ORDER

1. By this miscellaneous appeal under section 173 of the Motor Vehicles Act, 1988 the appellants have challenged the award dated 6.7.2005 passed by the Motor Accident Claims Tribunal, Indore dismissing the Claim Case No. 62/2004.

2. The original claimant Mehmood (since deceased) had filed the claim petition before the tribunal under section 163A of the Motor Vehicles Act, 1988 (for short "the Act") with the plea that on 3.11.2003 when he was driving the scooter No. MP09-U-7703 belonging to his friend Faij and taking his brother Abbas as pillion rider, the accident was caused by Gujarat passing half body truck driven in rash and negligent manner, as a result of which he had received injuries and was hospitalized. A report was also made against the unknown truck and since the truck or the driver could not be traced during investigation, therefore, final report was filed by the police. Accordingly the compensation was claimed.

3. The claim was opposed by respondent No. 1 by filing the reply.

4. Respondent No. 2 also by filing the reply had denied the claim by raising the plea that the accident was caused by the claimant himself and that the driver and owner of the offending truck have not been impleaded and the claim was also denied on merit.

5. The tribunal had proceeded ex parte against the respondent No. 1 and after permitting the parties to lead evidence and examining the same, had found that though the appellant had received injuries in the road accident but he could not prove that he was driving the scooter or the injuries were caused because of the accident from the unknown truck. The tribunal further found that the claim under section 163A of the Act was not maintainable since the income of the claimant was more than Rs. 40,000/-. The tribunal accordingly dismissed the claim petition.

6. Learned counsel appearing for the appellant submits that the tribunal has committed an error in dismissing the claim petition without properly appreciating the evidence and without considering that from Ex. P/1, P/2, P/4, P/6, P/7 & P/8 the causing of the accident from the truck was proved. He further submitted that there was no denial of pleadings by the insurance company.

7. As against this, learned counsel for the insurance company has opposed the claim by submitting that since the claimant was driving the scooter after borrowing it, therefore, he had stepped into the shoes of owner and was not entitled for compensation. He further submits that the income was more than Rs. 40,000/-, therefore, claim under section 163A of the Act has rightly been rejected and that in the meanwhile the appellant has died, therefore, the personal claim for injuries is not maintainable and findings of the tribunal on merit are correct.

8. Learned counsel for the respondent No. 1 has also opposed the appeal.

9. Having heard the learned counsel for the parties and on perusal of the record, it is noticed that the claims tribunal while passing the impugned award has duly and properly appreciated the entire evidence. The appellant had failed to produce any cogent evidence showing that the accident was caused by the unknown truck or he had received injuries on account of the accident from the scooter. According to the statement of claimant Mehmood and PW-2 Abbas, they could not see the number of the offending truck. The tribunal, after examining the MLC (Ex. P/9), had noted that the claimant had received injuries only in right knee and thigh and had not received any other injuries as claimed in the claim petition. The overwriting relating to date from 3.10.2003 to 3.11.2003 in the MLC (Ex. P/9) is clear. The tribunal has also noted that as per this report, Smt. Akhtar had brought the claimant to the hospital, whereas it is not the case of the claimant that he was taken to the hospital by his mother. The Rojnama Sanha Ex. P/3 mentions that claimant was taken to the hospital by Mohd. Abbas but this fact does not tally with the MLC Ex. P/9, hence conflicting