Allahabad High Court
The New India Assurance Co. Ltd. ... vs Smt. Prema Devi And Others on 2 February, 2021
Bench: Vivek Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 1
Case :- FIRST APPEAL FROM ORDER No. - 3231 of 2010
Appellant :- The New India Assurance Co. Ltd. Thru Branch Manager
Respondent :- Smt. Prema Devi And Others
Counsel for Appellant :- Arvind Kumar
Counsel for Respondent :- Krishna Kumar Singh,Mohd. Asim Zulfiquar
Hon'ble Vivek Agarwal,J.
1. Heard Sri Arvind Kumar, learned counsel for the appellant and Sri Mohd. Asim Zulfiquar, learned counsel for the respondents.
2. This appeal has been filed by the Insurance Company being aggrieved of the judgment dated 31.08.2010 passed by learned Motor Accident Claims Tribunal/Additional District Judge, Court No.3, Moradabad in M.A.C.P. No.09 of 2007 on two grounds, namely, earlier an ex parte award was passed against the owner of the offending vehicle namely, truck bearing Registration No.UHC 246, wherein, the Tribunal vide its award dated 07.07.2007 had recorded a finding of contributory negligence, inasmuch as, accident had taken place between two vehicles coming from opposite sides and that too head on, but this finding has been set aside by the learned Claims Tribunal in the impugned award, when matter was reheard after entertaining an application for setting aside ex parte award as was moved by owner of the offending vehicle i.e. the truck. The second ground is that earlier a sum of Rs.2,08000/-(two lakhs and eight thousand) was awarded against which, claimants had not filed any appeal, but now compensation has been enhanced to the tune of Rs.6,35,000/-(six lakhs and thirty five thousand) which is arbitrary and illegal.
3. Sri Mohd. Asim Zulfiquar in his turn submits that there is no illegality in the impugned award, inasmuch as, it has been passed after taking into consideration correct facts as are evident from the record and, therefore, appeal be dismissed. It is also submitted that claimants being very poor people had no resources to file appeal and merely their not filing appeal cannot be treated as a circumstance against them.
4. A perusal of the spot map as was exhibited before the learned Claims Tribunal reveals that truck was coming from the side of Moradabad, whereas, deceased was travelling on a motorcycle as a pillion rider from the side of Chandausi towards Moradabad to visit his sister's house, when accident took place near village Kamalpur at 8:15 p.m. Spot map reveals that motorcycle was travelling on its left, whereas, truck took a zig-zag trajectory on middle path, travelled towards its extreme right and had hit the motorcycle.
5. In any case, spot map does not reveal factum of contributory negligence. Further as the deceased was a pillion rider, no deductions could have been made, attributing contributory negligence even to the driver of the motorcycle. Therefore, there is no illegality in the impugned award, as far as, finding of contributory negligence has been set aside after due appreciation of evidence.
6. As far as computation of income is concerned, for an accident which took place on 31.10.2006, Tribunal has accepted income of the deceased at Rs.4,000/- per month, which cannot be said to be excessive. In fact, Tribunal has not awarded any amount under the head of future prospects and has awarded a meagre amount of Rs.9000/- under the head of non-pecuniary compensation, whereas, under the provisions contained in Order 41 Rule 33, this Court is empowered to pass any decree or make any order which ought to have been passed or made as the case may require and the court notwithstanding that appeal is as to part only of the decree is authorized to exercise in favour of all or any of the respondents or parties, although, such respondents or parties may not have filed any appeal or objection. Therefore, in the light of the provisions contained in Order 41 Rule 33 and also the law laid down by Supreme Court in case of Prahlad and others Vs. State of Maharasthra and another; AIR 2010 SC (Supp) 89, this Court with a view to do complete justice will like to add 40% towards future prospects taking the age of the deceased as 25 years into consideration. This will enhance the pecuniary compensation from Rs.5,76,000/-(five lakhs and seventy six thousand) to Rs.8,06,400/-(eight lakhs six thousand and four hundred). Similarly, there has to be an addition of Rs.61,000/- under the head of non-pecuniary compensation, therefore, there will be an addition of Rs.2,91,400/-(two lakhs ninety one thousand and four hundred), to which claimants will be entitled in addition to what has been awarded by learned Claims Tribunal.
7. At this stage, learned counsel for the appellant submits that, if any, amount deposited by the insurance company, in compliance of the provisions contained in Section 173 of the Motor Vehicles Act, be remitted to the claims Tribunal to be adjusted from the claim amount.
8. This payer is allowed. Registry is directed to do the needful.
9. Lower court record be sent back forthwith.
10. In above terms, appeal is disposed off.
Order Date :- 2.2.2021
Ashutosh
