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Judgment
This appeal has been preferred challenging the judgment dated 26.11.2008 rendered by the learned Tribunal in MACP No.90 of 2007.
The accident occurred on 03.03.2007 at 3:45 P.M. when Shri Bishan Dutt Palariya, motorcycle borne a youth was dashed by Truck No.UP-01/3297 while he was going from Kathgodam to Amratpur his village (near Ranibagh, Military Camp). Mr. Palariya aged 32 years, breathed his last due to serious injuries suffered by him in the said accident. So, his young widow along with a minor daughter of two years as well as his parents presented the petition claiming the compensation of Rs.20,00,000/- where against Rs.10,28,280/- has been granted by the learned Tribunal along with 7% interest thereon since the date of institution of the petition till the actual payment is made. The insurance company has challenged the award on two points.
Firstly, the award has been challenged on the ground of contributory negligence, calling the attention of this Court towards the orders of the Trial Court passed on 30.7.2008 asking the claimants to produce the driving license of the deceased. The need of producing such driving license of the deceased as well as other papers of the
motorcycle arose because the claimants did not implead either the owner or the driver of the motorcycle. In the light of the averments, they pleaded in the claim petition, the motorcycle was being driven by some other person while Shri Bishan Dutt Palariya was a pillion rider. These averments by themselves are not reliable for the reason that the independent witness examined by the claimants to support their petition is Shri Prakash Chandra Sharma (PW-2) who has deposed in the chief examination that Shri Bishan Dutt Palariya, was just standing beside the motorcycle no. UP- 02D/7503. So, this deposition of a so called eyewitness is against the pleadings of the petitioner themselves and the doubt of the Court is strengthened on account of the reason that notwithstanding the orders of this Court dated 30.7.2008, neither the driving license nor any paper of such motorcycle was ever produced. The petitioner did not even give any explanation/clarification for their failure in making the compliance of the directions of the Trial Court. The producing of the driving license of Shri Palariya, all the more become significant for the reason that he was to be the driver by way of vocation in his day-to-day career. So, this Court accepts the plea of the insurance company, in absence of the driving license of Mr. Palariya, that the fastening of the award should be attributed with the notion of contributory negligence. I assign the responsibility of this negligence 50- 50 percent to the truck driver as well as Mr. Palariya.
The second reason which has been raised for challenge of the award is the quantum. The petitioners filed the income tax return of Rs.97,485/- for the financial year w.e.f. 01.4.2005 to 31.3.2006 submitted by the deceased in the office of the Joint Commissioner (Income tax) on 23.11.2006 bearing the seal and signature of the concerned officer.
There is no reason to disbelieve this certificate of the income tax return and I think there is no need to get it proved by summoning the income tax official because it was produced by Shri Bishan Dutt Palariya deceased himself who could not be examined on account of losing of his life in the said accident, so the ruling of Shri Kashmir Singh vs. Santosh Singh Patiner reported in 2006(2) UD 693 is not attracted in the matter.
As regards the quantum I do not find any infirmity in the facts and circumstances of the case but at the same time, I reduce the total quantum to 50 percent along with the interest accrued on the said amount, apportioning the equal half liability of the motor cycle borne youth. Subject to the above modification, the appeal is disposed of in such terms. Any excess amount deposited by the insurance company shall be returned to the insurer while the remaining amount along with interest accrued thereon shall be reimbursed to the claimants as per directions of the learned Tribunal. Compulsory statutory amount shall also be returned to the learned Tribunal along with the interest it has earned.
LCR be sent back.