# Ansar Ahmad v. Sri Chandra Kesharwani & Anr

- **Citation:** (2020) 7 ILRA 63
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-03-03
- **Case number:** First Appeal From Order No. 968 of 2010
- **Bench:** Dr. Kaushal Jayendra Thaker
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ansar-ahmad-v-sri-chandra-kesharwani-anr-45919
- **Pages:** 3

## Headnote

A. Civil Law - Motor Vehicles Act (59 of
1988) - Section 166, 168 - Accident - Claim
petition - Hyper Technical Approach - Tribunal
should not decide claim petition by taking hyper
technical approach - Held - Claims Tribunal
committed illegality in rejecting the claim of the
injured appellant on frivolous ground as the
non-attestation of the documents kept on record
in evidence of the claim - testimony of
respondent accepting that the vehicle was
involved coupled with the fact that chargesheet
was laid, the Tribunal could not have rejected
the claim petition (Para 4, 5)

B. Civil Law - Motor Vehicles Act (59 of
1988) - Section 166 - Compensation -
Determination - injured 12 yrs of old when the
accident took place i.e. the year 2003 - had
fracture of his one lower limb - doctor opined he
has 40% disability of the said limb - Held - His
income can be considered to be Rs.1500/ per
month - His functional disability can be
considered to be 20% for the body as a whole -
addition of 40% to his notional income will have
to be done (Para 6, 7)

Appeal partly allowed (E-5)

List of cases cited:-

1.Sunita & ors. Vs R.S.R.T.C. & anr. (2019)
LawSuit SC 190

2.Mangla Ram Vs Oriental Insurance Comp.
Ltd.& ors. (2018) 5 SCC 656

3.Vimla Devi & ors Vs National Insurance Comp.
Ltd. & anr (2019) 2 SCC 186

## Text

7 All. Ansar Ahmad Vs. Sri Chandra Kesharwani & Anr.
63
Rs.6,61,000/- at the rate of 7.5% as
expeditiously as possible not later than
31.12.2020
----------
(2020)07ILR A63
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 03.03.2020

BEFORE

THE HON'BLE DR. KAUSHAL JAYENDRA
THAKER, J.

First Appeal From Order No. 968 of 2010

Ansar Ahmad ...Appellant
Versus
Sri Chandra Kesharwani & Anr.
 ...Respondents

Counsel for the Appellants:
Sri Abhineet Kumar Jaiswal, Sri Prabha
Shanker
Bharti,
Sri
Pranav
Kumar
Srivastava

Counsel for the Respondents:
Archana Singh

A. Civil Law - Motor Vehicles Act (59 of
1988) - Section 166, 168 - Accident - Claim
petition - Hyper Technical Approach - Tribunal
should not decide claim petition by taking hyper
technical approach - Held - Claims Tribunal
committed illegality in rejecting the claim of the
injured appellant on frivolous ground as the
non-attestation of the documents kept on record
in evidence of the claim - testimony of
respondent accepting that the vehicle was
involved coupled with the fact that chargesheet
was laid, the Tribunal could not have rejected
the claim petition (Para 4, 5)

B. Civil Law - Motor Vehicles Act (59 of
1988) - Section 166 - Compensation -
Determination - injured 12 yrs of old when the
accident took place i.e. the year 2003 - had
fracture of his one lower limb - doctor opined he
has 40% disability of the said limb - Held - His
income can be considered to be Rs.1500/ per
month - His functional disability can be
considered to be 20% for the body as a whole -
addition of 40% to his notional income will have
to be done (Para 6, 7)

Appeal partly allowed (E-5)

List of cases cited:-

1.Sunita & ors. Vs R.S.R.T.C. & anr. (2019)
LawSuit SC 190

2.Mangla Ram Vs Oriental Insurance Comp.
Ltd.& ors. (2018) 5 SCC 656

3.Vimla Devi & ors Vs National Insurance Comp.
Ltd. & anr (2019) 2 SCC 186

(Delivered by Hon'ble Dr. Kaushak
Jayendra Thaker J.)

1. Heard Counsels for the appellant
and the Insurance company. None appears
for the owner.

2. By way of this appeal, the claimant
has felt aggrieved by judgment of the
Tribunal which dismissed the claim petition
filed by the claimant for the accident which
according to the claimant - appellant herein
took place on 16/17.4.2003, when the
claimant's son along with his other brother
were sleeping in the open area near their
home, at that time at about 3.50 a.m. in the
early morning, a Marshel Jeep No. UP-733368 driven by Chandra Kesarwani dashed
with the said couch and thereafter the
vehicle dashed with a telephone pole. The
driver and the vehicle were detained
immediately. The claimant contended that
his son namely Ansar Ahmad had fracture
in his left leg and Javed Akhtar also had
fracture in his lower limbs and the claimant
took both his sons for treatment at
Swarooprani Hospital and claimed a sum of
Rs. 10,60,000/- with 9% interest. The
defendant - owner as is culled out from the
64 INDIAN LAW REPORTS ALLAHABAD SERIES
judgment and the written statement filed
his reply accepting that the accident took
place at 5.00 a.m. in the morning. It was he,
who was the person, who was driving the
vehicle. His vehicle was insured with
United India Insurance Company and as the
policy was in vogue, it would be the
Insurance company which would be liable.
The Insurance company filed its reply of
denial.

3. The father had filed the claim
petition as the injured was a minor namely
Ansar Ahmad. The Insurance company as
usual filed its reply of negativity and even
contended that the vehicle was not accepted
to be insured with them despite the fact that
documents were already produced namely
the cover note, the driving licence and the
policy, the F.I.R. was filed. PW1 - Gulam
Server, the claimant namely father of
injured examined himself on oath. Saleem
Javed 38 years of age was examined as
PW2. The Insurance company did not
examine anybody so as to prove its stand in
the written statement. The claim petitions
were unfortunately segregated and were
listed before different Tribunals. The
claimants also filed several documents
which showed that the insured were
hospitalized; that the injured had fracture
and they were resultant out of the accident.
The Tribunal framed about 5 issues and in
issue nos. 1 and 2, it is held that Ansar
Ahmad, who was a minor, was not
examined, and so the Tribunal came to the
conclusion that though the minor was taken
to Swarooprani Hospital where he was
hospitalized for about 14 - 15 days and
Saleem Javed informed the police through
Saleem Javed was examined as PW2 has
produced document 16-G/4. A chargesheet
was also filed against said Sri Kesarwani. It
is stated that the Tribunal came to the
conclusion that the doctor, who treated the
injured and the police authorities were not
examined and that is why the Tribunal
came to the conclusion and dismissed the
claim petition and it is held that the Insured
was having injuries on both legs, whereas
the medical certificate shows only injury on
one of the lower limbs. The Tribunal
decided issue no.3 and held that the vehicle
was insured with the Insurance company.
As far as driving licence was concerned,
the
driving
licence
of
Sri
Chandra
Kesarwani from 2000-18 was believed to
be in vogue and decided issue nos. 1, 2 and
5 against the appellant.

4.

The
Claims
Tribunal
has
committed manifest illegality in rejecting
the claim of the injured appellant on such
frivolous ground as the non-attestation of
the documents kept on record in evidence
of the claim. The Claims Tribunal has
wrongly and arbitrarily over looked the
testimony of PW-1 and PW-2.

5. Recently, this High Court in
F.A.F.O. No.560 of 1995, Smt. Reshma
Khatoon
And
Another
Vs.
Noor
Mohammad And Others, of decisions
where the Tribunal had dismissed claim
petition on hyper technical grounds allowed
the claim petitions. While relying on the
decisions of the Apex Court in Sunita and
others
Vs.
Rajasthan
State
Road
Transport Corporation and another,
2019 LawSuit (SC) 190, Mangla Ram Vs.
Oriental Insurance Company Limited
and Others, 2018 (5) SCC 656 and also a
reliance is placed before this Court by the
latest decision in the case of Vimla Devi
and others Vs. National Insurance
Company Limited and another, (2019) 2
SCC 186, which would be applicable in the
facts of this case. Hence, the appeal
requires to be allowed. Even on the fact
that F.I.R. Chargesheet was there, the
7 All. The New India Assurance Company Ltd. Vs. Smt. Sunita & Ors.
65
rejection on the basis of the place where
Vakalatnama of the Advocate is bad in eye
of law. The testimony of Manoj Kumar
Trivedi had to be taken in account. This
High Court held that once the F.I.R. and the
chargesheet go to show that accident had
occurred on a hyper technical stand that the
minor children were not examined in the
claim petition rejecting the claim, the
answer is "NO". The inference drawn by
the Tribunal is required to be interfered
with.
The
testimony
of
respondent
accepting that the vehicle was involved
coupled with the fact that chargesheet was
laid, the Tribunal could not have rejected
the claim petition.

6. Having considered the facts and
circumstances as long time has elapsed,
this Court would decide the quantum also
as held by the Apex Court as the record is
before this Court and all that has to be
done is to calculate the quantum on the
principles of decisions of the Apex Court
and this High Court relating to a minor,
who had fracture of his one lower limb
and the doctor has opined that he has 40%
disability of the said limb. The injured was
12 years of old when the accident took
place that is 17 years ago. His income can
be considered to be Rs.1500/ per month.
His functional disability can be considered
to be 20% for the body as a whole. He was
in hospital for one and a half month. In
that view of the matter, the calculation can
be made as below: The addition of 40% to
his notional income will have to be done
hence his income would be approximately
Rs. 2100.00 hence his future loss of
income would be 20% of Rs.2100/- which
means Rs.420/- x 12 x 18 is equal to
Rs.90,720/- to which Rs. 25,000/- +
additional amount of Rs.40,000/- under
other heads hence the claimant would be
entitled to Rs. 1,55,720/-.

7. In view of the above, the appeal is
partly allowed. Judgment and decree
passed by the Tribunal shall stand modified
to the aforesaid extent. The amount be
deposited with interest at the rate of 9%
from the date of filing of the claim petition
till the amount is deposited. The amount be
deposited within a period of 12 weeks from
today.

8. The record be sent back to the
Tribunal.
----------
(2020)07ILR A65
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 12.06.2020

BEFORE
THE HON'BLE DR. KAUSHAL JAYENDRA
THAKER, J.

First Appeal From Order No. 1351 of 2009

The New India Assurance Company Ltd.
 ...Appellant
Versus
Smt. Sunita & Ors. ...Respondents

Counsel for the Appellant:
Sri Rahul Sahai

Counsel for the Respondents:
Sri A.K. Gupta, Sri Santosh K. Singh, Sri
Satya Deo Ojha

A. Civil Law - Motor Vehicles Act (59 of
1988) - Section 166 - Compensation -
Contributory negligence - Truck came from
behind and dashed against motorcycle while
overtaking
-
Motorcycle
went
away
on
unmetalled road & pillion rider died on spot -
Held - Bigger vehicle has to be more cautious -
Driver of motor vehicle must slow down at
intersection or junction of roads or at turning of
road - Version of Truck driver that motorcyclist
came on road suddenly, not acceptable as it
was national highway and Motorcyclist was
driving motorcycle on road and there was no