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2015 DIGILAW 3988 (ALL)

United India Insurance Co. Ltd. v. Poonam

2015-12-15

KRISHNA MURARI, RAGHVENDRA KUMAR

body2015
JUDGMENT Heard learned counsel for the appellant. 2. This is an appeal under Section 173 of Motor Vehicles Act filed by the Insurance Company challenging the judgment and award dated 16.9.2015 passed by the Motor Accident Claims Tribunal/Additional District Judge, Court No.4, Moradabad in Motor Accident Claim Petition No.32 of 2015 awarding a sum of Rs.5,06,000/- as compensation to the claimants. 3. Facts of the case are that an application under Section 166 of the Motor Vehicles Act was made by the clamaints seeking a compensation to the tune of Rs.25,00,000/- along with 18 % interest with allegations that on 24.3.2013 at about 7 pm when Sanju @ Sanjay was travelling on motor cycle bearing registration no.UP 21AC-7991 from Sambhal to his village Lakhouri and when he reached near Jalam Sarai School on Rukunuddin Sarai Road, he was hit by a tanker bearing registration no.UP 78 BN-4229, which was being driven very rashly and negligently. It was further pleaded that on account of accident, Sanjay sustained grievous injuries, which resulted in his death. It was also pleaded that at the time of death, the deceased was aged about 29 years and was earning a sum of Rs.12,000/- per month from sale and purchase of shoes. 4. The proceedings were contested by the appellant-insurer by denying the allegations. The owner and the driver of the tanker also contested the proceedings by denying the allegations. It was pleaded that the tanker never travelled on the road where the accident is alleged to have taken place and neither the tanker was caught on the spot and the FIR was lodged against an unknown vehicle. 5. On the basis of evidence brought on record by the parties oral as well as documentary, the Tribunal returned a finding that the accident was caused on account of rash and negligent driving of the offending tanker, which resulted in the death of deceased Sanjay. Further for determing the quantum of compensation, in absence of any documentary evidence on record to substantiate the income of deceased as alleged in the claim petition, the Tribunal took his notional income as Rs.100 per day and after deducting 1/4th towards personal expenses, it applied a multiplier of 18 in accordance with the age of deceased and determined the compensation as Rs.4,86,000/-. The Tribunal also awarded a sum of Rs.5000/- towards loss of consortium and further Rs.5000/- towards funeral expenses and Rs.10,000/- towards suffering and mental pain. In this manner a total Rs.5,06,000/- was determined as compensation. 6. Learned counsel for the appellant contends that an Investigator submitted a report and duly proved during the proceedings that the road was so narrow that the tanker could have never passed it and thus, the accident itself is very doubtful. 7. We have considered this argument advanced by the learned counsel for the appellant. Admittedly, the accident took place on 24.3.2013 and the Investigator of the appellant-company submitted a report dated 21.8.2015 wherein he has stated that the width of the road on which the accident is alleged to have taken place, is not such that a tanker could travel on it, although he has submitted that it is a narrow road on which tractor, tempo, three wheeler and motorcycle can move. During course of cross-examination he clearly stated that he has never ever travelled on the said road earlier and he is not in a position to state what was the position of the road at the time of the accident. Further, if the road is wide enough that a tractor can travel on it, we do not find any good reason to believe the report of the Investigator that a tanker cannot pass through it. Further, the Tribunal also found that after investigation the police submitted charge sheet, which further went to establish the factum of the accident. 8. Thus, the first ground urged by the learned counsel for the appellant before us, has no force and is liable to the rejected. 9. It is next submitted that since it was a case of head on collision as such, there was contributory negligence on the part of the motorcycle driver, which fact has not been taken into account by the learned Tribunal while determining the compensation. 10. The argument is totally without any substance, inasmuch as, it was no where pleaded that it was a case of head on collision rather the allegation was, as it is evident from the pleadings as well as from the facts recorded by the Tribunal in impugned award, that the offending tanker hit the motorcycle on the wrong side. 10. The argument is totally without any substance, inasmuch as, it was no where pleaded that it was a case of head on collision rather the allegation was, as it is evident from the pleadings as well as from the facts recorded by the Tribunal in impugned award, that the offending tanker hit the motorcycle on the wrong side. Thus, even if it was a case of head of collision, the offending tanker hit the motorcycle on the wrong side then it cannot be a case of contributory negligence, as suggested by the learned counsel for the appellant. 11. In view of the facts and discussions, we do not find any illegality or infirmity being reflected from the impugned award, which may require any interference by this Court. 12. This First Appeal From Order is devoid of merits and, accordingly, stands dismissed.