Allahabad High Court
National Insurance Company Ltd. ... vs Smt. Rekha Soni And 6 Others on 10 May, 2023
Bench: Jaspreet Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Neutral Citation No. - 2023:AHC-LKO:31968
Court No. - 19
Case :- FIRST APPEAL FROM ORDER No. - 142 of 2023
Appellant :- National Insurance Company Ltd. Thru. Regional Manager Lko.
Respondent :- Smt. Rekha Soni And 6 Others
Counsel for Appellant :- Satyajit Banerji
Hon'ble Jaspreet Singh,J.
Heard Shri Satyajit Banerji, learned counsel for the appellant.
The instant appeal has been preferred under Section 173 of the Motor Vehicle Act, 1988 assailing the judgment and award dated 10.02.2023 passed by the Motor Accident Claims Tribunal, Barabanki in Claim Petition No.224/2018, whereby a sum of Rs.39,27,340/- has been awarded in favour of the claimants-respondents.
The submission of the learned counsel for the appellant is two fold.
(i) That the Tribunal has erred in not taking the date of birth of the deceased as 06.04.1975 which was the date of birth as incorporated in the Income-Tax Return.
The submission is that the claimants had filed an Income-Tax Return of the deceased for the Assessment Year 2016-17, wherein the date of birth of the deceased was mentioned as 06.07.1975. Since, the income of the deceased has been adopted from the Income-Tax Return, therefore, the date of birth which was mentioned therein was the date and such age ought to have been adopted by the Tribunal and it was not open for the Tribunal to have taken the date of birth as 06.04.1980, which was mentioned in the high-school mark-sheet.
It is further urged that even otherwise, it would indicate that there was a variance in the date of birth of the deceased. Apart from the fact one date was mentioned in the Income-Tax Return and another was mentioned in the driving licence whereas a third was mentioned in a certificate issued by Madhyamik Shiksha Parishad and a different year of birth was mentioned in the election voter card which indicated that the year of birth is 1979. It is thus, urged that where such a huge variance in the age of the deceased was noticed, it was not open for the Tribunal to have adopted the one in the educational certificate.
(ii) the second submission advanced by the learned counsel for the appellant is that the manner in which the accident has occurred and is also evident from the site plan, it indicates that it was a clear case of contributory negligence and this aspect of the matter has not been considered by the Tribunal which resulted in sheer miscarriage of justice.
The Court has considered the submissions advanced by the learned counsel for the appellant and has also perused the material on record.
Before adverting to the submissions, the brief facts giving rise to the appeal are being noticed first.
On 15.08.2016 at 05:16, the deceased along with his wife was going towards Barabanki on his motorcycle bearing UP-41-W-9282 where a car bearing No.UP-32-DB-4718, which was driven by its driver rashly and negligently hit the motorcycle from the back. In the aforesaid accident, the deceased and his wife, both were injured and the deceased died on 22.08.2016 at Trauma Centre, Lucknow due to the injuries received by him in the said accident. An FIR bearing Case Crime No.109/2016 was registered for the aforesaid accident. The vehicle in question was insured by the appellant Insurance Company and the insurance policy was valid from 18.06.2016 to 17.06.2017. The deceased was engaged in the business of carpenter. The claimants-respondents have filed a claim petition which was contested by the appellant-Insurance Company as well as the owner and the driver of the vehicle. The Tribunal after considering the oral and the documentary evidence led by the parties, it framed seven issues and has awarded a compensation of Rs.39,27,340/- in favour of the claimants-respondents.
Insofar as the first submission is concerned, this Court finds that merely one of the documents which have been produced on behalf of the claimants indicating the date of birth of the deceased is a high-school certificate, wherein the date has been mentioned as 06.04.1980. There may be a chance where the date of birth have been mentioned in various other documents such as driving licence, Aadhar Card as well as the Income-Tax Return, however, insofar as the determinative document for age is concerned, it would be the high-school certificate wherein the date has been mentioned as 06.04.1980 and taking the aforesaid that the Tribunal has taken it to be base upon which the multiplier has been adopted and in this way, this Court finds that there is no error committed by the Tribunal.
The submission made by the learned counsel for the appellant that in case if the income is being taken from the Income-Tax Return, therefore, the age should also be adopted from the said document is not quite correct. Insofar as the Income-tax Return is concerned, it is not a determinative document regarding the date of birth of the assessee. However, the date of birth can be determined by the high-school certificate and, therefore, for the aforesaid reason, this Court does not find that there is any merit in the submission made by the learned counsel for the appellant.
Regarding the other submission made by the learned counsel for the appellant regarding the contributory negligence, this Court finds that the same is misconceived for the reasons that neither the aforesaid plea was raised by the Insurance Company in its written statement nor it was raised by the driver/owner of the offending vehicle. Merely on the basis of a site plan which has been annexed as Annexure no.2 at running page 62 of the paper-book and on the basis thereof it is sought to be developed that the manner in which the accident occurred and the way it has been depicted in the site plan, it gives rise to a clear case of contributory negligence.
The aforesaid submission does not stand for the reason that merely a case of contributory negligence cannot be made out from the site plan which has been adequately considered by the Apex Court in Jiju Kuruvila and others v. Kunjujamma Mohan and others, (2013) 8 SCC 166; Mohammed Siddique and another v. National Insurance Company Limited and others, (2020) 3 SCC 57 which has been followed by this Court in Smt. Sarojini Devi and another v. Area Manager, UPSRTC Faizabad and another, in F.A.F.O. No.82 of 2011, decided on 18.04.2023.
The learned counsel for the appellant could not dispute the fact that the aforesaid plea was neither raised in the pleadings nor any evidence to the aforesaid effect was led, therefore, in absence thereof, this Court does not find that there is any merit in the aforesaid submissions and for the aforesaid reasons, the appeal lacks merit and is accordingly dismissed at the admission stage. The award dated 10.02.2023 passed by the Motor Accident Claims Tribunal, Barabanki in Claim Petition No.224/2018 is affirmed.
Order Date :- 10.5.2023
Rakesh/-
