Mohd.Zafar vs Sri Khurram Shami And Another
2017 Latest Caselaw 6439 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 37
 

 
Case :- FIRST APPEAL FROM ORDER No. - 2644 of 2009
 

 
Appellant :- Mohd.Zafar
 
Respondent :- Sri Khurram Shami And Another
 
Counsel for Appellant :- M.F.Ansari
 
Counsel for Respondent :- Rajeev Chaddha,Samit Gopal
 

 
Hon'ble Amreshwar Pratap Sahi,J.

Hon'ble Saral Srivastava,J.

Delivered oral by Saral Srivastava, J

Heard learned counsel for the appellant and Sri Samit Gopal, learned counsel for the opposite party no.1, owner of the offending vehicle.

The present appeal has been filed by the claimant/appellant challenging the award dated 23.03.2009 passed by Motor Accident Claim Tribunal/Special Judge (E.C. Act), Allahabad whereby the Tribunal has awarded Rs. 16,126/- as compensation.

The claimant appellant instituted the claim petition on the ground that on 18.06.1997 at about 9.00 pm, he was riding scooter being Registration No. AHV-7776. It is further submitted that his wife and his niece were pillion riders and were going back to their home from Civil Lines. It is further alleged that when they reached near Lal Colony Temple, Rasoolpur, PS-Kareilly, Allahabad, Maruti Car being Registration No. UAI-1094 driven by its driver rashly and negligently hit the scooter in which the claimant/appellant suffered injuries. It is further stated in the claim petition that he was engaged in the business of selling of Cooler and Almirah etc., and was earning Rs. 7,000/- per month. He claimed compensation at Rs. 5,35,000/-.

The claim petition was contested by the owner of Maruti Car by filing his written statement, wherein he denied the factum of the accident. He further stated in the written statement that the accident had occurred due to negligence of the appellant/claimant and if there was any liability to pay any compensation, it was upon the New Indian Insurance Company Ltd., as the Maruti Car was insured with the said company.

The New India Insurance Company Ltd also filed written statement denying its liability to pay any compensation. It is further pleaded that the accident had occurred due to negligence of the applicant/claimant, and the liability of the company is subject to the terms and conditions of the insurance policy. It is pleaded that the compensation prayed for by the claimant/appellant is excessive.

On the basis of pleadings between the parties, Tribunal framed several issues. However, in the present appeal, the appellant has challenged the finding on issue no.1 holding the negligence of claimant to the extent of 50%, and issue no.4 with regard to the quantum of compensation. Findings on rest of the issues have not been assailed by the appellant.

The Tribunal after appreciating the evidence on record held that the accident had taken place on 18.06.1997. However, the Tribunal appreciated the statement of the claimant and site plan , and thereafter recorded the finding that there was contributory negligence on the part of the appellant/claimant in the accident. On the issue of quantum of compensation, the Tribunal held that as per the evidence on record, the claimants was running a shop, and the Tribunal relying upon the judgment of the Apex Court in the case of Laxmi Devi and others Vs. Mohd. Tabbar and others 2008 (12) SCC 165 held the income of the claimant to be Rs. 3,000/- per month. The Tribunal awarded Rs. 3,000/- towards loss of income, Rs. 5,000/- towards pain and suffering, Rs. 24,252/- towards medical expenses and Rs. 5,000/- towards expenses incurred on travelling. Thus, the total amount of compensation came to be to Rs. 52,252/-. However, it transpires from the records that while adding the compensation under different head, the Tribunal did not add Rs. 20,000/- in the total awarded amount, and then, total amount of compensation awarded Rs. 32,252/-. The Tribunal, thereafter, deducted 50% from the amount on account of the negligence of the claimant, and consequently awarded Rs. 16,126/- with 6% interest as compensation.

The counsel for the appellant has urged that the finding of the Tribunal, on the issue of negligence is perverse and against the record inasmuch as, the site plan indicates that the claimant appellant was going on his left side of the road and the Maruti Car hit Scooter on the right side of the raod. He further submitted that the site plan is not disputed, and further the claimant has himself appeared as a witness before the Tribunal and has stated that the accident occurred due to negligence of driver of Maruti Car. He submits that in absence of any evidence filed by the Insurance Company contradicting the statement of claimant, the Tribunal has erred in not relying upon the evidence adduced by the claimant and had completely ignored the site plan. Thus, Tribunal has illegally held 50% negligence of the claimant in the accident.

On the issue of quantum of compensation, he submits that it is not disputed that the claimant has suffered injuries in the accident and therefore, the amount awarded by the Tribunal is not sufficient and should be enhanced.

On the other hand, the counsel for the Insurance Company has submitted that the Tribunal after appreciating the facts and evidence on record held the negligence of both the drivers accident to the extent of 50% in the accident. The finding of the Tribunal on the issue of negligence of is based upon cogent evidence. Thus, the finding on the issue of negligence do not require any interference in appeal. On the issue of quantum of compensation the counsel for the Insurance Company submits that the claimant did not lead any evidence to show any disability suffered by him due to the injuries, and further there was no evidence on record indicating that the claimant had suffered any loss of earning capacity due to the injuries. He further submits that the claimant has also not adduced any evidence to indicate that he is not running his shop any more and thus, he submits that the claimant has not suffered any loss of income. He further submits that the claimant has submitted the medical bills of Rs. 24,252 which has been accepted by the Tribunal, and the Tribunal has awarded the said amount towards the medical expenses. He further submits that the Tribunal has already awarded amount towards special diet and expenses incurred on transportation, and thus the compensation awarded by the Tribunal is just and proper.

We have heard the rival submissions of the parties and perused the record of appeal as well as the original records.

So far as the submissions of the counsel for the appellant with regard to the finding on the issue of the negligence, we have perused the site plan and from the site plan, it appears that the Maruti Car hit the Scooter in the extreme right side of the road, and the site plan has not been disputed by the Insurance Company. Further, the claimant had deposed that the accident occurred due to the negligence of the driver of Maruti Car. Thus, we find that the Tribunal has erred in law in holding the negligence of claimants to the extent of 50% in the accident. Accordingly, we set aside the finding of the Tribunal on the issue of negligence and hold that the accident occurred to the sole negligence of driver of Maruti Car.

On the issue of quantum of compensation, we find that the claimant did not file any evidence to show that he had suffered any disability due to the accident nor he had led any evidence to indicate that he had suffered any loss of income due to the injuries, thus, we find that the compensation awarded by Tribunal is just and proper. However, we direct that Rs. 20,000/- should also be added in the awarded amount as has been awarded by Tribunal towards special diet and transportation charges. Thus, the claimant is entitled to Rs. 52,252/- as compensation.

The last submission of learned counsel for the appellant that 6% interest awarded by the Tribunal is on lower side. We find force in the submission of the learned counsel for the appellant, and that provided that awarded amount shall carry 9% interest in place of 6% interest.

Thus, the appeal is allowed to the extent indicated above. The Insurance Company shall pay the awarded amount of compensation after adjusting the amount, already paid by it to the claimant/ appellant within three months.

There shall be no order as to costs.

Order Date :- 7.11.2017

M. ARIF