Ram Krishna Gautam, J. - (1.) Heard Sri Vinay Kumar Khare, learned counsel for the appellant, Sri S.P.S. Parmar and Sri Sujit Kumar, learned counsel for the respondents.
(2.) This First Appeal From Order under Section 173 of Motor Vehicle Act, 1988 has been filed by Oriental Insurance Company Ltd. against Smt. Urmila Devi and others against award dated 28.05.2009 of Motor Accident Claim Tribunal/Additional District Judge, Court No. 6, Allahabad passed in Motor Accident Claim Petition No. 501 of 2018 (Smt. Urmila Devi and others Vs. Ratan Sen Singh and another), with this contention that tribunal failed to appreciate the facts and laws laid before it.
(3.) It was very clear from the site map that the accident taken place on triangle of the road on collusion between two vehicles, when the motorcycle driver had taken turn on this triangle came in the middle of the road and the deceased was pillion rider of above motorcycle. Hence, the tribunal ignored this fact of contributory negligence of the motorcycle driver, the sole responsibility of truck driver and its insurance company has been fixed whereas this was not the sole negligence and rashness of the driver of the truck concerned. Eye witness account of PW-2 was of interested witness and this was the basis for judgment. PW-3, Rajendra Bihari Dwivedi was also the real brother of deceased and was driver of above motorcycle, hence, he too was interested eye witness. Earning has been fixed on the basis of assumption because no documentary evidence of earning was there. The contention was of monthly earning of Rs. 20,000/-, out of which he was earning Rs. 10,000/- from agriculture and Rs. 10,000/- from profession of advocacy, however, there is no documentary proof of income whatsoever and no income tax return was filed, on record. Income of deceased as claimed was absolutely incorrect and false. This was with contradiction in the testimony of PW-1 and PW-2. A compensation in the tune of Rs. 7,13,500/- along with 6% interest was awarded, which was excessively high. Hence, the counsel for other side argued that the deceased was a prominent lawyer of more than 20 years standing practice with agricultural land and the income given, was out of both of the above sources, which has been properly taken into account by the Tribunal. The contributory negligence was not accepted and there is no negligence on account of motorcycle rider.;