Reserved on 17.07.2018 Delivered on 27.11.2018 Case :- FIRST APPEAL FROM ORDER No. - 3409 of 2004 Appellant :- M/S United India Insurance Co Ltd Respondent :- Smt. Indu Devi & Others Counsel for Appellant :- Nripendra Mishra Counsel for Respondent :- Vashistha Tewari
AND
Case :- FIRST APPEAL FROM ORDER No. - 2839 of 2004 Appellant :- Shree Kishun Respondent :- United India Insurance Co Ltd & Others Counsel for Appellant :- Siddhartha Varma,A.K.Srivastava,Alok Srivastava
Hon'ble Saral Srivastava,J.
1. Heard learned counsel for the parties.
2. These two appeals arise out of the same accident and, therefore, the appeals are being decided together.
3. The facts of the case in short are that one Jitendra was travelling in the Jeep No. U.P. 52B- 1236, on 30.06.1999 to attend wedding. The driver of the Jeep was driving the Jeep rashly and negligently due to which the Jeep overturned and Jitendra came under the Jeep causing injuries to him. He died due to injuries suffered in the accident.
4. The M.A.C.P. No.261 of 1999 (Smt. Indu Devi Vs. Gaya Prasad and Others) was instituted by Smt. Indu Devi claiming herself to be the widow of Jitendra. The claimant alleged in the claim petition that her husband was engaged in selling vegetable to the tent house and was earning Rs.200/- per day, and consequently she claimed compensation of Rs.30,20,000/-.
5. The M.A.C.P. No.408 of 1999 (Sri Kishun Vs. Gaya Prasad and Others) was instituted by the brother of the deceased. He alleged that the deceased was engaged in the selling of Banana and was earning Rs.3,500/- per month.
6. The Tribunal connected both the appeals i.e., M.A.C.P. No.261 of 1999 and M.A.C.P. No.408 of 1999 and decided them by judgment and order dated 05.08.2004. The Tribunal awarded Rs.4,17,500/- along with 9% interest as compensation to the claimants. Out of the said awarded amount, the Tribunal awarded Rs.50,000/- to Sri Kishun and balance awarded amount was directed to be paid to the widow of the deceased.
7. The First Appeal From Order No. - 3409 of 2004 has been filed by the United India Insurance Company Limited, the insurer of the Jeep, challenging the judgement and order dated 05.08.2004 of the Tribunal.
8. The First Appeal From Order No.- 2839 of 2004 has been filed by Sri Kishun, brother of the deceased challenging the judgement and order dated 05.08.2004 passed by the Tribunal in M.A.C.P. No.- 408 of 1999 (Sri Kishun Vs. Gaya Prasad and Others).
9. In the appeal filed by the United India Insurance Company Limited, the counsel for the appellant has assailed the finding of the Tribunal on the issue of quantification of compensation.
10. In First Appeal From Order No.- 3409 of 2004, the counsel for the appellant has assailed the finding of the Tribunal on the Issue No.-4 in M.A.C.P. No.- 261 of 1999 which reads as under:-
“4. D;k ;kfpuh e`rd dh fo/kok gS rFkk fof/kd izfrfuf/k gS \
11. The Tribunal in deciding the aforesaid issue has held that Smt. Indu Devi was the wife of deceased Jitendra.
12. First I would deal with the submissions of the counsel for the Insurance Company in F.A.F.O. No. 3409 of 2004. Learned counsel for the appellant has submitted that the Tribunal has erred in holding the income of the deceased Rs.3,000/- per month without there being any cogent evidence on record with regard to the proof of income of the deceased.
13. Learned counsel for the appellant submitted that in the absence of any evidence on record the Tribunal should have computed the compensation on the basis of notional income i.e. Rs.-15,000/- per annum. He submits that the finding of the Tribunal holding the income of the deceased Rs.200/- per day is based on the evidence on record.
14. Per contra, learned counsel for the respondents submitted that the evidence has been led by the claimant/respondents to establish that the deceased was a vegetable vendor and he used to sell vegetables or fruits. He submits that the said facts have been proved by the claimant Smt. Indu Devi and since there was no evidence led by the Insurance Company to rebut the testimony of P.W.-1, the Tribunal was right in holding the income of deceased to be Rs.200/- per day.
15. I have considered the rival submissions of the counsel for the parties and perused the record.
16. The Tribunal in deciding the issue of quantification of compensation has considered the testimony of P.W.-1 Smt. Indu Devi who has proved the said fact by her testimony that the deceased was engaged in selling the fruits and vegetables. The Tribunal on the basis of testimony of claimant held that it was proved that the deceased was engaged in selling fruits and vegetables and thus must have been earning atleast Rs.100/- per month, and consequently, the Tribunal held the monthly income of deceased to be Rs.3,000/- per month. The Tribunal computed the compensation on the basis of monthly income of deceased Rs.3,000/- per month and awarded Rs.4,17,500/-.
17. I have perused the finding of the Tribunal, and I find that the Tribunal has relied upon the testimony of P.W.-1 Smt. Indu Devi in M.A.C.P. No.- 261 of 1999 (Smt. Indu Devi Vs. Gaya Prasad and Others) and Sri Kishun P.W.-1 in M.A.C.P. No.- 408 of 1999 (Sri Kishun Vs. Gaya Prasad and Others) in holding the income of deceased to be Rs.100/ per day.
18. The Insurance Company did not lead any evidence to rebut the testimony of the claimants and as such the finding in respect of income of deceased based on the unrebutted testimony of claimants cannot be considered to be a finding against the record. Thus, the finding of the Tribunal holding the income of the deceased Rs.100/- per day i.e. Rs.-3,000/- per month is finding of fact and is not liable to be interfered in appeal.
19. Thus, the F.A.F.O. No. 3409 of 2004 is liable to be dismissed.
20. Now, I would deal with the submissions of the learned counsel for the appellant in F.A.F.O. No.2839 of 2004, whereby the appellant has challenged the finding of the Tribunal on issue no.4 in M.A.C.P. No.408 of 1999 (Sri Kishun Vs. Gaya Prasad and Others).
21. Learned counsel for the appellant has submitted that there is no evidence on record to establish that Indu Devi claimant was married to deceased. He said that the appellant has led the evidence in the Form of Family Register of Village Turkpatti to establish that Smt. Indu Devi was wife of one Shyam Behari, this evidence was not rebutted and hence, the finding of the Tribunal holding that Indu Devi was wife of deceased is illegal.
22. Per contra, learned counsel for the respondents submitted that the present appeal on behalf of Sri Kishun was not maintainable, inasmuch as, Sri Kishun was not a party in M.A.C.P. No.408 of 1999, and in the appeal no application seeking permission of the Court to file the appeal has been filed, and hence the present appeal on behalf of the Kishun is not maintainable.
23. Learned counsel for the respondents further submitted that the Indu Devi had appeared before the Tribunal and deposed that she was wife of deceased Jitendra. She further led evidence in the Form of Khatauni besides other documents to establish that she was the wife of Jitendra. He further submits that the Tribunal on the basis of evidence on record has held that Indu Devi was the wife of deceased.
24. I have considered the rival submissions of the parties and perused the record.
25. In the opinion of the Court, the present appeal of Sri Kishun is not maintainable, inasmuch as, it is manifest from the Judgement and Formal order in M.A.C.P. No.261 of 1999 that Sri Kishun was not a party in the claim petition. In the present appeal he has not filed any application seeking permission of the Court to file the present appeal.
26. Thus, the objection of the respondents regarding maintainability of the appeal has substance and consequently the appeal is liable to be dismissed. Since the appeal has been dismissed on the preliminary objection, therefore, this Court is not inclined to test the submissions of the learned counsel for the appellant on the merit of the case.
27. For the reasons given above, both the appeals lacks merit and are accordingly dismissed. There shall be no order as to cost.
Order Date :- 27.11.2018 Israr