RANJANA TRIPATHI Vs. RAJNEESH KUMAR

JUDGEMENT

(1.) In both the aforesaid appeals, award dated 16.4.2012 passed by M.A.C.T./Addl. District Judge Court No. 6. Kanpur Nagar passed in M.A.C.P. No. 55 of 2011 had been challenged whereby the learned Tribunal has awarded compensation of Rs. 18.68,794 to the claimants on account of death of 26-years' old Vishal Tripathi in instant motor accident. The appellants of F.A.F.O. No. 2785 of 2012 are dissatisfied with the award being on lower side, the appellant of F.A.F.O. No. 2806 of 2012 has assailed the award, its liability to indemnify the award as also the contributory negligence of the deceased. Since both the appeals arise out of the same award, so they are being disposed of by this order. It appears that on 18.12.2010 Vishal Tripathi alongwith his friend was going on motor-cycle UP 78-BH/4467 to Krishna Engg. Institute. Ratan Lal Nagar, Kanpur and when he reached Tameshwar Mahadeo Shiv Temple, Panki Bazar the driver of tanker UP 33A/7233 driving the vehicle rashly and negligently dashed with the aforesaid motor cycle on wrong side of the road. Vishal Tripathi sustaining fatal Injuries died on the spot and his friend Digvijay Singh was also injured. The accident was reported to the police. It was alleged that deceased was young man of 26 years; was studying in Krishna Engg. Institute and apart from it he was working as LIC agent and had also agency of Prism Cement in the name of 'Vishal Agencies' and thus his monthly income was Rs. 15,000 and he was assessed to income-tax. The claimants being widow, minor daughter and parents of deceased filed claim for an award of 57.70 lacs. The owner and insurer of Tanker aforesaid contested the claim and denied all the allegations of the claimants. The insurance company further pleaded that exorbitant income of the deceased had been shown and at the most it was a case of contributory negligence. After recording evidence of parties and hearing their counsel, the learned Tribunal found that the accident took place due to sole negligence of tanker driver and the driver of motor-cycle has not contributed in the accident. The issues regarding breach of insurance policy were decided against the insurance company. On the basis of copy of income-tax return of the deceased his annual income for the assessment year 2010-11 was taken at Rs. 1,55,150 and after deducting 1/3rd therefrom and applying multiplier of '18', compensation was calculated to Rs. 18,61,794 and adding Rs. 5,000 for loss of consortium and Rs. 2,000 for funeral expanses, total sum of Rs. 18,68,794 together with simple interest @ 6% per annum from the date of filing the claim petition till final payment, were awarded. The claimants and insurer of offending tanker dissatisfied with the award have come up in appeal.

(2.) We have heard the learned counsel for the parties and perused the impugned award.

(3.) Learned counsel for the insurance company has valiantly tried to assail the award on the premise that from the facts and circumstances of the case as also the evidence available on record, it was a case of contributory negligence and since the deceased was driving the motor-cycle, so he is also responsible for the accident. It has been further submitted that excessive and exorbitant amount of compensation had been awarded. We have perused the evidence led by the claimants. No doubt the claimants have not examined the pillion driver of the motor-cycle, but they have produced other eye-witness of the accident and have also filed copy of F.I.R., site-plan and charge-sheet etc. The site plan clearly shows that both the vehicles were coming from opposite directions and the tanker has cashed the motorcycle by going on wrong side of the road. The opposite-parties did not lead any contra evidence to rebut the evidence of eye-witness Ananjay Sisodia P.W. 2. Even the owner of the tanker did not dare to examine its driver, who could have proved the contributory negligence of the deceased, If any, in the accident. The learned Tribunal has correctly appreciated the oral and documentary evidence available on record on these issues and we find no infirmity therein. Now as regards quantum of compensation and appeal filed by the claimants, we find that the deceased was a multi-task person. On one hand he was studying in the Engg. College and on the other he was doing two businesses. He had agencies of LIC and Prism Cement and was carrying on cement business in the name and style of "Vishal Agencies'. The papers filed by the insurer in its appeal clearly show that the deceased was indulged in both the businesses. He was paying Income-tax and has filed the income-tax return for the assessment year 2010-11 prior to his death on 18.12.2010 in the instant accident. The acknowledgment of ITR is on record and appears to have not been challenged by the opposite parties. The Income shown by the deceased In the ITR prior to his accidental death can very well be taken into consideration by the Tribunal for quantifying the amount of compensation payable to his legal representatives/dependents. The deceased has left behind his young widow, infant baby child and elderly parents. In the wake of evidence available on record, we find that the learned Tribunal has awarded Just and reasonable compensation to the claimants and there is no scope of interference in the award by this Court.