-1- 2025:CGHC:39129 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR MAC No. 656 of 2021 1 - Smt. Sanita Netam W/o Late Sundarlal Netam Aged About 34 Years 2 - Minor Piyush Netam S/o Sundarlal Netam Aged About 8 Years 3 - Minor Ku. Upasana Netam D/o Sundarlal Netam Aged About 4 Years Minor appellants No. 2 & 3 are through Guardian Mother Smt. Sanita Netam W/o Late Sundarlal Netam, Aged About 34 Years. 4 - Sonadhar Netam S/o Bodaram Netam Aged About 50 Years 5 - Smt. Sugan Bai Netam W/o Sonadhar Netam Aged About 46 Years R/o Village Maragaon, P. S. Makadi, Tahsil Kondagaon, District Kondagaon Chhattisgarh Present Add. Shitala Nagar, Govindpur Kanker, Tahsil Kanker Chhattisgarh ... Appellant (s) versus 1 - Md. Aftar Beg S/o Sultan Beg Aged About 28 Years R/o Village Adhari Nawagaon, Tahsil And District Dhamtari Chhattisgarh .......... (Vehicle Driver) 2 - Jitendra Jain S/o Late Rakhchand Jain Aged About 45 Years R/o Sundarganj Ward, Dhamtari, Tahsil And District Dhamtari Chhattisgarh .........(Vehicle Owner) 3 - The Oriental Insurance Co. Ltd. Mondal Office, Dhamtari, Tahsil And District Dhamtari Chhattisgarh ............(Insurance Company) ... Respondent(s) Digitally signed by PRAVEEN KUMAR SINHA Date: 2025.08.19 10:32:09 +0530 -2- ________________________________________________________ For Appellant (s) : Mr. D.N. Prajapati, Advocate For Resp. No. 3 : Mr. Akash Shrivastava, Advocate on behalf of Mr. R.N. Pusty, Advocate _______________________________________________________ S.B.: Hon'ble Shri Parth Prateem Sahu, Judge Judgment On Board 06 /08/2025 Heard. 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 Motor Accidents Claims Tribunal, Uttar Bastar Kanker (CG) vide award dated 17.09.2021 passed in Motor Accident Claim Case No.18 of 2020. 2. Facts relevant for disposal of this appeal are that appellants/claimants filed an application under Section 166 of the Act of 1988 before learned Claims Tribunal pleading therein that on 30.10.2019, Sundarlal was going to his workplace Dimrapal on his Hero Honda Passion Pro motorcycle No. CG 17 KC 3069. At around 3:00 pm when he reached on National Highway No.30 between village Farsaguda-Junwani, non- applicant No.1 driving car number CG 07 M 8047 rashly and carelessly, dashed the motorcycle of Sundarlal Netam and caused accident, due to which Sundarlal Netam suffered serious injuries on various parts of his body and died on the spot. At the time of the accident, deceased Sundarlal Netam was aged about 30 years, was working as a Ward -3- Boy in Dimrapal Government Hospital and was receiving monthly salary of Rs. 25,341/-, from which he was maintaining his family/claimants. Claimants claimed for total compensation of Rs. 60,49,188/- from non-applicants under different heads. 3. Non-applicants No. 1 & 2 in their written statement denied the pleadings made in the claim application and further pleaded inter alia that non-applicant No. 1 was driving his car No. CG 07 M 8047 slowly. There was no negligence of non-applicant No. 1 in the said accident. On the date of the incident, non-applicant No. 1 had a valid and effective driving license and the said vehicle was insured with non- applicant No. 3/ Insurance Company. Therefore, non-applicants No. 1 & 2 would not be liable to pay any amount of compensation to claimants. 4. Non-applicant No.3/insurance company in its written statement resisted the claim filed by the claimants and pleaded that on the date of accident, non-applicant No.1 did not have a valid and effective driving license and the car was being used unauthorizedly contrary to the terms of the insurance policy. The said accident occurred due to a head-on collision between the car and motorcycle, therefore, the principle of contributory negligence will apply. 5. Learned Claims Tribunal, on appreciation of pleadings and evidence brought on record by respective parties, held that on the date of accident, offending vehicle was being driven by non-applicant No.1 rashly and negligently, due to which, an accident occurred in which -4- Sundarlal Netam suffered grievous injuries and died. Plea of contributory negligence on the part of deceased to the extent of 50% has been found to be proved. Recording a finding that breach of conditions of the insurance policy was not found proved, non- applicants were held liable to pay the amount of compensation. Assessing monthly income of the deceased as Rs.25,341/-, calculated amount of compensation under different heads, awarded total compensation of Rs.18,63,076/-. 6. Learned counsel for the appellants/claimants submits that learned Claims Tribunal erred in awarding meager sum of compensation. He contended that Claims Tribunal has not added compensation under the head of ‘future prospects’ even after assessing age of deceased to be 32-33 years. He also contended that Claims Tribunal has not awarded compensation towards ‘loss of consortium’ to all the claimants and submits that amount of compensation be suitably enhanced. He also contended that finding recorded by Claims Tribunal that deceased was also contributory negligent to the extent of 50% is erroneous. There is no admissible evidence to arrive at such conclusion. 7. Learned counsel for respondent No.3- insurance company would oppose the submission of learned counsel for appellants and would submit that there was head-on collusion between two vehicles and therefore Claims Tribunal justified in arriving at conclusion that deceased was also contributory negligent in the accident to the extent of 50%. Finding recorded by Claims Tribunal is on appreciation of evidence which does not call for any interference. In support of his -5- submission, he places reliance upon the decision in the case of T.O. Anthony Vs. Karvaran & Ors. (2008) 3 SCC 748. With regard to quantum of compensation awarded by learned Claims Tribunal, he submits that income of deceased on the date of accident i.e. 30.10.2019 was more than exempted income under the Income Tax Act, 1961 and, therefore, Claims Tribunal ought to have deducted income tax from annual income of deceased of Rs.304,092/- (25,341 x 12). He submits that according to slab of income tax, income above Rs.2,50,000/- up to Rs.5,00,000/- is taxable at the rate fo 5 %. 8. I have heard learned counsel for the parties and also perused the record of claim case. 9. I will first consider the the submission of learned counsel for the appellants that learned Claims Tribunal erred in recording a finding of contributory negligence to the extent of 50% upon the deceased. 10. Perusal of the record would show that non-applicants No. 1 & 2 submitted reply to claim application. They have denied the rash and negligent driving of driver of offending car and further pleaded that the accident was result of rash and negligent driving of driver of motorcycle. Insurance Company/ non-applicant No.3 in its reply has not taken any specific pleat that, accident was result of rash and negligent driving of driver of motorcycle (deceased). Learned Claims Tribunal framed issue whether in the facts of case plea of contributory negligence would apply or not ? In the evidence recorded before the Claims Tribunal, non-applicant 3-Insurance Company has not -6- examined any witness to prove, contributory negligence on the part of deceased. It is settled law that it is the burden upon the party to prove the fact as asserted and raised in their pleading. Plea of contributory negligence is raised by non- applicant No. 1& 2/respondent No. 1 & 2 (Owner and Driver) of offending car. However they failed to enter into witness box. Mere pleading of fact in the application or reply would not in itself be a proof of fact pleaded by parties. Learned Claims Tribunal while deciding the issue of contributory negligence has taken into consideration the one line statement of AW1 (claimant No.1) that she had heard that there was head-on collusion between two vehicles. This statement of claimant No.1/AW1 would not sufficient to arrive at the conclusion that there was head-on collision between two vehicles as she was not the eyewitness to the accident. Eyewitness is not examined before the Claims Tribunal. Tribunal has further considered the spot map prepared by police to conclude that there was head-on collision between two vehicles. The spot map prepared by police in absence of any further evidence cannot be accepted in evidence as it is . The spot map is prepared based on information gathered by the police. Informant who narrated, the manner in which accident occurred is not examined by the non-applicants before the Claims Tribunal and therefore also spot map as prepared by police showing place of accident cannot be said to be proved in accordance with law. 11. Hon’ble Supreme Court in the case of Jiju Kuruvila and Ors. Vs. Kunjujamma Mohan and Ors. (2013) 9 SCC 166 has considered evidentiary value of spot map to arrive at conclusion of rash and -7- negligent driving on the part of deceased therein and observed 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 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.” 12. In the case of Minu Rout and Anr Vs. Satya Pradyumna Mohapatra & Ors. (2013) 10 SCC 695, Hon’ble Supreme Court while dealing with the issue of contributory negligence on the part of deceased driver of one of the vehicle has observed as under: “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 -8- 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 279 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 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 evidence of PW 2 and PW 3 in their cross-examination and placed reliance on them to record the finding on Issue 1. 18. For the aforesaid reasons, the findings and reasons recorded by the Tribunal on the contentious Issue 1 holding that there is contributory negligence on the part of the deceased driver in the absence of legal evidence adduced by the Insurance Company to prove the plea taken by it that accident did not take place on account of rash and negligent driving of the truck driver is -9- erroneous in law. The Tribunal has accepted the part of oral evidence of the eyewitnesses regarding the scene of accident and it has erroneously placed reliance upon the charge-sheet, Ext. 1, which was filed against the driver of the offending truck and the deceased to hold that there was contributory negligence on his part by ignoring the fact that the criminal case against the deceased was abated. Therefore, we have to hold that the finding of fact recorded on Issue 1 by the Tribunal and affirmed by the High Court in the impugned judgment [ Motor Accident Appeal No. 594 of 2010, order dated 27-7-2011 (Ori)] , is erroneous for want of proper consideration of pleadings and legal evidence by both of them. Accordingly, we have answered Point 1 in favour of the appellants insofar as the finding recorded by the Tribunal on the question of contributory negligence of 50% on the part of the deceased is concerned.” 13. Decision relied upon by learned counsel for the respondent-insurance company in the case of Pawan Kumar and Anr. Vs. Harkishan Dass Mohan Lal and Ors. (2014) 3 SCC 590 is not applicable to the facts of case. In the case at hand, there is no proof that there was head-on collision between the two vehicles, rash and negligent driving on the part of deceased in any manner and spot map relied upon by learned Claims Tribunal is also not proved in accordance with law. 14. For the foregoing discussions, in the facts of case, nature of evidence available on record of claim case and further considering that neither the driver, owner nor the insurance company has led any evidence to prove fact of contributory negligence, in the opinion of this Court, -10- learned Claims Tribunal committed error in arriving at conclusion that deceased was also contributory negligent to the extent of 50%. Said finding recorded by Claims Tribunal is without any evidence and hence it is not sustainable, accordingly it is set aside. 15. So far as the submission of learned counsel for the appellants/claimants seeking enhancement of amount of compensation on the ground that Claims Tribunal has not awarded compensation under the head of future prospects is concerned, it has been well settled by Hon’ble Supreme Court in the case of National Insurance Company Ltd. Vs. Pranay Sethi and Ors. (2017) 16 SCC 680 wherein it is held that if the deceased was in permanent employment and less than 40 years of age, there shall be addition of 50% to the established income of deceased towards future prospects. In the case at hand, deceased was working as Ward Body in Govt. Hospital Dimrapal. His employment is proved by placing salary statement issued by Superintendent Maharani Hospital Jagadalpur and therefore in the opinion of this Court there shall be addition of 50% to the assessed income of the deceased towards future prospects for computation of amount of compensation. It is ordered accordingly. 16. Learned Claims Tribunal has awarded Rs.44,000/- towards ‘loss of consortium’. Number of claimants are 5 including widow children and parents of deceased . According to decision of Hon’ble Supreme Court in the case of Magma General Insurance Co. Ltd. Vs. Nanu Ram alias Chuhru Ram & Ors. (2018) 18 SCC 130 apart from the spouse, children are held entitled for loss of parental consortium and parents -11- are held entitled for loss of filial consortium and therefore claimant No. 1 will be entitled to get loss of spousal consortium, claimants No. 2 & 3 will be entitled to get loss of parental consortium and claimants No. 4 & 5 will be entitled to get loss of filial consortium of Rs.40,000/- each. 17. 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, compensation of Rs.15,000/- awarded under the head of ‘loss of estate’, ‘funeral expenses’ and Rs.40,000/- under the head ‘loss of consortium’ to claimants has to be increased by 10%. 18.For the foregoing discussions, I find it appropriate to re-compute the amount of compensation as under:- S. N. Heads Compensation 1. Loss of Income/dependency (A) Gross Annual Income Rs.25,341 x 12 = 304092 (B) Addition towards future prospects @ 50% (3,04,092 x 50% =1,52,046) 3,04,092 + 1,52,046 = 4,56,138 (C) Deduction of income tax 1. Income up to Rs.2,50,000/- Tax- Nil 2. Rs.2,50,000/ to Rs.5,00,000/– tax at the rate of 5% 3. Rs.4,56,138– 2,50,000 =2,06,138 4. Rs.2,06,138 x 5 % = 10307 5. Net income – Rs. 4,45,831 (4,56,138 – 10,307) : Rs. 53,49,984 -12- (C) Deduction of 1/4 towards personal and living expenses (4,45,831 x 1/4= 111457) 4,45,831 – 111457 =3,34,374/- (D) Multiplier of 16 334374 x 16= 53,49,984 2. Funeral Expenses : (+) Rs. 16,500 3. Loss of Estate : (+) Rs. 16,500 4. Spousal Consortium to claimant No.1 (wife) (40,000 x 10 % =44,000) : (+) Rs. 44,000 5. Parental consortium to claimants No. 2 & 3 (children) of 44,000/- each (40,000 x 10 % =44,000) (44,000 x 2 =88,000) : (+) Rs. 88,000 6. Filial consortium to claimants No. 4 & 5 (parents) of 44,000/- each (40,000 x 10 % =44,000) (44,000 x 2 =88,000) : (+) Rs. 88,000 Total compensation Rs. 56,02,984 19. Now appellants/claimants are awarded total compensation of Rs. 56,02,984/- instead of Rs.18,63,076/- as awarded by the Claims Tribunal. 20.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 claimants shall be adjustable from the total amount of compensation which is now been calculated and awarded by this Court. Rest of the conditions of impugned award shall remain intact. -13- 21.In the result, appeal is allowed in part and the impugned award stands modified to the extent indicated above. Sd/- Sd/-/- (Parth Prateem Sahu) Judge Praveen