Oriental Insurance Company Ltd. ... vs Smt. Lalka And Ors.
2018 Latest Caselaw 2516 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Reserved
 
AFR
 

 
FIRST APPEAL FROM ORDER NO.694 OF 2015 
 

 
Oriental Insurance Company Limited            ....... Appellant
 
Versus 
 
Smt. Lalka and others                              ..... Respondents           
 
Hon'ble Dr. Devendra Kumar Arora,J.

Hon'ble Abhai Kumar,J.

Heard learned Counsel for the appellant-Insurance Company and learned Counsel for claimants-respondents.

The instant First Appeal From Order has been preferred by the appellant-Insurance Company questioning the correctness of the judgment and award dated 02.05.2015 passed by the Motor Accident Claims Tribunal/ District Judge, Gonda (in short "the Tribunal") in Claim Petition No.113 of 2013 (Smt. Lalka and others Vs. Brijesh Kumar and others), whereby the Tribunal has awarded a sum of Rs.48,82,470/- along with 7% simple interest in favour of the respondents-claimants.

Brief facts of the case are that on 14.01.2013 at about 6:30 PM, the deceased Akhilesh Chandra Dwivedi came to Bhambhua Market from his house by his Motorcycle and when he was parking his motorcycle, a Truck bearing Registration No.U.P. 32 T-8328, which was being driven by its driver rashly and negligently,hit Akhilesh Chandra Dwivedi, as a result whereof, he sustained serious injuries and fracture in his hands and legs; and the motorcycle also got damaged. The injured was taken to the District Hospital, Karnailganj where the treating doctor looking to the serious condition of the injured, referred him to Lucknow but during treatment, the injured succumbed to the injuries on 07.02.2013 at Sahara Hospital, Lucknow.

In respect of the aforesaid accident, a First Information report was registered as Case Crime No.18 of 2013, under Sections 279, 337, 338 IPC at Karnailganj, District Gonda. After the death of the deceased, respondents-claimants preferred a claim petition before the Tribunal stating therein that the deceased was aged about 54 years at the time of accident and was serving as Headmaster in a Primary School, Dhema, Gonda. The salary of the deceased at the relevant time was Rs.38,300/- per month. The Tribunal after considering the submissions of the parties allowed the claim petition awarding a sum of Rs.48,82,470/-as compensation to the claimants-respondents vide order dated 02.05.2018.

A perusal of the impugned judgment shows that while deciding the Claim Petition, The Tribunal has framed following five issues:

(I) Whether, on 14.01.2013 at about 6:30 PM, the driver of Truck No.U.P. 32 T-8328 while driving it rashly and negligently, hit the motorcycle of the deceased Akhilesh Chandra Yadav at Gonda Lucknow Road near Bhambhua, Police Station Karnailganj, District Gonda and consequently, the deceased had fallen and received serious injuries and later on, succumbed to the injuries?

(II) Whether, at the time of accident, the driver of Truck in question was having valid and effective driving license?

(III) Whether, at the time of accident, all documents relating to Truck in question were valid and effective?

(IV) Whether, at the time of accident, the Truck No.U.P.32 T-8328 was driven by the driver with all valid documents?

(V) Whether, the claimants are entitled for compensation, if yes, from whom and how much?

Submission of learned Counsel for the appellant-Insurance Company is that the Tribunal has erred in law while deciding Issue No.1 by not appreciating evidence on record in proper manner. The claimants-respondents had adduced evidence of Krishna Chandra Trivedi (P.W.1) said to be an eye witness. However, this witness has admitted in his cross-examination that he is the brother of the deceased and he was not present when the accident had occurred. Therefore, he cannot be said to be the eye witness and infact is a highly interested witness. According to the appellant, the statement given by P.W.-2 is after thought and concocted one. Therefore, the award passed against the appellant relying upon the testimony of P.W.-2 is wholly unjustified and unwarranted. It has been vehemently argued that the accident had occurred due to the negligence of the deceased himself and the claimants have failed to produce any witness, who had actually seen the occurrence.

Further, the Tribunal has not taken into consideration the statement of D.W.-1 (Driver of the Truck), who in his statement has stated that the alleged accident had occurred due to sole negligence of deceased, who himself came on the right side of Truck and collided with the rear portion of the said Truck, which itself proves that the injuries caused to him was as a result of his own negligent but the Tribunal has illegally erred in law by concluding that the Truck driver was solely negligent in causing the alleged accident.

On the strength of the decisions rendered in Surinder Kumar Arora vs. Dr Manoj Bisla and others; AIR 2012 SC 1918 and Parashurm Pal versus Ram Lakhan Rajawat and another; [2013(98) ALR 589] it has been argued by the learned Counsel for the appellants that the claimants can succeed in getting compensation only on the basis of substantive evidence adduced by them before the Motor Accident Claims Tribunal, which is lacking in the present case.

In contrast, learned Counsel for respondents-claimants has submitted that though Krishna Chandra Trivedi (P.W.-1) is not a eyewitness but he had reached at the place of accident immediately after receiving information within 10-15 minutes and also went to the police station where he saw that the Truck in question and its driver were present at Police Station, Bhambhua. It has also been urged that it is wrong to say that there is negligent on the part of the deceased and the Tribunal has awarded compensation after appreciating the evidence on record. The plea of contributory negligence is also liable to be rejected in view of the decisions rendered in Syed Sadiq and others vs. Divisional Manager, United India Insurance Company; (2014) 2 SCC 735 and Meera Devi and anothr vs. Himachal Pradesh Road Transport Corporation and others (2014) 4 SCC 511.

Having heard learned Counsel for the parties, the main ground of attack by the learned Counsel for the appellant is that the Tribunal has erred in awarding compensation believing the statement of Krishna Chandra Trivedi-P.W.-1 overlooking the fact that the said witness is not the eye witness. To examine the aforesaid assertion of the appellant, we have gone through the statement of Krishna Chandra Trivedi, who is brother of the deceased. This witness has stated that on receiving the information about the accident, he had reached at the place of occurrence. He admitted in his cross-examination that he has not seen the accident but narrated the entire facts relating to the accident. Before the Tribunal, Rahul Trivedi was also produced as P.W. 2, who is the cousin of complainant. This witness in his cross-examination has deposed in unambiguous words that the accident had occurred about 200 meters away from his shop. The deceased had reached at the place of accident by his motor cycle and when after parking his motor cycle, he was standing on the left side of the road, his cousin was crushed by the Truck No. UP 32T 8328, which was being driven rashly and negligently. Thus, it is wrong to say that none has given eye witness account of the accident before the Tribunal as this witness was very much present at the spot when the accident took place. His presence at the spot cannot be doubted as his shop situates at 200 meters and he was purchasing vegetables when the accident took place. Therefore, the assertion of the appellant, as referred to above, is wholly incorrect and unacceptable.

As regard the assertion of the appellant, that it is a case of contributory negligence, we would like to observe that to prove the contributory negligence, there must be cogent evidence. In the instant case, there is no specific evidence to prove that the accident had occurred due to negligence of the motorcyclist. In the absence of any cogent evidence to prove the plea of contributory negligence, this plea is unacceptable.

We are, thus, of the view that the reasoning given by the Tribunal is just and reasonable in the facts and circumstances of the case. Accordingly, the instant appeal is dismissed and the judgment of the Tribunal is hereby approved. Before parting, we would like to mention that in the instant case award for Rs. 48,82,470/- was made and the amount to the tune of Rs. 24,41,235/- was deposited pursuant to the order dated 12.8.2015, which was passed by this Court while entertaining the Appeal. Later on, a Division Bench of this Court vide order dated 21.10.2016 permitted the respondents to withdraw the half of the amount. In these circumstances, appellants are directed to satisfy the award within a period of three months.

Order Date :-12 September, 2018

akverma