BICHIN SHARMAversusDEVENDRA KUMAR AND ANR.

         HIGH COURT OF JUDICATURE AT ALLAHABAD
                 FIRST APPEAL FROM ORDER No. - 4012 of 2012

Bichin Sharma
                                                           .....Appellant(s)
                                   Versus

Devendra Kumar And Anr.
                                                          .....Respondent(s)

Counsel for Appellant(s)              :     , Akhilesh Chandra Shukla
Counsel for Respondent(s)             :     Rahul Sahai

Court No. - 54
                       HON'BLE ANIL KUMAR-X, J.

1. Heard Shri Akhilesh Chandra Shukla, learned counsel for the
appellants and Shri Aditya Singh Parihar holding brief of Shri Rahul
Sahai, learned counsel for the respondent-Insurance Company.

2. This appeal, at the instance of the claimant seeking enhancement of
compensation, challenges the judgment and award dated 14.8.2012 passed
by Motor Accident Claims Tribunal in M.A.C.P. No.970 of 2010 (Bichin
Sharma vs. Devendra Kumar & Anr.) whereby the claim petition was
partly allowed and an amount of Rs.15,19,140/- has been awarded as
compensation.

Brief Facts

3. According to the claim petition, on 30.05.2010, the appellant-claimant
was taking Mrs. Ranju on his motorcycle bearing registration No. DL-1
SP-6037 from Hapur to Kila Parikshitgarh for appearing in the nursing
examination. When they reached village Safiabad Laothi, within the
territorial jurisdiction of Police Station Mundali, District Meerut, the
driver of Tata 407 bearing registration No. UP-13 J-2450, while driving
the vehicle rashly and negligently on the wrong side of the road, hit the
claimant’s motorcycle with great force, as a result of which both the
claimant and Mrs. Ranju fell down and sustained serious injuries.

4. The Tribunal, considering the deposition of the appellant-claimant that
the accident had occurred due to a head-on collision, held that the
appellant-claimant had also contributed to the accident by his negligence
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to the extent of 25%, whereas the driver of the offending vehicle was held
negligent to the extent of 75%. Accordingly, against the total
compensation of Rs.20,25,520/-, the Tribunal deducted 25% towards
contributory negligence and awarded a sum of Rs.15,19,140/- along with
interest at the rate of 6% per annum.

Arguments advanced on behalf of the appellant-claimant

5. Learned counsel for the appellant-claimant has argued that the Tribunal
has wrongly held the appellant-claimant negligent to the extent of 25%
and thereby deducted the said percentage from the total compensation
awarded to him. The Tribunal has ignored the testimony of the
eyewitness, P.W.-4 Tript Sharma, who stated that he was also coming
behind the appellant-claimant on his motorcycle at the relevant time and
that the driver of the offending vehicle, while driving on the wrong side of
the road, hit the motorcycle of the appellant-claimant and knocked him
down. It is further submitted that the said witness was extensively cross-
examined, but nothing material could be elicited from his testimony to
discredit his version. Therefore, the finding recorded by the Tribunal
regarding contributory negligence on the part of the appellant-claimant is
contrary to the evidence on record and is liable to be set aside.

6. It has further been argued that the Tribunal has wrongly determined the
annual income of the appellant-claimant by deducting the amounts shown
towards income tax in his income tax returns. The appellant-claimant had
produced income tax returns for three years and had also established that
he had been working as a commission agent at the Post Office, Hapur, for
the preceding six years. In his income tax return for the assessment year
2009–2010, his annual income was shown as Rs.2,06,810/-, from which
the Tribunal deducted Rs.37,000/- towards income tax and determined his
annual income at Rs.1,69,810/-. Similarly, for the assessment year
2008–2009, the Tribunal deducted Rs.35,000/- from the annual income of
Rs.1,37,477/- and determined the same at Rs.1,02,480/-. A similar
deduction was made in respect of the income tax return for the assessment
year 2010–2011. On the basis of the income so determined for the three
years, the Tribunal assessed the average annual income of the appellant-
claimant at Rs.1,31,323/-.
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7. It has been contended that the amounts shown as income tax deductions
in the aforesaid returns were, in fact, the commission earned by the
appellant-claimant, which had been deducted by the Income Tax
Department but was subsequently reimbursed to him by his department,
as the said amount represented his commission. Therefore, the Tribunal
has erred in deducting the aforesaid amounts while determining the
annual income of the appellant-claimant.

Arguments advanced on behalf of the respondent-Insurance
Company

8. Learned counsel for the respondent-Insurance Company has supported
the impugned award and submitted that the Tribunal has rightly held the
appellant-claimant negligent to the extent of 25%, as the site plan
prepared by the Investigating Officer clearly indicates that the accident
occurred due to a head-on collision.

9. It has further been argued that the appellant-claimant has failed to
produce any cogent evidence to establish that the amounts deducted
towards income tax in his income tax returns were, in fact, commission
earned by him and subsequently reimbursed by his department. Therefore,
the Tribunal has rightly deducted the aforesaid amounts while
determining his annual income, and no interference is warranted in the
impugned award.

Conclusion

10. I have considered the submissions advanced by learned counsel for
the parties and perused the findings recorded by the Tribunal on both the
contested issues, as well as the evidence available on record.

11. It is evident from the record that an FIR was registered as Case Crime
No.153 of 2010 under Sections 279, 337, 338 and 427 IPC, and after
investigation, a charge-sheet was submitted against the driver of the
offending vehicle. The site plan prepared by the Investigating Officer
indicates that the accident occurred due to a head-on collision. The
appellant-claimant, Bichin Sharma, examined himself as P.W.-1 and, in
his examination-in-chief, also stated that the accident had occurred due to
a head-on collision. P.W.-4 Tript Sharma has also stated about the head-
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                                    on collision. Thus, the testimony of the appellant-claimant himself, read
                                    with the site plan and the statement of P.W.-4, supports the finding
                                    recorded by the Tribunal regarding the manner of the accident

                                    12. In view of the aforesaid evidence, the finding of the Tribunal that the
                                    appellant-claimant had also contributed to the accident by his negligence
                                    to the extent of 25%, while holding the driver of the offending vehicle
                                    negligent to the extent of 75%, does not suffer from any illegality or
                                    perversity warranting interference by this Court.

                                    13. So far as the determination of income is concerned, although the
                                    appellant-claimant has contended that the amounts deducted towards
                                    income tax were, in fact, his commission, which were subsequently
                                    reimbursed by his department, no documentary or other cogent evidence
                                    has been adduced to establish the said fact. In the absence of any evidence
                                    to substantiate the aforesaid contention, the Tribunal cannot be faulted for
                                    deducting the amounts shown towards income tax while assessing the
                                    annual income of the appellant-claimant. Accordingly, no interference is
                                    warranted with the finding recorded by the Tribunal on the issue of
                                    determination of income of the appellant.

                                    14. In view of the aforesaid discussions, the appeal is dismissed and the
                                    impugned award of the Tribunal is affirmed.




                                                                                            (Anil Kumar-X,J.)
                                    September 11, 2026
                                    SK




Digitally signed by :-
SUSHEEL KUMAR
High Court of Judicature at Allahabad