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Neutral Citation No. - 2023:AHC:192096 Court No. - 2 Case :- FIRST APPEAL FROM ORDER No. - 775 of 2006 Appellant :- United India Insurance Co. Ltd. Respondent :- Smt. Phoolmati Devi And Others Counsel for Appellant :- Saurabh Srivastava,Dharm Jeet Singh Counsel for Respondent :- Pramod Kumar Singh,R.K. Ojha Hon'ble Saral Srivastava,J. 1. List has been revised. None for the respondents No.1 to 5 and 7. 2. Heard learned counsel for the appellant and learned counsel for the respondent No.-6 owner. 3. The present appeal has been filed against the award dated 09.12.2005 passed by Motor Accident Claims Tribunal, Gorakhpur in MAC No.494 of 2001, whereby the the tribunal has awarded a compensation of Rs.6,76,422/- alongwith 6% interest from the date of institution of claim petition for the death of one Bechu Prasad in an accident on 23.04.2000 with jeep No.UP53J/7316. 4. Challenging the award, learned counsel for appellant has contended that the deceased was riding the motorcycle which dashed with jeep No.UP53J/7316. It is submitted that it was a case of head on collision between jeep and motorcycle and therefore, the manner in which the accident had taken place indicates that there was negligence of the deceased in the accident also and thus, the tribunal should have reduced the
compensation to the extent of negligence of the deceased in the accident. It is further submitted that the compensation awarded by the tribunal is excessive inasmuch as per the income tax return of the deceased, Rs.35,000/- has been shown as agriculture income and there is no evidence on record that after the death of the deceased, the claimants- respondents are not doing agriculture and not earning any income from agriculture and thus, the tribunal has erred in law in taking the agriculture income of Rs.35,000/- as loss of income of the family for computing the compensation. 5. Be that as it may, the tribunal in holding the negligence of the driver of the jeep considered the testimony of PW 2 Ramnath, who was eye witness of the accident and deposed that the accident was result of rash and negligent driving of driver of the jeep. The tribunal found that the testimony of PW 2 is also corroborated by other documentary evidence on record. In such view of the fact, merely because three persons were riding on motorcycle, it cannot be presumed that there was negligence of the deceased also in the accident. It was incumbent upon the insurance company to produce the evidence on record to establish the negligence of the deceased in the accident but the insurance company did not lead any evidence on record. 6. In absence of any evidence rebutting the testimony of PW 2, this Court is of the view that the tribunal by placing reliance upon the testimony of PW 2 correctly held that the accident was result of rash and negligent driving of driver of
jeep in the accident. 7. So far as the issue of compensation is concerned, this Court is of the view that it is not evident from the income tax return of the deceased that the deceased had an income of Rs.35,000/- from the agriculture. If the insurance company set up a plea that the dependent of the deceased did not suffer any loss of agriculture income and they are still doing agriculture, the insurance company should have produced the evidence in this regard before the tribunal. In such view of the fact, this Court is not inclined to accept the contention advanced by the learned counsel for the appellant. Even otherwise, the tribunal has not awarded compensation towards future prospect. Had the tribunal awarded the future prospect, the compensation would have almost been the same. 8. For the reasons given above, the appeal lacks merit and is accordingly dismissed. Order Date :- 5.10.2023 SS Digitally signed by :- SUNIL KUMAR SHARMA High Court of Judicature at Allahabad