Hari Mohan Sarswat vs. DCIT CIRCLE

What would be important for consideration of this Appeal would be the stand, which has been taken by the present appellant, who was impleaded therein as opposite party No. 3 before the Tribunal, when he has filed the written statement on 18th December, 2012, being paper No. 29 Kha.

In fact, if the written statement of the present appellant, i.e. being paper No. 29 Kha; that itself is taken into consideration, primarily, at this stage, this Court feels it apt to extract the pleadings which had been raised in para 15 of the written statement towards an aspect of “exclusive negligence” or an aspect of “contributory negligence”. Para 15 is extracted hereunder:- “15. That the allegation that the alleged Canter No.U.A.-04E-3581 was rashly and negligently driven is wrong not admitted and denied. It is wrong that the alleged accident was caused on the alleged date, time and place and in the manner as alleged in the petition.

If para 15 is taken into consideration, in fact, it is a specific case of the appellant, that it was not the Canter, which was being driven rashly and negligently rather the burden of negligence was shifted to the driver of the Car, and which was a fact not denied by the Insurance Company in the written statement.

Apart from it, in the pleading pertaining to the aspect of contributory negligence, the solitary allegation of negligence has been attributed to the driver of the offending vehicle i.e. the Car and the plea of contributory negligence was raised as an alternative plea, in the written statement.

Apart from that, the appellant in his written statement had taken a stand, that the owner /insured, did not choose to appear in the proceedings before the Tribunal and has rather failed to contest the same and hence, in the absence of an adequate contest being given to the claim proceedings, the Claim Petition on merits could not be appropriately and effectively adjudicated.

Apart from that, the opposite party No. 3 i.e. appellant, herein, has raised a plea pertaining to the non compliance of the mandatory provisions of Section 134 (c) and Section 158 (6) of the Motor Vehicle Act, as well as the effect of the provisions contained under Section 64 (v) (b) of the Insurance Act.

There have been an independent written statement, being paper No. 33 Ga, which was filed by the opposite party No. 5, to the Claim Petition, i.e. the Insurer of the Santro Car, who had attributed the entire negligence and liability, as per the pleadings raised in para 20 and 21 of the written statement to have been exclusively vested upon the offending vehicle, i.e. Canter No. UA 04E 3581, which was being driven rashly and negligently.

On the basis of the aforesaid pleadings, which was exchanged between the parties to the proceedings, the learned Tribunal by its order of 12th September, 2013, had framed the following issues for determination:- “1. Ɛा िदनाँक 31-12-2011 को समय 5.30 बजे पी.एम. स्थान बİˑया, टनकपुर चɼावत राʼŌीय राजमागŊ थाना Ɨेत्र टनकपुर थाना चɼावत मŐ कैȴर नं 0 यू0ए0 04 ई0-3581 के चालक Ȫारा प्रʲगत वाहन को तेजी व लापरवाही से चलाते Šए याची महेश कɊाल की कार संƥा यू.ए. 06 जी- 5188 मŐ टſर मार दी, िजससे कार मŐ बैठे याची व उसकी पȉी व बDŽों को गʁीर चोटŐ आयीं?

Ɛा किथत दुघŊटना की िदनांक को वाहन कैȴर नं० यू०ए० 04ई0-3581 की बीमा पॉिलसी वैध थी एवं इस वाहन से सɾİɀत सभी दˑावेज वैध थे?

Ɛा किथत दुघŊटना की िदनांक को वाहन कैȴर नं० यू०ए०

Ɛा दुघŊटना वाहन कैȴर नं0 यू0ए0 04ई0-3581 एवं वाहन के चालक एवं वाहन कार संƥा यू.ए. 06 जी-5188 के चालकों की योगदायी उपेƗा के कारण घिटत Šई? यिद हां तो प्रभाव ? 5. Ɛा दुघŊटना के समय वाहन कार संƥा यू.ए. 06 जी-5188 के वाहन चालक के पास चालक अनुǒा पत्र व वैध प्रपत्र नहीं थे, यिद हाँ तो प्रभाव ? 6. Ɛा याची कोई प्रितकर की धनरािश प्राɑ करने का अिधकारी है यिद हाँ तो िकस िवपƗी से तथा िकतनी प्रितकर धनरािश प्राɑ करने का अिधकारी है ?”

In fact, even if the issues, which were framed on 12.09.2013, are taken into consideration, at no point of time, ever the appellant had sought a formulation of an issue of contributory negligence, or with regard to the effect of the non examination of the doctor, which has been pressed by the learned Counsel during the course of the argument of the Appeal from Order, as to what bearing will it have, for the purposes of determining the compensation payable to the claimants as raised therein. Because nothing under law prohibited the appellant, to get proper issues framed, as expected by him, by invoking Order 14 Rule 3/4 of the C.P.C..

The reason being that the proceedings before the Tribunal are Civil proceedings, which are procedurally governed by the provisions contained under Chapter-13 of the Act.

The reference to the procedure, which has been prescribed under Chapter 13, it has been specifically referred

The question would be, that when the appellant had voluntarily, contested the proceedings of the Claim Petition No. 308 of 2012, based on the defence which had been taken by them in the written statement, i.e. paper No. 29 Kha, and particularly, when the vague assertions or the pleadings of defence were taken in the written statement, whether they could be permitted to qualify their defence at the stage, when the award is subjected to scrutiny in the exercise of appellate jurisdiction under Section 173 of the Act, and can be an argument be at all pressed in the absence of pleading and evidence of contributory negligence.

Based on the aforesaid issues, the learned Tribunal has proceeded to decide the Claim Petition by the impugned award and thereby awarding the compensation as referred to above.

The matter was addressed by the learned Senior Counsel for the appellant and he has confined his address limited from the following perspectives:-

With all due reverence at my command, I am not in league with the arguments which had been extended by the learned Senior Counsel, on all the above aspects, for the reasons to be followed hereinafter.

The logic is, that whatsoever has been argued by the learned Senior Counsel, in support of his contention in the present Appeal from Order, is even beyond his own pleadings, which were raised before the Court below and this Court even not hesitate to observe that the pleadings has been rather in absolute contravention to the records, which was placed by way of evidence before the Court below.

Apart from it, all this extensive argument, which has been raised by the learned counsel for the appellant, would not be tenable or rather it would not be open for him

The ground of defence, is a burden, which is to be discharged by the defendant by adducing evidence either documentary or oral. But, in view of what has been observed in para 11, of the impugned award, and which is not disputed in the grounds too, which has been taken in the Appeal, it reads that opposite party No. 3 therein, i.e. present appellant “had not led any oral or documentary” evidence in support of their contention.

In that eventuality, the learned counsel for the appellant cannot take the liberty to extend the scope of argument, which was not even attempted to be substantiated by him before the learned Tribunal.

Lastly, he had submitted that the Tribunal, has erred at law by not applying the principle of deduction of 1/3 of the amount from the dependency of the claimants as determined by the learned Tribunal.

This Court feels it to be appropriate to deal with all these issues independently.

Firstly, the aspect as argued is of contributory negligence. For the purposes of substantiating his argument

An aspect of contributory negligence as per opinion of this Court, it cannot be isolatedly determined exclusively based on the defence raised by way of pleadings or ground before the Appellate Court. It was required to be proved by a party to the proceedings, who draws the defence of contributory negligence.

The contributory negligence, is always an aspect, which could be determined and appreciated by the Tribunal only after producing oral or documentary evidence in support thereto before the Court below, because contributory negligence would be an aspect, which always varies, from case to case which would be depending upon the circumstances of each case. The defence of the contributory negligence, as it has been taken at an appellate stage in the absence of there being any attempt made by the appellant to establish the same before Tribunal by producing oral or documentary evidence before the Court below or even before this Court even, the appellant’s plea cannot be taken into

Merely seeing a vehicle, coming from the opposite direction and without establishing the fact by evidence whether it was head on collision or not, because there was no site plan also, which has been ever placed on record by appellant to substantiate the case, that it was a case of the contributory negligence, an exclusive statement recorded by PW1 or by PW2, who was a co passenger, who recorded his statement on 20th February, 2014, and particularly, the counsel for the appellant, when he has drawn the attention of this Court to the contents of para 7 and 8 of the statement, which is extracted hereunder:

dkj dks egs”k dU;ky pyk jgs Fksa vkSj esa viuh cxy okyh lhV ij cSBk FkkA esus dsUVj dks 8&10 ehVj dh nwjh ls vkrs gq, ns[k fy;k FkkA nq?kZVuk ....jksM+ lh/kh FkhA

In case, if the statement of PW2 is appreciated and taken into consideration, merely because he has asserted, that he has seen the canter coming from the opposite direction, having a distance of about 8 to 10 metres and without there being any other statement to the contrary made as to in what manner, the head on collision could be established by the statement made by PW2, no inference to the contrary could be drawn, that it was a case of contributory negligence and particularly, when the admitted case of the appellant in the written statement is that the aspect of contributory negligence has been taken as an alternative unsubstantiated plea. Hence, this plea of contributory negligence is turned down.

The second issue, which has been raised by the learned Senior Counsel for the appellant is, that the disability certificate, which was issued to the claimant by the Doctor attending upon him; cannot be read in evidence, for the reason being, that the doctors were not examined and hence, the certification given of the applicant of having suffered hundred percent disability, cannot be taken as to be the basis for the determination of the future disability or incapacity of the appellant from his future fruitful employment.

It is contended by the appellant, that in the absence of the document being proved by evidence on

At this stage itself, this Courts feels it necessary to observe that yesterday when the proceedings of the present Appeal from Order was heard, there was a pending Application No. 11105 of 2022, filed by respondents, by invoking the provisions contained under Order 41 Rule 27 of the CPC, placing on record the disability certificate, which had been later on issued on 25th October, 2017, in fact, without there being any written objection being filed to the application, an oral objection has been raised by the learned counsel for the appellant, that the said document cannot be read in evidence, for the purposes of the determining the percentage of disability, which was suffered by them rendering him to be incapacitated in his future employment.

What has been harped upon by the learned Senior Counsel for the appellant are the observations, which had been made in the earlier disability certificate on record as evidence, is from two perspectives:-

This plea of the appellant’s Counsel is self contradictory to his own case.

Once again, this Court is constrained to observe that the possibility of an improvement will always fall to be within an exclusive domain of determination which was to be made by the Medical Experts, on the later examination of the claimant, whose opinion cannot be substituted by the Courts and that too, without any credible material on record, by the professionals other than those of medical practitioners. The interpretation given to the terminology used in the disability certificate of “likely to improve”, merely because of by referring to that and without substantiating to prove it, to the contrary by producing any evidence at any of the stage of the proceedings, the philosophy argued pertaining to the effect of likelihood of future improvement would rather result into reduction of the determination of compensation made by the Tribunal is a fact, which is yet again not accepted by this Court, because it was an exclusive burden, which was supposed to be discharged by the appellant in the proceedings which were held before the Court below, which he has not

This issue is also required to be dealt with in the context of the argument extended by the learned counsel for the appellant, that the disability certificate, which was endorsed, to be not accepted by the appellant, could not have been read in evidence in the absence of the doctor being produced before the Court below.

First of all, this contention of the learned counsel for the appellant is not accepted, for the reason being, that the disability certificate, which has been issued bearing No. 1/49/2012 dated 24th July, 2012, in fact, it was a certificate, which was issued by Medical Board, who had examined the claimants and later on, the said decision and the determination of the disability owing to the injuries, which was an aspect, which has been dealt with therein, that it is traumatic paralysis (spinal injuries), the same was countersigned by the Medical Superintendent of the Government Hospital, Khatima. Hence, there is no valid reason to disbelieve the disability certificate issued by the Medical Board.

Hence, since the opinion of disability has been expressed by the Medical Experts, and Medical Board’s opinion, no second view can be taken to the document, particularly when, if at all, the appellant attempts to controvert, its content and that too in the absence of he discharging his responsibilities to prove certificate otherwise.

So far as the argument of the appellant is concerned, qua the acceptance of the disabilities certificate, to be read in evidence, in the absence of the Doctors being produced in the witness box to be examined, in support of their contention, supporting the contents of the medical documents, in fact, the learned counsel for the respondents had drawn the attention of this Court to the statement recorded by PW9, i.e. Dr. H.S. Kaithait, who had appeared in the witness box and who recorded his statement on 31st July, 2014, fortifying the fact, particularly the statement, which has been recorded in para 4 and in para 14 and 15 of the statement. He has rather fully supported the nature of injuries which was suffered. He has supported 100% disability certificate, which was issued by the Medical Board. Hence, the contention of the learned counsel for the appellant, that in the absence of the doctor having been examined, the medical certificate cannot be exclusively read in evidence is not tenable, to be accepted at this appellate stage, and that too particularly, when the burden was not discharged by the appellant to prove it to the contrary.

The next question, which was argued by the learned counsel for the appellant is qua the plea of 1/3rd deduction, which was required to be made by the Tribunal, while determining the compensation, on the ground, that one third deduction has to be made for the purposes of assessment of compensation, as to be a factum of an amount, which was involved and would be deemed to be utilized for

This argument is being impressed upon by the learned counsel for the appellant in the light of the judgement reported in (2017) 5 SCC 79, Shivakumar M. Vs. Managing Director, Bengaluru Metropolitan Transport Corporation, wherein, particularly, he has drawn reference to para 6 of the said judgement, which is extracted hereunder:-

This case too was a case of injuries, wherein the disability, which was assessed by the doctors was 81% disability of the limb and the whole body disability as only 24.3% and doctor has certified therein as to be an overall disability of 40%, and it was in that eventuality, where the

This principle, with all due reverence at my command, is not the rationale ratio laid down by the Hon’ble Apex Court, as it would not be a judgment in rem, but it would be a judgment in persona, depending upon the facts of the said case and the logic is not to accept the principle of deduction is that in the instant case as already observed while dealing with the aspect of disability, it is a case of 100% disability and the effect of plea of a likelihood of future progress in improving the condition, is only a hypothetical basis, which is not being established in the instant case, and hence, the co-related deduction, where disability of 40% has been attempted to be read in consonance to the hundred percent disability of the present appellant, the said principle will not be applicable in the instant case.

The learned counsel for the appellant has yet again referred to another judgement as reported in 2005 (2) T.A.C. 297, New India Assurance Co. Ltd. Vs. Charlie and another, where the learned counsel for the appellant has made reference to para 5, in relation to substantiate his case with regard to the principles of 1/3 of deduction and he has

In fact, if the observation, which had been made by the Hon’ble Apex Court in the said judgement is taken into consideration, it was only a contention, which was being dealt with by the Hon’ble Apex Court, but it was rather not a ratio mandating 1/3 deduction, invariably to be applied in all the cases, irrespective of the involved different facts and circumstances, and since the observation in para 5 relied by the appellant is only a discussion of a case developed by the parties to the proceedings and since it not being a ratio, it cannot be universally made applicable, to envisage the concept of 1/3 deduction to be made even in those cases of permanent disability, as it has been observed by the Hon’ble Apex Court in the matters of Raj Kumar.

In response to the argument, extended pertaining to the expected 1/3 deduction, the learned counsel for the respondents had referred to a judgement as reported in (2011) 1 SCC 343, Raj Kumar Vs. Ajay Kumar and another, and particularly, he has referred to the observation which has

The Hon’ble Apex Court, in the aforesaid judgement of Raj Kumar (Supra), where it was also a case of 100% disability, as observed in para 9 of the said judgement, has laid down that the aspect of determination of compensation in para 19 and 27, as to what would be the safe parameters to determine the compensation in the cases, where

Rather the Hon’ble Apex Court in para 19 and 27 of the judgement, which is extracted hereunder, has observed that the injured claimant, who has suffered a disability of 100% affecting his future loss of earnings, to the claimant, there is no need to deduct one-third or any other percentage of deduction out of the income accruing to the injured person. Para 19 and 27 are extracted hereunder :- “19. We may now summarize the principles discussed above :

In the case of an injured claimant with a disability, what is calculated is the future loss of earning of the claimant, payable to claimant, (as contrasted from loss of dependency calculated in a fatal accident, where the dependent family members of the deceased are the claimants). Therefore there is no need to deduct one-third or any other percentage from out of the income, towards the personal and living expenses.”

Apart from the aforesaid ratio, this Court is of the view that in the cases of grievous injuries, resulting into 100% disability, the aspect of exclusion of personal expenditure to the extent of 1/3 of the income, it cannot be universally made applicable in all the cases of accident, where claim is raised on account of injury suffered, because 1/3 deduction is not required to be made in those cases, where the victim is survived in an accident, because that amount of 1/3 alleged deduction, would still continue to be an expenditure, which he will have to incur for the purposes, of his existence to meet out his personal needs of day to day life.

In fact, if the judgement of the Hon’ble Apex Court in the case of Raj Kumar (Supra), is taken into consideration, particularly, in the light of the observation made in para 9, 19, and 27, which has to be compositely read and which was in correlation to the cases of 100% disability,

At this stage, this Court feel it to be apt to refer to the additional evidence, which has been placed on record by the learned counsel for the appellant, by filing the Application No. 11105 of 2022, along with the disability certificate No. 202/2017, as it was later issued on 25th October, 2017, which has been orally opposed by the learned counsel for the appellant.

In fact, if this certificate of disability is to be taken into consideration by exercising my powers under Order 41 Rule 27 of the CPC, this is a certificate, which has been yet again issued by the Medical Board, which was duly endorsed by the Chief Medical Officer, wherein, on a later examination, which as per the earlier disability certificate on record, which was supposed to be conducted after the lapse of 5 years, where there was an observation made that there is “likelihood of improvement” in future, in fact, in the subsequent disability certificate, which has been issued by the Medical Board and after the medical examination, which was expected to be conducted on the claimant after the lapse of 5 years, as per the certificate of 24th July, 2012, the certificate of 25th October, 2017, observes that the nature of

Hence, for the purposes of deciding the present Appeal from Order, the propriety of the disability certificate and in the context in which it has been argued by the learned counsel for the appellant by drawing the implications of the observations made of the “likelihood to improve”, has been rather qualified on the subsequent physical examination, which was conducted after 5 years of the earlier disability certificate, as per the observations made in Clause 2 of certificate of 24th July, 2012, and subsequent certificate would have to be read rationally for the purposes of deciding the present Appeal, which has not been opposed by the appellant to read in appeal, where on a later medical examination, it was observed that not likely to improve, meaning thereby, in that view of the matter, the judgement of the Hon’ble Apex Court in Raj Kumar (Supra), will come into play for its consideration, where the 1/3 deduction has been denounced not to be made, where there is a future loss of earning for all times to come due to the sufferance of 100% disability.

Thus, this prospect, as argued by the learned counsel for the appellant is not accepted by this Court, that there has had to be a 1/3 percentage of deduction from the income of the claimant for the purposes of determining the compensation even in the cases of 100% disability, where the victim to the accident had survived.

The learned counsel for the appellant has referred to the document, which was produced by the claimant for the purposes of proving the income accruing to the claimant by placing on record the income tax returns, which was submitted by him. He contended that, in fact, TDS deductions, were not taken into consideration while rendering the impugned award by the learned Tribunal, qua the income tax returns, which was filed as evidence, by the claimant before the Court below, to substantiate the income accruing to the claimant.

Yet again, this Court is forced upon to reiterate the observations made above. A. It is not a case which was ever attempted to be developed in the written statement;

Reverting back to the principal issue pertaining to

Coming to an aspect of contributory negligence, establishment of contributory negligence, which always happens to be a variable factor, depending upon the facts and circumstances of each case, under which, the accident has chanced would always be a factor which is required to be established by the parties to the proceedings, who takes a defence of contributory negligence, to deny the liability upon the person taking a defence of the contributory negligence. Here, since merely by extracting the statement recorded by co-passengers about the vehicle being seen coming from the opposite direction will in itself will not be an exclusive conclusion, to reach to a plausible conclusion of the aspect of contributory negligence.

Hence, for the aforesaid reasons, I do not find any

The amount, if any, deposited by the appellant in compliance of the interim order passed by this Court would be disbursed to the claimants and the Registry is also directed to remit the statutory deposit made by the appellant at the time of filing of the Appeal to the Tribunal, which in turn, would be ensured to be remitted to the claimant, as a consequence of the today's judgement.

Hence, for the reasons aforesaid, the Appeal from Order fails and the same is accordingly dismissed.

The connected Appeal from Order No. 42 of 2015, would too stand disposed for, for the reason already assigned in the above judgement.