P.K. Misra, J.
1. The claimant has filed this appeal for enhancement of the cocpensation amount.
2. It is not disputed that the claimant sustained injury on account of an accident caused by Scooter bearing registration number OSU 4838 belonging to present respondent No. 1. It is also undisputed that the said Scooter was being driven by present respondent No. 2. The Tribunal has awarded a sum of Rs. 40,000/- as compensation to be paid by present respondent No. 2, who was driving the Scooter in question. The said respondent No. 2 has filed a Cross-Objection challenging the basis of liability on the ground of want of negligence on his part. The quantum of compensation is also challenged. He has further claimed that the compensation, if any, should be paid by respondent No. 1, as admittedly the Scooter was owned by respondent No. 1 on the date of the accident.
3. Though respondent No. 2 has challenged about the negligence in driving on his part, the said contention is not acceptable. The claimant had examined himself as a witness and has described the manner in which the accident had taken place. Respondent No. 2 who had not contested the claim application has not been examined to explain the circumstances of the accident. Apart from anything else, the doctrine of res ipsa loquitur would be available. The finding of the Tribunal is based on appreciation of evidence and I do not see any infirmity in the discussion to interfere so far as the finding of negligence is concerned.
4. The claimant has filed the appeal claiming higher compensation and respondent No. 2 has filed Cross-Objection stating that the amount payable should be reduced. On perusal of the award as well as the materials on record, I do not see any reason to interfere with the quantum of compensation assessed by the Tribunal. Law is well settled that the quantum by the Tribunal should not be interfered with by the appellate Court unless the said quantum is excessively high or excessively low. In the present case, the assessment is based on the evidence of the doctor as well as Discharge Certificate and other materials on record. By no stretch of imagination, the assessment can be characterised as excessively low or excessively high and as such I do not accept the claim for either enhancing the compensation or reducing the same.
5. The main question as agitated in the Cross-Objection by respondent No. 2 is as to whether the amount should be paid by respondent No. 2 as directed by the Tribunal or by respondent No. 1 as claimed by respondent No. 2 in the Cross-Objection. It is not disputed that the Scooter belongs to respondent No. 1. Respondent No. 1 in his objection as well as deposition had categorically stated that the Scooter had been left with respondent No. 2, a neighbour, only for the purpose of safe custody and respondent No. 2 had not been authorised to drive the Scooter during absence of respondent No. 1. Respondent No. 2 was set ex parte. In the Cross-Objection he has taken a ground that he had not received notice in the claim case. However, such a bald plea taken only in the memorandum of Cross-Objection without being supported even by affidavit, cannot be preferred to the order-sheet wherein notice on respondent No. 2 was accepted to be sufficient by the Tribunal. A presumption is available to be raised regarding such order-sheet and since it has been noted in the order-sheet that notice on respondent No. 2 is sufficient, in the absence of any categorical material on record to the contrary, the mere submission made on behalf of respondent No. 2 cannot be accepted. Though respondent No. 2 has taken a ground in the Cross-Objection to that effect, as already indicated, there is no other material in support of such a ground. Even respondent No. 2 has not chosen to file an affidavit. In such view of the matter, it is difficult to accept the contention raised in the Cross-Objection for the first time that no notice had been served on respondent No. 2. Since respondent No. 2 did not contest and has not rebutted the categorical evidence of respondent No. 1 to the effect that the Scooter had been left with respondent No. 2 merely for safe custody and respondent No. 2 had not been authorised to drive the Scooter, it must be taken that respondent No. 2 drove the Scooter on the fateful day unauthorisedly.
6. The question is whether for such unauthorised driving of the Scooter by respondent No. 2, respondent No. 1 can be taken to be vicariously liable and since respondent No. 2 cannot be taken to be the agent of respondent No. 1 and since the Scooter was not being driven for and on account of respondent No. 1 and, in fact, was being driven unauthorisedly by respondent No. 2, it would not be proper to fasten the liability on respondent No. 1. Of course, the matter would have been otherwise if the Scooter would have been driven for or on account of respondent No. 1 or if respondent No. 1 would have authorised respondent No. 2 to drive the Scooter in his absence. In such view of the matter, the direction of the Tribunal that the compensation should be paid by respondent No. 2 and not by respondent No. 1 appears to be justified. For the aforesaid reasons, I do not find any merit in the appeal or the Cross-Objection which are accordingly dismissed. There will be no order as to costs.
7. Since there has been long lapse of time in the meantime, the direction of the Tribunal regarding keeping certain amount in the name of the claimant in fixed deposit is no longer necessary and the entire amount along with accrued interest should be paid to the claimant-appellant.