Allahabad High Court
National Insurance Company ... vs Smt. Basanti And Others on 22 March, 2013
Bench: Rakesh Tiwari, Anil Kumar Sharma
HIGH COURT OF JUDICATURE AT ALLAHABAD
Court No. 35
First Appeal From Order (defective) No.421 of 2013
National Insurance Company Ltd. ..........Appellant.
Vs.
Smt. Basanti & others .......Respondents.
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Counsel for the appellant: Sri Vinay Khare, Advocate.
Counsel for the claimant-respondents : Sri S.D. Ojha, Advocate.
Hon'ble Rakesh Tiwari, J.
Hon'ble Anil Kumar Sharma, J.
(By Justice Anil Kumar Sharma)
We have heard Sri Vinay Khare, counsel for the appellant, Sri S.D. Ojha, counsel for the claimant-respondents no. 1 to 4, and perused the record as also papers filed along with memo of appeal.
Having gone through the affidavit filed in support of delay condonation application filed under Section 5, Limitation Act, we are of the view that the grounds taken for delay are sufficient. The delay of 18 days is accordingly condoned. Delay condonation application is allowed.
Learned counsel for the appellant has challenged the award on two grounds. Firstly, that the findings of the Tribunal on the issue of negligence is wholly erroneous and secondly income of the deceased has been taken on higher side resulting in arbitrary and excessive award. Per contra learned counsel for the claimant-respondents has submitted that the findings of the Tribunal are based on evidence on record and no contra evidence was led by the opposite parties to prove the contributory negligence of the deceased. He has further submitted that the deceased was skilled carpenter and the Tribunal has taken his monthly income at Rs.9,000/- which is not at all on 'higher side'.
The claimant-respondents filed claim petition contending that on 9.5.2010, the deceased was going on his motorcycle for his work and at about 9.00 A.M. near Vishunpur village, he was hit by Hero Honda Motorcycle without any registration number from wrong side which was being driven rashly and negligently by its driver. The deceased suffered grievous injuries. He was taken to District Hospital, Siddharth Nagar, and thereafter to Jeewan Jyoti Hospital where he succumbed to the injuries on 11.5.2010. The claimant-respondents have examined two eye-witnesses to prove the negligence of opposite party no. 2-Mohd. Khurshid, who was driving the offending motorcycle at the time of accident and they have categorically stated that the driver of the offending vehicle coming from the opposite side turned towards right and dashed with the motorcycle of the deceased from the front side.
Learned counsel for the appellant has placed sole reliance on site plan prepared by police during investigation. Suffice it to say that no corroborative evidence has been led by the appellant to prove the place of accident. Even opposite party no. 2, driver of the offending motorcycle has not dared to appear in the witness box before the Tribunal to allege the contributory negligence of the deceased in the accident. It is trite law that site plan is not substantive piece of evidence. Moreover, it has been prepared after four days of accident i.e. 13.5.2010 and it is also not clear as to at whose instance it was prepared by the Investigating Officer investigating crime no. 232 of 2010 under sections 279 & 304-A IPC, P.S.-Golhaura, District-Siddharth Nagar. Thus, the first argument of learned counsel for the appellant has no force.
As regards quantum of compensation, the learned counsel for the appellant has simply argued that the Tribunal has erred in taking monthly income of the deceased at Rs.9,000/- without any cogent and reliable documentary evidence in this behalf. The claimant-respondents have alleged that the deceased was a carpenter and was going on his own motorcycle for his work at the time of accident. The Tribunal has given cogent reasons for taking the above monthly income of the deceased and we do not find any sufficient reason to differ with the same. The Tribunal has deducted 1/3rd from the annual income of the deceased for his personal and living expenses. Correct multiplier of '15' on the age of the deceased has been applied to calculate the compensation of Rs.10,84,500/-. Apart from it, Rs.9,500/- have also been awarded under other heads. In this manner, we do not find any error, factual or legal in the findings of the Tribunal on the quantum of compensation.
No other point has been argued before us.
In view of the above discussion, we do not find any merit in the instant appeal which is accordingly dismissed.
The statutory amount deposited by the appellant in this Court, be remitted to the concerned Tribunal within three weeks.
(Anil Kumar Sharma, J) (Rakesh Tiwari, J.)
Dated: 22.3.2013
RCT/-
