Court No. - 26
Case :- FIRST APPEAL FROM ORDER DEFECTIVE No. - 311 of 2004 Appellant :- Rakesh Kumar Gupta Respondent :- The New India Assurance Co.Ltd. And Others Counsel for Appellant :- A.L. Jaiswal,Sharve Singh Counsel for Respondent :- Subash Chandra Srivastava
Hon'ble Dr. Kaushal Jayendra Thaker,J.
Heard Sri A.L. Jaiswal, learned counsel for appellant and Sri Subash Chandra Srivastava, learned counsel for respondents and perused the record.
This appeal has been preferred against the judgment and award dated 27.07.2001 and decree dated 1.08.2001 passed by II, Additional District and Sessions Judge, Ghaziabad, whereby awarding a sum of Rs.8,00,000/- with interest at the rate of 18% per annum as compensation to the claimant.
This appeal is a defective appeal but is taken up for final disposal. As the petition was dismissed by the Tribunal on the ground that petitioner was totally negligent. That is why petition was dismissed. Even if for totality of negligence, he was entitled to the amount in the no fault liability which cannot be disputed by Sri Subhash Chandra Srivastava, learned counsel for respondent upholding the judgment and even holding that the appellant, Rakesh Kumar Gupta himself was negligent, the amount of Rs.25,000/- would not have been deducted to him which is under Section 140 of the Motor Vehicles Act, 1988 and the claim petition was filed under Section 166 of the Motor Vehicles Act, 1988.
The facts shows that he had a fracture of his lower limb, left hand and upper limb and would come within the purview of Section 142 of the Motor Vehicles Act, 1988 which reads as follows:
" 142. Permanent disablement.—For the purposes of this Chapter, permanent disablement of a person shall be deemed to have resulted from an accident of the nature referred to in sub-section (1) of section 140 if such person has suffered by reason of the accident, any injury or injuries involving:
(a) permanent privation of the sight of either eye or the hearing of either ear, or privation of any member or joint; or
(b) destruction or permanent impairing of the powers of any member or joint; or
(c) permanent disfiguration of the head or face."
Hence the appeal is partly allowed. The appellant shall be entitled to sum of Rs.25,000/- with 9% rate of interest from the date of filing of claim petition, till the amount is deposited. While granting the amount, this Court even if the driving licence has been found valid insurance company which had not come up in appeal because the judgement was in their favour. The judgment did not reflect on the licence, hence if the insurance company feels that they have proved by cogent evidence that there is breach of policy condition and may recover the amount from the owner/ driver that he had no driving licence.
This Court is thankful to both the advocates for getting very old matter disposed of.
Order Date :- 31.1.2019 Shubhankar