Research › Search › Judgment

Allahabad High Court · body

2023 DIGILAW 1421 (ALL)

New India Assurance Co. Ltd. v. Shesh Kumar Yadav

2023-05-24

JASPREET SINGH

body2023
JUDGMENT Jaspreet Singh, J. Heard Shri Zafar Aziz, learned counsel for the appellant and Shri Ravindra Pratap Singh, learned counsel for the claimants-respondents No.1 and 2. None appeared for the respondents No.3 and 4, who are the owner and the driver of the vehicle concerned despite service on the respondents No.3 and 4 being sufficient as per the office report dated 25.05.2022. 2. The instant appeal has been preferred by the Insurance Company under section 173 of the Motor Vehicles Act, 1988 assailing the award dated 31.03.2021 passed by the Motor Accident Claims Tribunal, Barabanki in Claim Petition No.227/2016, whereby in an injury case, a sum of Rs.14,24,800/- along with 6% interest has been awarded in favour of the claimants-respondents No.1 and 2. 3. Briefly, the facts giving rise to the instant appeal are being noticed hereinafter. 4. The respondent No.1 instituted a petition under section 166 of the Motor Vehicles Act, 1988 seeking compensation to the tune of Rs.17,35,200/- on account of injuries sustained by him in a motor accident which occurred on 12.12.2015. The claim was registered as Claim Petition No.227/2016 and it was alleged by the claimant-respondent No.1 that the claimant was a pillion rider of Motorcycle No.UP-41-L-6270, which was being driven by Ram Suresh, who is the respondent No.4. 5. At around 07:00 AM in the morning while the respondent No.1 was carrying tomatoes to be sold in the market and was on his way along with the respondent No.4 at that time a pick-up Truck bearing No.UP-41-AT- 2316 which was being driven rashly and negligently hit the motorcycle from a front, as a result, the claimant-respondent No.1 suffered grievous injuries. At the time of the accident, the claimant was about 34 years of age and was working as a labour/engaged in farming work and was able to earn a sum of Rs.6,000/- per month. 6. An FIR was also lodged against the offending pick-up truck and the said pick-up truck was insured with the appellant-Company. On account of the injuries sustained by the claimant, he had to undergo treatment, as a result his right leg below the knee had to be amputated. This made the respondent No.1 severely handicapped both in terms of disability as well as functional disability and for the aforesaid reasons, the claim petition was filed seeking compensation. 7. On account of the injuries sustained by the claimant, he had to undergo treatment, as a result his right leg below the knee had to be amputated. This made the respondent No.1 severely handicapped both in terms of disability as well as functional disability and for the aforesaid reasons, the claim petition was filed seeking compensation. 7. The owner and the driver of the pick-up truck filed their separate written statements and contested the claim while the Insurance Company also filed its separate written statement and it was denied that the accident was caused by rash and negligent driving of the pick-up truck and further that no major injury has been sustained by the claimant-respondent No.1 and the amount claimed was exaggerated. 8. Upon the exchange of the pleadings, the Tribunal framed seven issues and after considering the evidence on record, it came to the conclusion that the accident had occurred on account of rash and negligent driving of the pick-up truck. The pick-up truck was found to be duly insured and the truck driver also possessed a valid and subsisting driving licence. While computing the compensation, the Tribunal has awarded a sum of Rs.14,24,800/- as compensation along with 6% interest by means of its award dated 31.03.2021. It is this award, which is under challenge before this Court. 9. Shri Zafar Aziz, learned counsel for the appellant-Company has attacked the impugned award dated 31.03.2021 on two counts. (i) It is submitted that the record would indicate that it was a case of contributory negligence, where the claimant was also responsible for the accident and in this manner the Tribunal ought to have considered and apportioned the liability on the two vehicles. It is also submitted that the claimant did not implead the insurer of the motorcycle which was the other vehicle involved and for the aforesaid reasons the claim was not appropriately considered and decided. (ii) The other ground on which the award has been challenged is that the Tribunal has considered the functional disability as 100% though the disability certificate as furnished by the claimant indicated that he had suffered 70% handicap. It is thus submitted that the mode and manner in which the amount has been computed is not appropriate as such the award deserves to be modified. 10. It is thus submitted that the mode and manner in which the amount has been computed is not appropriate as such the award deserves to be modified. 10. Shri Ravindra Pratap Singh, learned counsel for the claimants-respondents submits that it was clearly stated on oath by the claimant respondent No.1 that he was engaged as an agricultural labour and on account of the accident, his right leg below the knee had to be amputated, as a result, the nature of work which was being done by the claimant rendered him to be worthless and was not able to earn and insofar as the functional disability is concerned really speaking it was almost 100%. 11. It is also submitted that the age of the claimant was about 34 years and he had a whole life ahead of him and with the aforesaid amputation, he has suffered great trauma and has become handicapped. His movement has been restricted and he has become dependent and is no more free to move around and all these aspects were considered and thereafter the amount has been calculated and award in the aforesaid circumstances cannot be said that the award requires any modification. 12. Learned counsel for the claimants-respondents also submits that there was no case of contributory negligence at all. It is only an imaginative argument inasmuch as there was clear deposition depicting the manner in which the accident occurred, hence, the Tribunal has rightly found that the accident was on account of rash and negligent driving of pick-up truck. These findings are based on proper appreciation of evidence and it does not require any interference and consequently the appeal deserves to be dismissed. 13. The Court has heard learned counsel for the parties and has also perused the material on record. 14. The only two issues for consideration is in respect of the quantum of the award and the other aspect is a plea regarding contributory negligence. 15. The Court proposes to take up the plea of contributory negligence first. 16. The record would indicate that the owner of the vehicle and its driver had filed their joint written statement bearing paper-No.B-19. From a perusal of the written statement, it would be found that no plea of contributory negligence was raised in the pleadings. 15. The Court proposes to take up the plea of contributory negligence first. 16. The record would indicate that the owner of the vehicle and its driver had filed their joint written statement bearing paper-No.B-19. From a perusal of the written statement, it would be found that no plea of contributory negligence was raised in the pleadings. The Insurance Company also filed its separate written statement and from a perusal thereof, it would indicate that no plea of contributory negligence was raised. It is for the aforesaid reasons that even the Tribunal did not raise or frame any issue of contributory negligence. 17. Learned counsel for the appellant has raised this plea merely by relying upon an extract of the statement made by Ram Suresh who was examined as PW-2 and was the driver of the motorcycle bearing UP-41-L- 6270, whereon the claimant was sitting as a pillion rider. 18. Learned counsel for the appellant has also drawn attention of the Court to the statement of the PW-2 wherein it was stated by him that at the place where the accident occurred, the road was not in a good condition and had many pathholes. For the said reason, there was no possibility of the motorcycle being driven by him at a high speed. He had seen the offending pick-up truck at a distance of 10 feet, as a result, he lost his balance and the claimant for the aforesaid reason received injuries. 19. The manner in which the accident has been described of course does not speak of contributory negligence. Even from a perusal of the statement of PW-2, it cannot be inferred that Ram Suresh had contributed to the accident. Even otherwise, the contributory negligence is to be seen in context with the claimant and it cannot be said for any reason that the claimant had contributed to the aforesaid accident where he lost part of his lower limb. 20. Thus, apparently the plea raised by the learned counsel for the appellant does have any legs to stand and consequently the plea of contributory negligence is rejected. 21. 20. Thus, apparently the plea raised by the learned counsel for the appellant does have any legs to stand and consequently the plea of contributory negligence is rejected. 21. On the other hand, the Tribunal after considering the evidence has categorically recorded a finding that the accident had been caused by rash and negligent driving of the offending pick-up truck and the said finding is based on proper appreciation of evidence and no error/perversity could be pointed out by the learned counsel for the appellant in this regard. In view of the aforesaid, the first submissions of the learned counsel for the appellant fails. 22. Coming to the issue regarding the quantum, it would be found that the Tribunal has meticulously considered the evidence on record and has taken a notional income of the claimant at the rate of Rs.6,000/- per month. Looking into his age, the claimant has also been given the benefit of future prospects and appropriate multiplier of 16 has been adopted. Considering the loss of income in future as well as suffering for mental trauma, anxiety, pain and suffering, a sum of Rs.1,00,000/- has been awarded. Thus, making the award of Rs.14,24,800/-. 23. So far as the submission of the learned counsel for the appellant is concerned, it would be found that it is not disputed that the claimant lost his right leg below his knee. This made him dysfunctional and the disability certificate which has been placed on record indicates 70% permanent disability. This is to be seen in context with the functional disability and as already brought on record in the evidence that the claimant was working as an agricultural labour which necessarily involved his working in the field for which he required both his legs and hands. One leg has been lost in the accident had made him functional disable to normally work and earn from the vocation that he was engaged in. Apart from this, his movement has been severely hampered and he has become dependent for his day to day function. Necessarily in order to alleviate the situation, the claimant may also be required to get a prosthetic leg and it cannot be discounted that he would require future medical assistance. These are certain aspects which have not been properly factored by the learned counsel for the appellant while making his submissions. Necessarily in order to alleviate the situation, the claimant may also be required to get a prosthetic leg and it cannot be discounted that he would require future medical assistance. These are certain aspects which have not been properly factored by the learned counsel for the appellant while making his submissions. However, it could not be disputed that the claimant was in the prime of his life being in early 30's when he has lost his leg which has adversely affected his earning capacity in a major way. 24. In the aforesaid facts and circumstances, the amount which has been awarded by the Tribunal in favour of the claimants cannot be said to be excessive in any manner. 25. For the reasons as recorded in the award made by the Tribunal dated 31.03.2021, this Court finds that it is based on proper appreciation of evidence as well as settled legal principles as held by the Apex Court in the case of Sidram v. Divisional Manager, United India Insurance Company Limited and another, (2023) 3 SCC 439 , Kajal v. Jagdish Chand and others, (2020) 4 SCC 413 ; National Insurance Company Limited v. Lavkush and another, (2018) 4 TAC 535; Raj Kumar v. Ajay Kumar, (2011) 1 SCC 343 . 26. In view of the aforesaid, this Court is satisfied that the award dated 31.03.2021 does not suffer from any error which may require any interference from this Court in exercise of its appellate jurisdiction under Section 173. Consequently, the appeal is dismissed and the award dated 31.03.2021 passed by the Motor Accident Claims Tribunal, Barabanki in Claim Petition No.227/2016 is affirmed. In the facts and circumstances, there shall be no order as to costs. 27. Any amount deposited before this Court shall be remitted to the Tribunal concerned to be released in favour of the claimants-respondents and if any amount is still left, the appellant company shall pay the same to the claimants-respondents within sixty days from the date, a certified copy of this order is placed before the authority concerned. 28. The record of the Tribunal concerned be returned back expeditiously.