Court No. - 27
Case :- FIRST APPEAL FROM ORDER No. - 3446 of 2007 Appellant :- The New India Assurance Company Ltd. Respondent :- Vedprakash Bamal And Another Counsel for Appellant :- Amit Manohar Counsel for Respondent :- Awadhesh Kumar Mishra, C.D. Misra, Deepak Rana, G.D. Misra, Prashant K. Lal, S.N.Upadhyay
Hon'ble Saral Srivastava,J.
Heard Sri Krishna Mohan Rai holding brief of Sri Amit Manohar, learned counsel for the appellant and Sri Subodh Kumar Rai, learned counsel for the respondents.
The present appeal has been preferred against the judgement and order dated 24.09.2007 passed by the Motor Accident Claim Tribunal/Additional District Judge, Hapur, Ghaziabad in MACP No.502 of 2002, whereby the Tribunal has awarded Rs.3,01,700/- as compensation to the claimant respondent for the injuries suffered by him in an accident on 24.04.2002.
The claimant respondent no.1 instituted a claim petition for the injuries suffered by him in an accident on 24.04.2002 by bus no.UP14E/1759. It was stated that he was riding motorcycle no.UP14L/655 from Ghaziabad to his home and when he reached near Lala Sriram Hospital, Tehsil Pilkhua he was hit by bus no.UP14E/1759 driven by its driver rashly and negligently. In the accident, he suffered injuries and 50% disability due to said injuries.
Challenging the award learned counsel for the appellant has submitted that it was a case where two vehicles coming from opposite direction met with an accident and, therefore, there was some negligence of rider of motorcycle i.e. claimant respondent no.1. He submits that the manner in which the accident had taken place speaks about the fact that there was negligence of claimant respondent no.1 in the accident. The finding of the Tribunal holding sole negligence of driver of bus is illegal and is not sustainable in law.
He further submits that the medical bill worth Rs.1,14,510/- has been filed whereas the Tribunal has awarded illegally Rs.1,79,700/- towards medical expenses. He further submits that as per disability certificate the respondent no.1 has suffered disability only 50% but the Tribunal has failed to record any finding as to loss earning capacity suffered by the claimant respondent no.1 in reference to the whole body due to the said injuries, and, therefore, the assessment of the compensation treating disability of respondent no.1 to be 50% is illegal and not sustainable.
Per contra, learned counsel for the respondents submits that the claimant respondent no.1 has himself appeared as witness and also produced PW 2 Yogendra, who was eye witness of the accident to prove negligence of driver of bus in the accident.
P.W.2 had categorically stated that the driver of bus was driving it rashly and negligently which caused the accident. He submits that in absence of any rebuttal to the testimony of PW 2 Yogendra in respect of negligence of driver of bus, the finding of the Tribunal holding negligence of driver of bus in the accident is based on correct appreciation of evidence and material on record and thus, being a finding of fact is not liable to be interfered.
He further submits that the claimant has produced medical bill amounting to Rs.1,14,510/- of Yasoda hospital. Besides the above, the claimant respondent no.1 had also produced other medical bill of the respondent no.1 and thus, the Tribunal after considering those medical bills rightly awarded Rs.1,79,700/-
towards medical expenses. He lastly contends that on account of injuries, the respondent no.1 had suffered mental retardation which is evident from the medical certificate dated 28.05.2008.
I have considered the submissions of the parties and perused the record.
The Tribunal in recording the finding of negligence of driver of bus in the accident has considered in detail the testimony of PW 2 Yogendra who was eye witness of the accident and has also considered site plan of the accident and held that the accident was outcome of sole negligence of driver of bus. The Insurance Company did not lead any evidence to rebut the evidence of respondent no.1 and as such, the finding of the Tribunal in respect of negligence of driver of bus in the accident is based on proper appreciation of evidence on record and is not a perverse finding and as such, the finding of the Tribunal is affirmed.
The Tribunal while awarding Rs.1,79,700/- towards medical expenses has taken note of the fact that the claimant respondent no. 1 has filed final bill of Yasoda hospital to the tune of Rs.Rs.1,14,510/- and several other medical bills. The Insurance Company has not disputed the correctness of the medical bills filed by the claimant respondent no.1 and thus, the award of Rs.1,79,700/- by the Tribunal towards medical expenses is based on proper appreciation of evidence on record and is not liable to be interfered with in appeal.
So far as the submission of the learned counsel for the appellant in respect of fact that the Tribunal has not recorded any finding as to what was the earning capacity suffered by the claimant respondent no.1 is concerned, the nature of injuries suffered by him as is evident form the certificate issued on 28.05.2008 indicating that he had suffered head injuries which caused mental retardation to him. This fact is also evident from the medical certificate of CMO dated 03.04.2008, who had issued the said certificate in compliance of order of this Court dated 14.03.2008. The said issue has not been disputed by the Insurance Company. Considering the nature of injuries suffered by the claimant respondent no.1, this Court is of the opinion that the Tribunal has not committed any illegality in assessing the compensation treating the disability of the respondent no.1 to be 50%.
For the reasons given above, the appeal lacks merit and is accordingly dismissed.
Order Date :- 27.2.2019 S.Sharma