By way of filing this appeal under Section 173 of the Motor Vehicles Act, 1986 the appellant – original opponent No.2 has challenged the judgment and award dated 22nd Marcy 2006 passed by the Presiding Officer, Fast Track Court No.2, Ahmedabad(Rural) in MAC Petition No.1289 of 1998 whereby the Tribunal has awarded Rs.292,000 to the claimants. 2. The short facts of the present appeal are that on 5th July 1998 deceased Babuji and his friend Kalpesh Joshi were travelling on Scooter and when they were passing through Mahomadpura Village at 3 PM, at that time, original opponent No.1 came there by driving his truck and dashed with the Scooter due to which deceased sustained serious injuries and died. The claimants have filed claim petition claiming compensation of Rs.5 lakhs on the ground that the deceased was earning Rs.3,000 per month. The Tribunal after considering the evidence has awarded Rs.2,92,000 along with interest at the rate of 7.5% per annum from the date of the application till realisation and the said amount was ordered to be recovered from the opponents jointly and severally.
3. Learned counsel for the appellant submitted that the driving licence of the Driver of the truck was a fake licence and therefore the insurance company ought to have been exonerated considering the judgment of the Apex Court in the case of National Insurance Company Limited v. Swaran Singh and Others, reported in 2004 ACJ 1.
4. Learned counsel for the respondent has remained absent. Even on earlier occasion also he remained absent. On that day, this Court passed the following order:
“Ld. Counsel for the respondent is not present. As a last chance, S.O. to 10/5/2012. On next date, the matter shall be peremptorily proceeded in the first round itself.”
Today, when the matter is called out, learned counsel for the respondent is not present. Hence, the matter is taken up for hearing in his absence.
5. Having considered the evidence on record and having heard learned counsel for the appellant, this Court is of the opinion that the contention raised by the appellant merits acceptance in view of the evidence of RTO Officer.
6. In view of the aforesaid discussion, the insurance company is not liable to pay the compensation to the claimant and is hereby exonerated from its liability. It will be open for the claimant to recover the money from the owner of the truck. The present appeal is allowed with no order as to costs.
(K.S.Jhaveri, J.) *mohd