# National Insurance Co. Ltd. Lucknow v. Gaurav Sharma & Anr

- **Citation:** (2025) 3 ILRA 5
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-03-10
- **Case number:** First Appeal From Order No. 137 of 2017
- **Bench:** Rajnish Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/national-insurance-co-ltd-lucknow-v-gaurav-sharma-anr-53216
- **Pages:** 19

## Headnote

Civil Law - Motor Vehicle Act, 1908 -
Sections 166 & 173 - Enhancement of
Compensation - Claim petition filed by
claimant alleging that claimant met with
accident due to negligent driving of driver
of offending Truck, his left leg amputated
in
hospital
-
Allowed
and
awarded
compensation - Impugned order - Held,
disability
certificate
issued
by
Chief
Medical
Officer
with
signatures
of
orthopaedic surgeon as one of signatory -
Certificate shows permanent disability of
70% - Rightly determined. (Para 10, 13,
41)

Tribunal awarded Rs.50,000/- for pain
and sufferings, Rs.1,00,000/- for loss of
amenities and degradation in married life
-
Claimant
who
was
student
of
intermediate and 18 years of age, good
player, on account of loss of one leg he
became incapable of playing it, therefore,
it cannot be equated in terms of money as
he could made his career in any field in
future but he cannot do the same,
therefore, compensation to be enhanced
to Rs.1,50,000/-. (Para 42)
Regarding claim of future treatment,
Rs.2,00,000/- will be sufficient as by
interest of same, claimant will meet out
said expenses in future - Thus, claimant
entitled
to
compensation
alongwith
interest. (Para 43)

Writ petition partly allowed. (E-13)
List of Cases cited:

## Text

_Characters 0–39,846 of 64,169. This is a partial read: ask again with offset=39846 for what follows._

3 All. National Insurance Co. Ltd. Lucknow Vs. Gaurav Sharma & Anr.
5
(2025) 3 ILRA 5
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 10.03.2025

BEFORE

THE HON'BLE RAJNISH KUMAR, J.

First Appeal From Order No. 137 of 2017
&
First Appeal From Order No. 217 of 2017

National Insurance Co. Ltd. Lucknow
 ...Appellant
Versus
Gaurav Sharma & Anr. ...Respondents

Counsel for the Appellant:
Mrs. Pooja Arora

Counsel for the Respondents:
Ashish Chaturvedi

Civil Law - Motor Vehicle Act, 1908 -
Sections 166 & 173 - Enhancement of
Compensation - Claim petition filed by
claimant alleging that claimant met with
accident due to negligent driving of driver
of offending Truck, his left leg amputated
in
hospital
-
Allowed
and
awarded
compensation - Impugned order - Held,
disability
certificate
issued
by
Chief
Medical
Officer
with
signatures
of
orthopaedic surgeon as one of signatory -
Certificate shows permanent disability of
70% - Rightly determined. (Para 10, 13,
41)

Tribunal awarded Rs.50,000/- for pain
and sufferings, Rs.1,00,000/- for loss of
amenities and degradation in married life
-
Claimant
who
was
student
of
intermediate and 18 years of age, good
player, on account of loss of one leg he
became incapable of playing it, therefore,
it cannot be equated in terms of money as
he could made his career in any field in
future but he cannot do the same,
therefore, compensation to be enhanced
to Rs.1,50,000/-. (Para 42)
Regarding claim of future treatment,
Rs.2,00,000/- will be sufficient as by
interest of same, claimant will meet out
said expenses in future - Thus, claimant
entitled
to
compensation
alongwith
interest. (Para 43)

Writ petition partly allowed. (E-13)
List of Cases cited:

1. Raj Kumar Vs Ajay Kumar & anr.; (2011) 1
SCC 343/ 2011 ACJ 1, (Paras 12, 13, 19)

2. Gopal, Krishnaji Ketkar Vs Mahomed Haji Latif
& ors.; AIR 1968 SC 1413/ 1968 SCC Online SC
63

3. Oriental Insurance Co. Ltd. at Nanded Vs
Prakash Shahuraj Mali & ors.; 2020 (1) TAC 938

4. Rajesh Kumar @ Raju Vs Yudhvir Singh &
anr.; AIR 2008 SC 2396

5. National Textile Corporation Ltd. Vs Naresh
Kumar Badri Kumar Jagad & ors.; 2011 (12)
SCC 695/ 2011 (29) LCD 1793

6. Anita Sharma & ors. Vs New India Assurance
Co. Ltd. & anr.; (2021) 1 SCC 171, (Paras 21, 22)

7. Sunita & ors. Vs Rajasthan St. Road Transport
Corporation & ors.; (2020) 13 SCC 486, (Para 22)

8. Laxman @ Laxman Mourya Vs Divisional
Manager, Oriental Insurance Company Limited &
anr.; (2011) 10 SCC 756, (Paras 8, 14, 15)

9. Nagappa Vs Gurudayal Singh & ors.; (2003) 2
SCC 274

10. Govind Yadav Vs New India Insurance
Company Limited; 2011 (10) SCC 683

11. R.D. Hattangadi Vs Pest Control (India) Pvt.
Ltd & ors.; (1995) 1 SCC 551

12. G. Ravindranath @ R. Chowdary Vs E
Srinivas & anr.; (2013) 12 SCC 455

13.
Lakshmana
Gowda
B.N.
Vs
Oriental
Insurance Company Ltd. & anr.; (2023) SCC
OnLine SC 786
6 INDIAN LAW REPORTS ALLAHABAD SERIES
14. Jagdish Vs Mohan & ors.; (2018) 4 SCC 571,
(Para 14)

15. U.P.S.R.T.C., Ghaziabad Vs Smt. Neerja
Bhatiya & ors.; FAFO No.1726 of 2001, date of
order 04.08.2023

16.
Uttar
Pradesh
St.
Road
Transport
Corporation Vs Bhawani Prasad Manjhi; 2024
SCC OnLine All 7385

17. Phul Chand Yadav & ors. Vs Kedar Yadav &
ors.; 2011 SCC OnLine ALL 1036

18. Coal India Limited & anr. Vs Ujjal Transport
Agency & ors.; (2011) 1 SCC 117

19. Pankajbhai Rameshbhai Zalavadiya Vs
Jethabhai Kalabhai Zalavadiya; (2017) 9 SCC
700, (Para 16)

20. Prabhavathi & ors. Vs The Managing
Director,
Bangalore
Metropolitan,
Transport
Corporation; 2025 LiveLaw (SC) 266, (Para 11)

21. Syed Siddiqui Vs Divisional Manager United
India; 2014 (1) TAC 369 SC

22. National Insurance Co. Ltd. Vs Pranay Sethi;
(2017) 16 SCC 680

23. Sarla Verma Vs DTC, (2009) 6 SCC 121,
(Para 42)
(Delivered by Hon'ble Rajnish Kumar, J.)

1. Heard, Mrs. Pooja Arora, learned
counsel for the appellant in F.A.F.O.
No.137 of 2017 and for respondent no.1 in
F.A.F.O. No.217 of 2017 (here-in-after
referred
as
learned
counsel
for
the
Insurance Company) and Shri Ashish
Chaturvedi, learned counsel for the
claimant-respondent no.1 in F.A.F.O.
No.137 of 2017 and for appellant in
F.A.F.O. No.217 of 2017 (here-in-after
referred as learned counsel for claimant).
None appeared on behalf of the owner
i.e. the respondent no.2 in both the
appeals.
2. The F.A.F.O. No.137 of 2017
has been filed under Section 173 of Motor
Vehicle Act, 1908 (here-in-after referred as
MV Act) challenging the judgment and
award dated 23.11.2016 passed in Claim
Petition No.163 of 2011 (Gaurav Sharma
Vs. Rajesh Kumar Tiwari and another).
The F.A.F.O. No.217 of 2017 has been
filed for enhancement of compensation.
Hence both the appeals are clubbed and
decided
together
with
this
common
judgment and order.

3.
Learned
counsel
for
the
Insurance Company submits that the
claimant; Gaurav Sharma, who appeared as
PW-1 admitted in his cross-examination
that he had seen in his rear view mirror of
scooty that the truck is coming on his back
side but he had not tried to save him,
therefore, his contributory negligence can
not be denied but the learned tribunal has
failed to consider it. The PW-2 has
admitted in his evidence that he had seen
the accident after hearing, therefore, he can
not be said to be an eye witness to the
accident. Thus, the rash and negligent
driving of the offending truck also can not
be said to have been proved, but the learned
tribunal failed to consider it all. She further
submits that the concerned doctor has not
been produced to prove as to what would
be the extent of future loss to the claimant
on account of the disablement suffered by
him
in
the
accident,
therefore,
the
assessment in this regard made by the
learned tribunal is not tenable. Even
otherwise, as per the old act the permanent
disability could have been determined in
terms of schedule-II of the said act in
application under Section 163-A of MV
Act. Lastly, she submits that the proforma
for filing application under Section 163-A
is given in SR-49 and the tribunal could not
have traveled beyond the provisions of said
3 All. National Insurance Co. Ltd. Lucknow Vs. Gaurav Sharma & Anr.
7
section and allowed the compensation to
the claimant treating the claim petition
under section 166 of the MV Act. On the
basis of above, learned counsel for the
appellant submits that the judgment and
award passed by the learned tribunal is not
sustainable and liable to be set-aside.

4.
Learned
counsel
for
the
Insurance Company opposing the appeal of
the
claimant
for
enhancement
of
compensation submits that the appeal has
been filed on misconceived and baseless
grounds. The doctor was not produced to
prove the future loss on account of the
disability suffered in the accident and no
proof of any income from the sport or in
regard to any other claim has been filed,
therefore, the appeal has been filed on
misconceived and baseless grounds, which
is liable to be dismissed.

5. She relies on Raj Kumar Vs.
Ajay Kumar and Another; (2011) 1 SCC
343/ 2011 ACJ 1, Gopal, Krishnaji
Ketkar Vs. Mahomed Haji Latif and
Others; AIR 1968 SC 1413/ 1968 SCC
Online SC 63, Oriental Insurance Co.
Ltd. at Nanded Vs. Prakash Shahuraj
Mali and Others; 2020 (1) TAC 938,
Rajesh Kumar @ Raju Vs. Yudhvir
Singh and Another; AIR 2008 SC 2396,
National Textile Corporation Ltd. Vs.
Naresh Kumar Badri Kumar Jagad and
Others; 2011 (12) SCC 695/ 2011 (29)
LCD 1793, Anita Sharma and Others Vs.
New India Assurance Co. Ltd. and
Another; (2021) 1 SCC 171 and Sunita
and Others Vs. Rajasthan State Road
Transport Corporation and Others;
(2020) 13 SCC 486.

6. Per contra, learned counsel for
the claimant submits that the accident and
rash and negligent driving of the driver of
the offending truck has been proved by the
claimants before the tribunal and merely
because the claimant has stated in his crossexamination that he had seen the truck
coming on his back side in the rear view
mirror of his scooty, it can not be a ground
for determination of any contributory
negligence on his part because he has
clearly stated that he was going on the left
side of the road with a speed of 30-40
km/hour and if in such a situation the truck
dashed from the back side, it can be only
because of rash and negligent driving of
driver of the offending truck. Thus, the
appeal filed by the appellant challenging
the award is misconceived and liable to be
dismissed. He further submits that though
the appeal was filed under Section 163-A
of the MV Act but it was dealt with as an
application under Section 166 of the MV
Act and after framing the issues without
any objection from the insurance company
or any other party in regard to rash and
negligent driving of truck driver, therefore,
the learned tribunal has rightly decided the
claim petition in accordance with law and
once it has been decided the insurance
company can not raise any objection in this
regard.

7. Learned counsel for the claimant
pressing his appeal for enhancement
submits that the deceased was a student of
class-12. Besides studying, he used to play
Cricket and was a fast bowler. He had
participated in many competitions and had
also got certain trophies and on account of
the disability suffered in the accident, he
has been restrained from pursuing the
Cricket and if he would have not suffered
the disability, he could have pursued the
Cricket and may have played in the
National Cricket. He further submits that
the learned tribunal has not allowed the
compensation on all the heads claimed by
8 INDIAN LAW REPORTS ALLAHABAD SERIES
the claimant, therefore, the judgment and
award is liable to be modified and the
compensation is liable to be enhanced
accordingly.

8. He relies on Laxman @
Laxman
Mourya
Vs.
Divisional
Manager, Oriental Insurance Company
Limited and Another; (2011) 10 SCC
756, Nagappa Vs. Gurudayal Singh and
Others; (2003) 2 SCC 274, Govind
Yadav
Vs.
New
India
Insurance
Company Limited; 2011 (10) SCC 683,
R.D. Hattangadi Vs. Pest Control (India)
Pvt. Ltd and Others; (1995) 1 SCC 551,
Raj Kumar Vs. Ajay Kumar and
Another; (2011) 1 SCC 343/ 2011 ACJ 1,
G. Ravindranath @ R. Chowdary Vs. E
Srinivas and Another; (2013) 12 SCC
455,
Lakshmana
Gowda
B.N.
Vs.
Oriental Insurance Company Ltd. and
Another; (2023) SCC OnLine SC 786,
Jagdish Vs. Mohan and Others; (2018) 4
SCC 571, U.P.S.R.T.C., Ghaziabad Vs.
Smt. Neerja Bhatiya and Others; First
Appeal From Order No.1726 of 2001,
Uttar Pradesh State Road Transport
Corporation
Vs.
Bhawani
Prasad
Manjhi; 2024 SCC OnLine All 7385.

9.
I
have
considered
the
submissions of learned counsel for the
parties and perused the records.

10. The claim petition was filed by
the claimant alleging therein that the
claimant
met
with
an
accident
on
05.08.2010 due to negligent driving of the
driver of the offending Truck No.U.P.32-Z0458 near Krishna Nagar Kotwali, on
account of which he was hospitalized and
his left leg was amputated in hospital. The
claimant was riding on a scooter activa
bearing No.U.P.32-BD-9557 and was going
to Krishna Nagar from his residence slowly
and cautiously on the left side of the road
following all the traffic rules. When he
reached near Krishna Nagar Kotwali, the
Truck No.U.P.32-Z-0458 hit the scooter of
the claimant on his back from behind, by
driving rashly and negligently by its driver,
on account of which the claimant fell down
and got grievous injuries, on account of
which his left leg was amputated. The truck
driver was caught by the local inhabitants
from the site of the accident and handed
over to the Krishna Nagar Police Station
and they also took the claimant to the Lal
Hospital in the area, from where he was
referred to the Trauma Center, Medical
College, Lucknow on the same date. The
Pelvic bone of the claimant was broken.
After few days the claimant was shifted to
Vivekanant Polyclinic, where his left leg
was amputated on account of critical
condition. After some time he was shifted
to
Sahara
Hospital
from
where
he
ultimately was discharged on 25.09.2010.
Thereafter also the treatment is going on.

11. It has further been alleged that
the claimant was good in studying and
studying in Class-12. He was a very good
sport person also. He had twice participated
in C.K. Naidu Cricket Tournament at
district level as a fast bowler. He also
participated in Gali-10 Cricket Competition
and
district
level
20-20
Cricket
competition. He also participated in fast
bowler competition at district level. He had
a bright future and had he not met with the
said accident, there were chances of the
claimant to become a national level
Cricketer. The earning of claimant was
claimed as Rs.3000/- per month. Thus, it
was pleaded that on account of the
accident, a good sport person and a good
student is constrained to live a life of
handicapped as he had become permanent
3 All. National Insurance Co. Ltd. Lucknow Vs. Gaurav Sharma & Anr.
9
disable. Accordingly, the compensation
was claimed.

12.
The
claim
petition
was
contested by the respondent no.1 in the
claim petition i.e. the owner denying the
averments made in the claim petition and
disclosing therein that the Registration,
Insurance Policy, License of driver, Permit,
Fitness etc. of Truck No. U.P.32-Z-0548
were in order, therefore, in case any
compensation is to be paid, the Insurance
Company would be liable to pay the
amount of compensation. The owner also
filed the cover note of the Insurance Policy,
which shows that the policy was effective
on the date of accident. Thereafter the
Insurance Company was impleaded as
respondent no.2. The Insurance Company
filed a written statement denying the
averments made in the claim petition and
taking general pleas as are being taken by
the Insurance Company without verifying
the facts of even Insurance Policy, which
remains available with it and other
documents. After exchange of pleadings,
the tribunal framed six issues, which are
extracted here-in-below:-

 "1. क्या दिनाांक 05.08.2010 को समय
9.30 बजे ए.एम. स्थान दनकट कृष्णानगर कोतवाली थाना
कृष्णानगर, लखनऊ मे याची गौरव शमाा अपने स्कूटर नां० यू०पी०32/डीबी-9557 से अपने घर से कृष्णानगर जाते समय ट्रक नां०
यू०पी०-32/जेड-0458 के चालक ने तेजी व लापरवाही से
चलाते हुए स्कूटर मे टक्कर मार िी दजससे याची को गांभीर चोटे
आयी ?

2. क्या िुघाटना की दतदथ को ट्रक नां० यू०पी०32/जेड-0458 के चालक के पास वैध एवां प्रभावी अनुज्ञा पत्र
था?
 3. क्या िुघाटना की दतदथ को ट्रक नां० यू०पी०32/जेड-0458 दवपक्षी सां0-2 से बीदमत थी?

4. क्या यादचका आवश्यक पक्षकारो के असांयोजन
के कारण िोषपूणा है?

5. क्या िुघाटना मे याची/चोटदहल की स्वांय की
योगिायी उपेक्षा एवां लापरवाही थी?

6. याची कोई अनुतोष यदि कोई हो पाने का
अदधकारी है, यदि हाां तो दकससे व दकतनी ?"

13. The oral as well as the
documentary evidence was adduced by the
parties. The claimant got himself examined
as PW-1 and one another eye witness Shri
Satya Prakash Awasthi as PW-2. The
claimant filed a copy of F.I.R., copy of
license of the claimant, disability certificate
issued by the Chief Medical Officer,
Hathras, copy of charge sheet, site plan and
other medical related documents. The
owner
filed
photo
copies
of
the
Registration Certificate, Insurance Policy
and Driving License of the truck driver.
The Insurance Company filed the original
form 54. The learned tribunal after hearing
learned counsel for the parties and
considering
the
records
passed
the
impugned judgment and award and allowed
the
claim
petition
and
awarded
compensation to the tune of Rs.9,52,600/-
alongwith interest @ 7% per annum from
the date of filing of claim petition.

14.
The
application
for
compensation was filed with the caption
'Claim Petition under section 163-A of the
Motor Vehicles Act, 1988'. Section 163-A
provides special provisions as to payment
of compensation on structured formula
basis. However, the application has been
dealt with and decided after framing the
issue of rash and negligent driving of the
truck driver. The U.P. Motor Vehicle
Rules, 1998 (here-in-after referred as the
Rules of 1988) have been made under
various sections of MV Act 1988 including
section 176 of the MV Act. Under Section
176, the State Government may make rules
for the purpose of carrying into effect the
10 INDIAN LAW REPORTS ALLAHABAD SERIES
provisions of Sections 165 to 174 and in
particular such rules may provide the form
of application for claims for compensation
and the particulars it may contain, and fees,
if any, to be paid in respect of such
application including the other rules made
in the section. Rule 204 of the Rules of
1988 provides the application for payment
before the claims tribunal. It provides that
the every application for payment of
compensation under Section 166 shall as
far as possible is made in form SR-48 and
if the compensation is claimed under
Section 163-A in Form SR-49. In both SR48 and SR-49, the necessary particulars of
the person dead/ injured/and/ or suffering
damage to property and the vehicle
involved in the accident etc. are to be
given. There is only one difference that in
SR-49 after paragraph 23 two declarations
are to be made; one that the applicant have
not
filed
any
other
application
for
compensation and thereafter that the
compensation may be determined in
accordance with the second schedule of
MV Act, 1988 and direct for payment of
the same, which shall be full and final
compensation in respect of the aforesaid
accident, but it is not in SR-48 on which
the application under Section 166 of MV
Act was filed. Therefore, it is very material
to consider as to whether the application is
under Section 163-A or Section 166 of MV
Act. The form given in SR-48 and
aforesaid
declaration
of
SR-49
are
extracted here-in-below:-

FORM SR-48

[See Rule 204 (1)]
Application For Compensation
(Otherwise than under Section 163-A)
To,
The
Motor
Accidents/
Claims
Tribunal
.........................................................
.......
I,
......................son/daughter/widow
of
.............................residing at having been
injured and/or suffered damage to property
in a motor vehicle accident hereby apply
for the grant of compensation for the injury
sustained
and
or
damage
suffered.
Necessary particulars in respect of the
injury/damage to property, vehicle etc., are
given below:
1,
.....................son/daughter/wife/widow
of
.................
residing
at
..............................hereby apply as a legal
representative/agent, for the grant of
compensation on account of death of/injury
sustained and/or damage suffered by
Sri/Kumari/Srimati..................
..
...son/daughter/wife/widow of ..Sri/Srimati
.........................who
died/
was
injured
and/or damage suffered in a Motor Vehicle
accident. Necessary particulars of the
person
dead/injured/and/or
suffering
damage to property and the vehicles
involved
in
the
accident
etc.
are
hereunder___
 1. Name with Farther/Husband's
name of the person dead/injured and or
suffering damage to property.

2. Full address of the person
dead/injured and or suffering damage to
property.

3. Age of the person injured/dead.

4. Occupation of the person
injured/dead.

5. Name and address of the
employer of the deceased, if any.

6. Monthly income of the person
injured/dead.
 7. Name and age of each of the
dependents
of
the
deceased/injured
indicating relationship with him, and also
monthly
average
income
of
the
3 All. National Insurance Co. Ltd. Lucknow Vs. Gaurav Sharma & Anr.
11
deceased/injured and the source of such
income.
 8.
Details
of
the
property
damaged and the extent of damage caused.

9. Does the person in respect of
whom compensation is claimed pay income
tax (to be supported by documentary
evidence).

10. Place, date and time of the
accident.

11. Name and address of police
station in whose jurisdiction the accident
took place or FIR was registered.

12. Was the person in respect of
whom compensation is claimed, travelling
by the vehicle involved in the accident if
so, give the names of places of starting of
journey and destination.

13. Nature of injuries sustained.

14. Name and address of the
Medical Officer/Practitioner, if any, who
attended on the injured/dead.

15. Period of treatment and
expenditure, if any, incurred thereon (to be
supported by documentary evidence).

16. Registration number and the
type of the vehicle involved in accident.

17. Name and address of the
owner of the vehicle.

18. Name and address of the
insurer of the vehicle.

19. Has any claim been lodged
with the owner/insurer, if so with what
result.

20.
Relationship
with
the
deceased.

21. Title to the property of the
deceased.

22. Amount of compensation
claimed.

23. Any other information that
may be necessary or helpful in the disposal
of the claim.

I
..................................solemnly
declare that the particulars given above are
true and correct to the best of my
knowledge.

Signature or thumb-impression of
the applicant

----------------------------------------------
-------------------------------------------------
FORM SR-49
[See Rule 204(1)]
Application for compensation under
Section 163-A

To,

The Motor Accident Claims Tribunal

............................................................

I,
......................................................................
......................................................................
...................................................
......................................................................
......................................................................
.................are hereunder__

..............................................................
.................................................................

1.
......................................................................
......................................................................
......................................................................
......................................................................
......................................................................
......................................................................
......................................................................
.............

23.
................
.....................................................................

I
have
not
filed
any
other
application for compensation.

I, .................... therefore, request
that the amount of compensation in
respect of the aforesaid accident may be
determined in accordance with the
Second Schedule of the Motor Vehicles
Act, 1988 and the owner/insurer may be
directed to make payment of the
compensation so determined, to me,
which
shall
be
full
and
final
compensation in respect of the aforesaid
12 INDIAN LAW REPORTS ALLAHABAD SERIES
accident. I shall not file any other claim
in respect thereof under Section 140 and
under Section 163-A of the Motor
Vehicles Act, 1988.

I,.................................
.......solemnly
declare that the particulars given above
are true and correct to the best of my
knowledge.
Signature or Thumb-Impression of the
Applicant

15.
The
aforesaid
declaration
claiming compensation in accordance with
the second schedule of the MV Act, 1898 is
not in SR-48 on which, the application
under Section 166 of the MV Act is filed
for
compensation.
Perusal
of
the
application filed by the claimant in the
instant case, which is on record of the
tribunal, indicates that there is no such
declaration in the application and in fact the
application is on proforma given in Form
SR-48, therefore, mere mention of the
application under section 163-A of the MV
Act in the caption would not change the
nature of the application and claim made
therein, therefore, it has rightly and in
accordance with law has been dealt with
and decided by the tribunal treatig it under
Section 166 of MV Act after framing
relevant issues. It is only that because of
this no such objection was also raised
before the tribunal at the time of framing of
the issues by the tribunal and even
thereafter till disposal of the claim petition,
therefore, once the application was filed
claiming compensation on the proforma
given in Form SR-48 and not in the Form
SR-49 of the Rules of 1988 and the issue of
rash and negligent driving of the truck
driver was also framed, but no objection
was raised either before the tribunal or
before this Court, the contention of learned
counsel for the Insurance Company in this
regard is misconceived and not tenable and
liable
to
be
rejected
and
rejected
accordingly.

16. This Court, in the case of Phul
Chand Yadav and Others Vs. Kedar
Yadav and Others; 2011 SCC OnLine
ALL 1036, has held that quoting a wrong
provision is never fatal.

17. The Hon'ble Supreme Court, in
the case of Coal India Limited and
Another Vs. Ujjal Transport Agency and
Others; (2011) 1 SCC 117, has held that
the application for filing of an application
for condonation of delay under a wrong
provision of law will not vitiate the
application.

18. The Hon'ble Supreme Court, in
the case of Pankajbhai Rameshbhai
Zalavadiya
Vs.
Jethabhai
Kalabhai
Zalavadiya; (2017) 9 SCC 700, has held
that it is by now well settled that a mere
wrong mention of the provision in the
application would not prohibit a party to
the
litigation
from
getting
justice.
Ultimately, the courts are meant to do
justice and not to decide applications
based on technicalities. The relevant
portion of paragraph 16 is extracted herein-below:-

"16.
......................................................................
.......It is by now well settled that a mere
wrong mention of the provision in the
application would not prohibit a party to
the
litigation
from
getting
justice.
Ultimately, the courts are meant to do
justice and not to decide the applications
based
on
technicalities.
.....................................................

..............................................................
...................................."
3 All. National Insurance Co. Ltd. Lucknow Vs. Gaurav Sharma & Anr.
13
19. A co-ordinate Bench of this
Court, by means of the judgment and order
dated 04.08.2023 passed in U.P.S.R.T.C.,
Ghaziabad Vs. Smt. Neerja Bhatiya and
Others; First Appeal From Order
No.1726 of 2001, held that when the parties
have accepted both before the Tribunal and
also before this Court that the claim
petition was to be decided as per provisions
of Section 166 of Motor Vehicles Act,
1988, no such ground can now be raised
before this Court that it was a petition
under Section 163A of the Act.

20. The learned tribunal considered
the issue no.1 and 5 together, which are in
regard to the accident on account of rash
and negligent driving of the driver of the
truck No.U.P.32-Z-0548 and contributory
negligence of claimant. The claim petition
was filed alleging thereon that the accident
had occurred on 05.08.2010 at about 09:30
in the morning, when the claimant was
going on his Activa Scooter from his house
to
Krishna
Nagar,
when
the
truck
No.U.P.32-Z-0548 being driven rashly and
negligently by its driver, dashed the scooty
of the claimant from the back side, on
account of which he fell down and suffered
serious injuries. The truck driver was
caught on spot by the persons present there
and handed over to Police Station- Krishna
Nagar and the claimant was admitted in a
nearby Lal Hospital, from where he was
referred to the Trauma Center, King
George Medical College, Lucknow on the
same date, where he remained up to
09.08.2010. Thereafter he was shifted to
Vivekanand Polyclinic Lucknow, where his
left leg was amputated on 10.08.2010 to
save his life. The first information report of
the accident was lodged on 21.10.2020 by
the father of the claimant vide Case Crime
No.423 of 2010, under Section 279 and 338
I.P.C. at Police Station- Krishna Nagar,
District- Lucknow, in which the charge
sheet has been filed against the driver of
the truck, a copy of the charge sheet and
site plan were placed on record. The reason
for delay in F.I.R. has been given in the
F.I.R. itself that on account of the treatment
of his son i.e. the claimant whose condition
was serious and he was busy in the same.
He was disturbed mentally and financially,
therefore, the report could not be lodged
immediately. The driving license of the
claimant was also placed on record, which
was valid and effective w.e.f. 14.12.2009 to
13.12.2029.

21. The claimant appeared as PW1, who proved the accident. He stated in his
cross-examination that he had seen in the
rear view mirror that the truck is coming on
his back. He further stated that at the time
of accident the speed of his scooter was 3040 KM/hour and he was going on the left
side of the road. The PW-2, who is also an
eye witness, has also proved the accident.
However he has stated that he had seen the
accident after hearing the voice. It is
apparent that the accident had occurred on
account of rash and negligent driving of the
Truck No.U.P.32-Z-0548 and it was proved
by the PW.1 and PW.2, therefore, merely
because the claimant stated that he has seen
the truck in rear view mirror coming on the
back side and PW-2 stated that he had seen
accident after hearing the voice, can not be
a ground to hold that the claimant was
negligent and there was any contributory
negligence because he was going at a
moderate speed on the left side of the road
and if even then the truck coming from the
back side hit the scooty from the back side,
it can be only because of the rash and
negligent driving of the driver of the truck
because the truck being a heavy vehicle,
the driver thereof, should have been
cautious enough to drive the vehicle. Even
14 INDIAN LAW REPORTS ALLAHABAD SERIES
otherwise the accident and rashness and
negligence of the truck driver have been
proved by the claimant himself and the
evidence of PW-2 supports it. The claimant
himself is an injured, whose one leg has
been amputated on account of said
accident. The driver was also caught on the
spot and handed over to the police. The
charge sheet has also been filed against the
driver. These all are sufficient to prove the
accident on account of rash and negligent
driving of the driver of the truck and
involvement of truck in the accident in
question. Nothing also could be extracted
from PW-1 and PW-2, which may create
any doubt about the veracity of evidence
given by them. No contrary evidence or
any other evidence has also been adduced
by the Insurance Company or the Owner of
the truck, which may even indicate that the
accident had not occurred on account of
rash and negligent driving of the truck
driver or there was any negligence or
contributory negligence on the part of the
claimant. The claimant had also valid and
effective driving license on the date of
accident.

22. The Hon'ble Supreme Court in
the case of Prabhavathi and Others Vs.
The
Managing
Director,
Bangalore
Metropolitan, Transport Corporation;
2025 LiveLaw (SC) 266, has held that in
absence of any direct or corroborative
evidence on record, it can not be assumed
that the accident occurred due to the rash
and negligent driving of both the vehicles.
The relevant paragraph 11 is extracted
here-in-below:-

"11. Thus, in our considered
view, the contributory negligence taken by
the High Court at 25% of the deceased is
erroneous. We advert to the principles laid
down in Jiju Kuruvila v. Kunjujamma
Mohan', where it was held that in the
absence of any direct or corroborative
evidence on record, it cannot be assumed
that the accident occurred due to the rash
and negligent driving of both the vehicles.
This exposition came to be followed in
Kumari Kiran v. Sajjan Singh and Ors.2.
In the present case, therefore, on an
allegation
simpliciter,
it
cannot
be
presumed that the accident occurred due to
rash and negligent driving of both vehicles,
for having driven at high speed."

23. In view of above, the findings
recorded by the learned tribunal that the
driver of truck caused the accident driving
rashly and negligently, in which claimant
suffered serious injuries and there was no
contributory negligence on the part of the
claimant does not suffer from any illegality
are perversity, therefore, the contention in
this regard of learned counsel for the
Insurance Company is misconceived and
not tenable and liable to be rejected and
rejected accordingly.

24. The issue no.6 as to whether the
claimant is entitled for any compensation,
if so, how much and from whom, has been
considered by the tribunal. The claim for
medical expenses on the basis of photo
copies of the prescription and bills filed as
C28/2 to C28/179 has been rejected by the
tribunal on the ground that the claimant
himself
has
admitted
in
his
crossexamination that he does not know that his
father has received the payment in regard to
the dues of the accident from his office,
therefore, he has not denied that the
payment of the said bills has been received
by his father from his office. The original
bills were also not placed on record
because payment of the same were taken
from the department, therefore, he is not
3 All. National Insurance Co. Ltd. Lucknow Vs. Gaurav Sharma & Anr.
15
entitled for payment of the same. There is
no illegality or infirmity in it.

25. The learned Tribunal on the
basis of pleading, material on record and
evidence adduced before it found that the
claimant was a student of intermediate and
his age was 18 years. He suffered serious
injuries in the accident on account of which
his left leg was amputated. The disability
certificate has been issued by the Chief
Medical
Officer,
Mahamaya
Nagar,
Hathras, which has been placed on record
as Paper No.C-38/3, in which his disability
has been shown 70% and it is permanent.
His photo is also pasted on the said
certificate. In the disability certificate his
left leg has been amputated below the knee.
The claimant pleaded and deposed in
evidence that he was a good player of
Cricket. He has filed the certificate of
intermediate college, in which he has
participated in the competition of State
Colleges of Division in C.K. Naidu Cricket
Tournament of Secondary State Colleges
and his performance was outstanding in the
said state level tournament. He also filed a
chart showing his performance as published
in news papers in various matches. The
Tribunal has recorded a finding on the basis
of pleadings, evidence and material on
record that it appears that the claimant had
good reputation in Cricket as a bowler and
definitely amputation of left leg of such a
student makes his life dark in the said field.

26. The learned tribunal, after
considering the judgment of Hon'ble
Supreme Court, in the case of Syed
Siddiqui Vs. Divisional Manager United
India; 2014 (1) TAC 369 SC, in which on
account of amputation of left leg of a
vegetable
seller,
the
Supreme
Court
determined the functional disability of 85%
and his monthly income was Rs.6500 per
month in the year 2011 and accordingly the
compensation was determined, held that in
comparison thereof, the claimant has
claimed his monthly income as Rs.3000/-
per month, which is equivalent to a labour
and it is only an example of his bona fide.
Accordingly, looking to his being good
player of Cricket determined the functional
disability of 80%. The learned tribunal has
further awarded the future prospects to the
tune of 50% and Rs,50,000/- for pain and
suffering and Rs.1,00,000/- for loss of
amenities and degradation in the marriage
life and Rs.25,000/- towards the transport
and fuel etc.

27. The Hon'ble Supreme Court, in
the case of Laxman @ Laxman Mourya
Vs.
Divisional
Manager,
Oriental
Insurance
Company
Limited
and
Another (Supra), has held that personal
sufferings of the survivors of the road
accidents and those who are disabled in
such accidents are manifold. Some time
they can be measured in terms of money
but most of the times it is not possible to do
so. In cases involving total or partial
disablement, the term `compensation' used
in Section 166 of the Motor Vehicles Act,
1988 would include not only the expenses
incurred for immediate treatment, but also
the amount likely to be incurred for future
medical treatment/care necessary for a
particular injury or disability caused by an
accident. It has further been held that if the
victim of an accident suffers permanent or
temporary disability, then efforts should
always be made to award adequate
compensation not only for the physical
injury and treatment, but also for the pain,
suffering and trauma caused due to
accident, loss of earning and victim's
inability to lead a normal life and enjoy
amenities, which he would have enjoyed
but for the disability caused due to the
16 INDIAN LAW REPORTS ALLAHABAD SERIES
accident. The relevant paragraphs 8, 14 and
15 are extracted here-in-below:-

 "8. The personal sufferings of the
survivors of road accidents and those who
are disabled in such accidents are
manifold. Sometimes they can be measured
in terms of money but most of the times it is
not possible to do so. If an individual is
permanently disabled in an accident, the
cost of his medical treatment and care is
likely to be very high. In cases involving
total or partial disablement, the term
"compensation" used in Section 166 of the
Motor Vehicles Act, 1988 (for short "the
Act") would include not only the expenses
incurred for immediate treatment, but also
the amount likely to be incurred for future
medical treatment/care necessary for a
particular injury or disability caused by an
accident.

-----------------------------------------
----------------------------

14. In Raj Kumar v. Ajay Kumar
[(2011) 1 SCC 343 : (2011) 1 SCC (Civ)
164 : (2011) 1 SCC (Cri) 1161] the Court
considered some of the precedents and
held: (SCC pp. 347-48, paras 5-6)

"5. The provision of the Motor
Vehicles Act, 1988 ('the Act', for short)
makes it clear that the award must be just,
which means that compensation should, to
the extent possible, fully and adequately
restore the claimant to the position prior to
the accident. The object of awarding
damages is to make good the loss suffered
as a result of wrong done as far as money
can do so, in a fair, reasonable and
equitable manner. The court or the
Tribunal shall have to assess the damages
objectively and exclude from consideration
any speculation or fancy, though some
conjecture with reference to the nature of
disability
and
its
consequences,
is
inevitable. A person is not only to be
compensated for the physical injury, but
also for the loss which he suffered as a
result of such injury. This means that he is
to be compensated for his inability to lead
a full life, his inability to enjoy those
normal amenities which he would have
enjoyed but for the injuries, and his
inability to earn as much as he used to earn
or could have earned.

...

6.
The
heads
under
which
compensation is awarded in personal
injury cases are the following:

Pecuniary
damages
(Special
damages)

(i)
Expenses
relating
to
treatment,
hospitalisation,
medicines,
transportation,
nourishing
food,
and
miscellaneous expenditure.

(second) Loss of earnings (and
other gains) which the injured would have
made had he not been injured, comprising:

(a) Loss of earning during the
period of treatment;

(b) Loss of future earnings on
account of permanent disability.

(secondi)
Future
medical
expenses.

Non-pecuniary damages (General
damages)

(iv) Damages for pain, suffering
and trauma as a consequence of the
injuries.

(v) Loss of amenities (and/or loss
of prospects of marriage).

(vi) Loss of expectation of life
(shortening of normal longevity).

In routine personal injury cases,
compensation will be awarded only under
heads (i), (second)(a) and (iv).