High Court
Case Details
Neutral Citation No. - 2023:AHC:155334 Court No. - 2 Case :- FIRST APPEAL FROM ORDER No. - 2399 of 2007
Legal Reasoning
record in concluding that the accident was the result of negligence of driver of bus. In such view of the fact, the finding of the Tribunal on the issue of negligence being finding of fact does not call for any interference by this Court in its appellate jurisdiction. 10. So far as the issue of quantification of compensation is concerned, this Court may note that the claimants/respondents have filed the income tax return of the deceased for the financial year 2002-03 (assessment year 2003-04) to prove the income of the deceased. The Insurance Company did not dispute the genuineness of the income tax return. However, it is submitted that the income tax return has been filed after the death of the deceased, therefore, the Tribunal has erred in law in believing the income tax return of the deceased. The said contention of the learned counsel for the appellant is misconceived inasmuch as the income earned by the deceased in the financial year 2002-03 has been shown in the income tax return for the assessment year 2003- 2004. Thus, this Court does not find any illegality committed by the Tribunal in assessing the income of the deceased on the basis of the income tax return according to which income of the deceased was Rs.1,10,308/- per annum.
Arguments
Appellant :- Oriental Insurance Co. Ltd. Respondent :- Smt. Ruchi Agarwal And Others Counsel for Appellant :- Amaresh Sinha Counsel for Respondent :- Jai Prakash Bharadwaj,J.P. Pandey,N.K. Sharma,Vishesh Kumar Gupta Hon'ble Saral Srivastava,J. 1. Heard learned counsel for the appellant and learned counsel for the respondents. 2. The present appeal has been preferred by the appellant- insurance company challenging the award dated 23.05.2007 passed by the Motor Accident Claims Tribunal/Special Judge (E.C. Act), Moradabad (hereinafter referred to as 'Tribunal') in M.A.C.P. No.84 of 2005 whereby the Tribunal has awarded Rs.12,59,146/- along with 6% the claimants/respondents. as compensation interest to 3. Challenging the award, learned counsel for the appellant has contended that the finding of the Tribunal on the issue of negligence is perverse and against the record. It is submitted that the deceased was overtaking a truck when he met with the accident with the bus. It is submitted that it is a case of head on collusion between two vehicle i.e.motorcycle and the truck and the appellant proved the negligence of the deceased in the accident by producing driver of the bus as DW-2. Thus, it is contended that as it was proved on record that there was negligence of the deceased also in the accident, therefore, the Tribunal should have reduced the compensation to the extent of negligence of the deceased. 4. It is further submitted that it was alleged that deceased was employed in GMP Pharmceuticals as Regional Manager, but the appellant-insurance company submitted a report stating that no company in the name of GMP Pharmaceuticals exists. Accordingly, it is submitted that the Tribunal has erred in law in holding the income of the deceased as Rs.1,10,308/- per annum for the purpose of computation of compensation. 5. Per contra, learned counsel for the respondents would contended that the claimants/respondents have produced PW-2-Rajpal Singh, who is said to be an eye witness of the accident and deposed that the accident had occurred due to rash and negligent driving of driver of the bus. It is submitted that the Tribunal has also considered the testimony of DW-1 conductor of the bus whose statement in respect to negligence of the deceased was contradictory as he in his cross-examination stated that he could not tell that the alleged accident had taken place because of whose fault i.e. deceased or driver of bus. It is further submitted that the Tribunal has also considered that the charge sheet has been filed against him. 6. He further submits that the statement of DW-1 and DW-2 are contradictory inasmuch as DW-1 has stated before the Tribunal that the motorcycle came in the middle and dashed with the bus, but the driver of the bus DW-2 did not affirm the statement of DW- 1 that motorcycle came in middle and dashed with the bus. Accordingly it is submitted that the finding of the Tribunal on the issue of negligence is based upon proper appreciation facts on record and is not liable to be interfered with in appeal. 7. I have considered rival contentions of learned counsel for the parties and perused the record. 8. In the instant case, the deceased was riding motorcycle No.U.P.- 21-F-9090 which met with the accident with Bus No.U.P.-53-T- 2645. The claimants/respondents proved the negligence of the driver of bus by producing eye witness P.W.-2 who deposed that the accident was the result of the rash and negligent driving of driver of bus. Though the appellant-insurance company produced DW-1 conductor of the bus and DW-2 driver of the bus, but the Tribunal considered their testimony and found that the testimony of DW-1 and DW-2 are contradictory. The Tribunal recorded a finding that DW-1 has stated that he does not know because of whose fault the accident took place whereas P.W.-2 has stated that accident was the result of rash and negligent driving of deceased. The Tribunal further considered the fact that DW-1 in his statement stated that the deceased came in the middle of the road whereas DW-2 driver of the bus has not made any such statement. After noticing several contradictions in the testimony of DW-1 and DW-2, the Tribunal believed the testimony of PW-2 who was eyewitness of the accident and held that the accident was the result of negligence of driver of bus. 9. The perusal of the finding recorded by the Tribunal reveals that the Tribunal has elaborately discussed each and every evidence on
Decision
11. Thus for the reasons given above, the appeal lacks merit and is accordingly dismissed with no order as to costs. Order Civil Misc. Delay Condonation Application No.17 of 2022. Cross objection has been filed on 02.09.2008. There was delay of about one year and twelve days in filing the cross objection. The claimants/cross objector have filed delay condonation application on 21.09.2022 for condoning the delay in filing the cross objection. The claimants/cross objector have explained the delay properly in filing the cross objection. Hence, in the interest of justice, delay is condoned. Consequently, the delay condonation application is allowed. Order on Cross Objection. 1. Heard learned counsel for the claimants/cross objector and learned counsel for the respondent. 2. The claimants/cross objector being dissatisfied with the quantum of compensation have preferred the present cross objection with a prayer for enhancement of compensation. 3. Learned counsel for the claimants/cross objector has contended that no amount towards future prospect has been awarded by the Tribunal whereas considering the age of the deceased, claimants are entitled to 40% towards future prospect in view of the judgement of Apex Court in the case of National Insurance Company Limited Vs. Pranay Sethi and Others 2017 (16) SCC 680. It is further submitted that that there were five dependants upon the deceased, therefore, considering the judgement of the Apex Court in the case of Sarla Verma and others Vs. Delhi Transport Corporation and others 2009 (6) SCC 121, Tribunal should have deducted 1/4th towards personal expenses of the deceased instead of 1/3rd. 4. Per contra, learned counsel for the respondent has contended that compensation awarded by the Tribunal is just and proper and cross objection of the claimants/cross objector deserves to be dismissed. 5. I have considered the rival submissions of the parties and perused the record. 6. The submission of learned counsel for the claimants/cross objector in respect of non-granting any amount towards future prospect has also got force in view of the judgement of Apex Court in the case of Pranay Sethi (supra) and thus, this Court holds that claimants/appellants are also entitled to 40% towards future prospect. The submission of learned counsel for the claimants/cross objector with regard to deduction of 1/4th towards personal expenses of the deceased in view of the judgement of Apex Court in the case of Sarla Verma (supra) has got substance. Thus, it is provided that 1/4th should be deducted instead of 1/3rd towards personal expenses of the deceased on the enhanced amount of compensation for the purpose of computation of compensation. 7. It is also provided that enhanced amount of compensation shall carry 6% simple interest from the date of institution of claim petition till the date of its payment. 8. Thus, for the reasons given above, the cross objection is partly allowed and the award of the Tribunal is modified to the extent indicated above. The insurance company is directed to pay the enhanced amount of compensation to the claimants/appellants within a period of three months from the date of production of a certified copy of this order. There shall be no order as to costs. Order Date :- 3.8.2023 R.S. Tiwari Digitally signed by :- RAVI SHANKAR TIWARI High Court of Judicature at Allahabad