-1- 2025:CGHC:41218 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR MAC No. 1067 of 2019 1 - Malti Bai Sahu Wd/o Late Lakhan Sahu Aged About 33 Years R/o Village Lodhajhar, P.O. Bhupdeopur, The Kharsia, Raigarh, Taluka, Kharsia, Disrtict- Raigarh 2 - Ritesh Kumar S/o Late Lakhan Sahu Aged About 5 Years R/o Village Lodhajhar, P.O. Bhupdeopur, The Kharsia, Raigarh, Taluka, Kharsia, District- Raigarh, Chhattisgarh. 3 - Lovyam S/o Late Lakhan Sahu Aged About 1 Years R/o Village Lodhajhar, P.O. Bhupdeopur, The Kharsia, Raigarh, Taluka, Kharsia, District- Raigarh, Chhattisgarh 4 - Kartik Ram Sahu S/o Late Pilaram Sahu Aged About 65 Years R/o Village Lodhajhar P.O. Bhupdeopur, The. Kharsia, Raigarh, Taluka, Kharsia, District- Raigarh, Chhattisgarh. 5 - Ushabai Sahu W/o Kartikram Sahu Aged About 55 Years R/o Village Lodhajhar, P.O. Bhupdeopur, The Kharsia, Raigarh, Taluka, Kharsia, District- Raigarh, Chhattisgarh.............(Claimants) ... Appellant (s) versus 1 - Lekhandas Mahant S/o Late Bhagirathi Mahant Aged About 27 Years R/o Hardijhara, P.O. Bhupdeopur, The Kharsia, Raigarh, Taluka, Kharsia, District- Raigarh, Chhattisgarh. 2 - Mohandas Mahant S/o Thirdas Mahant Aged About 35 Years Occupation Vehicle Owner, R/o Village Kharkena, P.S. Dabhra, District- Janjgir-Champa, Chhattisgarh, Taluka Dabhara, District- Janjgir- Champa, Chhattisgarh 3 - I.C.I.C.I. Lembord General Insurance Company Ltd. R/o I.C.I.C.I. Bank Tower Bandra Kurla Complex Bandra East Mumbai 400051 Present Address Shanti Auto Mobile Phone No. 7759232021 N.T.P.C. Towanship Near Main Gate, Korba, Katghora, Main Road Jalgaon Darri Digitally signed by PRAVEEN KUMAR SINHA Date: 2025.09.16 10:55:31 +0530 -2- Korba, Chhattisgarh.- 495450............(Non-Applicants) ... Respondent(s) __________________________________________________________ For Appellant (s) : Mr. Narendra Kumar Guleri, Advocate on behalf of Mr. M.K. Jaiswal, Advocate For Resp. No. 1 & 2 : None appears though served For Respondent No. 3 : Mr. Sourabh Sharma, Advocate _______________________________________________________ S.B.: Hon'ble Shri Parth Prateem Sahu, Judge Judgment On Board 14/08/2025 1. This is claimants’ appeal filed under Section 173 of the Motor Vehicles Act, 1988 (for short “Act of 1988”) seeking enhancement of amount of compensation awarded by learned First Additional Motor Accident Claims Tribunal, Raigarh vide its award dated 07.03.2019 passed in Claim Case No.100 of 2017. 2. Facts relevant for disposal of this appeal are that appellants/claimants filed an application under Section 166 of the Act of 1988 before the Claims Tribunal pleading therein that on 24.06.2016 at around 11.30 am, Lakhan Sahu was going to village Mura on his motorcycle to pay electricity bill. On the way, near the first pond of Mura Basti, non- applicant No.1/driver of the offending motorcycle (sold), driving his motorcycle rashly and negligently, dashed motorcycle driven by Lakhan Sahu, due to which he sustained serious injuries and died during treatment. At the time of accident, deceased Lakhan Sahu was 33 years old. He was working as contractor and confectioner in Monet Steel and Energy Limited, from which he was earning Rs 21,000/- per -3- month. Applicants were dependent on the deceased for their livelihood, they have suffered irreparable loss due to untimely death of the deceased. Therefore, they claimed for compensation of Rs. 1,08,61,579/- from the non-applicants under different heads.. 3. Non-applicant No. 1 & 2 by filing their written statement denied the pleadings made in the claim application and pleaded that deceased was not working as a contractor or a confectioner in Monet Steel and Energy Company. Income of the deceased was not Rs. 21,000/- per month. No accident took place at the place of incident. Lakhan Sahu did not die due to injuries sustained in the accident. As the offending vehicle was insured with non-applicant No. 3 on the date of accident, therefore, non-applicant No. 3 insurance company is responsible for paying the compensation amount. 4. Non-applicant No.3/insurance company in its written statement resisted the claim and pleaded inter alia, accident occurred due to negligence of the deceased himself. On the date of accident, non-applicant no.1 did not have a valid and effective driving license and knowing this, non- applicant no. 2 permitted non-applicant No.1 to drive the vehicle. Thus, non-applicant no. 1 and 2 have violated the conditions of the insurance policy. Therefore, non-applicant no. 3 insurance company is not responsible for paying the compensation amount. 5. Learned Claims Tribunal, on appreciation of pleadings and evidence brought on record by respective parties, held that on the date of accident, offending motorcycle was being driven by non-applicant No.1 rashly and negligently, due to which, an accident occurred in which -4- Lakhan Sahu suffered grievous injuries and died. Recording a finding that breach of conditions of insurance policy was found proved, non- applicant No.1 & 2 (Driver and Owner) of the offending vehicle were held liable to pay amount of compensation. Assessing income of the appellant/claimant as Rs.4500/- per month on notional basis, calculated amount of compensation under different heads, awarded total compensation of Rs.3,83,500/- holding the deceased to be contributory negligent also in the accident to the extent of 50% . 6. Learned counsel for the appellants submits that learned Claims Tribunal erred in holding the deceased to be contributory negligent in the accident to the extent of 50% without there being any admissible evidence in this regard. Reason assigned to hold deceased contributory negligent in the accident was that deceased was not wearing headgear (helmet) and his driving licence was not produced before the Claims Tribunal which cannot be a ground to hold that deceased was contributory negligent in the accident. He contended that income of deceased has been assessed much less as Rs.4500/- overlooking the pleading with regard to occupation and income of deceased on the date of accident i.e. 24.06.2016. Learned Claims Tribunal has not awarded sufficient amount of compensation under other conventional heads and prays for enhancement of amount of compensation accordingly. He lastly contended learned Claims Tribunal exonerated insurance company from its liability to satisfy the amount of compensation only on the ground that non-applicant No. 1 & 2 failed to produce valid and effective driving licence in their favour. Hence, direction of pay and recover be issued to respondent No.3 -5- insurance company so as to protect interest of poor claimants who have lost their breadwinner . 7. On the other hand, learned counsel for the respondent No.3- insurance company would submit that learned Claims Tribunal has clearly recorded a finding that at the time of accident deceased was not wearing headgear (helmet) nor his licence was produced before the Claims Tribunal and therefore it will be considered that deceased was driving the motorcycle without licence and therefore there is no error in the finding recorded by Claims Tribunal that deceased was also contributory negligent in the accident. He next contented that pleadings made with regard to occupation and income has not been proved by producing admissible evidence and, hence, Claims Tribunal justified in assessing income notionally. Lastly he contended that as Claims Tribunal has recorded a finding that non-applicant No. 1 & 2 driver and owner of offending vehicle were not possessed of valid and effective driving licence, there was breach of policy conditions, therefore ,Claims Tribunal justified in fastening liability upon non-applicants No. 1 & 2. 8. I have heard learned counsel for the parties and also perused record of claim case. 9. So far as the first ground raised by learned counsel for the appellant that deceased was held contributory negligent erroneously is concerned, perusal of record would show that after accident FIR was lodged on 24.06.2016 against non-applicant No.1. Police after completion of investigation filed charge sheet against non-applicant No.1 for offences under Sections 279, 337, 304-A of IPC and Section -6- 3/181 and 5/180 of Act of 1988. In the claim application claimants have specifically pleaded that accident was result of rash and negligent driving of offending vehicle by non-applicant No.1. Non-applicant No. 1 & 2 though have filled reply to claim application denying the facts pleaded in claim application, however, taking specific pleading that accident occurred due to rash and negligent driving of motorcycle by deceased, learned Claims Tribunal considering the evidence of AW2 Murlidhar Sahu eyewitness wherein he stated that non-applicant No.1 while driving the motorcycle rashly and negligently dashed motorcycle of deceased from its front side and has held that accident was result of rash and negligent driving of motorcycle by non-applicant No.1, however, further considering that deceased at the time of accident was not wearing headgear (helmet) and his driving licence was not produced, Claims Tribunal held that deceased was contributory negligent in accident. 10. Issue of contributory negligence on the part of driver of offending vehicle involved in accident has been considered by Hon’ble Supreme Court in case of Pramodkumar Rasikbhai Jhaveri vs Karmasey Kunvargi Tak & Ors 2002 (6) SCC 455. "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 -7- 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”. x x x 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." 11. For the foregoing discussion and decision of Hon'ble Supreme Court as referred to above, in the opinion of this Court, learned Claims Tribunal has committed error in recording a finding that deceased was contributory negligent in the accident to the extent of 50%. The said finding of the learned Claims Tribunal is not sustainable and it is accordingly set aside and it is held that accident was a result of sole negligence on the part of non-applicant No.1 driver of the offending motorcycle. 12. So far as submission of learned counsel for the appellant seeking enhancement of amount of compensation on the ground of income of deceased as pleaded in claim application is concerned, claimants in -8- their claim application have pleaded the occupation of deceased to be working with Monet Spat and earning Rs.21,000/- per month. Claimants have not examined employer or any responsible officer on behalf employer to prove employment of deceased with Monet and income as paid by the employer. Claimants have examined Murlidhar Sahu AW2 whose occupation is shown as Fitter with Monet . In his evidence though he stated that he was working as Fitter with Monet and deceased was also employed with Monet after his employment, however, no document has been shown to prove either employment of witness Murlidhar Sahu or employment of deceased. Salary of the witness is stated as Rs.12000/- per month and Rs.2000 -3000/- towards overtime. In absence of any admissible piece of evidence showing employment of deceased with Monet and salary/wages paid by employer, in the opinion of this Court, learned Claims Tribunal justified in disbelieving the pleadings of claimants and their evidence of employment of deceased with Monet and his earning of Rs.21,000/- per month and assessed income of deceased notionally. However, Claims Tribunal fell into error in not taking into consideration the factors like cost of living, price index, wage rates and also minimum wages fixed by the Competent Authority under the Minimum Wages Act for ‘unskilled labourer’ prevailing on the date of accident. 13. As there is no substantive piece of evidence of wages prevalent at the place of residence of deceased at the time of accident, I find it appropriate to take help of the Notification issued by the Competent Authority under Minimum Wages Act, 1948, according to which, for period from 01.04.2016 to 30.09.2016 minimum wages for ‘unskilled -9- labourer’ is fixed as Rs.6107- per month. Therefore, I find it appropriate to assess monthly income of deceased as Rs.6107/- per month. It is ordered accordingly. It is ordered accordingly. 14. Learned Claims Tribunal has not awarded compensation under the head of future prospects. According to decision in case of National Insurance Company Ltd. Vs. Pranay Sethi and Ors. (2017) 16 SCC 680 there shall be addition of 40% to the assessed income of deceased towards future prospects as deceased on the date of accident was aged 33 years and was not in permanent employment. It is ordered accordingly. Learned Claims Tribunal has correctly applied deduction of ¼ as claimants being the widow, two children and parents. Learned Tribunal has also correctly applied multiplier of 16 and has awarded Rs.15,000/- each towards loss of estate and funeral expenses and of Rs.40000/- towards loss of consortium to claimant No.1, however, not awarded compensation under head loss of consortium to claimants No. 2 & 3 and 4 & 5 . According to decision in case of Magma General Insurance Co. Ltd. Vs. Nanu Ram alias Chuhru Ram & Ors. (2018) 18 SCC 130, children and parents are also entitled for compensation under the head loss of parental consortium and loss of filial consortium respectively of Rs.40,000/- each. 15. In the case Pranay Sethi and Ors. (supra), Hon’ble Supreme Court has observed that loss of compensation awarded under other conventional heads like loss of estate, funeral expenses, and loss of consortium is to be increased by 10% in every three years and therefore in the opinion of this Court amount of compensation under -10- other conventional heads is to be enhanced by 10% . It is ordered accordingly. 16. In the aforementioned facts of the case, I find it appropriate to re- compute the amount of compensation as under:- S. N. Heads Compensation 1. (A) Loss of Income/dependency 6107 x 12 = 73284 (B) Addition towards future prospects @ 40% (73284 x 40% =29314) 73284 + 29314 = 102598 (C) Deduction of 1/4 towards personal and living expenses ( 102598 x 1/4 =25650) 102598- 25650 = 76948 (D) Multiplier of 16 76948 x 16 = 12,31,168 : Rs. 12,31,168 2. Funeral Expenses (15000 + 10 % =16500) : (+) Rs. 16,500 3. Loss of Estate (15000 + 10 % =16500) : (+) Rs. 16,500 4. Loss of Consortium to claimants No. 1 to 5 of Rs.44,000/- each (40000 + 10% = 44000) ( 44000 x 5 = 2,20,000/-) : (+) Rs. 2,20,000 Total compensation : Rs. 14,84,168 17. Now the appellants/claimants are awarded total compensation of Rs.14,84,168/- instead of Rs.3,83,500/- as awarded by the Claims Tribunal. -11- 18. Enhanced amount of compensation shall carry interest @ 8% per annum from the date of filing of claim application till its realization. Any amount of compensation already paid to the claimant shall be adjustable from the total amount of compensation which has now been calculated and awarded by this Court. Other conditions of impugned award shall remain intact. 19. So far as the last ground raised by learned counsel for the appellants of issuance of direction to respondent No.3 insurance company to first pay amount of compensation and thereafter to recover the same from owner and driver of offending vehicle is concerned, this issue has been settled by Hon’ble Supreme Court in case of Shamanna & Anr Vs. Divisional Manager, Oriental Insurance Company Ltd. & Ors. (2018) 9 SCC 650 wherein the Court even after exonerating insurance company from its liability to satisfy the award on the ground of driver of offending vehicle not possessed with valid and effective driving licence, has issued a direction to insurance company to first pay amount of compensation and thereafter recover the same from owner of the offending vehicle and therefore taking support of aforementioned decision, I am inclined to allow the prayer made by learned counsel for the appellants/claimants and it is directed that amount of compensation as computed and awarded by this Court shall be first paid by respondent No.3/insurance company and thereafter to recover the same from respondents No.1 & 2/non-applicants (Driver and Owner of offending vehicle) in accordance with law. However, it is made clear that for recovery of the said amount, insurance company is not required to file separate proceedings as held by Honb’le Supreme Court in case of -12- Oriental Insurance Co. Ltd. Vs. Nanjappan & Ors. (2004) 13 SCC 224. 20. In the result, appeal is allowed in part. Impugned award is modified to the extent as indicated herein above. /- Sd/- Sd/- (Parth Prateem Sahu) Judge Praveen