JUDGMENT :

(Jaspreet Singh, J.)

1. Heard Shri Vaibhav Raj, learned counsel for the appellant and Shri Vishal Talhani, learned counsel for the claimants-respondents. None has put in appearance on behalf of the respondent No.2, accordingly, the appeal has been heard in his absence.

2. The instant appeal has been preferred by the appellant Insurance Company under Section 173 of the Motor Vehicles Act, 1988 assailing the award dated 08.04.2023 passed in MACP No.310/2006, whereby the MACT/Special Judge (E.C. Act), Lucknow has awarded a sum of Rs.1,66,672/-along with interest @ 6% per annum from the date of the claim application till the date of payment and the award has been directed to be honoured by the Insurance Company.

3. Learned counsel for the appellant while assailing the impugned award dated 08.04.2013 has raised a three fold submission.

(i) The primary attack is on the ground that the driver of the offending vehicle did not possess a valid and subsisting driving licence on the date of the accident, consequently, the liability could not have been fastened on the Insurance Company. The other limb of the argument is that even the vehicle in question did not possess a valid fitness certificate and as such the liability could not be fastened on the Insurance Company. In support of his submission, he relied upon the decision of the Apex Court in National Insurance Co. Ltd. v. Vidhyadhar Mahariwala and others, (2008) 12 SCC 701.

(ii) The other ground of attack is that the accident was a case of contributory negligence as shall be evident from the statement made by the claimant witness and in view thereof, the Tribunal has erred in not deducting any percentage from the amount awarded as it was a head on collision and at least 50% should have been deducted on that count.

(iii) The award is assailed also on the ground that the amount as awarded for the injuries sustained by the claimant-respondent No.1 is on the higher side and since there was no requisite material evidence to substantiate the quantum, accordingly, the amount as determined by the Tribunal is by mere estimation ignoring the material on record, hence, the appeal deserves to be allowed.

4. Learned counsel for the appellant has also relied upon the decision of the Apex Court in Rani and others v. National Insurance Company Ltd., and others, 2018 ACJ 2430, Shamanna and another v. Divisional Manager, Oriental Insurance Company Ltd., and others, (2018) 9 SCC 650.

5. Per contra, learned counsel for the claimant-respondent submits that the driver had the requisite licence and even if at all there was any discrepancy either in the licence or for want of fitness certificate, it cannot be termed as a fundamental breach of the policy and for the said reason, the Insurance Company cannot avoid its liability.

6. Learned counsel for the claimants-respondents further submits that there was no pleadings treating the accident in question to be a case of contributory negligence rather the evidence which was led clearly indicated that the accident was caused on account of sheer negligence of the driver of the offending vehicle and as such it cannot be said that the Tribunal has faulted in ascertaining the negligence and fastening the responsibility on the respondent No.2. Lastly, it is urged by the learned counsel for the claimants-respondents that the quantum is also in consonance with the settled legal principles and the record would indicate that the claimant, who was serving in the Defence Forces had suffered 30% disability and had undergone surgery for which he had furnished the necessary details as well as the X-ray plates. Merely because the treatment of the claimant was in a Defence Hospital will not mean that he would not be entitled to compensation and thus considering the aforesaid, the sum as awarded by the Tribunal requires no interference and the appeal deserves to be dismissed.

7. The Court has heard learned counsel for the parties and also perused the material on record.