- (1.) Leave granted.
(2.) Challenge in this appeal is to the judgment of the Division Bench of the Allahabad High Court dismissing the appeal filed by the present appellant (hereinafter referred to as the insurer ).
(3.) Factual position which is almost undisputed is essentially as follows: An appeal was filed questioning the correctness of the Award made by the Motor Accident Claims Tribunal, Saharanpur (hereinafter referred to as the MACT ) wherein a sum of Rs. 1,20,000/- was awarded as compensation. The claim petition was filed on the basis that on 1.5.1991 while Abdul Hamid (hereinafter referred to as the deceased ) was traveling by Matador No. URF-9761 from Saharanpur to Sarsawa, a truck bearing registration No. PIJ-5166 belonging to Border Security Force (in short the BSF ) dashed against the said vehicle resulting in serious injuries on the body of the deceased. He succumbed to the injuries at the SDB Hospital Saharanpur. The appellant-insurer contested the claim petition inter alia taking the stand that the compensation as claimed was high and exorbitant. The MACT held that the accident occurred due to rash and negligent driving of the driver of the truck and awarded Rs. 1,20,000/- as compensation. In appeal the stand of the appellant was that the application filed by the claimant- respondent under Section 173 of the Motor Vehicles Act, 1988 (in short the Act ) was not maintainable in view of Section 53 of the Employees State Insurance Act, 1948 (in short the ESI Act ). The High Court did not accept the stand primarily on the ground that no such plea was taken specifically in the written statement. It was also held that as regards applicability of Section 53 of the Act certain factual aspects were to be considered. The appeal was accordingly dismissed.;