F.A.F.O. No. 1070 of 2008. Case: New India Assurance Co. Ltd Vs Richa Singh Katiyar and Ors. High Court of Allahabad (India)
| Case Number | F.A.F.O. No. 1070 of 2008 |
| Counsel | For Appellant: U.P.S. Kushwaha, V.P. Singh, learned and For Respondents: Vijai Pratap Singh and S.C. Verma, V.K. Yadav, Brijesh Kumar Shukla, appearing |
| Judges | Devi Prasad Singh, J. and Arun Tandon, J. |
| Issue | Motor Vehicles Act (59 of 1988) - Sections 163, 168, 169; U.P. Motor Vehicles Rules (1998) - Rules 205, 221; Civil Procedure Code (5 of 1908) - Order 18 Rule 4 |
| Citation | AIR 2011 All 107 |
| Judgement Date | November 18, 2010 |
| Court | High Court of Allahabad (India) |
Judgment:
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Heard Mr. U.P.S. Kushwaha and Mr. V.P. Singh, learned counsel appearing on behalf of the appellants and Mr. Vijai Pratap Singh and Mr. S.C. Verma, Mr. V.K. Yadav and Mr. Brijesh Kumar Shukla, appearing for the respondents.
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Delay in filing the appeal is condoned.
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Present appeals have been filed challenging the award dated 15.7.2008, passed in Claim Petition No.77 of 2004 by Additional District Judge/Motor Accidents Claims Tribunal/Court No.1-Lucknow. The New India Assurance Co. Limited has filed the appeal challenging the award whereas the claimant respondents have filed the appeal for enhancement of the compensation.
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Facts giving rise to the present controversy relate to an accident occurred on 21.1.2004 at about 11.00 a.m. The deceased was travelling in car Maruti Zen No.LX No.U.P.-32-AD/7682 from district Lakhimpur. While they were turning from Lakhimpur towards Sitapur, a Bolero Jeep No.UP-31-F-8300 coming from Lakhimpur at a high speed of about 80km per hour collided with Maruti Zen resulting in the accident in which Smt. Pankaj aged about 47 years and Dr. Laxman Lal aged about 50 years succumbed to the injuries. Two other persons who were in the Maruti Zen suffered injuries but their case is not before this Court.
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The Tribunal recorded a finding that because of rash and negligent driving of the Bulero Jeep, the accident occurred resulting in the death of the deceased. The Tribunal has applied the multiplier of 13 with regard to Smt. Pankaj whereas with regard to Dr. Laxman Lal, multiplier of 10 has been used in terms of Schedule-II of the Motor Vehicles Act and awarded compensation accordingly.
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Learned counsel for the appellant has challenged the award, mainly on three grounds, which are as under:
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The evidence led by the claimants is not admissible.
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It is a case of contributory negligence.
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Multiplier applied by the Tribunal is not correct.
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Before the Tribunal, an eye-witness namely P.W.2 Krishna Gangwar who was travelling in the same car supported the case of the claimant respondents. The witness stated that the said Jeep was coming with high speed of 80 or more kilometre per hour when it dashed with Maruti Zen, the latter was moving at a speed of 30-35km per hour. He further stated that he is a junior scientist and was travelling in the Maruti Zen at the time of accident. After perusal of the site plan, the Tribunal recorded a finding that direction of both the vehicles at the spot was towards Sitapur and the Bolero Jeep dashed with the car from the wrong side. On the basis of the technical report of the Maruti Zen, a finding has been recorded that the front portion was damaged whereas the technical report of Bolero car shows that its right front tyre was damaged along with main head screen. Keeping in view the damage caused to both the vehicles, the Tribunal on the basis of the technical report and evidence led by the parties, recorded a finding that it was the fault of the Bolero Jeep which tried to overtake the Maruti Zen resulting in the accident in question.
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Now, coming to the first contention with regard to admissibility of evidence. While assailing the award in question, it is submitted by the appellants' counsel that before the Tribunal, the witnesses had filed their affidavit and thereafter the appellant's counsel was permitted to cross-examine them. Submission of the appellant's counsel is that since no examination-in-Chief was recorded by the Tribunal, the evidence led by the claimants is not admissible.
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On the other hand, learned counsel appearing for the respondents submitted that from the appellants' side also, an affidavit was filed which was taken on record and since no objection was raised by the appellant before the Tribunal with regard to affidavit filed by the claimant, at this stage, he has got no right to challenge the sustainability/admissibility of the affidavit.
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U.P. Motor Vehicles Rules, 1998 (in short, 1998 Rules) deal with the procedure to try the accident claims under the Motor Vehicles Act. Rule 205 provides that in case the claimant is present personally, then he may be examined on oath. Rule 208 provides that the owner of the vehicle and the insurer may, at or before the first hearing or within such further time as the Claims Tribunal may allow, file a written statement dealing with the claim raised in the application. In case the claim is contested, the Claims Tribunal shall, with a view to elucidating matters in controversy between the parties, examine orally such of the parties to the claim proceeding as it deems, fit. Rule 209 relates to framing of issues and 210 relates to summoning of witnesses whereas Rule 212 relates to method of recording evidence. Rule 221 provides that the provisions of the Code of Civil Procedure may be made applicable as far as possible. For convenience, Rules 204, 205, 208, 209, 210, 212 and 221 are reproduced as under:
204. Application for compensation.- (1) Every application for payment of compensation made under Section 166 shall as far as possible be made in Form SR-48 if the compensation is claimed otherwise than under Section 163-A and in Form SR-49 if compensation is claimed under Section 163-A and be accompanied by a fee of rupees ten in the form of Court fee stamps.
Provided that the compensation under Section 163-A shall be full and final settlement of the claim and claimant shall not be entitled to file any other application for claim under the Act.
(2) All applications, before the Claims Tribunal, other than those mentioned in sub-rule (1) shall be stamped with a Court fee stamp of rupees five. A process fee of rupees ten...
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