Kulshrestha, J. -- 1. The Insurance Company has challenged the award dated 12.9.2003, passed by the Motor Accident Claims Tribunal, Shajapur in Claim Case No. 52/03, by which the Tribunal has awarded Rs. 6,35,200/to the respondent No.1 on account of amputation of left leg above knee, suffered by him. The Insurance Company, therefore, assails the quantum of compensation on the ground that the story in FIR lodged in the police station indicates that the claimant was a gratuitous passenger in a goods vehicle and that the amount is excessive for which the appellant Insurance Company had obtained permission under section 170 of the Motor Vehicles Act.

2. The factum of the accident has not been disputed by the parties. It has also not been disputed that the vehicle was insured with the appellant Company. As per the case of the claimant: on 2.11.2002 while he was standing on the road, waiting for a vehicle for going to Maksi, from the side of Sarangpur truck bearing Registration No. MPLJ-1038 driven by respondent No.3 Baneshing collided with the claimant, with the result the wheel of the truck ran over his leg causing crush injury. During treatment the leg had to be amputated from above the knee. In these premises the claimant respondent No.1 Lacchiram claimed compensation of Rs. 10,00,000/-. On the basis of the evidence, the Tribunal accepted the claim that Lacchiram has suffered 85% permanent disability and, accordingly, on finding that his income was Rs. 3,000/- per month (as against the claim of Rs. 3,500/-), it was multiplied by 12 to calculate the annual income and the annual income of Rs. 36,000/- was multiplied by 17 and a sum of Rs. 6,12,000/- was arrived at. Since the case was of 85% disablement, Rs. 5,20,200/- being 85% of the above amount was awarded. In addition Rs. 50,000/- were awarded for treatment, Rs. 15,000/- for special diet and Rs. 50,000/- for pain and sufferings. Thus, against the total amount of Rs. 6,35,200/-, the Insurance Company has filed this appeal.

3. Learned counsel for the appellant submits that as per the version in the FIR, the respondent No.1 Lacchiram was travelling as a gratuitous passenger and, therefore, the Insurance Company could not have been fastened the liability of making payment of compensation. As such, the liability was not in consonance with the policy of the insurance. In this connection Ex. P-5, a copy of the FIR has been filed. On perusal of the FIR it is noticed that it has been lodged by Mangilal Jat, a Head Constable, on the basis of the information received from the hospital. Neither the person, who gave this information nor the Head Constable, who got the FIR recorded, on that basis, has been examined to prove that the respondent No. 1 was travelling as gratuitous passenger. Learned counsel for the respondent No. 1 also pointed out that in fact in the written statement the Insurance Company tacitly admitted in para 15 of their reply, raising special pleas that as per the pleadings of the claimant, he was standing on the road, but he had been standing contrary to the rules and on the wrong side, with the result he was himself responsible for the consequence and was, therefore, not entitled to seek compensation.

4. We find that on account of failure of the Insurance Company to examine the person, who had lodged the FIR and the scribe of the FIR as also the person who had communicated the said information to the Head Constable, merely on account of the recital in the FIR, it cannot be said that it contradicted the claim made by the claimant in his claim petition. As pointed out above the Insurance Company has also admitted that he was standing by the side of the road, but contrary to the rules. In the above state of factual matrix, the reliance of the learned counsel for the appellant on the decision of the apex Court in Oriental Insurance Company Limited v. Devireddy, Konda Reddy and others [2003 (II) MPWN 5 = 2003 ACJ 468] is in apt. In fact, the facts of the