Court No. - 26
Case :- FIRST APPEAL FROM ORDER No. - 3293 of 2009 Appellant :- Munendra Pal Singh Respondent :- National Insurance Corporation Ltd.And Others Counsel for Appellant :- Sanjay Singh,Amrendra Nath Rai Counsel for Respondent :- Bhawesh Rai
Hon'ble Saral Srivastava,J.
Heard Sri Sanjay Singh, learned counsel for appellant and Sri Bhawesh Rai, learned counsel for the respondents.
The appellant has preferred the present appeal challenging the award dated 19.08.2009 passed by the Motor Accident Claim Tribunal/Additional District Judge, Court No.1, Shahjahanpur, whereby the Tribunal has awarded Rs.97,467/- alongwith 5% interest as compensation to the claimant appellant for the injuries suffered by him in an accident on 23.02.2003.
The claimant appellant had instituted claim petition praying for compensation of Rs.40 lac alongwith 24% interest for the injuries suffered by him in the accident. It was pleaded that the appellant was riding on motorcycle for G.I.C. College and near village Barigaron, he was hit by jeep no.UP 27/5600 which was driven rashly and negligently. In the said accident, the appellant suffered injuries in his leg and the medical board issued disability certificate certifying that the appellant had suffered 40% disability due to the injuries suffered in the accident.
The claim petition was contested by the Insurance Company by filing written statement denying its liability to pay compensation.
The Tribunal framed as many as six issues. The issue nos.1 and 4 in respect of involvement of vehicle and negligence of driver in the accident were decided together.
The Tribunal though has held that the appellant had suffered injuries in the accident but the Tribunal on the ground that the appellant had not filed site plan and his driving license held the negligence of appellant in the accident to the extent of 50%.
On the quantification of compensation i.e. issue no.5, the Tribunal held that the claimants had failed to prove his income and accordingly, on the basis of notional income i.e. Rs.15,000/- per annum, the Tribunal computed the compensation.
Learned counsel for the appellant challenging the finding of the Tribunal submits that the appellant had proved that the accident had occurred due to sole negligence of driver of jeep. In this regard, the appellant examined himself as P.W. 1 and his daughter Km. Pratima Singh as P.W. 2, who was pillion rider and was eye witness of the accident had deposed before the Tribunal that the accident was outcome of rash and negligent driving of driver of the jeep. The Insurance Company i.e. respondent no.1 did not lead any evidence to rebut the testimony of P.W. 1 and P.W. 2 and thus, the finding of the Tribunal that since the appellant had failed to file site plan of the accident and his driving license, therefore, the appellant was also negligent in the accident is based on presumption and not sustainable in law. He further contends that the appellant had proved his income to be Rs.1800/- per month by filing salary certificate which established that the appellant was teacher and as such the Tribunal has erred in disbelieving the salary certificate i.e. paper no. 44 Ga indicating salary of the appellant to be Rs.1800/- per month.
Learned counsel for the appellant lastly contended that 5% interest on the awarded amount is on lower side.
Per contra, learned counsel for the respondents submits that the Tribunal after appreciating the facts and evidence on record has recorded a finding that admittedly, it is a case where two vehicles were coming from opposite direction and had collided. Thus, the manner in which the accident had taken place speaks about the fact that there was some negligence of the appellant in the accident and as such, the finding of the Tribunal on the issue of contributory negligence is correct. He further contends that the claimants has failed to prove his income and, therefore, the Tribunal was justified in computing the compensation on the basis of the notional income and as such, the compensation awarded by the Tribunal is just and proper.
I have considered the rival submission of the parties and perused the record.
A perusal of the award reveals that the finding of the Tribunal that since the appellant had not filed site plan of the accident and his driving license, therefore, there was some negligence of the appellant in the accident is misconceived and is not supported by any evidence on record. The fact that the appellant and his daughter, who was eye witness of the accident, appeared before the Tribunal and deposed that the accident had occurred due to sole negligence of the driver of the jeep, and since the testimony of P.W.1 and P.W. 2 are unrebutted, therefore, in the opinion of the Court, the Tribunal has erred in ignoring the testimony of P.W.1 and P.W. 2 in recording the finding with respect to negligence of the appellant in the accident.
Consequently, the finding of the Tribunal in respect of negligence of the appellant in the accident is set aside and this Court holds that the accident had occurred due to sole negligence of driver of jeep.
So far as the quantification of compensation is concerned, the appellant had filed salary certificate which was duly proved by him and in this view of the fact the Tribunal has erred in computing the compensation on the basis of notional income. Consequently, it is provided that the compensation should be computed treating the income of Rs.1800/- per month.
The submission of learned counsel for the appellant in respect of 5% interest on the awarded amount on lower side has substance and consequently, it is provided that the enhanced amount of compensation shall carry 7% interest from the date of institution of the claim petition.
The Tribunal is directed to recalculate the compensation in the light of the observations made above.
For the reasons given above, the appeal is partly allowed and the award of the Tribunal is modified to the extent indicated above.
The Insurance Company is directed to pay the enhanced amount of compensation within a period of three months from the date of production of certified copy of this order before it.
Order Date :- 19.12.2018 S.Sharma