In order to be entitled to compensation under Section 166 of the Motor Vehicles Act, 1988, the claimant must prove that the driver of the vehicle was driving rashly and negligently, that the claimant sustained permanent disability as a result of the accident, and that there is a nexus between the accident and the injury sustained.

J.G. Chitre, J.

Shri Manoj Dwivedi for the appellant.

Shri S.V. Dandvate for respondent New India Insurance Co. Ltd.

1. This appeal has been finally heard as very short points are involved for adjudication.

2. On 1-12-1991 at about noon, as averred by appellant, he was riding his bicycle on Khandwa road for going towards Barwah. When he came near the octroi Naka, truck bearing No. UP-78-9622 came from opposite side and dashed the appellant. The appellant fell down along with his bicycle and sustained some injuries. It has been averred by him that those injuries were serious injuries and he suffered permanent disability on account of that. A report was made in the police station and thereafter claim was preferred in Motor Accident Claims Tribunal, Barwah.

3. After recording the evidence learned Tribunal dismissed the claim of the appellant and, he has assailed that judgment and award by this appeal.

4. Shri Manoj Dwivedi appearing for the appellant pointed out that evidence of appellant Babulal and witness Kailash is proving that the driver of the said truck was driving it rashly and negligently. He submitted further that evidence of Dr. Chouhan is proving that appellant had sustained permanent disability as a result of the injuries caused by rash and negligent driving of the said truck when the accident took place. He submitted that the tribunal should have allowed the claim by passing appropriate award.

5. The other respondents are absent as their names have been deleted from the array of the parties by the order of this Court dated 13-12-1996. Shri S. V. Dandvate has been heard for respondent Insurance Company. He submitted that the claim has been rightly dismissed by the Tribunal. He pointed out that even for the purpose of getting compensation in view of provisions of Section 140 of Motor Vehicles Act, 1988 (for short the Act) the claimant has to prove that he had sustained permanent disability as indicated by provisions of Section 142 of the Act. He pointed out further that in the present case it is not so and, therefore, the appellant is not entitled to get compensation in view of provisions of Section 166 as well as Section 140 of the Act. Shri Dandvate further pointed out that unless the Tribunal comes to the conclusion that the driver of the truck was driving the vehicle in rash and negligent way, the insurance company cannot be held liable for paying compensation to the claimant. He submitted that in the present case the driver and the owner of the vehicle have not put in appearance as their names have been deleted from the array of respondents and, therefore, the insurance company cannot be directed to pay the compensation to the appellant. He further pointed out that the evidence on record does not prove that the driver of the said vehicle was driving it rashly and negligently.

6. The appellant did not pursue his attempt to get respondents Nos. 1 and 2 served by taking appropriate steps provided by Code of Civil Procedure. The Court allowed sufficient time to the appellant in that context and lastly an order dated 13-12-1996 came to be passed by which the names of respondents Nos. 1 and 2 were deleted from the appeal memo. The appellant deserves to be blamed for that because it is his duty to get necessary parties served by due process of law. It was his duty to make a prayer to the Court for substituted service on them in case it was difficult to get them served.

7. The evidence of appellant and C.W. 3 Kailash does not prove that on the date of said accident the driver of the said truck was driving it rashly and negligently. It is to be noted that even witness Kailash has not said that the said truck was being driven in excessive speed which appellant had stated in his evidence. In the cross-examination, the appellant has admitted that at the time of said accident the bullocks tied to the bullock-cart which was in picture at the time of said accident near the said truck and bicycle of the appellant, got frightened and