U. C. MAHESHWARI, J.

( 1 ) BEING aggrieved by award dated 31. 8. 2004 passed by First additional Motor Accidents Claims Tribunal, betul (hereinafter referred to as 'the tribunal'), in M. V. C. Case No. 30 of 2004, whereby Rs. 1,72,200 along with interest at the rate of 9 per cent per annum has been awarded against the appellant and in favour of respondent No. 1, insurer appellant has preferred this appeal.

( 2 ) THE facts giving rise to this appeal are that on 3. 1. 2004, claimant-respondent no. 1 was travelling in a Tempo Trax bearing registration no. MP 28-H 1527, from pathakheda to Multai. When Tempo Trax reached near Labhsingh Dhaba, Fansigarh mazar and crossing a small bridge at that time a truck bearing registration No. MP-22 4295 came from opposite side in a rash and negligent manner driven by respondent no. 2 and collided with said Tempo Trax, resultantly, respondent No. 1 got injured and received injuries on head, right thigh, leg and hip. During that period respondent no. 3 was the registered owner of the said truck while the same was insured with appellant.

( 3 ) THAT, this incident was reported to the police. On registration of the offence, after investigation respondent No. 2 was charge-sheeted. Regarding treatment, the respondent No. 1 was shifted to a hospital at Padhar. Initially respondent No. 1 was admitted in hospital on 3. 1. 2004 where he was operated on 6. 1. 2004 and was kept in hospital till 2. 2. 2004. He was again admitted in the hospital in between 10. 3. 2004 and 19. 3. 2004 and discharged on 19. 3. 2004. Meanwhile bone-grafting was carried out and remained under observation and treatment with physiotherapy. As alleged 50 per cent permanent disability was sustained due to injuries of hip and knee. A claim for compensation to the tune of Rs. 10,00,000 was submitted before the Tribunal.

( 4 ) DRIVER and owner of the offending truck, respondent Nos. 2 and 3, remained ex parte in the Tribunal, while filing reply the appellant raised the plea that the accident took place due to rash and negligent driving of the Tempo Trax not the truck and also denied the permanent disability of respondent No. 1. The pecuniary loss of respondent No. 1 was also denied. In the alternative it was also said that the incident was result of contributory negligence of both the vehicles and driver of the truck was not having valid and effective driving licence. A permission under section 170 of motor Vehicles Act for cross-examination of the witnesses of respondent No. 1 was also prayed in the absence of respondent nos. 2 and 3 and such permission was granted.

( 5 ) ON framing the issues respondent no. 1 led his evidence and examined himself and Dr. N. R. Padhi, AW 2, who treated him in private hospital, Padhar. No evidence was led on behalf of appellant, driver and owner. On appreciation of the evidence, the Tribunal concluded that the offending act was caused by truck and its driver and also found 50 per cent permanent disability to respondent No. 1 owing to injury of hip and awarded Rs. 1,72,200 by describing the different heads. Hence insurer has filed this appeal.

( 6 ) COUNSEL for the appellant vehemently argued that accident was not the result of any negligent act of the alleged truck while it was caused by a Tempo Trax in which the respondent No. 1 was travelling. In any case, the accident took place in a narrow bridge as a result of contributory negligence of drivers of both the vehicles. It was further submitted that the driver of the truck was not having valid and effective driving licence. He also challenged the quantum of awarded amount as per his submission, it is on higher side. His submission was that the respondent No. 1 got his salary regularly even for the period of leave during treatment and no pecuniary loss is caused to him. In spite, Tribunal has awarded Rs. 20,000 against leave. He also challenged the compensation as awarded for permanent disability for mental and physical pain and suffering and for futur

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