NATIONAL INSURANCE CO. LTD. LUCKNOW Vs. GAURAV SHARMA

JUDGEMENT

(1.) Heard, Mrs. Pooja Arora, learned counsel for the appellant in F.A.F.O. No.137 of 2017 and for respondent no.1 in F.A.F.O. No.217 of 2017 (here-in-after referred as learned counsel for the Insurance Company) and Shri Ashish Chaturvedi, learned counsel for the claimant-respondent no.1 in F.A.F.O. No.137 of 2017 and for appellant in F.A.F.O. No.217 of 2017 (here-in-after referred as learned counsel for claimant). None appeared on behalf of the owner i.e. the respondent no.2 in both the appeals.

(2.) The F.A.F.O. No.137 of 2017 has been filed under Sec. 173 of Motor Vehicle Act, 1908 (here-in-after referred as MV Act) challenging the judgment and award dtd. 23/11/2016 passed in Claim Petition No.163 of 2011 (Gaurav Sharma Vs. Rajesh Kumar Tiwari and another). The F.A.F.O. No.217 of 2017 has been filed for enhancement of compensation. Hence both the appeals are clubbed and decided together with this common judgment and order.

(3.) Learned counsel for the Insurance Company submits that the claimant; Gaurav Sharma, who appeared as PW-1 admitted in his cross-examination that he had seen in his rear view mirror of scooty that the truck is coming on his back side but he had not tried to save him, therefore, his contributory negligence can not be denied but the learned tribunal has failed to consider it. The PW-2 has admitted in his evidence that he had seen the accident after hearing, therefore, he can not be said to be an eye witness to the accident. Thus, the rash and negligent driving of the offending truck also can not be said to have been proved, but the learned tribunal failed to consider it all. She further submits that the concerned doctor has not been produced to prove as to what would be the extent of future loss to the claimant on account of the disablement suffered by him in the accident, therefore, the assessment in this regard made by the learned tribunal is not tenable. Even otherwise, as per the old act the permanent disability could have been determined in terms of schedule-II of the said act in application under Sec. 163-A of MV Act. Lastly, she submits that the proforma for filing application under Sec. 163-A is given in SR-49 and the tribunal could not have traveled beyond the provisions of said Sec. and allowed the compensation to the claimant treating the claim petition under Sec. 166 of the MV Act. On the basis of above, learned counsel for the appellant submits that the judgment and award passed by the learned tribunal is not sustainable and liable to be set-aside.