1 2025:CGHC:12196 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR Judgment Reserved on :08/08/2024 Judgment delivered on :11/03/2025 MAC No. 664 of 2019 1 - Smt. Saneshiya Mahant Wd/o Late Chamra Das, Aged About 50 Years, R/o Village Basibar P.S. and Tahsil Pali, District Korba Chhattisgarh. (Claimants), District : Korba, Chhattisgarh ... Appellant versus 1 - Sanjay Kumar Yadav S/o Rajendra Yadav, Aged About 32 Years, R/o Transport Nagar Magazinebhata Pump House Korba District Korba Chhattisgarh. (Driver), District : Korba, Chhattisgarh 2 - Subodh Kumar Singh S/o K.P. Singh, R/o Q.No. 2A/2 Shahid Bhagat Singh Korba District Korba Chhattisgarh. (Owner) 3 - The New India Assurance Co. Ltd. Through Branch Manager Sada Complex, T.P. Nagar, Korba District Korba Chhattisgarh. (Insurance Co.) (Claimants) ... Respondents For Appellant : Mr. Pravin Kumar Tulsyan and Ms. Pooja Yadav, Advocate. For Respondent No.3 : Mr. Qamrul Aziz, Advocate. Hon'ble Shri Justice Ravindra Kumar Agrawal, J. CAV Judgment 1. The present appeal under Section 173(2) of the Motor Vehicles Act, 1988 filed by the claimant against the impugned award dated 07-02-2019 passed by the learned Additional Tribunal to the learned Additional Motor Accident Claims Tribunal Katghora, District Korba in Claim Case No.57/2018. 2. The facts in brief are that the claimant had filed Claim Case under Section 166 of the Motor Vehicles Act, 1988 claiming Rs.26,60,000/- on various Digitally signed by MOHAMMAD AADIL KHAN 2 heads against the death of deceased Premdas Mahant in a motor accident which had occurred on 07-12-2017 by rash and negligent driving of the trailer vehicle No. CG 12S 1528 by its driver rashly and negligently which had been parked on the road without there being any proper indication and liting its indicator by which the motorcycle of the deceased dashed and he died on the spot. The claimant have pleaded in her application that the deceased was aged about 21 years at the time of incident he was a mason and earning Rs.10,000/- per month and she was dependent upon the income of the deceased. 3. Non-applicant No.1 and 2 have contested the claim of the claimant and filed their written statement and submitted that at the time of accident the deceased was drinking liquor and in drunken condition he himself dashed with the trailer which was parked on the side of the road, therefore, there is no negligence of the driver of the trailer. It is further pleaded that the offending vehicle trailer was being duly insured with the insurance company and there is no breach of any policy condition. The driver of the vehicle was having valid and effective driving license at the time of accident, therefore, the liability to pay compensation, if any, is upon the insurance company. 4. Non-applicant No.3, insurance company have also filed their written statement and have pleaded that the non-applicant No.1 was not having any valid and effective driving license at the time of accident and therefore, there is breach of policy condition and the insurance company is not liable to pay compensation. It is also defence of the insurance company that the owner and insurance company of the motorcycle have not been made as party non-applicant in the claim case, therefore, the claim application is not tenable. 5. Based on the respective pleadings of the parties, the learned Claims Tribunal has framed 5 issues and after recording the evidence, assessed the total compensation of Rs.13,27,640/-, however by holding that the deceased 3 himself was negligent in the accident to the extent of 50% by the principles of contributory negligence and therefore, by deducting 50% amount of total assessed compensation awarded Rs.6,63,820/- as compensation in favour of the claimant. Being dissatisfied by the award dated 07-02-2019 the present appeal has been filed by the claimant. 6. Learned counsel for the appellant would submit that the finding recorded by the learned Claims Tribunal with respect to the contributory negligence is perverse and on assumption. There is no evidence led by the non-applicant that the deceased was also negligent in driving his vehicle. After investigation the police has found the non-applicant No.1 guilty in the accident and has filed charge sheet against him and he same has not been challenged by non- applicant No.1. The non-applicants have not led any evidence to prove that the deceased was also negligent in the accident, even the non-applicant No.1 the driver of the offending vehicle himself has not been examined by the learned Claims Tribunal. Merely on the basis of the evidence of eye witness that at the time of accident the head light of the motorcycle was also lit, the learned Claims Tribunal has held that the deceased was also negligent in the accident is erroneous. He would further submit that the learned Claims Tribunal has not awarded proper compensation towards conventional head and the amount of compensation is liable to be enhanced suitably. 7. On the other hand, learned counsel for respondent No.3 insurance company supported the impugned award passed by the learned Claims Tribunal and has submitted that the deceased himself dashed with the trailer which was parked on the side of the road, therefore, he himself was negligent to the extent of 50% in the accident and thereby the learned Claims Tribunal has rightly held that the deceased was also negligent in the accident and under the principles of contributory negligence awarded 50% of the total assessed amount towards compensation to the claimant, which is just proper appreciation of the evidence and the appeal is liable to be dismissed. 4 8. I have heard learned counsel fort he parties and perused the record. 9. From perusal of para 23 of the award it appears that the learned Claims Tribunal has considered the fact that the trailer was parked on the side of the road and at the time of accident the head light of the motorcycle was litting and thus the deceased was also required to be careful while driving his vehicle. In the accident there is element of negligence on the part of the deceased is available as despite having liting the head light of the motorcycle the accident occurred, therefore, the deceased may also be held liable for accident to the extent of 50% and therefore, 50% amount of total assessed compensation has been deducted. 10. From the record of the criminal case, i.e., final report Ex.-P/1, FIR Ex.-P/2 it is quite vivid that the trailer vehicle was parked near Maravi Dhaba at main road without litting its indicator, without reflector, without radium plate or red signal and it was parked negligently on the side of the road by which the motorcycle of the deceased was dashed . Non-applicant No.1 and 2 have not taken any defence in their written statement that their vehicle trailer was parked on the side of the road for away from the side line of the road by litting its indicator or having any indication like radium reflector light or putting shrubs surrounding the vehicle and it was simply raised defence that the deceased himself was dashed with the offending vehicle trailer when he was driving his motorcycle in the parking condition. Even the insurance company has not taken any specific defence in their written statement that the trailer vehicle was parked on the side of the road having litting its indicator or having any proper indication like radium reflector or by any other means. Further, no evidence led by the non-applicant to prove the fact that the deceased was also negligent in driving his motorcycle. The trailer was parked on the side of the road with proper indication. Further, the driver of the trailer vehicle himself has not been examined to prove that he as not negligent in parking his vehicle on the side of the road. 5 11. AW-2 Rakesh Kumar who is eye-witness to the accident has stated that he followed the motorcycle of the deceased and all of sudden the trailer vehicle stopped without there being any indication or back light by which the deceased dashed from the backside of the said trailer vehicle. The absence of any indication in the said trailer vehicle could not be rebutted by the non- applicant in his cross-examination. Merely by saying that the head light of the motorcycle was litting at the time of accident it cannot be said that driver of the motorcycle was also negligent in the accident when it specifically stated by the eye-witness that the driver of the trailer vehicle stopped his vehicle all of sudden without giving any indication and indicator or backlight. 12. In the matter of Jumani Begam Vs. Ram Narayan and Others, (2020) 5 SCC 807, the Hon’ble Supreme Court has held in para 7 of said judgment that:- “7. MACT then discussed the evidence of the drier of the truck trailer, AW1. After analysing the evidence of the driver, MACT held that his evidence did not inspire confidence, when he stated that indicators on the truck trailer had been lit. On the contrary, the eyewitness, AW2, in the course of his cross-examination, denied the existence of reflectors at the spot. MACT noted that it did not appear that the truck trailer had been parked outside the area of the pakka road. In spite of its analysis in the above terms, MACT surmised that if the lights of the motorcycle were lit, the deceased would have been able to avoid the accident. This part of the reasoning of MACT is purely a matter of surmise. Once the substantive evidence before MACT established that the truck trailer had been parked on the road at night without any reflectors, we are of the view that there was no reason or justification for MACT to proceed on the basis of conjecture in arriving at a finding of contributory negligence. We find from the judgment of the High Court that this aspect has not been discussed at all and the High Court simply proceeded to confirm the finding of 6 contributory negligence. Consequently, on the first limb of the submission, the learned counsel appearing on behalf of the appellant is correct and the submission requires to be accepted.” 13. In the present case, in the matter of National Insurance Company Limited Vs. Chamundeswari and others, (2021) 18 SCC 596 Hon’ble the Supreme Court has held in para 8 and 10 that:- “8. It is clear from the evidence on record of PW–1 as well as PW–3 that the Eicher van which was going in front of the car, has taken a sudden right turn without giving any signal or indicator. The evidence of PW–1 & PW–3 is categorical and in absence of any rebuttal evidence by examining the driver of Eicher van, the High Court has rightly held that the accident occurred only due to the negligence of the driver of Eicher van. It is to be noted that PW–1 herself travelled in the very car and PW–3, who has given statement before the police, was examined as eye–witness. In view of such evidence on record, there is no reason to give weightage to the contents of the First Information Report. If any evidence before the Tribunal runs contrary to the contents in the first information report, the evidence which is recorded before the Tribunal has to be given weightage over the contents of the first information report. xxxx xxxx xxxx xxxx 10. Whether driver of the vehicle was negligent or not, there cannot be any straitjacket formulat. Each case is judged having regard to facts of the case and evidence on record. Having regard to evidence in the present case on hand, we are of the view that both the judgments relied on by the learned counsel for the appellant, would not render any assistance in support of his case.” 14. In the present case, admittedly the driver of the offending vehicle trailer was not examined, whereas, it is clear from the statement of AW-2 Rakesh Kumar the accident took place because the offending vehicle suddenly stopped on 7 the road without giving any signal or indicator. The evidence of AW-2 is categorical and in absence of any rebuttal by examining the driver of the offending vehicle or any other witness to the accident, it cannot be said that the driver of the motorcycle was also negligent in the accident. Further, from the contents of the final report and FIR Ex.-P/1 and P/2, it also reflected that the accident had taken place on account of negligent driving of the driver of the said trailer and the learned Claims Tribunal has completely eschewed that piece of evidence while recording its finding regarding the issue relating to the actionable negligence. Therefore, this Court hold that the accident had taken place due to negligence on the part of non-applicant No.1 who is driver of the trailer vehicle involved in the accident. 15. Next question for consideration shall be computation of just and reasonable compensation that may be directed to be paid to the claimant. 16. The learned Claims Tribunal has considered that the deceased was a labourer at the time of accident and the minimum wages prescribed on the date of incident was taken into consideration while determining the compensation amount. The learned Claims Tribunal has considered Rs.8,450/- per month as income of the deceased at the time of the accident, in which this Court does not find any perversity and proceeds to recompute the computation amount on the same. 17. In the light of above and taking guidance from the judgment of Supreme Court in cases of National Insurance Co. Ltd. Vs. Pranay Sethi & Others, 2017(16) SCC 680, Smt. Sarla Verma & Others Vs. Delhi Transport Corporation & Ors, 2009(6) SCC 121 and Magma General Insurance Co. Ltd. Vs. Nanu Ram @ Chuhru Ram & Others, 2018(18) SCC 130, this Court is recomputing the compensation as below- Monthly income of deceased 8450/- Future prospects @ 40 percent 3380/- Total income 11,830/- Total yearly income 1,41,960/- 8 Personal expenditure (½) 70,980/- Multiplier of 18 applied to assess total loss of dependency 70,980/- x 18 =12,77,640/- Loss of estate 15,000/- Funeral expenses 15,000/- Filial consortium to the appellant No.1 40,000/- Total compensation 13,77,640/- 18 For the forgoing reason, the appeal is allowed in part. The amount of compensation of Rs.6,63,820/- awarded by the Tribunal is enhanced to Rs.13,77,640/-. Hence, after deducting the amount of Rs.6,63,820/-, the claimant is entitled for an additional amount of Rs.7,13,820/-. The additional amount shall carry interest @ 6 percent per annum from the date of claim application till its realization. The impugned award stands modified to the extent indicated hereinabove. 19. The insurance company is directed to deposit the amount of compensation enhanced by this Court within a period of 60 days from the date of this judgment. On such deposit being made, Rs.5,00,000/- shall be deposited in the name of appellant for a period of three years in FDR at any nationalized Bank and the remaining amount shall be paid to the appellant/claimant through bank transaction/account payee cheque. 20. With the above observations this appeal is partly allowed. Sd/- (Ravindra Kumar Agrawal) Judge Aadil