- (1.) Instant Civil Misc. Appeal u/Sec. 173 of the Motor Vehicles Act, 1988 has been preferred by the appellant-Insurance Company assailing the impugned award dated.14/07/2015 passed by the Motor Accident Claims Tribunal (Special Court, Dacoity Effected Area) Bharatpur in Claim Case No.56/2009 by which compensation to the tune of Rs.7,17,000/- has been awarded to the claimants-respondents.
(2.) Brief facts as noticed are that on 28/10/2008 one Bhupesh Kumar was going with his brother Nikesh Kumar on a Motorcycle, bearing No.RJ-05-SB-7098, from Mathura to Bharatpur and when they reached at about 4.00 PM in the evening at Hanuman Temple near RTO Check Post in Thana Udhyog Nagar, at that time, one other Motorcycle, bearing No.UP-85-H-3056, which was coming from Bharatpur and was being driven by its driver (Dharamveer Singh), came and hit the Motorcycle of Bhupesh Kumar and consequent thereto Bhupesh Kumar, who was driving the Motorcycle, died on account of serious and grievous injuries sustained by him and his brother Nikesh Kumar got injured. In the said accident, Dharamveer Singh, who was driving the offending vehicle, also died and his wife, who was a pillion rider, also got seriously injured. 2. The claimants-appellants herein submitted claim before the Tribunal and the Tribunal, after analyzing the material on record, has found that there was negligence of drivers of both the Motorcycles and has found that the contributory negligence of both the drivers was 50% each and accordingly allowed a claim to the extent of Rs.7,17,000/- which has been assailed in this appeal by the appellant-Insurance Company.
(3.) Counsel for the appellant at the outset contended that the claim allowed by the Tribunal is totally perverse and bad in law. He contended that in the final report, submitted by the police, authorities, it has been found that there was total negligence of Bhupesh Kumar. He placed reliance on the final report submitted by the police as also the statement of one Om Veer Singh, who was stated to be eye witness and the cross-examination made with him revealed that he stated before the Police Authorities that Bhupesh Kumar was driving the vehicle in high speed, in a rash and negligent manner. On the basis of the said final report as well as statement of Om Veer Singh, counsel contended that when there is total negligence of the deceased (Bhupesh Kumar) who was driving the motorcycle, the order of the Tribunal is unjust and perverse. He further contended that no credible evidence was led about any income earning capacity of the deceased (Bhupesh Kumar) and the Tribunal, without proper appreciation of the material on record, assessed income to the extent of Rs.10,000/- which is highly excessive and unreasonable. He further contended that 30% income has been increased on account of the future prospect when future prospect was not even worth consideration because when income was not proved and there was no permanency or stable source of income, then the question of future prospect does not arise. He further contended that the amount allowed on other heads is also equally excessive and unreasonable and contended that the order of the Tribunal requires to be interfered with.;