- (1.) THIS first appeal from order under Section 173 of the Motor Vehicle Act, 1988 has been preferred by the appellant against the judgment and award dated 19.02.2000 passed by Motor Accident Claims Tribunal/ IV Additional District Judge, Unnao (hereinafter referred to as 'the Tribunal') in Accident Case No.235 of 1996, Kamlesh Kumar Vs. Shambhu Dayal Dixit and another whereby the claim petition of appellant was dismissed.
(2.) I have heard Sri Rajendra Jaiswal, learned counsel for the appellant, Sri Ashok Kumar Verma, learned counsel for the respondent no.1 and Sri Anil Srivastava learned counsel for the respondent no.2.
(3.) THE brief facts for deciding this first appeal from order in short are that according to appellant Kamlesh Kumar, on 17.07.1996 at about 8:00 am, he was coming to Unnao from his village Shobha Khera in a tempo being Registration No.UP 35 -A 7479. The said vehicle in question was being driven by the driver rashly and negligently. When the vehicle in question reached near Mugulpur, the driver lost his control over the vehicle in question and the same was turned turtle. On account of the said accident, the appellant's left hand was badly injured. He also sustained compound fracture in his hand. He was immediately admitted in District Hospital, Unnao and thereafter, he was referred to Hallet Hospital, Kanpur where he was remained admitted from 17.07.1996 to 28.07.1996. He got treatment for considerable long time because of nonunion of bone and infection. He claimed Rs.3,90,000/ - for compensation. He claimed himself to be a driver and earned Rs.2000/ - per month under the employment of Funner Prasad son of Sri Dwarika Prasad, Collector Ganj, Unnao. The claim petition was contested by respondent no.1, who is the owner of the Tempo having Registration No.UP 35 A 7479. Respondent no.1 did not deny the date, time and place of the accident as mentioned in the claim petition and stated that simple injuries were sustained to the passengers of the vehicle. Respondent no.1 also stated that he gave information to the police of Police Station Achalganj about the accident on the same day and also to the Oriental Insurance Company Limited (hereinafter referred to as 'the Insurance Company') on 18.07.1996. He also pleaded that the claimant had not sustained any injury by his vehicle. The claimant sustained injury by another Tempo being Registration No.35 B 7470 but probably the vehicle, by which the accident was occurred, was not insured and, therefore, the claimant involved the vehicle of the answering respondent in order to get compensation. However, the respondent no. 1 did not deny in his written statement that his vehicle was insured with Oriental Insurance Company. It was also pleaded by the respondent no.1 that his driver Suresh Kumar was having a valid driving license at the time of accident and even if, the court comes to the conclusion that any accident is occurred by his vehicle even then the Insurance Company is liable to pay compensation.;