1 2025:CGHC:40485 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR MAC No. 455 of 2021 1 - Harishankar Tiwari S/o K.P. Tiwari, Aged About 51 Years R/o Ward No. 2, Imli Bhata, Mahasamund, Tahsil And District Mahasamund (Chhattisgarh) Present R/o Shri Hari Niwas, Gali Of Om Shri Vidyalaya, Kota, Raipur, District Raipur (Chhattisgarh)...........(Non-Applicant No. 2) (Driver Of Vehicle Motor Cycle Bearing Registration No. Cg-07-Zr-4629) --- Appellant versus 1 - Gore Lal Chandrakar S/o Shri Narayan Chandrakar, Aged About 44 Years 2 - Smt. Tulsa Bai, W/o Gore Lal Chandrakar, Aged About 40 Years Both are R/o. Avenue E. Quarter No. 2/a, Old Russain Block, Sector-6, Bhilai, Police Station- Bhilai Nagar, Tahsil And District Durg (Chhattisgarh).. 3 - Sukra (Died And Deleted As Per Courts Order Dated 13/01/2020 And 04/02/2020), Through Legal Representative 3.1 - Pradip Sagar, S/o Late Sukra, Aged About 46 Years R/o New Surana College, Kasarideeh, Tahsil And District Durg (Chhattisgarh).............(Non- Applicant No.2) (Registered Owner Of Vehicle Motor Cycle Bearing Registration No. Cg-07-Zr-4629), District : Durg, Chhattisgarh --- Respondents For Appellant : Mr. Shivendu Pandya, Advocate For Respondents No. 1 & 2 : Mr. P.R. Patankar, Advocate along with Mr. Pravesh Sahu, Advocate Hon'ble Shri Justice Parth Prateem Sahu Order On Board 12/08/2025 1. Appellant/driver has filed this appeal under Section 173 of the Motor Vehicles Act, 1988 (for short ‘the Act of 1988’) challenging the impugned award dated 14.06.2021, passed in Claim Case No.69 of BALRAM PRASAD DEWANGAN Digitally signed by BALRAM PRASAD DEWANGAN Date: 2025.09.17 10:51:54 +0530 2 2007, whereby the learned 7th Additional Motor Accident Claims Tribunal, Durg, District – Durg (C.G.) (for short ‘the Claims Tribunal’) allowed the application filed under Section 166 of the Act, 1988 by claimants/respondent No.1 & 2 against the death of their son, in part, awarding total compensation of Rs.8,68,616/-, fastening the liability to satisfy the amount of compensation on non-applicants No.1 & 2 jointly and severally. 2. Facts relevant for disposal of this appeal are that appellants/claimants filed an application under Section 166 of the Act of 1988 claiming total compensation of Rs.12,55,000/- under different heads on account of the death of their son Tarun Chandrakar, who died in the road accident, pleading therein that on 02.10.2006 at about 9:30 PM, Tarun Chandrakar was riding his motorcycle at a slow speed and was returning from National Highway No. 6. When he reached near village Nishda turn, Non-Applicant No. 1, while riding his Hero Honda motorcycle bearing registration number CG-07-ZR-4629 in a rash and negligent manner, at a high speed, collided with Tarun Chandrakar, causing a serious accident. As a result of collision, Tarun Chandrakar suffered grievous and fatal injuries on his head and other parts of the body. He was immediately admitted in an unconscious state to Ramkrishna Hospital, Pachpedinaka, Raipur, where he died during course of treatment on 12.10.2006. It was pleaded that at the time of accident, deceased Tarun Chandrakar was 22 years old able bodied person and was working as Supervisor in Kumar Undertaking Sikola Bhata, Durg, earning Rs.6,500/- per month. 3 3. Non-Applicant No. 1 filed reply to the claim application, denying the averments made therein. It was pleaded that on the date of the accident, deceased, Tarun, was riding his motorcycle with four passengers after consuming excessive liquor, thereby violating the provisions of the Motor Vehicle Act. As a result, he lost control of the vehicle, veered to the left side where Non-Applicant No. 1 was traveling, and collided with the vehicle driven by Non-Applicant No. 1. Thus the deceased himself was negligent and responsible for the accident. Income of the deceased, as pleaded by the claimants, was also denied. 4. The learned Claims Tribunal upon appreciation of pleadings and the evidence brought on record by respective parties, allowed the claim application in part, awarded total compensation of Rs.8,68,616/-, contributory negligent on the part of deceased is not found to be proved, held non-applicant No.1 liable for causing accident, and fastened liability upon non-applicants No.1 & 2 jointly and severally to satisfy the amount of compensation. 5. Learned counsel for the appellant/owner submits that learned Claims Tribunal erred in awarding excessive amount of compensation by assessing the income of deceased on higher side as Rs.4,500/- per month. He contended that date of accident was of 02.10.2006 and at that relevant point of time, income of unskilled labour would not be more than Rs.3,000/- per month. Therefore, income of deceased ought to have assessed to Rs.3,000/- per month. He next contended that it is the case of head on collision between two motor cycle. Place of accident is almost center of road towards the left side of appellant, four 4 persons were travelling on the motor cycle driven by deceased at high speed, the accident occurred in night at about 9.30 PM, therefore, learned Claims Tribunal ought to have held deceased also to be negligent in the accident to the extent of 50%. It is submitted by learned counsel for appellant that out of four persons travelling in the motor cycle, driven by deceased, two suffered injuries and they have filed claim case/application before 8th Additional Motor Accidents Claims Tribunal, Raipur. In both the cases, Claims Tribunal, Raipur had framed issue with regard to contributory negligence and have recorded a finding that there was contributory negligence on the part of both the driver of both the motor cycle to the extent of 50%. The said finding was not put to challenge by injured persons, as appellant has not received notice of appeal if any filed. 6. Learned counsel for respondents No.1 and 2 would oppose the submission of learned counsel for appellant and would submit that learned Claims Tribunal upon appreciation of pleadings and evidence available on record have rightly concluded that accident was a result of sole negligence of appellant/non-applicant No.1. It is contended that after accident, appellant was shown to be lying on right side of road, which shows that it is the appellant, driver of one of motor cycle solely negligent in the accident. It is also contended that learned Claims Tribunal taking note of the occupation of deceased to be supervisor have rightly assessed the income of the deceased as Rs.4,500/- per month, which does not call for any interference. Compensation awarded is just and proper, which does not call for any interference. 5 7. I have heard learned counsel for parties and perused the record of claim case. 8. So far as the submission of learned counsel for appellant that it is a case of contributory negligence is concerned, perusal of the copy of FIR would show that the date of accident was 02.10.2006 at about 9.30 PM. At the time of accident, appellant was alone travelling on his motor cycle bearing No. C.G.-07-ZR-4629. Eye-witness to the accident who was occupant of the motor cycle driven by deceased, Tarun Chandrakar has made statement before the learned Claims Tribunal that appellant/Non-applicant No.1 in attempt to overtake the truck, drove his motor cycle rashly and negligent and dashed with motor cycle driven by Tarun Chandrakar. No other witness has been examined before learned Claims Tribunal. Nothing adverse has come in the cross-examination of eye-witness Santosh Kumar Chandrakar (A.W.-2). 9. From the evidence of eye-witness it is appearing that at the time of accident, four persons were travelling on the motor cycle, driven by Tarun Chandrakar. The accident was on highway road at about 9.30 PM. It is not the town or village and nearest village is about half k.m. away from place of accident. In the aforementioned facts of the case it is to be considered whether appellant could have brought any other evidence before learned Claims Tribunal to prove the plea of contributory negligence on the part of deceased driver of other motor cycle. It is in the above facts of the case, plea of contributory negligence as pleaded by appellant in the reply and the issue formulated by learned Claims Tribunal has to be considered. 6 10. The plea of contributory negligence is a fact to be proved by the person taking such plea. In the case at hand except the evidence of appellant himself that deceased himself was driving vehicle under the influence of liquor and four persons were travelling on the motor cycle, no other evidence is brought on record. Though the pleadings would show that deceased has consumed liquor, however, in postmortem report, there is no such mention that alcohol is found in stomach or alcoholic smell is detected by doctors conducting postmortem, therefore, stand taken by appellant that deceased was driving vehicle after consuming liquor is not proved. Accordingly, it is repelled. Other grounds raised that at the time of accident four persons were travelling in the motor cycle itself will not be a ground to hold that driver of the motor cycle to be contributory negligent. 11. The Hon’ble Supreme Court in case of Pramodkumar Rasikbhai Jhaveri v. Karmasey Kunvargi Tak, reported in (2002) 6 SCC 455 while examining the issue of contributory negligence has held as under :- para 8 marked portion and para 10 poora “8. …... The question of contributory negligence arises when there has been some act or omission on the claimant's part, which has materially contributed to the damage caused, and is of such a nature that it may properly be described as “negligence”. Negligence ordinarily means breach of a legal duty to care, but when used in the expression “contributory negligence” it does not mean breach of any duty. It only means the failure by a person to use reasonable care for the safety of either himself or his property, so that he becomes blameworthy in part as an “author of his own wrong”. 7 10. It has been accepted as a valid principle by various judicial authorities that where, by his negligence, if one party places another in a situation of danger, which compels that other to act quickly in order to extricate himself, it does not amount to contributory negligence if that other acts in a way, which, with the benefit of hindsight, is shown not to have been the best way out of the difficulty. In Swadling Vs. Cooper [1931] A.C. 1 at page 9, Lord Hailsham said: "Mere failure to avoid the collision by taking some extraordinary precaution does not in itself constitute negligence: the plaintiff has no right to complain if in the agony of the collision the defendant fails to take some step which might have prevented a collision unless that step is one which a reasonably careful man would fairly be expected to take in the circumstances." 12. Hon’ble Supreme Court in case of Usha Rajkhowa & Ors. Vs. Paramount Industries & Ors., reported in (2009) 14 SCC 71 while dealing with issue of contributory negligence have taken note of the decision in case of Astley v. Austrust Ltd. [(1999) 73 ALJR 403] , wherein the High Court of Australia has observed that “ A finding of contributory negligence turns on a factual investigation whether the plaintiff contributed to his or her own loss by failing to take reasonable care of his or her person or property. What is reasonable care depends on the circumstances of the case. In many cases, it may be proper for a plaintiff to rely on the defendant to perform its duty. But there is no absolute rule. The duties and responsibilities of the defendant are a variable factor in determining whether contributory negligence exists and, if so, to what degree…….” 8 13. In another judgment of Hon’ble Supreme Court while dealing with the issue of contributory negligence in the matter of Minu Rout v. Satya Pradyumna Mohapatra reported in (2013) 10 SCC 695, it was 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 the 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 279 read with Section 304-A of 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 rebuttal evidence adduced on record by the Tribunal, the Tribunal should not have placed reliance on the charge-sheet, Ext. 1 in 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 9 evidence of PW 2 and PW 3 in their cross- examination and placed reliance on them to record the finding on Issue No. 1.” 14. The issue of contributory negligence has also been dealt with by the Hon’ble Supreme Court in the matter of Jiju Kuruvila v. Kunjujamma Mohan, reported in (2013) 9 SCC 166 where the Supreme Court has held thus:- “20.4. There is no evidence on record to suggest any negligence on the part of the deceased. Ext. B-2 “scene mahazar” also does not suggest any rash and negligent driving on the part of the deceased. 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 their 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.” 15. In the case at hand, the only evidence available in records to prove the manner in which accident occurred is evidence of Santosh Kumar Chandrakar (AW.-2), injured witness, who was one of the occupant of 10 motor cycle driven by Tarun Chandrakar, who specifically stated that appellant in attempt to overtake truck, drove his vehicle at high speed and dashed with vehicle driven by Tarun Chandrakar. 16. Considering the aforementioned facts and decision of Hon’ble Supreme Court in the opinion of this Court, there is no evidence available on record to arrive at a conclusion that deceased also contributed to accident, hence, ground of contributory negligence raised by learned counsel for appellant is not sustainable and accordingly it is repelled. 17. So far as the other grounds raised by learned counsel for appellant with regard to assessment of income of deceased as Rs.4,500/- to be on higher side is concerned, accident is of year 2006, occupation of Supervisor and income of deceased as Rs.6,500/- could not be proved by admissible evidence, therefore, learned Claims Tribunal has disbelieved income of Rs.6,500/- as pleaded in claim application and has decided to assess income of deceased notionally relying upon the decision in case of Remish Ekka & Ors. Vs. Jora Singh & Ors., in MAC No. 1107 of 2012 dated 07.02.2018 and thereby assessed income of deceased as Rs.4,500/- per month. 18. In cases where claimants failed to prove income of deceased by clinching evidence, the Courts/Tribunal may take into the consideration minimum wages fixed by competent authority under Minimum Wages Act prevailing within the State or can also take into consideration the wages of daily wages labourer prevailing in the area of which deceased was resident of. In the case at hand there is no suggestive piece of evidence of wages prevailing of unskilled labourer in the area 11 of which deceased was resident of, therefore, I find it appropriate to take help of the minimum wages fixed by the competent authority under the Minimum Wages Act, 1948. According to notification issued for the period from 01.10.2009 to 31.03.2010, wages for unskilled labour was Rs.3149/-, date of accident is much earlier in the case at hand i.e. 02.10.2006. The submission of learned counsel for appellant is that minium wages of unskilled labourer on the date ought to have assessed as Rs.3,000/- per month. Submission of learned counsel for appellant is having some force in view of the minimum wages fixed by competent authority as discussed above. 19. In the aforementioned facts of the case in absence of proof of monthly income of deceased keeping in mind the minimum wages fixed by competent authority for the period from 01.10.2009 to 31.03.2010 I find it appropriate to assess income of deceased as Rs.3,000/- per month. Wages of income of deceased as fixed by learned Claims Tribunal of Rs.4,500/- is on higher side, therefore, it is set-aside. The income is assessed as Rs.3,000/- per month accordingly. 20. For the aforementioned discussions, the amount of compensation to be awarded to the claimants required to be recomputed which as as under :- 21. On the basis of above, compensation awarded needs recomputation, which is as under :- SN Head Amount (in Rs.). 1. Annual income : 3,000 x 12 = 36,000.00 2. Addition of 40% towards future prospects : 36,000.00 + 14,400 = 50,400.00 12 3. 1/2 deduction towards personal expenses : 50,400.00 – 25,200.00 = 25,200.00 4. Loss of dependency after application of multiplier of 18 : 25,200 x 18 = 4,53,600.00 5. For loss of filial consortium to the appellant No.1 & 2 of Rs.40,000/- each. : 80,000.00 6. For funeral expenses : 15,000.00 7. For loss of estate : 15,000.00 Grand Total : 5,63,600.00 22. Accordingly, the appeal is allowed in part. Now the claimants/respondents No.1 and 2 shall be entitled for total compensation of Rs.5,63,600.00. Any amount paid to the claimants/respondents No.1 and 2 as compensation as per impugned award shall be adjusted. Rest of the conditions mentioned in the impugned award shall remain intact. 23. In the result, the appeal is allowed in part and the award impugned stands modified to the extent indicated above. Sd/- (Parth Prateem Sahu) Judge Balram