High Court · 2025

Appellant :- Om Kumar Mishra S/O Radha Mohan Mishra Respondent :- Smt. Safia Parveen W/O Rafeeq Ahmad And Anr. Counsel for Appellant :- O.P. Tiwari Counsel for Respondent :- Anil Srivastava Hon'ble Jaspreet Singh,J. Heard Sri O.P. Tiwari, learned counsel for the appellant as well as Sri Anil Srivastava, learned counsel for the respondent- Insurance Company. The instant F.A.F.O. has been preferred under Section 173 of the Motor Vehicles Act, 1988 seeking enhancement of the award passed in C.P. No. 252 of 2008 whereby in an injury case the MACT/Special Judge, E.C. Court, Unnao has partly allowed the claim petition granting a sum of Rs. 5,082/- along with 6% interest by means of award dated 29.07.2010. The appeal is also accompanied by an application seeking condonation of delay upon which notices were issued by the Court on 09.03.2011. The learned counsel for the Insurance Company has filed his objections to the application seeking condonation of delay. The Court has considered the said application bearing C.M.A. No. 26370 of 2011 and its accompanying affidavit. This Court finds that the delay of 3 months and 15 days have been explained and the cause shown is found sufficient, accordingly, the application for condonation of delay is allowed and the appeal shall be treated to have been filed within time. The office shall allot a regular number to the appeal. Since the appeal was of the year 2011 and the record was also available and the service report also indicated that the service on the respondent no. 1 was sufficient but none had put in appearance, the Court has heard the learned counsel for the appellant on merits of the appeal. The instant appeal has been filed by the appellant who was the injured in an accident which occurred on 06.09.2008 wherein the appellant suffered injuries and had also got his leg fractured. The record indicates that it was the case of the appellant that he was working as a Cleaner and was traveling with the driver on a Truck bearing UP 32 AN 8459. It was the case of the appellant that around 07:30 PM while the said truck had reached near Court Police Chowki, a cyclist came ahead of the said truck and in order to save him, the truck in question dashed with another truck coming from the opposite direction bearing Truck No. HR 38 L 7211. In the said accidents both the trucks were badly damaged and the present appellant received grievous injuries on his body. He was taken to the Hospital at Basti but for want of proper medical attention and treatment, he got himself treated at Sharma Fracture and X-ray Clinic, Unnao and in Mariyampur Hospital at Kanpur. It was stated that his leg had been fractured at 3 places because of which he remained immobile and also had to spend a lot on his treatment and thus claimed a sum of Rs.9,00,000/- as damages. It was also stated that he was 24 years of age and working as a Cleaner/ Khallasi on the truck belonging to the respondent no. 2. He was paid a sum of Rs. 5,000/- per month inclusive of diet money. The respondent no. 1 while contesting the case filed her written statement and denied that the appellant was the cleaner on her truck rather he was a gratuitous passenger. It was also stated that the driver of the truck bearing No. UP 32 AN 8459 was being driven appropriately and the Driver had a valid and subsisting license. The truck was duly insured and in the aforesaid circumstances no award was to be made in favour of the appellant. Upon the exchange of pleadings, the Tribunal framed five issues. While dealing with issue no. 1, it recorded a finding that the accident occurred on account of rash and negligent driving of the truck bearing no. UP 32 AN 8459. It also recorded that the said truck was duly insured and its driver had a valid license. Nevertheless, the Tribunal further recorded that the appellant could not prove that he was the Khallasi/Cleaner on the truck and thereafter it found that there were certain discrepancies in the evidence of the appellant and only awarded a sum of Rs. 5,082/- along with 6% interest by means of its award dated 29.07.2010 which is under challenge before this Court. The learned counsel for the appellant while assailing the award submits that the Tribunal has not appropriately considered the evidence on record and has ignored several material which clearly indicated that the appellant suffered grievous injuries and he remained in Hospital but the evidence was not appropriately considered while awarding a meager sum. It is further urged that there was ample evidence to indicate that the appellant was the Cleaner and this aspect has also not been considered by the Tribunal resulting in sheer miscarriage of justice. It is urged that the appellant is entitled to a sum of Rs. 9,00,000/- as compensation, hence, the award may be modified after allowing the appeal. The learned counsel for the Insurance Company submits that the appellant did not any lead any worthwhile evidence to substantiate its case, moreso, that he could not even substantiate that he was the Cleaner on the truck rather the evidence suggested that he was the gratuitous passenger. There were several lacunaes in his evidence nor he could appropriately established the amount that he spent on his alleged treatment, accordingly, the claim made by the appellant is not only doubtful but also hugely inflated. The appellant has been awarded appropriate compensation in the aforesaid facts and circumstances, consequently, the appeal deserves to be dismissed. The Court has heard the learned counsel for the parties and also perused the material on record. The record indicates that the only issue before this Court is in respect of quantum of compensation granted to the appellant. It is the case of the appellant that he was working as a Khallasi/Cleaner on the truck bearing No. UP 32 AN 8459. This fact was disputed by the owner of the truck. The record indicates that it was only the appellant himself who entered into the witness box to lead evidence. The owner of the truck i.e. the respondent no. 1 Parveen Khatun had disputed this fact but she did not enter into the witness box to support the claim of the appellant to the effect that he was the Cleaner. It may be that the owner may have had some animosity and she may not have entered into the witness box but the fact remains that the best person who could establish this fact was either the owner or the truck driver. Needless to say the truck driver is neither a party nor he was examined as a witness before the Tribunal. Another fact which was stated by the appellant that he used to get Rs. 5,000/- per month inclusive of diet money as salary, was also not established. No person was examined to corroborate this fact, accordingly, in the given circumstances, the Tribunal recorded a finding that the appellant had failed to prove that he was a Cleaner on the truck. This finding could not be displaced by learned counsel for the appellant, hence, it is affirmed by this Court. As far as the factum of the accident and the injuries sustained by the appellant is concerned, the Tribunal has noticed that certain documents have been filed by the appellant wherein the name of Pawan Kumar Mishra has been noted. There is a receipt which has been filed which indicates that Sri Pawan Kumar Mishra has deposited the aforesaid sum but the X-ray plate which has been filed, the name of Sri Pawan Kumar Mishra has been scored off and in its place the name of the appellant Sri Om Kumar Mishra has been incorporated. The Tribunal noted that this discrepancy was put to the learned counsel for the appellant before the Tribunal, however, no satisfactory answer was given. This fact apart, the evidence which has been filed by the appellant does not conclusively indicate in any manner regarding the severity of the injuries suffered by the appellant. It was neither pleaded nor proved by the appellant that on account of the injuries sustained by him, what loss has been suffered. Whether the alleged accident has caused any disability partial or permanent, if so to what extent, coupled with the fact whether this disability had affected the functional ability has also neither been pleaded nor proved. In the aforesaid circumstances, the only issue that could have been considered was the amount of expenditure incurred by the appellant towards his treatment. As already indicated above, random receipts have been filed which have been taken note of by the Tribunal while awarding a sum of Rs. 5,082/-. This Court finds that there was no clear evidence regarding the treatment nor the manner in which the accident is said to have occurred and affected the appellant regarding the injuries sustained has not been appropriately explained nor established, hence, this Court is satisfied that the amount as awarded does not require any interference, accordingly, the appeal is devoid of merits and is dismissed. The record of the Tribunal be returned forthwith. Order Date :- 8.7.2025 Asheesh/- ASHEESH KUMAR High Court of Judicature at Allahabad, Lucknow Bench

Appellant :- Om Kumar Mishra S/O Radha Mohan Mishra Respondent :- Smt. Safia Parveen W/O Rafeeq Ahmad And Anr. Counsel for Appellant :- O.P. Tiwari Counsel for Respondent :- Anil Srivastava Hon'ble Jaspreet Singh,J. Heard Sri O.P. Tiwari, learned counsel for the appellant as well as Sri Anil Srivastava, learned counsel for the respondent- Insurance Company. The instant F.A.F.O. has been preferred under Section 173 of the Motor Vehicles Act, 1988 seeking enhancement of the award passed in C.P. No. 252 of 2008 whereby in an injury case the MACT/Special Judge, E.C. Court, Unnao has partly allowed the claim petition granting a sum of Rs. 5,082/- along with 6% interest by means of award dated 29.07.2010. The appeal is also accompanied by an application seeking condonation of delay upon which notices were issued by the Court on 09.03.2011. The learned counsel for the Insurance Company has filed his objections to the application seeking condonation of delay. The Court has considered the said application bearing C.M.A. No. 26370 of 2011 and its accompanying affidavit. This Court finds that the delay of 3 months and 15 days have been explained and the cause shown is found sufficient, accordingly, the application for condonation of delay is allowed and the appeal shall be treated to have been filed within time. The office shall allot a regular number to the appeal. Since the appeal was of the year 2011 and the record was also available and the service report also indicated that the service on the respondent no. 1 was sufficient but none had put in appearance, the Court has heard the learned counsel for the appellant on merits of the appeal. The instant appeal has been filed by the appellant who was the injured in an accident which occurred on 06.09.2008 wherein the appellant suffered injuries and had also got his leg fractured. The record indicates that it was the case of the appellant that he was working as a Cleaner and was traveling with the driver on a Truck bearing UP 32 AN 8459. It was the case of the appellant that around 07:30 PM while the said truck had reached near Court Police Chowki, a cyclist came ahead of the said truck and in order to save him, the truck in question dashed with another truck coming from the opposite direction bearing Truck No. HR 38 L 7211. In the said accidents both the trucks were badly damaged and the present appellant received grievous injuries on his body. He was taken to the Hospital at Basti but for want of proper medical attention and treatment, he got himself treated at Sharma Fracture and X-ray Clinic, Unnao and in Mariyampur Hospital at Kanpur. It was stated that his leg had been fractured at 3 places because of which he remained immobile and also had to spend a lot on his treatment and thus claimed a sum of Rs.9,00,000/- as damages. It was also stated that he was 24 years of age and working as a Cleaner/ Khallasi on the truck belonging to the respondent no. 2. He was paid a sum of Rs. 5,000/- per month inclusive of diet money. The respondent no. 1 while contesting the case filed her written statement and denied that the appellant was the cleaner on her truck rather he was a gratuitous passenger. It was also stated that the driver of the truck bearing No. UP 32 AN 8459 was being driven appropriately and the Driver had a valid and subsisting license. The truck was duly insured and in the aforesaid circumstances no award was to be made in favour of the appellant. Upon the exchange of pleadings, the Tribunal framed five issues. While dealing with issue no. 1, it recorded a finding that the accident occurred on account of rash and negligent driving of the truck bearing no. UP 32 AN 8459. It also recorded that the said truck was duly insured and its driver had a valid license. Nevertheless, the Tribunal further recorded that the appellant could not prove that he was the Khallasi/Cleaner on the truck and thereafter it found that there were certain discrepancies in the evidence of the appellant and only awarded a sum of Rs. 5,082/- along with 6% interest by means of its award dated 29.07.2010 which is under challenge before this Court. The learned counsel for the appellant while assailing the award submits that the Tribunal has not appropriately considered the evidence on record and has ignored several material which clearly indicated that the appellant suffered grievous injuries and he remained in Hospital but the evidence was not appropriately considered while awarding a meager sum. It is further urged that there was ample evidence to indicate that the appellant was the Cleaner and this aspect has also not been considered by the Tribunal resulting in sheer miscarriage of justice. It is urged that the appellant is entitled to a sum of Rs. 9,00,000/- as compensation, hence, the award may be modified after allowing the appeal. The learned counsel for the Insurance Company submits that the appellant did not any lead any worthwhile evidence to substantiate its case, moreso, that he could not even substantiate that he was the Cleaner on the truck rather the evidence suggested that he was the gratuitous passenger. There were several lacunaes in his evidence nor he could appropriately established the amount that he spent on his alleged treatment, accordingly, the claim made by the appellant is not only doubtful but also hugely inflated. The appellant has been awarded appropriate compensation in the aforesaid facts and circumstances, consequently, the appeal deserves to be dismissed. The Court has heard the learned counsel for the parties and also perused the material on record. The record indicates that the only issue before this Court is in respect of quantum of compensation granted to the appellant. It is the case of the appellant that he was working as a Khallasi/Cleaner on the truck bearing No. UP 32 AN 8459. This fact was disputed by the owner of the truck. The record indicates that it was only the appellant himself who entered into the witness box to lead evidence. The owner of the truck i.e. the respondent no. 1 Parveen Khatun had disputed this fact but she did not enter into the witness box to support the claim of the appellant to the effect that he was the Cleaner. It may be that the owner may have had some animosity and she may not have entered into the witness box but the fact remains that the best person who could establish this fact was either the owner or the truck driver. Needless to say the truck driver is neither a party nor he was examined as a witness before the Tribunal. Another fact which was stated by the appellant that he used to get Rs. 5,000/- per month inclusive of diet money as salary, was also not established. No person was examined to corroborate this fact, accordingly, in the given circumstances, the Tribunal recorded a finding that the appellant had failed to prove that he was a Cleaner on the truck. This finding could not be displaced by learned counsel for the appellant, hence, it is affirmed by this Court. As far as the factum of the accident and the injuries sustained by the appellant is concerned, the Tribunal has noticed that certain documents have been filed by the appellant wherein the name of Pawan Kumar Mishra has been noted. There is a receipt which has been filed which indicates that Sri Pawan Kumar Mishra has deposited the aforesaid sum but the X-ray plate which has been filed, the name of Sri Pawan Kumar Mishra has been scored off and in its place the name of the appellant Sri Om Kumar Mishra has been incorporated. The Tribunal noted that this discrepancy was put to the learned counsel for the appellant before the Tribunal, however, no satisfactory answer was given. This fact apart, the evidence which has been filed by the appellant does not conclusively indicate in any manner regarding the severity of the injuries suffered by the appellant. It was neither pleaded nor proved by the appellant that on account of the injuries sustained by him, what loss has been suffered. Whether the alleged accident has caused any disability partial or permanent, if so to what extent, coupled with the fact whether this disability had affected the functional ability has also neither been pleaded nor proved. In the aforesaid circumstances, the only issue that could have been considered was the amount of expenditure incurred by the appellant towards his treatment. As already indicated above, random receipts have been filed which have been taken note of by the Tribunal while awarding a sum of Rs. 5,082/-. This Court finds that there was no clear evidence regarding the treatment nor the manner in which the accident is said to have occurred and affected the appellant regarding the injuries sustained has not been appropriately explained nor established, hence, this Court is satisfied that the amount as awarded does not require any interference, accordingly, the appeal is devoid of merits and is dismissed. The record of the Tribunal be returned forthwith. Order Date :- 8.7.2025 Asheesh/- ASHEESH KUMAR High Court of Judicature at Allahabad, Lucknow Bench