1 / 6 2025:CGHC:33614 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR MAC No. 345 of 2021 • IFFCO TOKIO General Insurance Company Limited Through Branch Manager, Vyapar Vihar Road, Near ICICI Bank Bilaspur Having Its Raipur Office At 205, 2nd Floor, M. M. Silver Plaza, In Front Of Udyog Bhawan, Near Mining Office, Ring Road No. 01, Raipur District Raipur Chhattisgarh --- Appellant/Non-applicant No. 3 versus 1. Shanti Wd/o Late Rajkumar @ Banshi Aged About 38 Years 2. Minor Ku. Kajal D/o Late Rajkumar @ Banshi Aged About 17 Years, Through Natural Guardian Mother Appellant No. 01, Shanti, Wd/o Late Rajkumar @ Banshi 3. Minor Ram Vikas S/o Late Rajkumar @ Banshi Aged About 14 Years, Through Natural Guardian Mother Appellant No. 01, Shanti, Wd/o Late Rajkumar @ Banshi 4. Minor Akash S/o Late Rajkumar @ Banshi Aged About 8 Years, Through Natural Guardian Mother Appellant No. 01, Shanti, Wd/o Late Rajkumar @ Bansh 5. Ramdhan @ Shivsharan S/o Late Shivbalak Aged About 65 Years. 6. Dashmatiya W/o Ramdhan @ Shivsharan Aged About 62 Years. All are R/o Village Sonpur, P. S. Surajpur Tahsil Ramanujnagar, District Surajpur.........applicants/ claimants 7. Amar Singh Dewangan S/o Bhimprakash Dewangan Aged About 25 Years R/o Village Nevra, P. S. And Tahsil Surajpur, District Surajpur .........Driver 8. Tek Narayan Rajwade S/o Anuj Ram Rajwade Aged About 48 Years R/o Village Sarma, Chowki Basdehi, P. S. Surajpur District Surajpur Chhattisgarh ........Owner ---Respondents ____________________________________________________________ For Appellant : Mr. P.R. Patankar, Advocate For Respondents No. 1 to 6 : Mr. Vijay Sahu, Advocate For Respondents No. 7 & 8 : Mr. Rishi Sahu, Advocate PAWAN KUMAR JHA Digitally signed by PAWAN KUMAR JHA 2 / 6 Hon'ble Shri Justice Parth Prateem Sahu Judgment On Board 17/07/2025 1. Appellant-insurance company has filed this appeal under Section 173 of the Motor Vehicles Act, 1988 (for short “Act of 1988”) challenging the award dated 09.02.2021 passed by Learned Third Additional Motor Accident Claims Tribunal, Surajpur, Chhattisgarh (for short “Claims Tribunal”) in Claim Case No. 35/2019, whereby learned Claims Tribunal allowed the application filed by applicants-claimants therein under Section 166 of the Act, 1988 in part and awarded total sum of ₹ 88,96,518/- as compensation in motor accidental death case. 2. Facts of the case relevant for disposal of this appeal are that on 10.11.2018 Rajkumar @ Banshi while returning to his home riding on his motorcyle after completing his duty from Rehar Gayatri mine, non-applicant No. 1 while driving his motorcycle bearing number CG29 A 4174 (hereinafter referred to as “offending vehicle”) rashly and negligently dashed him and caused accident. In the accident, Rajkumar died on spot due to fatal injuries suffered by him. 3. Respondents No. 1 to 6/ applicants-claimants, widow, children and parents of deceased- Rajkumar @ Banshi filed an application under Section 166 of the Act of 1988 seeking compensation of ₹ 1,57,00,000/- on the basis of pleadings made therein. 4. Respondents No. 7 & 8/ Non-applicants No. 1 & 2 -driver and owner of the offending vehicle motorcycle filed reply to the claim application, denying the facts pleaded therein. It was further pleaded that a false and frivolous case has been lodged against non-applicant No. 1, he had not caused any accident. On the date of accident, non-applicant No. 1 was possessing with valid and effective driving licence, and the offending vehicle was insured by non-applicant No. 3. 3 / 6 5. Appellant/ 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 on the date of accident non-applicant No. 1 was driving the offending vehicle in breach of policy conditions, he was not possessed with valid and effective driving licence. There was contributory negligence on the part of deceased driver of motorcycle also. The driver, owner and insurer of the motorcycle on which the deceased was riding were not made party to the proceedings, thus, the application to be not maintainable. 6. Learned Claims Tribunal, upon appreciation of pleadings and evidence placed on record by respective parties, held that deceased -Rajkumar @ Banshi died because of grievous injuries suffered by him in the accident arising out of rash and negligent driving of offending vehicle owned by non- applicant No. 2 and driven by non-applicant No. 1. Breach of conditions of insurance policy, contributory negligence and non-joinder of party were not found to be proved. Tribunal calculated the amount of compensation and awarded ₹ 88,96,518/- as total compensation with interest @ 6% p.a. from the date of filing of claim application till its realization and fastened liability to satisfy the award upon non-applicant No. 3-Insurance Company. 7. Learned counsel for appellant-insurance Company would submit that this appeal is filed on the ground that Claims Tribunal erred in applying wrong deduction of 1/5 instead of 1/4. He submits that there are six claimants and therefore in view of the decision of Hon’ble Supreme Court in the case of Sarla Verma & others v. Delhi Transport Corp. & anr. reported in (2009) 6 SCC 121 appropriate multiplier would be 1/4. He submits that there was head-on-collision between two motor cycles, therefore deceased was also contributory negligent to the extent of 50% in the accident, however, Claims Tribunal erred in deciding the issue of contributory negligence against insurance company. 4 / 6 8. Learned counsel for Respondents No. 1 to 6/claimants would submit that the Claims Tribunal justified in rejecting the plea of contributory negligence as raised by insurance company in issue no. 5 as the insurance company failed to produce any clinching evidence to support the plea of contributory negligence. He next contended that the claimants have also filed cross- objection seeking enhancement of amount of compensation. He contended that the Claims Tribunal erred in not awarding compensation towards loss of consortium to all the claimants. 9. I have heard learned counsel for the respective parties and also perused the record. 10. So far as the ground raised by learned counsel for appellant-insurance company of applying deduction of 1/5 is concerned, Hon’ble Supreme Court in the case of Sarla Verma (supra) settled the issued with regard to deduction towards personal and living expenses of the deceased and held that if the number of claimants are 4 to 6, there shall be deduction of 1/4. In the case at hand, number of claimants are five and therefore appropriate deduction would be 1/4 and not 1/5 as applied by the Claims Tribunal. It is ordered accordingly. 11. The other ground raised by learned counsel for appellant-insurance company that as there was head-on-collision between two motor cycles, there shall be contributory negligence on the part of deceased driver of both motor cycle is concerned, insurance company in support of reply submitted before the Claims Tribunal has not examined any witness. Non-applicant No. 1-driver of other motor cycle examined himself before the Claims Tribunal as NAW-1. In his evidence also, he has not specifically alleged that it was the deceased who has also negligent in the accident, however, in cross-examination he admitted that a criminal case was registered against him and he has not made complaint to the higher police officials against false allegation of negligence upon him. Copy of charge-sheet is filed as Ext. NA3. 5 / 6 12. Contributory negligence is a fact which is required to be proved by placing cogent and admissible piece of evidence before the Claims Tribunal. In the case at hand, though plea of contributory negligence is raised by the appellant-insurance company in its reply, however, no witness is examined in evidence to prove the said fact. In absence of evidence, the pleadings and reply cannot be relied upon as evidence and hence the submission of learned counsel for appellant-insurance company that the Claims Tribunal erred in rejecting the plea of contributory negligence as raised by the insurance company to be erroneous, is not sustainable and it is accordingly repelled. 13. So far as the submission of learned counsel for Respondents No.1 to 6/ claimants seeking enhancement of amount of compensation of non-awarding of compensation under the head of loss of consortium to all the claimants except claimant No. 1 by filing cross-objection is concerned, the issue in this regard has been well settled by the Hon’ble Supreme Court in the case of National Insurance Company Limited vs. Pranay Sethi & ors, reported in (2017) 16 SCC 680 and Magma General Insurance Company vs. Nanu Ram alias Chuhuru Ram and others reported in (2018) 18 SCC 130. In the case of Nanu Ram (supra), it is held that apart from widow/ husband, children and parents will also entitled for loss of parental consortium and filial consortium respectively. As the claimants No. 2 to 4 are children they are entitled for loss of parental consortium of ₹ 40,000 each and claimants No. 5 to 6 are parents, they are entitled for loss of filial consortium of ₹ 40,000 each. It is ordered accordingly. Hon’ble Supreme Court in the case of Pranay Sethi (supra) has further observed that compensation under the head of other conventional heads is to be enhanced by 10% in every three years and therefore amount of compensation under the heads of funeral expenses would be ₹ 16,500, loss of estate would be ₹ 16,500, and loss of consortium would be ₹ 44,000 each. 6 / 6 14. For the foregoing discussion, the amount of compensation to be awarded to appellants-claimants requires re-computation, which is as under. Particulars Compensation • Annual income of deceased less tax as held and proved = ₹ 5,65,353 (affirmed) • Addition towards loss of future prospects @ 30% (affirmed) ₹ 5,65,353 + 30% of ₹ 5,65,353 = ₹ 7,34,959 • Deduction of 1/4 towards personal and living expenses (₹ 7,34,959 x 1/4= ₹ 1,83,740); ₹ 7,34,959 - ₹ 1,83,740 = ₹ 5,51,216/- • Multiplier of 15 (affirmed) ₹ 5,51,216 x 15 = ₹ 82,68,240/- ₹ 82,68,240/- Loss of Spousal Consortium to Appellant No. 1 ₹ 44,000/- Loss of parental consortium to Appellants No. 2 to 4; and Loss of Filial Consortium to Appellants No. 5 & 6 (₹ 44,000 each) ₹ 2,20,000/- Loss of estate ₹ 16,500/- Funeral Expenses ₹ 16,500/- Total ₹ 85,65,240/- 15. Now the appellants/claimants shall be entitled for total sum of compensation of ₹ 85,65,240/- instead of ₹ 88,96,518/- as awarded by learned Claims Tribunal. The enhanced amount of compensation shall carry simple interest @ 8% 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 shall be adjusted from the amount of compensation as calculated above. Rest of the conditions as imposed by the Claims Tribunal in the impugned award shall remain intact. 16. In the result, appeal filed by insurance company and the cross-objection by the claimants are partly allowed and the impugned award is modified to the extent as indicated herein-above. Sd/- (Parth Prateem Sahu) Judge pwn