High Court
Case Details
Court No. - 2 Neutral Citation No. - 2023:AHC:141467 Case :- FIRST APPEAL FROM ORDER No. - 247 of 2001 Appellant :- National Insurance Co. Ltd. Alld. Respondent :- Smt. Savita Agrawala And Others Counsel for Appellant :- Anand Kumar Sinha,A.K.Shukla Counsel for Respondent :- ,N.K. Chatterjee,Ram Singh,V.K. Upadhyay connected with Case :- FIRST APPEAL FROM ORDER No. - 446 of 2001 Appellant :- Smt. Savita Agrawal And Others Respondent :- Sayyed Ahmad And Others Counsel for Appellant :- V.K. Upadhyay,Ram Singh,Vivek Saran Counsel for Respondent :- Ashish Kumar Bhattacharya,Pawan Kumar Shukla,Rahul Sahai Hon'ble Saral Srivastava,J. 1. Heard learned counsel for the appellant and learned counsel for the respondents. 2.
Facts
The Court first proceeds to consider the appeal of the Insurance Company. 3. The present appeal has been filed by the appellant-insurance company challenging the award dated 20.12.2000 passed by Motor Accident Claims Tribunal/Additional District Judge, Bareilly (Court No.6) in M.A.C.P. No.50/1997. 4. Challenging the award, learned counsel for the appellant/Insurance Company has contended that in the instant case, admittedly, the truck insured by the appellant was standing and matador on which the deceased was travelling, hit the truck from
Legal Reasoning
and is not liable to be interfered with by this Court in its appellate jurisdiction. 4. Be that as it may, the Tribunal in deciding the issue No.5 has recorded a finding that the deceased was liable to pay income tax Rs.34340/-. However, actual income tax paid by the deceased was Rs.23894/- after claiming the benefit of Section 88 of the Income Tax Act. In such view of the fact, this Court finds that the Tribunal has erred in law in deducting Rs.34340/- from the income of deceased for the purpose of computing the compensation. Accordingly, it is held that Rs.23894/- shall be deducted from the income of the deceased in 3 place of Rs.34340/- towards income tax for the purpose of computing the income of the deceased. 5. The submission of learned counsel for the claimants/appellants in respect of future prospect has got force in view of the judgement of Apex Court in the case of Pranay Sethi (supra) and thus, following the aforesaid judgement of Apex Court and considering the age of the deceased, claimants/appellants are entitled to 40% towards future prospect. 6. This Court finds that the Tribunal has deducted 1/3rd towards the personal expenses of the deceased from the income of the deceased. The Tribunal thereafter without there being any evidence on record deducted Rs.50,000/- towards the business expenses from the income of the deceased. This Court is of the view that the Tribunal has wrongly deducted Rs.50,000/- from the annul income of the deceased towards business expenditure as income is calculated after deducting business expenses. Thus, this Court holds that deduction of Rs.50,000/- by the Tribunal towards business expenses is wrong and illegal and should be included in the annul income of the deceased for the purpose of computing the compensation. 7. It is provided that award of the Tribunal is modified to the extent indicated above. The claimant shall be liable to pay interest @6% from the date of institution of claim petition till the date of its payment. 8. For the reasons, the appeal of the Insurance Company is dismissed and the appeal of the claimant respondent is allowed. Order Date :- 17.7.2023 R.S. Tiwari Digitally signed by :- RAVI SHANKAR TIWARI High Court of Judicature at Allahabad 4
Arguments
behind. It is contended that the accident had taken place at about 5:00 am on 25.06.1996 and in the month of June, there is sufficient visibility, therefore, even if no back light of the truck was on, there cannot be any negligence of driver of truck, and it was only the 1 negligence of driver of the matador which caused the accident. It is submitted that the manner in which the accident had taken place demonstrates that the accident had taken place due to rash and negligent driving of driver of matador, therefore, the finding of the Tribunal on the issue of negligence is not sustainable in law and is liable to be set aside. 5. Per contra, learned counsel for the respondent would contend that there was ample evidence on record to prove that the accident was the result of sole negligence of driver of truck and as the Insurance Company did not lead any evidence to rebut the evidence led by the claimant /respondent proving the negligence of driver of truck in the accident, the finding of the Tribunal is a finding of fact and is not liable to be interfered with. It is further contended that even otherwise it is a case of composite negligence as admittedly the deceased was travelling in the matador and it is a choice of the claimant/respondent to recover the compensation from either of the tortfeasor in view of the judgment of the Apex Court in the case of Khenyei Vs. New India Assurance Company Limited and others (2015) 9 SCC 273. 6. I have considered rival contentions of parties and perused the record. 7. In the instant case, it is admitted on record that the deceased was travelling in Matador which dashed in the offending truck insured by the insurance company, therefore, it is a case of composite negligence and it is the choice of claimant respondent to recover the compensation from either of the tortfeasor in view of the judgment of Apex Court in the case of Khenyei (supra). 8. In such view of the fact, this Court does not find any substance in argument of learned counsel for the appellant. However if the appellant is of the view that the accident was the result of negligence of driver of the metador, it is open for the insurance company to lay appropriate proceedings against the owner of the matador to recover 2 the amount paid by it under the award to the extent of negligence of driver of matador. 9. For the reasons given above, the appeal lacks merit and is accordingly dismissed. Now this Court proceeds to deal with the appeal of claimant/respondent. 1. The present appeal has been filed by the claimants/appellants for enhancement of compensation. 2. Challenging the award, learned counsel for the appellants has submitted that the Tribunal has recorded a finding that the deceased was paying Rs.23894/- as income tax, and therefore, the Tribunal has erred in deducting Rs.34340/- from the income of the deceased for the purpose of computing the compensation. It is further submitted that no amount towards future prospect has been awarded by the Tribunal whereas considering the age of the deceased, claimants/appellants are entitled to 40% future prospect in view of the judgment of Apex Court in the case of National Insurance Company Limited Vs. Pranay Sethi and Others 2017 (16) SCC 680. 3. Per contra, learned counsel for the Insurance Company would contend that compensation awarded by the Tribunal is just and proper