section 173 of the Motor Vehicle Act, 1988, against the award of compensation dated 30th July, 2012 passed by Motor Accident Claims Tribunal/ Addl. District & Sessions Judge, Court No.14, Aligarh awarding compensation of Rs.3,90,000/- with 6% interest towards the injuries caused to the claimant on which he has been rendered 100% disabled for carrying out any gainful employment.

Brief facts giving rise to this case are that on 25.8.2007 at about 7.00 p.m., when the claimant was travelling along with his wife and other passengers in a Bus No.UP 82-A-9379 from Jaharveer Rajasthan, the driver of the bus lost control on the vehicle. The bus collided with a tree and then fell down in a ditch on GT Road in front of Dadari Telephone Exchange. Shri Ramesh Chandra, the claimant and other passengers sufferred serious injuries in the accident. The claimant and his wife were admitted to Guru Teg Bahadur Hospital, Delhi, where the wife died. The claimant sufferred serious injuries in his back bone causing fracture and that both his legs were crushed, causing total functional disability of the lower limbs.

The claimant filed the injury report, first information report, chargesheet filed against the driver for rash and negligent driving, site plan; case diary and inspection report; technical report; the orders by which the vehicle was released, original disability certificate issued by the Superintendent of the Safdarjang Hospital, New Delhi and other documents.

The Tribunal after considering the documentary and oral evidence, found that the accident was caused on account of rash and negligent driving of the driver of the bus in which the bus dashed against the tree and overturned. The conductor of the bus and Guddi Devi, the wife of the claimant died due to fatal injuries caused in the accident. The bus was insured by the appellant company. It was not denied by the insurance company that the driver of the bus had a valid driving license on the date of the accident.

The award has been challenged on the ground that the doctor, who had examined the claimant and issued the medical certificate was not examined. The medical certificate did not prove the disability to the extent of 100%, and further that the income of the deceased was assessed at higher side.

The Tribunal has relied upon original medical certificate of the Medical Superintendent in the office of the Safdarjang Hospital, New Delhi dated 25.2.2011 in which it was verified that the petitoner has lost the ability to use both his legs. He has become a cripple and will be confined to wheel chair. He is unable to walk and has difficulty in perform daily routine including passing of urine and stool.

The claimant-respondent claimed Rs.11,25,000/- towards loss of income from his occupation as painter and Rs.4 lacs towards medical bills.

The Tribunal found that the claimant could not prove the employment in the painting work and thus calculated compensation of loss at notional income of Rs.3000/- per month in accordance with Laxmi Devi v. Mohd. Tabbar, 2008 (2) TAC 394 SC. The Tribunal found that the medical bills were not proved and awarded Rs.5000/- in lumpsum towards medical bills. After giving 1/3rd deduction from the income towards personal expenses it allowed Rs.3,60,000/- as compensation for 100% disability sufferred by the claimant and further amount of Rs.30,000/- towards medical expenses, pain and sufferring and for future medical treatment.

The Tribunal has given an award of Rs.3,90,000/- with direction that an amount of Rs.2,90,000/- will be immediately paid to the claimant. The remaining amount will be kept in fixed deposit initially for a period of 5 years in nationalised bank.

We do not find any error on the findings recorded by the Tribunal on the issue of rash

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