Abshishek Avasthi v. Mahesh Chand Sharma & Ors

: Mr. G.L. Sharma, Adv. For Respondent(s) : Mr. Rizwan Ahmed, Adv. with Mr. Mohsin, Adv. HON'BLE MR. JUSTICE MANEESH SHARMA 08/05/2025 Order

1. The present appeal under Section 173 of the Motor Vehicles Act, 1988 has been preferred by the appellant-claimant (for short ’the claimant’) dissatisfied with the judgment and award dated

12.03.2010 passed by the Motor Accidents Claim Tribunal, Bandikui in claim case No.68/2007, titled as “Abshishek Avasthi Vs. Mahesh Chand Sharma & Ors”, whereby the Tribunal has awarded a sum of Rs.1,19,929/- along with interest @ 5% per annum from the date of filing the claim petition i.e. 28.05.2007 in favour of the claimant. [2025:RJ-JP:19557] (2 of 6) [CMA-1361/2010]

2. The brief facts giving rise to the present appeal are that on

26.02.2007 the claimant was going in the Indica Car bearing Registration No. RJ 29-CA-0148 from Bandikui to Jaipur and when the said car reached near Bhadana, one tractor coming from the opposite side hit the car of the claimant and on account of said accident, the claimant sustained serious injuries on his left hand and shoulder.

3. It was further pleaded in the claim petition that at the time of accident, age of the claimant was 22 years and he was working with the Airtel Telecommunication Company and getting salary of Rs.8,700/- per month.

4. On account of said injuries, the claimant sustained 18% permanent disability, therefore, he filed the claim petition under Section 166 of the MV Act before the Tribunal.

5. Upon service of the summons, owner and driver of the alleged vehicle filed reply to the claim petition and denied the averments made therein and submitted that although the non-applicants are not liable to pay any compensation amount but in the alternative, they submitted that if any liability is found due then the same shall be recovered from the National Insurance Company Limited (in short the ‘Insurance Company’).

6. The Insurance Company also filed a separate reply to the claim petition wherein the Insurance Company denied the averments made in the claim petition and submitted that driver of the offending vehicle was not having a valid and effective driving license, therefore, the Insurance Company is not liable to pay the compensation. [2025:RJ-JP:19557] (3 of 6) [CMA-1361/2010]

7. On the basis of the pleading of the parties, the Tribunal framed the following issues:- Þ1& vk;k foi{kh la[;k 1 us fnukad 26-02-2007 dks 11-00 ,,e ij Hk.Mkuk ds ikl ,u-,p-la[;k 11 ij VªsDVj la[;k vkj ts&05&2vkj&2323 dks rstxfr o ykijokgh ls pykdj bf.Mdk dkj la[;k vkjts&29lh,&0148 ds VDdj ekjh] ifj.kkeLo:i nq?kZVuk esa bf.Mdk dkj esa cSBs izkFkhZ vfHk"ksd ds lk/kkj.k o xaHkhj izd`fr dh pksVsa dkfjr gqbZa\ 2& vk;k foi{kh la[;k 1 oDr nq?kZVuk foi{kh la[;k 2 ds fu;kstu esa mlds fgrkFkZ o ykHkkFkZ okgu xfreku dj jgk Fkk\ 3& vk;k foi{khx.k }kjk tokc ;kfpdk esa mBk;s x;s mtzksa ds vk/kkj ij ;kfpdk izkFkhZ [kkfjt gksus ;ksX; gS\ 4& vk;k rduh la[;k 1 o 2 dks izkFkhZ vius gd esa lkfcr djus esa lQy gksrs gSa rks og fdl&fdl vizkFkhZ ls o fdruh&fdruh jkf’k izkIr dj ldsxk\ 5& vuqrks"k\Þ

8. In order to substantiate the averments made in the claim petition, the claimant examined himself as AW-1 and adduced documentary evidence Ex.1 to Ex.27.

9. The non-claimant No.1 and 2 despite providing opportunity, did not lead any evidence, however to prove its defence, the Insurance Company produced Insurance Policy as NAW-1.

10. The learned Motor Accident Claims Tribunal after hearing counsel for the parties while considering the fact that it is a case of contributory negligence of the claimant, has awarded compensation of Rs.1,19,929/- along with interest @ 5% per annum from the date of filing the claim petition i.e. 28.05.2007.

11. Learned counsel for the claimant submits that the Tribunal has committed an error in deducting 50% amount while considering the contributory negligence of the claimant. He further submitted that the Tribunal has awarded inadequate amount in favour of the claimant. He further submits that at the time of accident, age of the claimant was 22 years but the Tribunal has [2025:RJ-JP:19557] (4 of 6) [CMA-1361/2010] wrongly applied the multiplier of 16, whereas it should be 18 on the basis of age of the claimant. Learned counsel for the claimant further submits that while calculating the compensation, the Tribunal has not awarded any amount towards the future prospects, where as per age of the claimant, he is entitled to get 40% towards the future prospects.

12. Learned counsel for the claimant further submits that in view of the judgment passed by Hon'ble Apex Court in the case of National Insurance Company vs. Pranay Sethi reported in 2017(16) SC 680, the awarded amount may kindly be enhanced.

13. Per contra, learned counsel for the Insurance Company supported the impugned award and submitted that the learned Tribunal has passed the impugned award on correct appreciation of pleadings and law, therefore, does not require any interference by this Court.

14. Having heard the learned counsel for the parties and perused the impugned judgment and award dated 12.03.2010.

15. A bare perusal of the record of the case reveals that the accident occurred due to negligence of both the drivers of the vehicles and while driving the alleged vehicle, the injured-claimant kept his hand outside the window, therefore, the learned Tribunal rightly applied the principle of contributory negligence, thus argument so raised by the counsel for the claimant cannot be accepted that principle of contributory negligence ought not to have been applied in the present case.

16. So far as other submissions of the learned counsel for the appellant that the compensation awarded by the Tribunal deserves [2025:RJ-JP:19557] (5 of 6) [CMA-1361/2010] to be enhanced in the light of the judgment passed in the case of National Insurance Company (Supra), are concerned, I am of the considered view that aforesaid arguments of the learned counsel for the claimant has some substance and the impugned award is liable to be enhanced. While considering the facts of the case and the judgment passed in the case of National Insurance Company vs. Pranay Sethi (Supra) , judgment and award of the Tribunal is required to be modified to the extent as under:- Monthly income Annual Income Rs.6,500/- 6,500X12= Rs.78,000/- Since, claimant was 22 years of age at the time of accident, multiplier of 18 should be applied vis-a-vis 18% permanent disability Add 40% towards future prospects Less 50% Contributing Negligence Add grievous Injuries Medical Bills Transport Charges Total Less amount awarded by the Tribunal Enhanced Amount of compensation 78,000 X18x18%=Rs.2,52,720/- 2,52,720+1,01,088=Rs.3,53,808/- Rs.1,76,904/- Rs.5,000/- Rs.1609/- Rs.1,000/- Rs.1,84,513/- Rs.1,19,929/- 1,19,929-1,84,513=Rs.64,584/-

17. In view of the above, the claimant is entitled to get a further sum of Rs. 64,584/- as compensation. The Insurance Company is directed to deposit enhanced amount of Rs.64,584/- (1,19,929-1,84,513=Rs.64,584/-) with the Tribunal within a period of two months from the date of receipt of certified copy of this order. On deposition of the said amount, the claimant shall [2025:RJ-JP:19557] (6 of 6) [CMA-1361/2010] be entitled to withdraw the same. The enhanced amount shall also carry @ 6% interest per annum from the date of filing the claim petition till the actual payment is made. The finding of the learned MACT is modified to above extent.

18. Rest part of the impugned judgment shall remain unchanged. Impugned judgment and award is modified accordingly.

19. Consequently, the appeal is partly allowed.

20. Pending application(s), if any, also stand(s) disposed of. (MANEESH SHARMA),J AMIT/44 Whether Reportable : Yes/No