Court No. - 40
Case :- FIRST APPEAL FROM ORDER No. - 2920 of 2003 Appellant :- New India Assurance Co Respondent :- Dharmraj Yadav & Others Counsel for Appellant :- Paramatma Rai,A.B. Saran Counsel for Respondent :- S.P.Singh,Km. A. Yadav,Prem Prakash AND Case :- FIRST APPEAL FROM ORDER No. - 1711 of 2012 Appellant :- Dharmraj Yadav Respondent :- New India Insurance Company And Others Counsel for Appellant :- S.P. Singh,Km. A. Yadav,Prem Prakash Counsel for Respondent :- A.K.Rao,A.K. Rai,A.K. Rao,S.K. Mehrotra,V.K.Singh
Hon'ble Amreshwar Pratap Sahi,J. Hon'ble Rajeev Misra,J.
These two appeals arise out of a claim in respect of injuries sustained by Sri Dharmraj Yadav in M.A.C.T.No.239 of 1999 in which the Tribunal after having assessed the evidence came to the conclusion that it was on account of the gross negligence of the Truck bearing registration no.UP-65-H-1660 insured with New India Assurance Company Limited that the accident had occurred and the injury had been suffered by the claimant. The claim was allowed and a sum of Rs.6,28,747/- together with 9% interest has been awarded.
The award has been assailed both by the claimant as well as by the Insurance Company. The claim on behalf of the injured is that the compensation is on a lower side and therefore it should be enhanced whereas the appeal filed by the Insurance Company is for setting aside the award for which Sri S.K.Mehrotra, learned counsel submits that there are two grounds on which the appeal is being pressed.
Firstly that there was a contributory negligence of the standing vehicle in which the injured was seated as it had been parked on the curve of a crossing, and therefore on account of such wrong parking, the accident had occurred which falls within the definition of a contributory negligence. The second ground raised by him is that the quantum of compensation as well as the interest awarded are excessive by ignoring the settled norms under the Motor Vehicles Act, 1988 and the rules framed thereunder.
He submits that the annual income of the appellant/claimant notionally ought to have been fixed at Rs.15,000/- and not at the rate of Rs.3000/- per month.
It is also submitted that the interest of 9% awarded is excessive and it ought to have been 6%.
We have gone through the submissions raised and we have also heard the learned counsel for the claimant/appellant for enhancement.
We find that the injured Dharamraj Yadav on account of the accident lost his eye sight. This factum of having lost the eye sight was not disputed by the Insurance Company before the Tribunal and the findings categorically recorded by the Tribunal in paragraph no.14 of the judgement are that the same is not disputed nor were the witnesses cross-examined on this issue. Apart from this the Court had occasion to watch the physical presence of the injured whereupon it arrived at the conclusion that the injuries sustained were genuine and then also went on to indicate that he had suffered other injuries as well that were treated in the hospital. Consequently the claimant was found entitled for compensation.
On the ground of contributory negligence, the Tribunal has categorically recorded that the jeep was hit from behind by the insured truck bearing registration no.UP-65-H-1660 and a first information report was lodged and a charge-sheet was submitted in which a site plan also indicated and supported the said version of the jeep having been hit from behind. The claimant Dharamraj Yadav was seated in front of the jeep and on account of the sudden impact fell in front of the jeep. The injures in his head ultimately resulted in a long treatment and permanent loss of eye sight. These findings of fact could not be successfully assailed before us by showing any material to the contrary, and consequently we are of the opinion that the Tribunal was justified in recording a conclusion that there was no contributory negligence on the part of the standing vehicle.
Coming to the issue of quantum of compensation, we find that the Tribunal keeping in view the fact that the accident and claim was of the year 1999 assessed the notional income of the injured @ Rs.3,000/- per month which was the prevalent law and has also been subsequently dealt with in a large number of decisions. We therefore do not find the amount of notional income as fixed by the Tribunal to be suffering from any error much less a legal error so as to warrant interference in this appeal.
Having come to that conclusion, we further find that the interest awarded @ 9% does not appear to be on the higher side, and consequently there is no error in the award of interest.
Coming to the issue of enhancement as raised by the learned counsel for the appellant/claimant, we have not been able to find any deficiency in the mode of calculation as observed hereinabove and the same having been arrived at appropriately by the Tribunal, no claim for any further enhancement is made out. Both the appeals therefore lack merit and are hereby dismissed.
The claimant shall be entitled to withdraw and receive the entire amount which shall be released by the Tribunal expeditiously not later than three months from today together with the entire interest on the payable amount after adjusting the amount already paid. The statutory deposit made if before this Court shall be immediately transmitted to the concerned Tribunal for being paid over to the appellant/claimant.
Order Date :- 23.2.2018 R./