Court No. - 1
Case :- FIRST APPEAL FROM ORDER No. - 3265 of 2017 Appellant :- The National Insurance Co. Ltd.
Respondent :- Smt. Sunita And 6 Others Counsel for Appellant :- Sarvesh Kumar Pandey,Aarushi Khare Counsel for Respondent :- Vidya Kant Shukla
Hon'ble Vivek Agarwal,J.
Ms. Arushi Khare, learned counsel for the appellant and Sri Vidya Kant Shukla, learned counsel for the claimant- respondent.
This appeal has been filed by the Insurance Company being aggrieved of the award dated 15.7.2017 passed in MAC NO. 90 of 2013 (Smt. Sunita Pandey & others Vs. Govind Pandey Omar and others) by the court of Motor Accident Claims Tribunal/ Additional District Judge, Court No. 3, Kanpur Nagar on the sole ground that learned Claims Tribunal has failed to take into consideration the aspect of contributory negligence.
Counsel for the appellant submits that as per Nazri Naksha available on record as Annexure-4, motorcycle is shown as 'C' whereas Truck is shown as 'B' and place of accident as 'A'. 'A' is on the tri junction of the road going towards village Magarsa. According to the appellant, it was motorcycle which overtook the truck when accident took place.
Sri Shukla in his turn submits that this argument raised by the counsel for the Insurance Company is not correct. Firstly, Nazri Naksha has not been proved in evidence by adducing evidence of any person from the side of the Insurance Company. Secondly, Insurance Company has not adduced evidence of any independent witness or even investigator. It is further submitted that in para-24 of the judgment, it has come on record and has been correctly appreciated by the learned Claims Tribunal that motorcycle was moving on its left hand side direction which is as per traffic Rules when truck had over taken the motorcycle and the accident took place. It is submitted that there is no evidence on record to show that motorcycle overtook the truck and this accident took place.
After hearing counsel for the parties and going through the record, it is evident that DW-1 Radhey Shyam, driver of the offending vehicle stated in his cross-examination as available in para-51 C, that he was taken into custody at the place of accident itself. He admitted that spot map i.e. Nazri Naksha was not prepared in front of him. He further admitted that motorcycle was hit from behind, that means, that the argument advanced by counsel for the Insurance Company that motorcycle was overtaking the truck is not made out.
There is no infirmity and illegality in the impugned award calling for any interference to record finding of contributory negligence. In absence of material evidence on record, appeal is devoid of merits and deserves to be dismissed and is dismissed.
Order Date :- 6.1.2021 S.K.S.