1 / 10 2025:CGHC:24755 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR MAC No. 795 of 2019 1. Smt. Mogra Bai W/o Late Narendra Patel Aged About 22 Years 2. Santuram S/o Late Firat Aged About 50 Years 3. Gendbai W/o Santuram Patel Aged About 48 Years All are R/o Village Kumahari, P.S. Gidhori, District Balodabazar, Chhattisgarh, Presently Resided At Village Risda, P.S. Masturi, District- Bilaspur, Chhattisgarh --- Appellants/ Claimants versus 1. Chaturbhushan Kesharvani S/o Late Gokul Prasad Kesharvani Aged About 50 Years R/o Ward No.6 Bhatgaon Chowki, Bhatgaon, P.S. Bilaigarh, District- Balodabazar-Bhatapara, Chhattisgarh....(Driver of the Vehicle Car No. C.G.- 04 KP 0624) 2. Sahdev Prasad Sahu S/o Janakram Sahu R/o Village Girvani, P.S. And Tahsil Bilaigarh, District- Balodabazar-Bhatapara, Chhattisgarh...(Registered Owner of the Vehicle Car No. C.G.04KP0624) 3. The New India Insurance Company Limited Through Division Manager, Division Office, Rama Trade Center, In Front Of Rajiv Plaza, Bilaspur, Tahsil And District- Bilaspur, Chhattisgarh...(Insurance Company of the Vehicle Car No. C.G. 04KP0624) --- Respondents ____________________________________________________________ For Appellants : Mr. Sajal Kumar Gupta, Advocate on behalf of Mr. Utkal Pradhan, Advocate For Respondent No. 1 & 2 : None. For Respondent No. 3 : Mrs. Swati Agrawal, Adv. on behalf of Mr. Pankaj Agrawal, Advocate Hon'ble Shri Justice Parth Prateem Sahu Order On Board 17/06/2025 1. Appellants-claimants have filed this appeal under Section 173 of the Motor Vehicles Act, 1988 (for short “Act of 1988”) seeking enhancement of amount PAWAN KUMAR JHA Digitally signed by PAWAN KUMAR JHA 2 / 10 of compensation, challenging the award dated 30.01.2019 passed by Learned Sedond Additional Motor Accident Claims Tribunal, Bilaspur, District Bilaspur, Chhattisgarh (for short “Claims Tribunal”) in Claim Case No. 620/2018, whereby learned Claims Tribunal allowed the application filed under Section 166 of the Act, 1988 in part and awarded total sum of ₹ 9,77,200/- as compensation in motor accidental death case. 2. Facts of the case relevant for disposal of this appeal are that on 25.05.2018, Narendra Kumar being a pillion rider on motorcycle driven by Pratap Kumar was going from village Kumhari via Gidhauri, Bilaigarh main road. As soon as they reached village-Kumhari main road, a car bearing registration No. CG 4 AP-0624 (henceforth “offending car”) driven by non-applicant no. 1 in a rash and negligent manner dashed the motorcycle driven by Pratap Kumar on roadside track and caused an accident. In the accident, Narendra Kumar died on spot. In connection with the said accident, a report was lodged in Police Station-Masturi District-Bilaspur, based on which Crime No. 112/18 was registered for alleged offence under Sections 279, 337, 338, 304 (A) IPC against non-applicant 1. 3. Appellants, who are widow and the parents of deceased Narendra Kumar, filed an application under Section 166 of the Act of 1988 seeking compensation of ₹ 42,75,000/- pleading therein that on the date of accident deceased was aged about 24 years young boy, was an able bodied person. At the time of the accident deceased was a self employed person and was earning ₹ 30,000/- per month to support himself and his family from the said income. 4. Respondent No. 1 & 2 / Non-applicant No. 1 & 2 -driver and the owner of the offending car submitted their reply to the claim proceedings. Thereafter they absented themselves, they were proceeded ex parte and ex parte order has been passed against them in the case. In the reply submitted by them, they 3 / 10 have denied the adverse pleadings made in the application and further pleaded that on the date of accident, non-applicant No. 1/ driver was possessing a valid and effective license to drive the offending car. It was further alleged that the accident occured because, the deceased Narendra Kumar Patel, Pratap Kumar Kewat, Rajkumar Manikpuri and Goldy alias Pandu Patel, all four persons were riding one motorcycle. Pratap was driving the motorcycle rashly in the night due to which it collided with a car coming from Gidhauri Road. The accident took place due to the negligence of the deceased driver and co-occupants. 5. Respondent No. 3/ Non-applicant No. 3/ Insurance Company filed its reply to the claim application, while denying all the adverse pleadings made in the application, it was further pleaded that the information regarding accident was not given by non-applicant no. 1 and has not submitted documents of car like insurance policy, RC book, license, which are valid and effective. The accident was a result of negligence of the driver of the motorcycle, Pratap Kumar, who without having a valid driving license drove the sold new Pulsar motorcycle which did not even have a registration number. The owner of the alleged motorcycle and the insurance company are necessary parties in this case and pleaded that the application of applicants is not maintainable. 6. Learned Claims Tribunal, upon appreciation of pleadings and evidence placed on record by respective parties, held that deceased Narendra Patel died in the accident arising out of rash and negligent driving of offending car owned by non-applicant No. 2 and driven by non-applicant No. 1. Breach of conditions of insurance policy and contributory negligence were not found to be proved, calculated the amount of compensation and awarded ₹ 9,77,200/- as total compensation with interest @ 6% p.a. from the date of filing of claim application. 4 / 10 7. This is an admitted appeal. The liability to satisfy the amount of compensation is upon Respondent No. 3/ Insurance Company, hence, the notice was issued to Respondent No. 3. 8. Learned counsel for Respondent No. 3 submits that the Insurance company has also filed a cross objection under Order 41 Rule 22 CPC and raised a ground that on the date of accident more than three persons were travelling on the motorcycle and the plea of contributory negligence taken in the application has not been properly appreciated by the Claims Tribunal. 9. Learned counsel for appellants-claimants would submit that except the pleadings made in the reply to the claim application the insurance company has not proved the plea of contributory negligence as taken in the reply by examining witnesses or any admissible piece of evidence. He also submits that the claimants/appellants No. 1 to 3 have filed this appeal seeking enhancement of compensation on the ground that income of deceased has not been properly considered by the Claims Tribunal. The claimants in their claim application has specifically pleaded occupation of deceased as Carpenter and his income as ₹ 30,000/- per month. However, Claims Tribunal has assessed the income on notional basis treating him to be an unskilled labourer and assessed his income as ₹ 4,500/- per month. He contended that even the daily wages of a skilled labourer is much more than what is assessed by the Claims Tribunal on the date of accident. 10. In the aforementioned facts of the case, I would like to first consider the cross objection filed by the respondent No. 3-Insurance Company. 11. To appreciate the submission of learned counsel for the respective parties, I have perused the record of claim case. The claimants along with the application have filed relevant documents of criminal case including final report Ext. A-1, F.I.R. Ext. A-2, post mortem report Ext. A-5 and others. Perusal of F.I.R. Ext. A-2 would show that the date of accident is mentioned 5 / 10 as 25.05.2018 at about 08:30 pm. The report was lodged in the concerned police station on 25.05.2018 at about 11:00 p.m. by Santuram Patel. In the F.I.R. it is mentioned that his son Narendra Kumar Patel along with Rajkumar Manikpuri, Pratap Kumar Kenwat and Goldy alias Pandu Patel of the same village were travelling on motorcycle and going to village Gidhori. On the way one car bearing No. CG04-KP-0624 driven by non-applicant No. 1 rashly and negligently dashed the motor cycle and caused accident. Morgue intimation is Ext. A-3, in which also the same facts are mentioned. Claims Tribunal has formulated one of the issue as to whether there is contributory negligence on the part of deceased in issue no. 2 and on appreciation of evidence available on record held that the accident was a result of rash and negligent driving of offending car by non-applicant No. 1/ driver of the offending car. Perusal of record would show that in the reply defense has been taken of contributory negligence, however, the insurance company has not examined any witness in support of their plea. 12. The law to prove the plea of contributory negligence is well settled. It is the burden upon the parties raising the ground of contributory negligence to prove the same by producing clinching and admissible piece of evidence. In the case at hand, as the Respondent no. 3/ Insurance Company has not brought on record any piece of evidence nor has examined any witness in support of said plea of contributory negligence, in the opinion of this Court the submission of learned counsel for Respondent No. 3 that the Claims Tribunal erred in not considering that the deceased was also contributory negligent in the accident is not acceptable. The issue of contributory negligence has been dealt with by the Hon'ble Supreme Court, particularly the evidence of the spot map before the learned Claims Tribunal for proving contributory negligence in the matter of Jiju Kuruvila and others v. Kunjujamma Mohan and others reported in (2013) 9 SCC 166, where the Supreme Court has held thus: 6 / 10 “20.5 The mere position of the vehicles after accident, as shown in a scene mahazar, cannot give a substantial proof as to the rash and negligent driving on the part of one or the other. When two vehicles coming from opposite directions collide, the position of the vehicles and its direction, etc. depends on a number of factors like the speed of vehicles, intensity of collision, reason for collision, place at which one vehicle hit the other, etc. From the scene of the accident, one may suggest or presume the manner in which the accident was caused, but in the absence of any direct or corroborative evidence, no conclusion can be drawn as to whether there was negligence on the part of the driver. In absence of such direct or corroborative evidence, the Court cannot give any specific finding about negligence on the part of any individual.” 13. Another judgment of the Supreme Court while dealing with the issue of contributory negligence in the matter of Minu Rout and another v. Satya Pradyumna Mohapatra and others reported in (2013) 10 SCC 695 and held thus: “17. The Tribunal, on appreciation of the oral and documentary evidence, has recorded the erroneous finding by placing strong reliance upon the charge-sheet, Ext. 1 without considering the fact that the criminal case was abated against the deceased and further has made observation in the judgment that the appellants had not produced the FIR. Therefore, it has held that there was 50% contributory negligence on the part of the deceased driver in causing accident. The Tribunal ought to have seen that non-production of FIR has no consequence for the reason that charge-sheet was filed against the truck driver for the offences punishable under section 179 read with Section 302 IPC read with the provisions of the MV Act. The Insurance Company, though claimed permission under Section 170(b) of the Motor Vehicles Act, 1988 from the Tribunal to contest the proceedings by availing the defence of the owner of the offending vehicle, it did not choose to examine either the driver of the truck or any other independent eyewitness to prove the allegation of contributory negligence on the part of the deceased Susil Rout on account of which the accident took place as he was driving the car in a rash and negligent manner. In the absence of 7 / 10 rebuttal evidence adduced on record by the Tribunal, the Tribunal should not have placed reliance on the charge-shhet, Ext. 1 which the deceased driver was mentioned as an accused and on his death his name was deleted from the charge-sheet. The Tribunal has referred to certain stray answers elicited from the evidence of PW 2 and PW 3 in their cross-examination and placed reliance on them to record the finding on Issue 1.” 14. In the light of aforementioned law laid down by the Supreme Court, if the facts and circumstances of the present case is considered, it is evident that respondent No. 3/ non-applicant No. 3- Insurance Company has not produced any witness nor any other independent eye-witness to the accident to prove the fact of contributory negligence. The Hon'ble Supreme Court has held in the matter of Jiju Kuruvila (supra) that merely position of the vehicles will not itself sufficient to prove the fact of contributory negligence, but it can be an evidence only to suggest or presume in which manner the accident was caused, in the absence of any direct or corroborative evidence, no conclusion can be drawn as to whether there was negligence on the part of the driver of other vehicle. 15. Now I will consider the ground raised in the memo of appeal seeking enhancement of compensation. Admittedly the accident is dated 25.05.2018. Perusal of record would show that except the self statement that the deceased was working as Carpenter and earning ₹ 30,000/- per month, no admissible document or evidence is brought on record in this regard. In absence of any clinching evidence, Claims Tribunal justified in assessing the income of deceased on notional basis. However, for assessing the income of any person on notional basis, Tribunal/ courts are required to consider factors like age of deceased, place of accident, price index, cost of living, wage structure prevailing during that period and further may take help of minimum wages as fixed by the competent authority by issuing notification under the Minimum Wages Act, 1948. In the case at hand, there is no material to 8 / 10 suggest the wage structure prevailing within the area where the deceased was residing and working. Hence, this court finds it appropriate to take help of the minimum wages fixed by the competent authority by notification under the Minimum Wages Act. Considering entirety of the facts of the case, occupation of deceased as Carpenter is not proved, he can be treated as unskilled labourer for the purpose of earning livelihood and computation of amount of compensation. In the year 2018, the wages fixed for an unskilled labourer is ₹ 7,800/- per month and hence I find it appropriate to assess the income of deceased as ₹ 7,800/- per month. It is ordered accordingly. 16. Claims Tribunal has considered the age of deceased as 24 years, added 40% of the assessed income towards future prospects for calculating the total annual income, deducted 1/3 towards personal and living expenses and applied the multiplier of 18 which are in consonance with the decision of Hon’ble Supreme Court in the case of National Insurance Company Ltd. v. Pranay Sethi reported in (2017) 16 SCC 680 and Sarla Verma & others v. Delhi Transport Corp. & anr. reported in (2009) 6 SCC. Claims Tribunal further awarded ₹ 40,000/- towards loss of consortium, ₹ 15,000/- towards funeral expenses and ₹ 15,000/- towards loss of estate. Tribunal fell into error in awarding compensation under the head of loss of consortium to appellant No. 2 and 3/ claimants no. 2 and 3 who are parents of the deceased. Hon’ble Supreme Court in the case of Magma General Insurance Company vs. Nanu Ram alias Chuhuru Ram and others reported in (2018) 18 SCC 130 has held that the parents are also entitled for loss of filial consortium of ₹ 40,000/- each. Therefore, appellants No. 2 & 3 are also entitled for the compensation under the head of loss of consortium of ₹ 40,000/- each. It is ordered accordingly. 17. For the foregoing discussion, the amount of compensation to be awarded to appellants-claimants requires recomputation, which is as under. 9 / 10 18. The monthly income of deceased is assessed as ₹ 7,800/- ie., yearly income as ₹ 93,600/-. Upon adding 40% of the income of the deceased towards future prospects, yearly income of deceased on the date of accident will come to ₹ 1,31,040/- . After deducting 1/3 towards personal and living expenses, annual loss of dependency will come to ₹ 87,360/-. Upon applying multiplier of 18, total loss of dependency will come to ₹ 15,72,480/-. Besides the amount of compensation towards loss of dependency, appellants- claimants shall further be entitled for ₹ 40,000/- towards loss of spousal consortium to appellant No. 1 and ₹ 40,000/- each towards loss of filial consortium to appellants No. 2 & 3, ₹ 15,000/- towards loss of estate and ₹ 15,000/- towards funeral expenses. Particulars Compensation A) Annual Loss of income/ dependency = ₹ 93,600/- (₹ 7800x12) B) Addition towards loss of future prospects @ 40% (₹ 93600 x 140% = ₹ 1,31,040) C) Deduction of 1/3 towards personal and living expenses (₹ 1,31,040 x 1/3= ₹ 43,680); ₹ 1,31,040- ₹ 43,680= ₹ 87,360. D) Multiplier of 18 ₹ 87,360 x 18 = ₹ 15,72,480/- ₹ 15,72,480/- Loss of Spousal Consortium to appellant No. 1 ₹ 40,000/- Loss of Filial Consortium to Appellant No. 2 & 3 (₹ 40,000/- each) ₹ 80,000/- Loss of estate ₹ 15,000/- Funeral Expenses ₹ 15,000/- Total ₹ 17,22,480/- 19. Now the appellants/claimants shall be entitled for total sum of compensation of ₹ 17,22,480/- instead of ₹ 9,77,200/- as awarded by learned Claims Tribunal. The enhanced amount of compensation shall carry simple interest @ 7.5% p.a. from the date of filing of claim application till its realization. Any amount paid to the appellants-claimants pursuant to the impugned award 10 / 10 shall be adjusted from the amount of compensation as calculated above. Other conditions of the impugned award shall remain intact. 20. In the result, the cross appeal filed by Respondent No. 3/Insurance Company is dismissed and the appeal filed by the appellants-claimants is allowed in part and the impugned award is modified to the extent as indicated herein- above. Sd/- (Parth Prateem Sahu) Judge pwn