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2016 DIGILAW 553 (ALL)

National Insurance Co. Ltd. v. Sanjay Kumar Yadav

2016-02-16

KRISHNA MURARI, RAGHVENDRA KUMAR

body2016
JUDGMENT These are two connected appeals, one filed by the Insurance Company and the other by the claimants-respondents against the judgment and award dated 17-10-2015 passed by the Motor Accident Claims Tribunal/Additional District Judge, Fast Track Court No.27, Deoria in M.A.C.P No.27 of 2012, Sanjay Kumar Yadav & Anr. v. Vijay Expressway Engineers Ltd. 227 & Ors. 2. Facts giving rise to the dispute are as under: Claimants-respondents made an application, under Section 140 read with Section 166 of the Motor Vehicles Act, seeking a compensation of Rs.37 lacs on account of death of one Melhu Prasad Yadav. The application was made on the allegations that on 13-6-2012 when Melhu Prasad was coming from Gorakhpur to Kushi Nagar by driving Maruti Car No.HR26BQ/9467 and at 11.30 a.m. when he reached near Bhujauli Inter College, a Mixutre Dumper bearing registration No.U.P.44-J/9181, which was being driven rashly and negligently hit the Car in which he was grievously injured and later on died in the hospital. 3. The proceedings were contested by the Insurance Company and the owner and driver of the Dumper by fling written statements denying the allegations. The claimants-respondents produced PW-1 Brijesh Kumar Yadav, the son of the deceased and Krishna Vijay Yadav, son-in-law who were travelling in the Car and were eye-witnesses of the accident and both of them in their examination-in-chief stated that the Car was being driven at a normal speed and when they reached near Bhujauli Inter College, the Dumper which was being backed by the driver without honking and without there being any helper to guide him, all of sudden came on the road from the left side and hit the Car. Tribunal after analyzing the statement-in-chief and cross-examination of the aforesaid two witnesses has recorded a finding that the evidence was unshakeable and held that the accident was caused due to rash and negligent driving of the Dumper, which resulted in grievous injuries to Melhu Prasad Yadav, resulting into his death. 4. The Tribunal also held that the Dumper was duly insured with the Insurance Company and the driver was having a valid driving licence. The Tribunal also held that the offending vehicle was duly registered and was having a valid permit and fitness certificate. 5. 4. The Tribunal also held that the Dumper was duly insured with the Insurance Company and the driver was having a valid driving licence. The Tribunal also held that the offending vehicle was duly registered and was having a valid permit and fitness certificate. 5. Learned Counsel for the Insurance Company contends that the accident was a result of contributory negligence and this issue has wrongly been decided by the Tribunal against the Insurance Company. The issue in respect of contributory negligence has been decided by the Tribunal against the Insurance Company on the ground that the question of contributory negligence may arise only when the accident is admitted. 6. In the present case, since there was a total denial of the factum of the accident by the Insurance Company and it has not only failed to allege, but also to demonstrate the fact, which may lead to a conclusion of any contributory negligence on the part of the deceased driver of the Maruti Car. 7. It has further been submitted on behalf of Insurance Company that in the absence of any evidence of income from the business of nursery, Tribunal has wrongly presumed the income to be Rs.200 per day for determining the compensation. It is also submitted that the Tribunal has wrongly and illegally awarded future prospects inasmuch 35 the deceased did not belong to salaries class and thus no future prospects would have been granted. 8. On the same issue, the learner. Counsel appearing for claimants in connected appeal filed by them for enhancement of the award submitted that the Tribunal has illegally ignore the Statement of the Bank Account filed in evidence, which went to show the income received by the deceased from the business. It is further submitted that the evidence adduced with regard to purchasing of a Swift Car by the deceased and also certain property went to show that he had a very good income and at least not less than Rs.50,000 per month. 9. The Tribunal after analysing the entries of the bank account in depth has recorded a finding that there is no material on record to indicate the receipt of certain huge amount in the sank account from the nursery business. 9. The Tribunal after analysing the entries of the bank account in depth has recorded a finding that there is no material on record to indicate the receipt of certain huge amount in the sank account from the nursery business. On the contrary, there was only one entry of a sum of Rs.15,500 which can be said to be income from the nursery business and other than the said amount there is nothing on record to indicate the receipt of the huge amount from the nursery business. In the absence of any evidence to substantiate the averments made by the claimants in respect of the income of the deceased, the Tribunal took his notional income to be Rs.200 per day and we don't find any illegality in the same. 10. In so far as the question of grant of future prospects is concerned, the same has been awarded by the Tribunal in accordance with the provisions of Rule 220-A(3) of U.R Motor Vehicles Rules, which was brought on statute by way of amendment which was enforced w.e.f 26-9-2011. Admittedly, accident took place after the said date. The Rule does not draw any distinction between a salaried person and self employed person. Thus, in so far as U.P. is concerned after enforcement of Rule, rare prospects is liable to be granted without any such distinction. 11. The Tribunal further awarded sum of Rs.5,000 towards loss of love and affection, Rs.5,000 loss of estate and 5,000 towards funeral expenses. In this manner, the Tribunal has awarded total compensation of Rs.8,11,200 alongwith 7 % simple interest from the : ate of making of the application till actual payment. 12. The impugned award of the Tri bunal is based on appraisal of evidence brought on record and no illegality reflected in the finding nor any can be pointed out by the learned Counsel appearing for the parties. The quantum of compensation awarded by the Tri-: bunal appears to be just and proper in v e facts and circumstances and in the evidence of the case, we don't find any error or illegality in the methodology adopted by the Tribunal for determining the compensation and thus the award does not require any interference. 13. Both the appeals are devoid of merit and accordingly stands dismissed inlimine. I Appeal dismissed.