1 2025:CGHC:37067 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR MAC No. 135 of 2024 The New India Assurance Company Limited By Branch Manager, Branch Office Akashwani Road, Infront Of Bhadauria Bhavan, Jagdalpur, District Bastar (C.G.) Through Authorized Signatory Manager, T.P. Claim Hub Office, Bilaspur (C.G.) --- Appellants versus 1 - Smt Sunita Yadav Wd/o Late Kishore Yadav Aged About 47 Years 2 - Yashdip Yadav S/o Late Kishore Yadav Aged About 18 Years 3 - Lachhandei Yadav Wd/o Late Budhram Yadav Aged About 60 Years All are R/o Sadakpara, Main Road Village Sonarpal P.S. Bhanpuri, Dist. Bastar (C.G.). 4 - Gurmej Singh S/o Dilip Singh Occupation Driver, C/o Gurjeet Singh, S/o Balwant Singh R/o Khalsa Transport Company, Tatibandh, Ring Road No. 02, District Raipur (C.G.) (Driver) 5 - Gurjeet Singh S/o Balwant Singh, R/o Khalsa Transport Company, Tatibandh, Ring Road No. 02, District Raipur (C.G.) (Owner) --- Respondents MAC No. 136 of 2024 1 - Smt. Sunita Yadav Wd/o Late Kishore Yadav, Aged About 47 Years 2 - Yashdeep Yadav S/o Late Kishore Aged About 18 Years 3 - Smt. Lachhandeyi Yadav, Wd/o. Budhram Yadav Aged About 60 Years All are R/o Sadakpara Main Road, Village Sonarpal, P.S. Bhanpuri, District Bastar Chhattisgah. ---Appellants Versus 1 - Gurmej Singh S/o Dalip Singh Through Gurjeet Singh S/o Balwant Singh, R/o Khalsa Transport Company, Tatibandh, Ring Road, No. 2, Raipur District Raipur Chhattisgarh (Driver Of The Vehicle) 2 - Gurjeet Singh S/o Balwant Singh R/o Khalsa Transport Company, Tatibandh, Ring Road, No. 2, Raipur District Raipur Chhattisgarh (Owner Of The Vehicle) BALRAM PRASAD DEWANGAN Digitally signed by BALRAM PRASAD DEWANGAN Date: 2025.08.12 11:01:17 +0530 2 3 - The New India Insurance Company Limited Through Branch Manager, Branch Office Akashwani, Road, Near Bhadouriya Bhawan, Jagdalpur District Bastar Chhattisgarh (Insurer Of The Vehicle) --- Respondents For Appellant (In MAC No.135/24) and Respondent No.3 (In MAC No. 136/2024) : Mr. B.N. Nandey, Advocate with Mr. Priyanshu Gupta, Advocate For Appellants (In MAC No. 136/2024) and Respondent No.3 ( In MAC No.135/24) : Mr. Pravin Kumar Tulsyan, Advocate with Mr. Karan Kumar Baharani, Advocate Hon'ble Shri Justice Parth Prateem Sahu Order On Board 29/07/2025 1. Both the appeals are arising out of the same award, therefore, they are being heard together and decided by this common order. 2. Appellant/Insurance Company has filed MAC No. 135/2024 under Section 173 (2) of the Motor Vehicles Act, 1988 (for short ‘the Act of 1988’) challenging the impugned award dated 27.07.2023, passed in Claim Case No.71of 2020, whereby the learned 1st Additional Motor Accident Claims Tribunal, Jagdalpur, District – Bastar (C.G.) (for short ‘the Claims Tribunal’) has awarded compensation of Rs.33,61,024/- to the claimants in death case. However, MAC No.136 of 2024 is filed by the claimants for enhancement of the compensation awarded by the learned Claims Tribunal by the impugned award. 3. Facts relevant for disposal of this appeal are that a claim application was filed by the claimants claiming compensation of Rs.1,16,20,000/- against the death of Kishore Yadav who died in road accident. It was pleaded that on 09/10/2020, deceased, Kishore Yadav, was returning to his home in Village Sonarpal from Antagarh on a Bullet motorcycle 3 bearing registration number CG 17 KS 4789, accompanied by Shravan Yadav. On the way it dashed with stationary truck bearing registration number CG 04 JC 5073 parked in the middle of the road without any signal indicators, parking lights, or placing any warning signs by non-applicant No.1. As a result, Kishore Yadav suffered serious and fatal injuries. He later succumbed to the injuries during treatment. It was pleaded that deceased was employed as Teacher in the Education Department and posted as Principal at Government Higher Secondary School, Todoki, Block Koyalibeda and was getting monthly salary of Rs.90,000/-. 4. Non-applicant No.1 and 2 did not file any reply and they remained ex- parte before the Claims Tribunal. Non-applicant No.3 filed reply to the claim application denying the averments made therein. It was pleaded that, at the time of the accident, deceased was under influence of alcohol and was riding the motorcycle without valid and effective driving licence. He was guilty of contributory negligence in causing the accident. 5. 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.82,58,976/- and fastened liability upon non-applicants to satisfy the amount of compensation jointly and severally. 6. Learned counsel for the appellant/Insurance Company would submit that the appellant/Insurance Company filed this appeal challenging impugned award on the ground that learned Claims Tribunal fell into error in not holding the deceased contributory negligent in the accident 4 as he dashed with stationary truck. He next contended that the learned Claims Tribunal assessed income of the deceased on higher side. 7. Learned counsel for the appellants/claimants would submit that the claimants/appellants have filed appeal seeking enhancement of the amount of compensation on the ground that the Claims Tribunal erred in applying multiplier of 11 instead of 13. He submits that according to date of birth as available in the record i.e. in driving license of the deceased mentioning date of birth as 05.06.1970 and thereby on the date of accident, deceased was 50 years, 4 months and 4 days and have not attained the age of 51 years. The learned Claim Tribunal applied the multiplier of 11 considering the deceased in between age group from 51 to 55 years. 8. I have heard learned counsel for the parties and also perused the record of claim case. 9. So far as the submission of learned counsel for the appellant/Insurance Company, that the learned Claims Tribunal erred in not holding the deceased contributory negligent in accident is concerned, perusal of the pleadings made in the claim application would show that accident occurred on 09.10.2020 at about 8.30 PM. The offending truck insured by appellant/insurance company was parked on National Highway Road No.30 without there being any indication sign or putting on the indicator light of the trucks. Copy of FIR filed as Ex.A-2 would show that information of accident was given within three hours of the accident. It also mentions that truck was parked negligently on the road without there being any indication sign or putting on the parking light. Charge-sheet was filed against non- 5 applicant No.1, driver on the same facts. To prove the pleadings of negligence on the part of the driver of the truck and pleadings made in the application, claimants have examined claimant No.1 Smt. Sunita Yadav as (A.W.-1). In her evidence she stated that at the time of accident, truck was parked negligently on the road and the motor cycle driven by her husband dashed with truck from its rear side. Shravan Yadav (A.W.-2), younger brother of the deceased also in his statement made similar statement. In his evidence he stated that due to flashlight of the vehicle coming from opposite side on the eye of the deceased, he could not saw the truck parked on the road and dashed with it. Non-applicant No.-3, Insurance Company has examined Pitambar Kathar (N.A.W. 3-1), who is Investigating Officer of the crime registered with regard to the accident of the deceased with the offending truck. In his evidence, he stated that driver of the truck had parked the offending truck on center of the road without turning on the parking light and deceased dashed hise motor cycle from rear side of truck. Spot map is also filed by the claimants as (Ex.A-3) in which also truck has been shown to be parked on road. In view of the aforementioned evidence available on record, it is apparent that the truck was parked on road without there being any indication or turning on indicator light in night at about 8.30 PM. Parking of truck and place of accident is undisputedly a National Highway Road, crossing of the vehicles from the opposite direction in the night with headlights on, may be high beam cannot be ruled out. Therefore, in view of the evidence of Shravan Yadav (AW.-2) brother of the deceased that the accident occurred due to flashlight of the vehicle shone in the eyes of the deceased cannot be said to be false evidence. 6 10. 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 :- “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: 11. "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. Considering entirety of the facts of the case, the date, time and place of accident and further bypassing of the motor vehicles with the headlights on, in the opinion of this Court, the learned Claims Tribunal has not committed any error in recording a finding that the accident is a result of negligent parking of the offending truck on the road and the negligence cannot be attributed on the part of the deceased. The said finding of the learned Claims Tribunal is upon proper appreciation of evidence available on record, hence, it does not call for any interference. The submission of learned counsel for the appellant/Insurance Company that the learned Claims Tribunal erred 7 in not recording a finding that the deceased was also contributory negligent in the accident is not sustainable and it is hereby repelled. 13. So far as the second submission of learned counsel for the appellants/Insurance Company that learned Claims Tribunal erred in assessing income of the deceased on higher side is concerned, claimants have submitted certificate/estimated pay bill prepared by the Block Education Officer and have also examined the Block Education Officer in support of their claim and pleadings to prove the income of the deceased. Block Education Officer Keju Ram Sinha is examined as (AW-3). In his evidence he categorically stated that the gross salary of the deceased was Rs.84,980/- and after deduction, he was being paid Rs.70,836/- as net salary. For computing amount of compensation, gross salary – minus income tax is to be taken into consideration as held by the Hon’ble Supreme Court in case of National Insurance Company Vs. Indira Shrivastava reported in (2008) 2 SCC 763, has observed as under : “19. The amounts, therefore, which were required to be paid to the deceased by his employer by way of perks, should be included for computation of his monthly income as that would have been added to his monthly income by way of contribution to the family as contradistinguished to the ones which were for his benefit. We may, however, hasten to add that from the said amount of income, the statutory amount of tax payable thereupon must be deducted.” 14. Recently in a judgment dated 11th July, 2024 in National Insurance Company Ltd. v. Nalini and Ors. [Petition for Special Leave to Appeal (C) No. 4230/2019], Hon’ble Supreme Court held that, 8 allowances under the heads of transport allowance, house rent allowance, provident fund loan, provident fund and special allowance ought to be added while considering the basic salary of the victim/deceased to arrive at the dependency factor. 15. Learned Claims Tribunal considered gross salary of the deceased and has deducted tax and assessed income as Rs.79,980/-, which cannot be said to be erroneous. Hence, the submission of learned counsel for the appellant/Insurance Company that income of deceased assessed by the learned Claims Tribunal to be on higher side, is not sustainable and accordingly it is repelled. 16. For the foregoing discussions, appeal bearing MAC No. 135/2024 filed by the appellant/Insurance Company is liable to be and it is hereby dismissed. 17. So far as the grounds raised by the claimants/appellants in MAC No.136 of 2024 that, the learned Claims Tribunal erred in applying the multiplier of 11 instead of 13 is concerned, date of birth of the deceased mentioned in the driving license (Ex.P-14 (C)) is as 05.06.1970. Upon considering age based on the date of birth available in the government records, the age of the deceased on the date of accident comes to 50 years, 4 months and four days, which is less than 51 years or it can be said that the deceased has not attained the age of 51 years. The application of multiplier has been considered by the Hon’ble Supreme Court in case of Sarla Verma (Smt.) & Ors. Vs. Delhi Transport Corporation & Anr., reported in (2009) 6 SCC 121, and it is held that application of multiplier of 13 would apply where the deceased who attained the age of 46 years up to 50 and multiplier of 9 11 years where deceased was 51 years of age up to 55 years. As from the date of birth available in the record shows that the deceased was only 50 years and 4 months and not attained the age of 51 years, therefore the learned Claims Tribunal erred in applying the multiplier of 11. Correct multiplier would be 13. It is ordered accordingly. 18. Learned counsel for the appellants/claimants submits that learned Claims Tribunal awarded compensation under the head of loss of estate, funeral expenses and loss of consortium by increasing 10% on the quantified amount of compensation under those heads as observed by the Hon’ble Supreme Court in case of National Insurance Company Limited. Vs. Pranay Sethi & Ors, reported in (2017) 16 SCC 680, however, fell into error in not applying the decision of Hon’ble Supreme Court in its words and sprit. He submits that as per the decision of Hon’ble Supreme Court increase in the amount of compensation under other conventional head is to be increased 10% on completion of every three years, therefore, on the date of passing of the award, learned Claims Tribunal ought to have increased the compensation under other conventional head at the rate of 20%. Submission made by learned counsel for appellants/claimants in the light of decision of Hon’ble Supreme Court in case of Pranay Sethi (supra) appears to be correct, therefore, I find it appropriate to enhance the amount of compensation awarded under the head of loss of estate, for funeral expenses and for loss of consortium at the rate of 10%. It is ordered accordingly. 19. On the basis of above, compensation awarded needs recomputation, which is as under :- 10 SN Head Amount (in Rs.). 1. Annual loss of income : 7,35,816.00 2. Loss of dependency after application of multiplier of 13 (7,35,816 x 13) : 95,65,608.00 3. For loss of spousal and parental consortium to the appellants No.1 to 3 (after enhancing 10%) Rs.44,000/- each (44,000 x 3) : 1,32,000.00 4. For funeral expenses (after enhancing 10%) : 16,500.00 5 . For loss of estate (after enhancing 10%) : 16,500.00 Grand Total : 97,30,608.00 20. Accordingly, the appeal is allowed in part. Now the appellants shall be entitled for total compensation of Rs.97,30,608.00. Any amount paid to the appellants as compensation as per impugned award shall be adjusted. Enhanced amount of compensation shall carry interest @ 8% per annum from the date of filing of application till its realization. Rest of the conditions mentioned in the impugned award shall remain intact. 21. 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