Allahabad High Court
Divisional Manager National Insurance ... vs Aftab Alam Chishti And 2 Others on 30 July, 2024
Author: Vipin Chandra Dixit
Bench: Vipin Chandra Dixit
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2024:AHC:122271 Court No. - 35 Case :- FIRST APPEAL FROM ORDER No. - 2423 of 2015 Appellant :- Divisional Manager National Insurance Co. Ltd. Respondent :- Aftab Alam Chishti And 2 Others Counsel for Appellant :- Amit Manohar Counsel for Respondent :- Syed Wajid Ali connected with Case :- FIRST APPEAL FROM ORDER No. - 2015 of 2017 Appellant :- Aftab Alam Chishti Respondent :- Divisional Manager National Insurance Co. Ltd. And 2 Ors. Counsel for Appellant :- Syed Wajid Ali Counsel for Respondent :- Amit Manohar Hon'ble Vipin Chandra Dixit,J.
Heard Sri Amit Manohar, learned counsel for Insurance Company and Mr. Syed Wajid Ali, learned counsel for the claimant. No one is present for owner and driver of the truck.
FAFO No.2423 of 2015 has been filed by the National Insurance Company Limited against judgment and award dated 27.5.2015 passed by Motor Accident Claims Tribunal/ Additional District Judge, Court No. 9, Gorakhpur in M.A.C.P. No.461 of 2013(Aftab Alam Chisti vs. Akhilesh Singh and others), by which compensation of Rs.10,16,000/- alongwith 7% annual interest has been awarded in favour of claimant on account of injuries received by him and the liability has been fixed upon the appellant being insurer of the truck.
FAFO No.2015 of 2017 has been filed by the claimant Aftab Alam Chisti against the same impugned judgment and award dated 27.5.2015 passed by Motor Accident Claims Tribunal/ Additional District Judge, Court No. 9, Gorakhpur in M.A.C.P. No.461 of 2013(Aftab Alam Chisti vs. Akhilesh Singh and two others) for enhancement of compensation.
Both the appeals have been filed by the parties against the same Judgment and award dated 27.5.2015 and as such, both the appeals are being decided by a common judgment.
It is submitted by learned counsel for the Insurance Company that it was a case of head-on collision between a motorcycle and truck. The motorcycle was being driven by the injured claimant in a rash and negligent manner. The claimant himself was responsible for the accident and there was no negligence on the part of truck driver. It is further submitted that in any case, the drivers of both the vehicles were equally rash and negligent and were responsible for the accident, but nothing has been deducted in terms of contributory negligence of motorcyclist. Lastly, it is submitted that as per site plan, it is clear that both the vehicles were coming from opposite directions and collided with each other, which itself shows that both the drivers were negligent.
On the other hand, learned counsel for the claimant submits that the accident was occurred on account of sole negligence of driver of the truck. The truck hit the motorcycle from behind. Even if it is accepted that as per site plan it was a case of head-on collision, the injured was going on his extreme left side and the truck came from wrong side and hit the motorcycle. From perusal of site plan, negligence of truck driver is apparent. It is further submitted that the Claims Tribunal, after considering entire evidence and materials which are available on record, has recorded the finding that the truck driver was rash, negligent and was responsible for the accident. The finding recorded by the Claims Tribunal in respect of negligence is based on evidence and there is no illegality in any manner.
It is further submitted that the Claims Tribunal has erred in not awarding any amount towards future prospects, whereas the claimant is also entitled for 40% future prospects in view of law laid down by the Hon'ble Apex Court in the case of Jagdish vs. Mohan reported in 2018(2) TAC 14. The claimant had spent Rs.61,740/- towards travelling expenses but the Claims Tribunal has awarded only Rs.30,000/- towards travelling expenses. Lastly, it is submitted that as per disability certificate, the claimant has become permanent disabled. The disability certificate issued by the Chief Medical Officer discloses 65% disability and the Claims Tribunal has erred in accepting only 50% loss of earning capacity.
Considered the submission of learned counsel for the parties and perused the record.
It was the case of claimant before the Claims Tribunal that the truck driver was rash and negligent and hit the motorcycle from behind. The claimant and Mr. Nishar Ali appeared before the Claims Tribunal as eye-witness and both of them stated that the truck hit the motorcycle from behind and the truck driver was rash and negligent. No evidence has been led by the Insurance Company in rebuttal and even truck driver was not produced either by owner or by the insurer of the truck. So far as site plan is concerned, it is apparent that the claimant was on his extreme left side and the truck came from wrong side and hit the motorcycle. The Investigating Officer, after due investigation, has submitted charge sheet against the truck driver. The eye witness produced by claimant before the Claims Tribunal has also proved the rash and negligent driving of truck driver and in absence of any evidence in rebuttal, the Claims Tribunal has rightly decided the issue of negligence.
So far as quantum of compensation is concerned, the Claims Tribunal has erred in not awarding any amount towards future prospects, whereas the claimant is also entitled for 40% future prospects in view of law laid down by the Hon'ble Apex Court in the case of Jagdish(supra). The Claims Tribunal has also erred in awarding only Rs.30,000/- towards travelling expenses, whereas the claimant had fully proved the travelling expenses by producing cogent evidence and thus, in absence of any evidence in rebuttal, claimant is entitled for Rs.61,740/- towards travelling expenses. Disability certificate discloses 65% disability of claimant and the Claims Tribunal has rightly accepted 50% loss of earning capacity and there is no illegality in any manner.
In view of above, the FAFO No. 2423 of 2015 filed by the National Insurance Company Limited is dismissed. The interim order, if any, stands discharged. The remaining awarded amount deposited by Insurance Company in compliance of stay order dated 23.9.2015 shall be paid to the claimant forthwith.
FAFO No. 2015 of 2017 filed by the claimant for enhancement of compensation is partly allowed. The compensation awarded by the Claims Tribunal is re-assessed as under:-
1) Monthly income = Rs.6000/-
2) Annual income = Rs. 6000/- X 12 + Rs.72,000/-
3) Future prospects (40%) = Rs.28,800/-
4) Total annual income = Rs.72,000/- + Rs.28,800/- =Rs.1,00,800/-
5) Loss of earning capacity (50%)= Rs.50,400/-
6) Multiplier applicable (16) =Rs.50,400/- x 16 = Rs.8,06,400/-
7) Medical Expenses: Rs.3,00,000/-
8) Travelling Expenses = Rs.61,740/-
9) Pain and sufferings: + Rs.20,000/-
10) Rich Diet: = Rs.10,000/-
11) Future medical expenses: Rs.50,000/-
12) Loss of earning for five months: Rs.30,000/-
Total = Rs.8,06,400/- + Rs.3,00,000/- + Rs.61,740/- + Rs.20,000/- + Rs.10,000/- +Rs.50,000/- + Rs.30,000/- = Rs.12,78,140/-
In view of aforesaid discussion, the appeal filed by claimant is hereby partly allowed and award of the Claims Tribunal is modified and compensation awarded by the Claims Tribunal is enhanced from Rs.10,16,000/- to Rs.12,78,140/-. The claimant is also entitled for 6% interest on the enhanced amount from the date of award dated 27.5.2015.
The respondent No.1 National Insurance Company Limited is directed to pay enhanced amount alongwith interest to the claimant-appellant within two months from today.
No order as to costs.
Order Date :- 30.7.2024 P.P.