Hon'ble Raghvendra Kumar,J.
( Per: Raghvendra Kumar,J.) Heard learned counsel for the appellant and Shri Rishi Bhushan Jauhari, holding brief of Shri Bhanu Bhushan Jauhari, learned counsel for the claimants-respondents.
The instant appeal under section 173 of the Motor Vehicles Act has been filed by the Insurance Company assailing the judgement and award dated 15.10. 2015 passed by the Motor Accident Claims Tribunal/Additional District Judge, Court No.3, Shahjahanpur in M.A.C.P. No. 325 of 2014 ( Smt. Anjali and others Vs. Sparsh Transport & others) whereby the tribunal has awarded the compensation of Rs. 11, 77,500/- alongwith simple interest at the rate of 7% per annum from the date of institution of the claim petition.
As per the claim petition on 7.9.2013, the husband of the claimant no. 1, namely, Arun Kumar Mishra alias Ajay Mishra was going from Shajahanppur to Jaitipur on his Motor cycle bearing registration no. U.P. 76C-8594 to his seed shop. When he reached near the village Khandsar, P.S. Katra, District Shahjahanpur, at about 7.15 p.m. one truck bearing registration no. U.P. 27-5492 dashed with the motor cycle of the deceased from front side which was driven by its driver rashly and negligently whereby the the deceased sustained grievous injuries and succumbed to injuries.
It has been contended on behalf of the appellant that it was a case of head on collision. The deceased was not wearing Helmet while driving the motor cycle, therefore, it is a case of contributory negligence. Further reliance has been placed on the site plan of the place of occurrence.
The next limb of the contention of the learned counsel for the appellant is that the learned tribunal has placed reliance upon the law laid down by Hon. Apex Court in the case of Sarala Verma Vs. D.T.C., 2009 (2) T.A.C 677 for computing the compensation, which is not attracted in the present case and has wrongly awarded the amount in the head of future prospects.
In the present case, Arvind Yadav has been examined as eye witness of the accident on behalf of the claimants-respondents. He has categorically stated on oath that he was also going on motor cycle on the said date, time and place and was trailing behind the motor cycle of Arun Mishra (deceased). He categorically stated that both motor cycles were being plied on their left side in the slow speed. He specifically stated that at about 7.15 p.m. the truck bearing registration no. U.P. 27-5492 was being plied rashly and negligently which came from front side and dashed the motor cycle by its side. He further stated that Arun Kumar Mishra alias Ajay Mishra was 10 to 15 meter ahead from him. He further corroborated that the truck coming from front side and its wrong side dashed the motor cycle. None of the witnesses have been examined on behalf of the appellant or owner or the driver of the offending truck. Thus, the testimony of P.W.2 Arvind Yadav is the sole evidence about the factum of accident. The witness was put to cross examination, but nothing could be elicited from its cross examination so as to disbelieve his presence or to falsify his presence on the spot. There is complete consistency and coherence in the examination in chief and cross-examination of the witness. In the absence of contrary evidence available on record, there is no justification to discard the testimony of the eye witness of the accident.
The witness has specifically stated that Arun Kumar Mishra alias Ajay Mishra (deceased) was wearing Helmet. There is no evidence available on record to contradict the statement of the eye witness regarding use of helmet by the deceased at the time of accident. Much reliance has been placed on the site plan of the place of accident. The direction of moving the motor cycle has been marked by arrow from east to west which is on the left side of the road. The direction of the movement of the truck has been shown by arrow with vertical line from West to East. As per the direction, it is explicit that the truck was moving on the right side of the road i.e. in its wrong side. The site plan further fortify the oral testimony of P.W.2 Arvind Yadav. In the absence of contrary evidence on behalf of the defendants of the claim petition, there is no justification to discard the testimony of the eye witness P.W.2. Further there is consistency and coherence in the examination-in- chief and cross examination of the witness. Nothing could be elicited by way of cross examination by the appellant or respondent nos. 6 and 7 on the basis of which the presence of the eye witness could be doubted. As such, the contention of the learned counsel for the appellant do not have substance and as such, can not be sustained.
So far as the applicability of the case of Sarala Verma Vs. D.T.C., 2009 (2) T.A.C 677 is concerned, in that case Hon. apex Court have been pleased to propound the guidelines for awarding the compensation under the head of future prospects. The U.P. Motor Vehicles Rules 2011 (hereinafter referred as Rules) have been legislated by the legislature which is effective from 26.9.2012 wherein Rule 220-A deals with the award of future prospects. The proposition of law laid down by Hon. Apex Court have been substantiated by the Rules as such in awarding the future prospects learned tribunal has not committed any error of law. It is pertinent to mention that the accident took place subsequent to the enforcement of the Rules. Moreso, the tribunal has drawn analogy from the proposition of law laid down in the case of Oriental India Co. Ltd. Vs. Shashi Devi and others, 2015(3) T.A.C 339 Ald. for fixing the amount of notional income and accordingly computed the compensation. In view of the discussions made above, the contention regarding non-applicability of law propounded by Hon. apex Court in Sarala's case ( Supra) does not have substance and as such can not be sustained.
In view of the aforesaid discussions, the appeal is bereft of merit and is accordingly dismissed.
Order Date :- 4.2.2016 R