P.K. Misra, J.
1. In this appeal under Section 173 of the Motor Vehicles Act, the owner has challenged the award passed by the Claims Tribunal awarding a sum of Rs. 12,000 in favour of the claimant-respondent No. 1.
2. It is claimed that on 24.9.1991 at about 9 a.m., the offending vehicle, a mini bus bearing registration No. OSG 6167 belonging to the present appellant dashed against the claimant who was standing on the road with his cycle. As a result of such accident, the claimant sustained injuries. Claim application was filed claiming Rs. 50,000 as compensation.
The appellant did not contest the case and was set ex parte. The insurance company (present respondent No. 2) filed the written statement disowning the liability and denying the allegations made in the claim petition.
3. The Claims Tribunal on consideration of the evidence on record held that the accident occurred due to rash and negligent driving of the driver of the mini bus. It further found that the claimant was entitled to a sum of Rs. 12,000 as compensation. It directed that the said compensation amount should be paid by the owner along with cost of Rs. 200 and interest at the rate, of 9 per cent from the date of application, as the materials on record were not sufficient to hold that the vehicle in question had been insured with the insurance company, the present respondent No. 2. Such award is being challenged by the owner in the present appeal.
4. In the present appeal, it was first contended that as the notice in the case was served on the father of the present appellant and the appellant was staying at a different place, he was not aware of the filing of the claim case. It has, therefore, been prayed that the matter should be remanded to the Claims Tribunal for fresh hearing so that the appellant can have sufficient opportunity to contest the case. On going through the record, I am not in a position to accept such submission on behalf of the present appellant. No materials have been adduced on behalf of the present appellant to show that, in fact, he was living separately from his father. The mere assertion of the appellant cannot be taken to be sufficient in the face of the order-sheet and presumption attached to such order-sheet.
5. The learned counsel for the appellant then contended that the finding regarding negligence of the bus driver and the assessment of quantum cannot be sustained. The finding of the Tribunal is based on the evidence of the claimant himself who had sustained the injuries. There is no contrary material on record to come at different conclusion so far as negligence of the bus driver is concerned. Similarly, the assessment relating to compensation payable is based on materials on record and there is hardly any justifiable reason to interfere with the assessment made by the Claims Tribunal.
6. The learned counsel for the appellant then contended that since the vehicle in question had been insured with respondent No. 2, the Claims Tribunal should not have fastened the liability on the owner and should have directed the insurance company to pay the compensation. In support of such contention, the counsel for the appellant has filed a xerox copy of the insurance cover note. The learned counsel appearing for the insurance company was asked to obtain instruction as to whether the vehicle in question had been insured with the insurance company. From the xerox copy of the cover note, it appears that, in fact, the vehicle in question had been insured with the insurance company. No material has been brought on record by the insurance company to refute the contention of the appellant. In the interest of justice, the xerox copy of the cover note is taken to record by applying the principle under Order XLI, Rule 27, Code of Civil Procedure, and marked as Exh. A on behalf of the owner. In such view of the matter, since the vehicle in question had been insured with the insurance company, the liability is to be borne by the insurance company.
7. The learned counsel for the insurance company has, however, submitted that since no particulars had been given before the Claims Tribunal and the owner had not appeared, the insurance company was not in a position to find out as to whether the vehicle had been insured with the insurance company and as such the insurance company should not be asked to pay the cost, nor it should be asked to pay the interest from the date of filing of the petition till at least the date of filing of the appeal. Such submission of the counsel for the insurance company appears to be reasonable. It is found that the claimant had not given any particulars relating to the insurance, nor there was any evidence on record to show that, in fact, the vehicle had been insured with the insurance company. If the owner would have appeared before the Tribunal, he could have disclosed about the particulars. Since such a situation has arisen because of the negligence of the owner, it would be just and proper to direct that the cost of Rs. 200 and the interest at the rate of 9 per cent on the awarded amount of Rs. 12,000 from the date of application till 13.8.1996, that is to say, the date of filing of the appeal in the High Court, shall be paid by the owner appellant and the awarded amount of Rs. 12,000 with interest at the rate of 9 per cent per annum from 13.8.1996 till date of such payment shall be paid by the insurance company.
8. Subject to the aforesaid directions and modifications, the appeal is allowed.
There will be no order as to costs of the present appeal.