1 2025:CGHC:28101 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR MAC No. 1798 of 2019 1 - Divisional Manager, United India Insurance Company Limited Tara, Complex, G.E. Road, Power House, Bhilai, Tahsil And District Durg, C.G. Through Authorised Signatory, Deputy Manager, T.P. Hub, Divisional Office, United India Insurance Company Limited, 2nd Floor Guru Kripa Towers Vyapar Vihar Road Bilaspur P.S. Civil Line Tehsil And District Bilaspur Chhattisgarh...........(N.A.No.3) ... Appellant Versus 1 - Smt. Setkunwar Jangde Wd/o Late Sitaram Jangde, Aged About 55 Years Residence Quarter No. 1/a, Road No. 19, Sector 5, Bhilai Nagar, Tahsil And District Durg Chhattisgarh.............(Claimant) 2 - Rakesh Kumar Jangde S/o Late Sitaram Jangde Aged About 32 Years Residence Quarter No. 1/a, Road No. 19, Sector 5, Bhilai Nagar, Tahsil And District Durg Chhattisgarh.............(Claimant) 3 - Manesh Jangde, S/o Late Sitaram Jangde Aged About 23 Years Residence Quarter No. 1/a, Road No. 19, Sector 5, Bhilai Nagar, Tahsil And District Durg Chhattisgarh.............(Claimant) 4 - Roshan Jangde, S/o Late Sitaram Jangde, Aged About 22 Years Residence Quarter No. 1/a, Road No. 19, Sector 5, Bhilai Nagar, Tahsil And District Durg Chhattisgarh.............(Claimant) 5 - Vaibhav Singh Chauhan, S/o Yogendra Singh Chauhan, Aged About 20 Years R/o Baikunthpur, Koria, Thakul Para, Quarter No. 66, P.S. Baikunthpur, District Koria Chhattisgarh Presently Residing At Quarter No. 1/a, Road No. 33, Sector 4, Bhilai Nagar, P.S. Bhilai Nagar, Tahsil And District Durg Chhattisgarh..................(Driver) SHUBHAM DEY Digitally signed by SHUBHAM DEY 2 6 - Anand Gupta, S/o Awdhesh Chand Gupta, R/o Kachahari Para, Baikunthpur, District Koria Chhattisgarh..............(Owner) ... Non-appellants For Appellant : Mr. B.N. Nande, Advocate For Non-appellants No. 1 to 4 : Ms. Santoshi Yadav, Advocate on behalf of Mr. Utsav Mahiswar, Advocate For Non-appellant No. 5 : Ms. Shreya Daga, Advocate on behalf of Mr. Dhiraj Kumar Wankhede, Advocate For Non-appellant No. 6 : Mr. Sudhanshu Singh, Advocate S.B.: Hon'ble Shri Parth Prateem Sahu, Judge Order On Board 26/06/2025 1. Appellant-Insurance Company has preferred this appeal challenging the award dated 18.01.2019 passed in Claim Case No. 148/2017 by which learned 2nd Additional Motor Accident Claims Tribunal Durg (for short 'the Claims Tribunal') has allowed claim. application of claimant in part, awarded total compensation of Rs.52,35,332/- and fastened liability upon non-applicants, jointly and severally, to pay the amount of compensation to claimants. 2. Facts of the case in brief are that on 6.6.2016 at about 7:00 p.m. Sitaram Jangde along with his wife was going towards Sector-2 Bhilai on motorcycle. As soon they reached Sector 6C Market, the vehicle bearing registration mark CG16-CE-9732, driven in a rash and negligent manner by its driver (non-applicant No.1), dashed the motorcycle of Sitaram Jange while overtaking a car and caused accident. As a result, Sitaram Jangde and his wife both fell down and sustained injuries. Both were admitted in Sector-9 Hospital, Bhilai where Sitaram Jangde died in the course of treatment. Accident was reported in concerned police station based on which crime bearing No.406/16 was registered against non-applicant No. 1 for alleged offence punishable under Section 279, 337 of IPC. An application 3 under Section 166 of the Motor Vehicles Act, 1988 (for short 'the Act of 1988') seeking compensation to the tune of Rs.76,26,918/- with interest was filed by claimants on the ground that at the time of accident, deceased was 59 years of age, he was permanent employee of Bhilai Steel Plant and getting salary of Rs.87,678/- per month. They were dependent on earning of deceased and on account of his untimely death, they have suffered loss of income. 3. Learned counsel for appellant would submit that the accident occurred due to head-on collusion and as such, the deceased was equally responsible for the accident. On the complaint of non-applicant No.1, FIR under Crime No.383/2016 was also registered against the deceased for commission of offence under Section 279 and 337 of IPC for driving motorcycle rashly, negligently and causing accident. However, the Claims Tribunal has not properly appreciated the evidence of head-on collusion and erroneously held that the rider of offending vehicle ie. non-applicant No.1, was solely responsible for the accident. He next contended that as the deceased was already 59 years & 11 months of age and on the verge of retirement, the addition of 10% towards future prospects was not warranted. Overall compensation awarded by the Claims Tribunal is exorbitant and excessive, therefore, he prays for suitable reduction. 4. On the other hand, learned counsel for claimants opposing the submissions of learned counsel for appellant Insurance company would submit that plea of contributory negligence is to be proved by the party who is raising the same. Except the FIR registered against the deceased and spot map, the Insurance Company has not adduced any independent oral or documentary evidence to prove the aspect of contributory negligence. Registration of First Information Report against deceased alone would not be sufficient to draw an inference that deceased was also equally responsible for the accident. Hence, in absence of any material on record to substantiate the plea of 4 contributory negligence, the Claims Tribunal justified in holding that non- applicant No.1, driver of offending vehicle, was alone responsible for causing the accident. 5. I have heard learned counsel for the parties and perused the records of the claim case. 6. Before proceeding further in view of the objection raised by the learned counsel for the respective respondents, this Court posed query to the learned counsel for the appellant with regard to the filing of the copy of the F.I.R. bearing Crime No. 383/2016, P.S. Bhilai Nagar, District – Durg registered allegedly on the basis of the complaint lodged by the Non- Applicant No. 1. he fairly submitted that he has gone through the record from which, it is reflecting that the said copy of the F.I.R. which has been made part of the memo of appeal has not been filed before the learned Claims Tribunal. The Appellant/Insurance Company have raised the plea of contributory negligence in the reply, learned Claims Tribunal had considered the same in Para 10 of the impugned award and held that except the plea taken in the written statement, no other admissible piece of evidence in support has been brought in by the Insurance Company. Contributory negligence is a fact which is required to be proved in accordance with law. Merely taking a plea of contributory negligence in reply of the claim application in itself will not be read in evidence as proof. 7. Hon’ble Supreme Court in the case of Jiju Kuruvila and others v. Kunjujamma Mohan and others reported in (2013) 9 SCC 166, where the Supreme Court has held thus: “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 5 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.” 8. Another judgment of the Supreme Court while dealing with the issue of contributory negligence in the matter of Minu Rout and another v. Satya Pradyumna Mohapatra and others reported in (2013) 10 SCC 695 and 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 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 179 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-shhet, Ext. 1 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.” 6 9. In the case at hand, no evidence has been led by the Appellant/Insurance Company before the learned Claims Tribunal to prove the plea of contributory negligence. In absence of any admissible piece of evidence, learned Claims Tribunal justified in rejecting the plea of contributory negligence raised by the Appellant/Insurance Company and recording a finding that the accident was a result of rash and negligent driving of the two-wheeler by Non-applicant No. 5 which cannot be said to be erroneous. Hence, the submission of the counsel for the Appellant/Insurance company that the learned Claims Tribunal fell into error in deciding the issue of contributory negligence against it, is not sustainable. Accordingly, it is repelled. 10.The documents filed along with the memo of appeal in support of the contention of the contributory negligence i.e. the copy of the F.I.R. and spot map cannot be considered in an appeal before this Court. The Appellant/Insurance Company was a party to the proceedings, contested the case before the learned Claims Tribunal, however, no documents in this regard has been submitted, as filed before this Court. No explanation is offered as to why, the said documents which were available in the challan charge-sheet of the other crime has not been obtained during the proceedings of the claim case. 11. In the aforementioned facts of the case, the documents filed along with the memo of appeal to support the additional ground cannot be considered. Lastly, the learned counsel for the appellants submits that as the deceased was about to retire within few days, the compensation under the head of loss of future prospects could not have been awarded. 12.The award of compensation under the head of future prospect was considered by the Hon’ble Supreme Court in the case of National Insurance Company Ltd. vs. Pranay Sethi, reported in (2017) 16 SCC 680. Hon’ble Supreme Court consciously considered for an 7 addition of 50% of the annual salary to the income of the deceased towards the loss of future prospects where the deceased had a permanent job and was below the age of 40 years. The addition of 30%, if the age of the deceased was between 40 to 50 years and in case, the deceased was between the age of 50 to 60 years, the addition should be of 15%. 13.Hon’ble Supreme Court has used the specific word ‘permanent job’ and a person who is in permanent job is to retire from the service also. However, Hon’ble Supreme Court has not made any difference between an employee or a person in permanent employment going to retire within short period of time. 14.In the aforementioned facts of the case, the submission of the counsel for the appellant that the claimants/non-applicants will not be entitled for addition of 15% of the annual income towards the future prospects as the deceased was about to retire within 24 days, is not sustainable. Accordingly, it is repelled. 15.Hon'ble Supreme Court in case of KPTCL v. C.P. Mundinamani reported in (2023) 14 SCC 411 while dealing with the issue of entitlement of a government employee to receive a benefit of the annual increment earned on the last day of his service has held thus: “17. A government servant is granted the annual increment on the basis of his good conduct while rendering one-year service. Increments are given annually to officers with good conduct unless such increments are withheld as a measure of punishment or linked with efficiency. Therefore, the increment is earned for rendering service with good conduct in a year/specified period. Therefore, the moment a government servant has rendered service for a specified period with good conduct, in a timescale, he 8 is entitled to the annual increment and it can be said that he has earned the annual increment for rendering the specified period of service with good conduct. Therefore, as such, he is entitled to the benefit of the annual increment on the eventuality of having served for a specified period (one year) with good conduct efficiently. Merely because the government servant has retired on the very next day, how can he be denied the annual increment which he has earned and/or is entitled to for rendering the service with good conduct and efficiency in the preceding one year. 16.Admittedly, the deceased on the date of accident was in permanent employment holding the post of Executive in Bhilai Steel Plant. The government servants are entitled for increment either on first of January or first of July. If the submission of counsel for the appellant is to be accepted, the deceased was to retire on 30.06.2024 and therefore, he may be entitled for addition of the increment to his salary for the purpose of computing the retiral benefits which can be beneficial for the computation of the retiral dues. Therefore, assessment of income of the deceased for the purpose of calculating the loss of dependency by the learned Claims Tribunal is correct and does not call for any interference. 17.In the aforementioned facts of the case, I do not find any good ground to interfere with the impugned award passed by the learned Claims Tribunal. The appeal being sans merit is liable to be and accordingly, dismissed. 18.Certified copy as per rules. Sd/-d/--/-/--------/--/- (Parth Prateem Sahu) Judge Dey