1 2025:CGHC:27007 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR MAC No. 618 of 2020 1. Anandram Sinha S/o Parasram Sinha Aged About 45 Years R/o Village Charoda, Post Belar, Police Station Rajim, District Gariyaband Chhattisgarh. 2. Smt. Sumitra Bai Sinha W/o Shri Anandram Sinha Aged About 40 Years R/o Village Charoda, Post Belar, Police Station Rajim, District Gariyaband Chhattisgarh. (Claimants) ... Appellants-claimants versus 1. Raghunandan S/o Bali Halba R/o Village Rajim, Police Station Rajim, District Gariyaband Chhattisgarh. (Driver Of Vehicle Truck Bearing Registration No. CG04-J-1012). 2. Anil Sharma Address Through Shri Abhishek Agrawal S/o Mohan Agrawal, R/o Lohabada / Nayapara Rajim, Tahsil And Police Station Nayara Para, District Raipur Chhattisgarh. (Registered Owner Of Vehicle Truck Bearing Registration No. CG04-J-1012). 3. The Branch Manager The Iffco Tokioi General Insurance Company Limited, Through Branch Manager, Branch Office, Lal Ganga Shopping Mall, 345-347, Third Floor, Raipur, District Raipur Chhattisgarh. (Insurer of Vehicle Truck Bearing Registration No. CG04-J-1012). ... Respondent(s) For Appellants : Mr. Shivendu Pandya, Advocate For Respondent No.3 : Mr. Pravesh Sahu, Advocate 2 Hon'ble Shri Justice Parth Prateem Sahu Order on Board 23/6/2025 1. This appeal is filed by claimants-appellants for enhancement of compensation awarded by the learned Additional Motor Accident Claims Tribunal, Gariyaband (for short, 'the Claims Tribunal') vide its award dated 11.10.2018 passed in Claim Case No.53/2014 and also for setting aside fixation of 50% contributory negligence on the part of the deceased. 2. Facts of the case, in brief, are that appellant filed an application under Section 166 of the Motor Vehicles Act, 1988 (for short ‘the Act of 1988’) seeking compensation to the tune of Rs.12,10,000/- under various heads, for death of Dipak Sinha in a road accident occurred on 19.1.2014 at about 9:00 p.m. in the night when the motorcycle of Dipak was collided with the truck bearing registration number CG04-J-1012, which was parked on the middle of road in the night without switching on parking lights or indicators. It was case of the claimants-appellants that the deceased was aged about 25 years, he was working as Tiles Fitter, earning Rs.6,000/- per month and on account of unnatural death of Dipak Sinha in the road accident, the claimants have suffered loss of income. 3. Since the driver and owner of offending motorcycle did not chose to appear before the Claims Tribunal, therefore, they were proceeded ex-parte and no reply to claim application 3 was filed on their behalf. 4. Non-applicant No.3-Insurance Company filed reply to application denying the averments made therein. It was pleaded that the offending truck was parked beside the road on left side, parking lights were on, even lights of Gungun Dharamkanta, situated nearby was also on and thus there was sufficient light on the spot. As the parking lights were on, the presence of offending vehicle could be easily seen even from distance. There was sufficient space beside the offending vehicle for the movement of a big vehicle. Alleged accident occurred due to rash and negligent driving of motorcycle. Three persons were travelling on motorcycle, therefore, the rider of motorcycle lost control over it and collied with offending vehicle. Thus, the rider of motorcycle is also equally responsible for the accident. It was further pleaded that the offending vehicle was a goods carriage vehicle and driver of offending vehicle was not having valid license to drive the offending vehicle. There was no valid fitness certificate and permit of the offending vehicle. Thus, there was violation of condition of insurance policy and as such, the insurance company is not liable to indemnify the insured. 5. The Claims Tribunal, after considering the relevant material available on record and after appreciation of the oral and documentary evidence brought on record by respective 4 parties, has allowed the claim petition in part, awarded total compensation of Rs.5,21,400/-, however, deducted 50% amount towards contributory negligence by recording that deceased was also negligent at the time of accident and accordingly held that claimants are entitled to get compensation of Rs.2,60,700/- with 7.5% interest per annum from the date of petition till the date of payment. 6. Learned counsel for claimants/appellants submits that appellants have filed this appeal seeking enhancement of amount of compensation primarily on the ground that the Claims Tribunal erred in arriving at conclusion that driver of motorcycle i.e. deceased Dipak Sinha, had also contributed to the accident only on the ground that at the time of accident there were three occupants in the motorcycle. Said finding of the Claims Tribunal is erroneous because the Claims Tribunal has overlooked that time of accident is around 8:00 p.m. in the night, the offending vehicle was parked on the middle of road without switching on parking lights or indicators. He submits that if a vehicle is negligently parked on the public road without taking precautionary measures like switching on the parking lights or indicators, and any person travelling on road if collided with said vehicle, then it cannot be said that it was the case of contributory negligence and driver of that vehicle had equally contributed to the accident. In alternate, learned 5 counsel submits that in the facts of the case where offending vehicle was parked in the night on the road without there being any indicator etc., the negligence on the part of driver of motorcycle on which deceased was traveling, cannot be attributed more than 25%. He next contended that the Claims Tribunal overlooked the evidence of occupation of deceased and income therefrom. He submits that the claimants in support of the plea that at the time of accident, the deceased was working as Tiles Fitter and earning Rs.6000/- per month, have examined Jaichand Sahu (AW-3) who has categorically deposed about the occupation and income of deceased. However, the Claims Tribunal for the reason best known to it, disbelieved the evidence of Jaichand Sahu (AW-3). He submits that even if income, as pleaded in the application is not accepted, then considering the fact that the deceased was engaged as Tiles Fitter, which stands proved from the evidence of Jaichand Sahu (AW-3), the Claims Tribunal ought to have assessed the income of deceased by resorting to the minimum wage rate fixed by the competent authority under the Minimum Wages Act, 1948 for a skilled worker. He further contended that compensation awarded under other heads is also on lower side. Therefore, he prays that amount of compensation awarded by learned Claims Tribunal be suitably enhanced and finding of the Claims Tribunal fixing 50% 6 contributory negligence on the part of the driver of motorcycle be set aside. 7. On the other hand, learned counsel appearing on behalf of respondent No.3 supporting the award passed by the Claims Tribunal, submitted that it is not in dispute that deceased was driving motorcycle and at the time of accident, three persons were travelling motorcycle. Said motorcycle collided from rear side of the stationary truck. Thus, there is no error in the finding of the Claims Tribunal holding the deceased contributory negligence to the extent of 50%. Amount of compensation awarded by the Claims Tribunal is just and proper and it does not call for any interference. 8. I have heard learned counsel for the respective parties and perused record of claim case including impugned award. 9. It is not in dispute that the accident occurred in the night around 8:00 p.m. As per spot map, the offending vehicle has been shown to be parked on the road. One of the wheels of offending vehicle was on the middle of the road. Map is filed as Ex.D-6C. This document is brought on record by the Insurance Company in support of the plea of contributory negligence. Claimants have examined Manish Dhruw (AW-2), one of the occupants of motorcycle at the time of accident. This witness has stated that one of wheels of offending vehicle was on the side of the road and there was sufficient 7 space on the road side of truck to bypass it. Spot map is filed by non-applicant No.3 insurance Company as Ex.D-6C. Documentary evidence brought on record by the Insurance Company shows that all four wheels of the offending vehicle were on road and one of the wheels is on the middle of the road. There is evidence available on record that at the time of accident, parking lights or indicators of the offending vehicle were not on nor any signal lamps or red flag on the hind side of vehicle was put. In other words, no precautionary measures were taken by the driver of the offending vehicle while parking the vehicle on the road. 10. In case of Archit Saini v. Oriental Insurance Co. Ltd. & ors, reported in (2018) 3 SCC 365, wherein the Hon’ble Supreme Court while setting aside the finding of the High Court with respect to contributory negligence on the part of driver of Maruti Car to the extent of 50%, has held that it is well settled that the nature of proof required in cases concerning accident claims is qualitatively different from the one in criminal cases, which must be beyond any reasonable doubts. The Tribunal applied the correct test in the analysis of the evidence before it. Notably, the High Court has not doubted the evidence of PW 7 as being unreliable nor has it discarded his version that the driver of the Maruti Car could not spot the parked Gas Tanker due to the flashlights of the oncoming traffic from the 8 front side. Further, the Tribunal also adverted to the legal presumption against the driver of the Gas Tanker of having parked his vehicle in a negligent manner in the middle of the road. 11. In the case at hand, from the spot map which was brought on record by the Insurance Company shows that the offending vehicle was parked in the middle of the road in the night and as per evidence of the eyewitness Manish Dhruw AW-2, there was no sign or indication put on to warn other road passers. It has come in the evidence of eyewitness that offending vehicle was visible from a distance of 20-30 feet but in the night when there is lot of traffic on the road, motor vehicles run with considerable speed and it may not be possible to stop the vehicle suddenly. Therefore, considering the entirety of the facts of the case and evidence available on record, in the opinion of this Court, the Claims Tribunal erred in recording the finding that there was contributory negligence on the part of the deceased to the extent of 50% and therefore, the same is hereby set aside. However, upon appreciation of evidence of AW-2, spot map placed on record and other evidence, I find it appropriate to hold the deceased contributory negligent to the extent of 25%. It is ordered accordingly. 12. So far as quantum is concerned, perusal of the record would show that accident occurred on 19.1.2014. Jaichand Sahu 9 (AW-2) in his evidence has stated that deceased was engaged by him as Tiles Fitter in building work and he was paying Rs.300/- per day to him. There is no reason to disbelieve aforesaid evidence of independent witness available on record that the deceased was doing work of Tiles Fitter prior to the accident. Looking to the nature of employment, it cannot be expected to submit any document for his engagement as Tiles Fitter. Thus, the Claims Tribunal erred in not considering evidence of Jaichand Sahu (AW-2) with respect to occupation of the deceased and therefore, the finding of the Claims Tribunal that the claimants failed to prove the nature of occupation of deceased is not sustainable and it is hereby set aside. However, no proof is submitted with regard to income of the deceased. Considering the evidence of Jaichand Sahu (AW-2), this Court is of the view that the nature of work in which the deceased engaged prior to the incident i.e. Tiles Fitter, brings him to the category of a skilled worker. On the basis of minimum wage rate fixed by the Competent Authority, I finding it appropriate to fix income of deceased as Rs.5,910/- p.m. instead of Rs.4,500/- as fixed by the Claims Tribunal. 13. The Claims Tribunal has applied multiplier of 16 taking average age of the parents of the deceased. As per decision of Hon’ble Supreme Court in case of Sarla Verma vs. Delhi 10 Transport Corporation, reported in (2009) 6 SCC 121, the age of deceased is to be taken for adopting the multiplier and not the average age of the parents of the deceased. Thus, the Claims Tribunal has erred in adopting multiplier with reference to the average age of the parents of the deceased and instead it should have been fixed with reference to the age of the deceased. In case at hand, deceased Dipak was 24 years old at the time of accident, and therefore, the multiplier applicable is '18'. It is ordered accordingly. 14. The Claims Tribunal has awarded Rs.15,000/- towards loss of estate, Rs.15,000/- for funeral expenses, but not awarded any amount towards loss of consortium to appellants, who are parents of the deceased. As per decision of Hon’ble Supreme Court in case of Magma General Insurance Company Ltd. vs. Nanu Ram alias Chuhru Ram & others, (2018) 18 SCC 130, the parents of victim died in a road accident are also entitled for filial consortium at the rate of Rs.40,000/- each. Thus, appellants being parents of the deceased would also be entitled to compensation under filial consortium in the sum of Rs.40,000/- each. It is ordered accordingly. 15. Looking to the age of deceased i.e. 24 years, addition of 40% future prospects to the assessed income of deceased; deduction of one half towards personal expenses of deceased is in consonance with the law in this regard and the same 11 need no interference. 16. For the foregoing, this Court proposes to recalculate amount of compensation payable to the claimants/appellants. 17.Accordingly, income of deceased is taken as Rs.5,910/- per month and after adding 40% towards future prospects, monthly income of deceased would come to Rs.8,274/- and annual income would be Rs.99,288/-. Out of this amount, one- half is to be deducted towards personal and living expenses of deceased, as deducted by the Claims Tribunal, and after deducting one-half, loss of dependency would come to Rs.49,644/-. Applying multiplier of 18, as held above, the loss of dependency would be Rs.8,93,592/- (49644x18). Besides this, appellants are entitled for a sum of Rs.40,000/- each towards loss of filial consortium. In addition to aforesaid amount, appellants are also entitled to get a sum of Rs.15,000/- for funeral expenses and Rs.15,000/- for loss of estate. Thus, total amount works out to Rs.10,03,592/- (893592+40000+40000+15000+15000). As the deceased is held guilty for contributory negligence to the extent of 25%, the claimants/appellants are entitled for compensation of Rs.7,52,694/- (1003592-250898). This amount of compensation shall carry interest @ 7.5% p.a. from the date of application till actual payment is made. Rest of the conditions mentioned in the impugned award shall remain 12 intact. Any amount disbursed to appellants pursuant to impugned award will be adjusted from the amount of compensation as awarded above. 18.In the result, appeal is allowed in part and the impugned award stands modified to the extent indicated above. Sd/- (Parth Prateem Sahu) Judge roshan/ SYED ROSHAN ZAMIR ALI Digitally signed by SYED ROSHAN ZAMIR ALI