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2023 DIGILAW 2159 (ALL)

Vijay Singh v. Vth Additional D. J.

2023-09-18

SARAL SRIVASTAVA

body2023
JUDGMENT Saral Srivastava, J. Heard learned counsel for the appellant and learned counsel for the respondents. 2. The present appeal has been filed against the award dated 05.12.1998 passed by Motor Accident Claims Tribunal, Kanpur Nagar (hereinafter referred to as 'tribunal') in MAC No.196 of 1992, whereby the the tribunal has rejected the claim petition instituted by claimant/appellant. 3. Challenging the award, learned counsel for the appellant has contended that the finding of the tribunal that the accident had taken place due to rash and negligent driving of claimant/appellant is perverse and against the record. It is submitted that the claimant/appellant was driving a maruti car No.UGR/6031 which met with an accident with offending truck No.MKW/9594. It is submitted that it was a specific case of the claimant/appellant that both the vehicles were coming from opposite direction and due to sole negligence of driver of truck, the maruti car rammed into rear wheel of the truck and the claimant/appellant suffered grievous injuries in the said accident. It is submitted that the claimant/appellant proved the accident by producing himself as PW 1 and PW 2 who was also travelling in the maruti car and was an eye witness of the accident. It is submitted that the testimony of PW 1 as well as PW 2 was also supported by site plan of the accident and further, the Police has filed charge-sheet against the driver of offending truck. Accordingly, it is submitted that the tribunal on its own without there being any evidence on record held that the manner in which the accident had taken place reveals that the maruti car was behind the truck and it rammed into rear wheel of the truck from behind and therefore, the accident was result of sole negligence of driver of truck. Accordingly, it is submitted that the tribunal has erred in law in rejecting the claim petition. 4. Per contra, learned counsel for the respondents has contended that the manner in which the accident had taken place reveals that the maruti car was behind the truck and it dashed the truck from behind. Accordingly, it is submitted that the tribunal has erred in law in rejecting the claim petition. 4. Per contra, learned counsel for the respondents has contended that the manner in which the accident had taken place reveals that the maruti car was behind the truck and it dashed the truck from behind. It is submitted that in such view of the fact, the finding of the tribunal that the accident had taken place due to negligence of claimant/appellant is correct and based upon proper appreciation of facts and evidence on record and thus, being a finding of fact, is not liable to be interfered with by this Court in its appellate jurisdiction. It is further submitted that as the tribunal has held that the accident was result of sole negligence of claimant/appellant and the claim petition has been instituted under Section 166 of the Motor Vehicles Act, therefore, the tribunal has rightly held that the insurance company is not liable to pay any compensation. 5. I have heard learned counsel for the parties and perused the original records. 6. The case of the claimant/appellant was that the maruti car was going from north-south and the offending truck was coming from south-north and as the driver of truck lost control over the truck due to which the truck hit the maruti car and on account of impact of truck, the maruti car rammed into rear wheel of the truck. The claimant/appellant proved the negligence of driver of truck by producing himself as PW 1 and also PW 2 who was also travelling in the car with the claimant/appellant. The insurance company did not lead any evidence to rebut the testimony of PW 1 and PW 2. The F.I.R. has also been filed against the driver of offending truck and the Police also filed charge-sheet against the driver of truck. In such view of the fact, the un-rebutted testimony of PW 1 and PW 2 is corroborated by other evidence on record in respect to the negligence of driver of truck in the accident. The tribunal in recording the finding that the accident was result of sole negligence of claimant/appellant, on its own without there being any evidence on record presumed that the manner in which the accident stated to have taken place demonstrates that the maruti car was behind the truck and it rammed into the truck from behind. The tribunal in recording the finding that the accident was result of sole negligence of claimant/appellant, on its own without there being any evidence on record presumed that the manner in which the accident stated to have taken place demonstrates that the maruti car was behind the truck and it rammed into the truck from behind. The finding of the tribunal on the issue of negligence is not based upon any evidence on record and thus, being a perverse finding, it cannot be sustained, more so, when the negligence of driver of truck in the accident was proved by the appellant by producing himself as PW 1 and PW 2 an eye witness and their testimony has not been rebutted by the insurance company nor the insurance company led any evidence to prove that the accident was result of rash and negligent driving of driver of maruti car. In such view of the fact, the finding of the tribunal holding that the accident had occurred due to rash and negligent driving of driver of maruti car is set aside. Considering the fact that the claimant/appellant has proved that the accident was result of sole negligent driving of driver of truck, this Court holds that the accident was result of rash and negligent driving of driver of offending truck. 7. The record further reveals that the offending vehicle was insured on the date of accident. Normally, this Court would have remanded the matter to the tribunal to decide afresh inasmuch as one of the issue which needs to be considered in claim petition is in respect to breach of policy by the owner of truck on the ground whether the driver of truck was holding a valid driving license or not. The record reveals that in the instant case, the insurance company is not disputing the fact that the driver of offending truck was not holding a valid driving license inasmuch as the insurance company did not get any issue framed on the point of breach of policy on the ground that the driver of offending truck was not holding a valid driving license. In such view of the fact, the Court proceeds to consider the issue of quantification considering the fact that the accident had taken place in the year 1991 and more than 32 years have passed, the appellant has not got any single penny as compensation for the injuries suffered by him in the accident. 8. Learned counsel for the appellant has contended that it is not disputed on record that the claimant/appellant has suffered injuries in the accident due to which he suffered 50%. Accordingly, he submits that if the claimant/appellant is paid Rs.3 lacs in lump sum by the insurance company, his claim shall remain satisfied and he shall not lay any further claim. 9. Learned counsel for the respondents has contended that considering the fact that the accident had taken place in the year 1991, the compensation of Rs.3 lacs is on higher side and therefore, needs reduction. 10. This Court has considered the submission advanced by learned counsel for the parties at bar and finds that the submission advanced by learned counsel for the appellant is just and proper inasmuch as the claimant has suffered 50% disability due to injuries suffered in the accident in the year 1991. In such view of the fact, any amount of compensation would fetch the interest on the amount of compensation for the last 32 years and therefore, in such view of the fact, this Court considering the submission of counsel for the appellant is of the view that a very fair offer has been made by learned counsel for the appellant in submitting that if the claimant is paid Rs.3 lacs in lump sum, that would satisfy his claim. The offer made by the learned counsel for the appellant is just and proper and cannot be said to be excessive by any stretch of imagination. In such view of the the fact, submission of learned counsel for the respondents is not accepted and is hereby rejected. 11. For the reasons given above, the appeal is allowed and the insurance company is directed to deposit the amount of Rs.3 lacs in lum sum within a period of three months from today. In case, the said amount is not deposited within the aforesaid period, the insurance company shall be liable to pay 6% interest on the aforesaid amount from the date of institution of claim petition till its payment.