Allahabad High Court
U.P. State Road Transport Corporation ... vs Afzal Husain And 7 Others on 3 July, 2024
Author: Rajnish Kumar
Bench: Rajnish Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Neutral Citation No. - 2024:AHC-LKO:45059 Court No. - 6 Case :- FIRST APPEAL FROM ORDER No. - 159 of 2024 Appellant :- U.P. State Road Transport Corporation Thru. Regional Manager Lko. Respondent :- Afzal Husain And 7 Others Counsel for Appellant :- Ambika Prasad Counsel for Respondent :- Sandeep Kumar Agrawal,Nitin Kumar,Sanjana Mittal,Shivansh Agrawal Hon'ble Rajnish Kumar,J.
1. Heard Sri Ambika Prasad, learned counsel for the appellant and Sri Shivansh Agarwal, learned counsel for the claimant-respondent nos.1 to 3.
2. This First Appeal From Order has been filed against the judgment and award dated 11.03.2024 passed by the Motor Accident Claims Tribunal(South), Lucknow in M.A.C. No.179 of 2016(Afzal Husain & Others versus U.P.S.R.T.C. and Another), by means of which the claim petition has been allowed and the compensation has been awarded.
3. Learned counsel for the appellant submits that the deceased was a Doctor and his income was 8,000/- per month but the tribunal has wrongly and illegally determined the monthly income as Rs.25,000/- per month, which could not have been done. He further submits that issue of contributory negligence has neither been made nor considered by the tribunal, whereas both the vehicles were going on the same direction and the eye witness i.e. P.W.2 has stated that he had seen the accident after hearing the noise. Thus, the submission is that the impugned judgment and award is not sustainable and liable to be set aside.
4. Per contra, learned counsel for the respondents submits that the deceased was a qualified Doctor and was getting Rs.8,000/- per month from the government being intern in the Community Health Centre. However, he had an offer of Rs.40,000/- per month in the Aman Polyclinic and First Aid Centre, Faizabad Lucknow, which was filed before the tribunal and after considering the same, the income of the deceased has rightly been assessed as Rs.25,000/- per month. In this regard, he relies on Ashvinbhai Jayantilal Modi versus Ramkaran Ramchandra Sharma and another;2014 ACJ 2648 and Bishnupriya Panda versus Basanti Manjari Mohanty & Another;2023 ACJ 2393.
5. He further submits that the plea of contributory negligence was neither raised before the tribunal nor any issue was framed on this point. Therefore it cannot be raised now at this stage. He further submits that there was no contributory negligence because both the vehicles were going in the same direction and as per the site plan placed on record by the appellant also, the vehicle of the deceased was on the left side and P.W.2 i.e. eye witness has also stated that he had seen the accident and then heard the noise, which has been considered by the tribunal. Thus there is no illegality or error in the findings recorded by the tribunal. In this regard to he relies on U.P. State Road Transport Corporation versus Rani Srivastava and others; 2006 ACJ 1864.
6. On the basis of above, submission of learned counsel for the appellant is that this appeal has been filed on misconceived and baseless grounds and it is liable to be dismissed.
7. Having considered the submissions of learned counsel for the parties, I have gone through the documents placed on record.
8. The Motor Accident Claim Petition No.179 of 2016 was filed by the claimant-respondent nos.1 to 3 claiming compensation on account of death of Dr. Mohd. Irfan in the accident occurred on 26.12.2015 at 10:00 a.m. near Mawaiya Crossing, Alambagh, Police Station Alambagh, Lucknow by Bus No.U.P. 33 A.T. 2939 of U.P.S.R.T.C. After filing of written statement, 4 issues were framed. Thereafter the evidence was adduced by the parties.
9. Learned Tribunal considered the claim in the light of the pleadings and evidence adduced before it and found that the deceased was a qualified M.B.B.S. doctor posted as Medical Officer at the Community Health Centre and getting Rs.8,000/- per month. However, he had an offer of Rs.40,000/- per month from Aman Polyclinic and First Aid Centre, Faizabad which was placed on record as Paper No.C-17. The tribunal considering the present income of the deceased and the offer of salary to the deceased assessed the income of Rs.25,000 per month. This Court does not find any illegality or error in the assessment of per month income of the deceased.
10. The Hon'ble Supreme Court, in the case ofAshvinbhai Jayantilal Modi versus Ramkaran Ramchandra Sharma and Another,(supra) considered Rs.25,000/- as appropriate income of the qualified doctor on the ground that today medical practice is one of the most sought after and rewarding profession and with the tremendous increase in demand for medical professionals, their salaries are also on the rise.
11. The Hon'ble Supreme Court, in the case of Bishnupriya Panda versus Basanti Manjari Mohanty & another(supra), upheld the income of Rs.70,000/- of a qualified medical Doctor.
12. In view of above, this Court does not find any illegality or error in the income of the deceased assessed by the tribunal.
13. So far as the plea of contributory negligence is concerned, this plea has neither been taken before the tribunal nor any issue has been framed by the tribunal on this point. The learned Tribunal after considering the pleadings of the parties and the evidence adduced before it found that the accident was on account of the rash and negligent driving of the driver of the bus. Even otherwise, the accident has been denied by the appellant and once the accident has been denied by the appellant the plea of contributory negligence is not available to the appellant as held by this Court in the case of U.P. State Road Transport Corporation versus Rani Srivastava and others(supra).
14. In view of above and considering the overall facts and circumstances of the case, this Court is of the view that there is no illegality or error in the impugned judgment and award passed by theMotor Accident Claims Tribunal(South), Lucknow in M.A.C. No.179 of 2016(Afzal Husain & Others versus U.P.S.R.T.C. and others), which may call for any interference by this Court. The appeal is misconceived and devoid of any merit and liable to be dismissed.
15. The appeal is dismissed.
16. The statutory deposit made before this Court by the appellant shall be remitted to the concerned tribunal forthwith and in any case within a period of four weeks from today,which may be adjusted towards the payment made to the claimant-respondents under the impugned judgment and award.
Order Date :- 3.7.2024 Akanksha Sri.