Allahabad High Court
New India Assurance Company Ltd. vs Ajay Pratap Singh And Another on 21 January, 2021
Bench: Vivek Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 1
Case :- FIRST APPEAL FROM ORDER No. - 2092 of 2009
Appellant :- New India Assurance Company Ltd.
Respondent :- Ajay Pratap Singh And Another
Counsel for Appellant :- ,Vipul Kumar
Counsel for Respondent :- Dinesh Kumar Dubey,Ram Singh,S.R. Singh,Shashank Shekhar
Hon'ble Vivek Agarwal,J.
1. Heard Sri Vipul Kumar, learned counsel for the appellants and Sri Ram Singh, learned counsel for the respondents.
2. This appeal has been filed by the Insurance Company being aggrieved by the award dated 21.3.2009 passed by learned Motor Accident Claims Tribunal/Additional District Judge (II), Kaushambi in Claim Petition No. 76 of 2003 on twin grounds, one of contributory negligence and another that learned Claims Tribunal has failed to take into consideration functional disability of the claimant while computing compensation under the head of loss of income.
3. Counsel for the claimant submits that they have filed cross objections and according to him learned Claims Tribunal has applied incorrect multiplier of 15 which should be 18. Secondly meager amount has been awarded under the head of pain and suffering. It is also submitted that no amount has been awarded under the head of future prospects.
4. After hearing counsel for the parties and going through record, it is apparent that Insurance Company contested the case in a very casual and formal manner. It has not examined any witness to prove factum of contributory negligence. There is no site plan on the record.
5. Even the so called disability certificate which has been issued by a committee of 3 Doctors in the office of Chief Medical Officer, Kaushambi, has overwriting on the aspect of disability which has been changed from 40% to 60%. However, there is no cross examination on this aspect in the hands of the counsel for the Insurance Company.
6. As far as issue of contributory negligence is concerned, law is already settled in this regard as has been held by the Supreme Court in Meera Devi and another Vs. HRTC and others; 2014(2) TAC 1 (SC), that in absence of any cogent evidence to prove pleading of contributory negligence, doctrine of common law will not be applicable and pleading of contributory negligence will not be sustainable. Similarly, in case of United India Insurance Company Limited Vs. Smt. Neera Singh and Others, 2017 (1) AWC 636, this aspect has been dealt in great details. This Court has also followed these judgments and has held in Case of FAFO No. 1114 of 2016; Oriental Insurance Company Ltd Vs. Munni and 8 others that when Insurance Company did not examine the driver of the offending vehicle who would have been the best witness in regard to explanation how accident took place, plea of contributory negligence is not sustainable.
7. In light of these judgments and appreciation of evidence on record first argument put forth by learned counsel for the Insurance Company in regard to contributory negligence is not made out. Therefore, this ground deserves to be rejected and is rejected.
8. As far as aspect of functional disability is concerned as has been observed by this Court, disability certificate has an overwriting. This makes a mention that there is post traumatic stiffness in right knee. Claimants could not prove whether disability is permanenty or curable. Certificate has been issued on a printed proforma. Over writing in regard to aspect of disability which is not counter signed by 3 Doctors of the Board creates grave suspicion on the authenticity of the certificate certifying 60% disability. Even otherwise when aspect of functional disability is taken into consideration claimant was a student at the time of accident. It has not come on record that there is any shortening or functional / vocational handicap on account of such accident. Therefore, in absence of any of the vital parameter to prove functional disability, it will be appropriate to consider valuation of appellant's disability at the rate of 15% against 50% computed by the learned Claims Tribunal.
9. Learned Claims Tribunal has considered the income of the deceased as Rs. 2000/- per month. Therefore, loss of income on account of functional disability at the rate of 15% will come to Rs. 300/- per month, when 40% is added towards future prospects then loss of income will be 420/- per month or Rs. 5040/- per year. Taking into consideration the date of accident as 30.4.2002 and date of birth of the claimant as year 1981 as is mentioned in the driving licence, multiplier of 18 will be applicable taking total compensation under the head of loss of income due to functional disability to Rs. 90,720/- against a sum of Rs. 108000/- awarded by learned Claims Tribunal. However, Claims Tribunal has awarded only a sum of Rs. 5000/- under the head of pain and sufferings which needs to be enhanced to Rs. 25000/-. Therefore, there will be addition of Rs. 20,000/- under the head of pain and sufferings. Similarly Claims Tribunal has not awarded any amount under the head of attendant and transport. Under this head further sum of Rs. 15000/- i.e. 5000/- under the head of transport and Rs. 10,000/- under the head of attendant is awarded. Besides this Claims Tribunal as awarded a sum of Rs. 50,000/- under the head of amount spent by the claimant for his treatment. When this amount is taken into consideration then total compensation admissible to the claimant will be Rs. 1,80,720/- against Rs. 2,55,000/-. Thus there will be deduction to the tune of Rs. 74,280/- from the amount awarded by the Claims Tribunal. Other terms and conditions of the award shall remain intact.
10. In above terms, appeal as well as cross objections are disposed of.
Order Date :- 21.1.2021
S.K.S.
