Anil Kumar vs Om Prakash
2021 Latest Caselaw 3820 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 1
 

 
Case :- FIRST APPEAL FROM ORDER No. - 50 of 2021
 

 
Appellant :- Anil Kumar
 
Respondent :- Om Prakash
 
Counsel for Appellant :- Jadu Nandan Yadav,Arimardan Yadav
 

 
Hon'ble Vivek Agarwal,J.

Heard Sri J.N. Yadav, learned counsel for the appellant and Sri Krishna Mohan Rai, learned counsel for the claimant.

This appeal has been filed by the owner of the offending motor-cycle being aggrieved of award dated 4.11.2020 passed by learned Motor Accident Claims Tribunal/District Judge Firozabad in MACP No. 0000145 of 2015 on the ground that disability certificate as was produced by the claimant, was prepared after one year of the incident. It is submitted that though it is mentioned that there was fracture in the knee cap and a certificate showing 30% permanent disability was issued but functional disability of the claimant, was not assessed as was required to be assessed in the light of the judgment of Hon'ble Supreme Court in case of Raj Kumar Vs. Ajay Kumar & Ors. 211 (1 SCC) 343.

Sri Krishna Mohan Rai, in his turn, submist that there is no infirmity in the award. In cross examination none of these aspects were suggested to the claimant or to the doctor, who were exhaustively cross examined by the owner of the motor-cycle. It is submitted that now this being a factual ground, is no more open in the appeal as to whether the functional disability was seen or not. Further aspect of functional disability to the extent of 30% has not been disputed by the appellants while cross examining the claimant.

After hearing learned counsel for the parties and perusing available record, it is apparent that learned Tribunal has considered the case as well as the evidence available on record in an exhaustive manner and has come to the conclusion that 30% functional disability on account of fracture of knee cap is made out looking to the fact that claimant is a labourer and will not be able to lift heavy material or will not be able to strain himself on account of fracture in the knee cap, therefore, in view of the fact that learned Tribunal has correctly appreciated the law and the facts of the case in the correct perspective, no interference is called for.

Accordingly, appeals fails and is dismissed.

If any amount is deposited by the appellant, in compliance of the provisions contained in Section 173 of the Motor Vehicles Act, it be remitted to the claims tribunal to be adjusted from the claim amount.

Order Date :- 17.3.2021

CS