1 2025:CGHC:43961 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR MAC No. 18 of 2024 Smt. Mala Jha W/o Nikhil Jha Aged About 45 Years R/o Ambagarh Chowki P.S. And Tehsil- Ambagarh Chowki, District Rajnandgaon (C.G.) (Claimant) ... Appellant versus 1 - Iffco Tokio General Insurance Company Limited Through Branch Manager Office At Anupam Nagar First Floor, Above Punjab Sweets Rajnandgaon, District Rajnandgaon (C.G.) (Insurance Company). 2 - Teshuram Nishad S/o Chatur Ram Nishad Aged About 30 Years R/o Village Ratapaili P.S. Dongargaon, District Rajnandgaon (C.G.) (Owner). 3 - Nikhil Jha S/o Late Vidyanand Jha Aged About 50 Years R/o Ambagarh Chowki P.S. And Tehsil Ambagarh Chowki, District Rajnandgaon (C.G.). ... Respondents {Cause title is taken from Case Information System} For Appellant : Mr. Basant Dewangan, Advocate For Res. No. 1 : Ms. Shristi Shri Atal, Advocate holding brief of Mr. Vaibhav Shukla, Advocate Hon'ble Shri Justice Sachin Singh Rajput Judgment On Board 29/08/2025 1. This appeal under Section 173 of the Motor Vehicles Act, 1988 (for short ‘M.V. Act’) has been preferred by the appellant / claimant 2 challenging the impugned award dated 21.08.2023 passed by Upper Motor Accident Claims Tribunal, Rajnandgaon (C.G.) in Motor Accident Claim Case No. 193 of 2019. 2. As against compensation of Rs. 7,00,000/- claimed by the appellant/claimant by filing application under Section 166 of the Motor Vehicles Act, 1988 (for short ‘MV Act’) for the injuries sustained by her in the motor accident that occurred on 17.06.2017 due to rash and negligent driving of driver of the offending vehicle i.e. Dreamyuga Motorcycle bearing registration No. CG 08 U-5734 the learned Tribunal has awarded Rs. 2,68,370/- as compensation to the claimants. As per averments made in the claim application, on the date of incident i.e. on 17.06.2017 at about 7.00pm, when appellant/claimant was travelling with her husband/ respondent No. 3 on the motorcycle Bajaz Platinum bearing registration No. CG08AA 5674 and was going to Dongargaon temple from Ambagarh Chowki, at that time, Kiri Kumar (since deceased) while driving the offending vehicle Dreamyuga, owned by respondent No. 2, rashly and negligently dashed the motorcycle, in which, the appellant /claimant was travelling, as a result of which, appellant -Smt. Mala Jha sustained multiple injuries leading to permanent disability and driver of offending vehicle motorcycle Kirti Kumar and Mahendra Nishad & Teshuram sitting with him as a pillion rider also fell down alongwith the offending vehicle, as a result thereof, Mahendra Nishad & Kirti Kumar died. It is further pleaded in the claim petition that immediately after the incident, appellant/claimant and her husband was taken to community Health Centre, Ambagarh Chowki and looking to her serious condition, she was referred to District Hospital, Rajnandgaon and subsequently at M.M.I. Hospital Raipur, where she was remained hospitalized from 18.06.2017 to 23.06.2017. Thereafter, a report was lodged against the driver of the offending vehicle, but respondent No. 2-Teshuram Nishad being the owner of the offending vehicle, an application was filed against him under Motor Vehicles Act, on which non-applicant No. 2 – Teshuram Nishad, admitting his crime, paid a fine of Rs.800/-. 3. The respondent No. 1/ insurance company has filed its return and denied the averments that at the time of accident, the driver of the 3 offending vehicle was not holding the valid and effective driving license, therefore, the insurance company is not liable to pay compensation. 4. On the basis of above broad pleadings, learned Tribunal framed as many as seven issues, decided those issues in favour of the appellant / claimant and assessed & awarded compensation of Rs.2,68,378/- in favour of appellant/claimant holding that 50% of the aforesaid amount of compensation would be paid by respondent No. 1/ insurance company and remaining 50% would be paid by respondent No. 2/owner of the offending vehicle. It is 5. It is pertinent to mention here that the respondent No. 1/Insurance Company is the Insurance company of Bajaj Platina Motor Cycle bearing registration No. CG 08 AA 5674, in which the appellant/ claimant along with her husband was traveling at the time of accident. 6. Learned counsel for the appellant submits that the amount of compensation awarded by the learned Claims Tribunal is on lower side, which deserves to be enhanced suitably. He submits that appellant/claimant was not driver of the motorcycle and was pillion rider of the motorcycle, therefore, finding of contributory negligence on the part of the appellant is required to be set aside. 7. Ms. Shristi Shri Atal, learned counsel for respondents while supporting the impugned award would submit that drivers of both the motorcycle have contributed to the cause of accident in the ratio of 50:50 percent, therefore, apportionment of 50% of the awarded amount towards contributory negligence may not be set aside and the appeal is liable to be dismissed. 8. I have heard learned counsel for the parties, considered their rival submissions and perused the records. 9. First question that would arise for consideration before this Court is “whether the finding of contributory negligence recorded by Claims Tribunal in the facts & circumstances of the case is sustainable in law ?” 4 10.Undisputedly; the appellant was not driver of the motorcycle. The Claims Tribunal itself has held driver of motorcycle contributed to the cause of accident to the extent of 50 percent. The appellant/claimant was pillion rider, therefore, on the face, it is a case of composite negligence so far as appellant/claimant in this case is concerned. 11.The law is well settled, in an accident involving two or more vehicles, where a third party (other than the drivers and/or owners of the vehicles involved) claims damages for loss or injuries, it is said that the person was injured on account of the composite negligence of those wrongdoers In such a case, each wrongdoer is jointly and severally liable to the injured for payment of the entire damages and the injured person has the choice of proceeding against all or any of them. 12.The Supreme Court in case of T.O. Anthony v. Karvarnan & others, reported in (2008) 3 SCC 748, has held in para 6 & 7 as under: “6. “Composite negligence” refers to the negligence on the part of two or more persons. Where a person is injured as a result of negligence on the part of two or more wrongdoers, it is said that the person was injured on account of the composite negligence of those wrongdoers. In such a case, each wrongdoer is jointly and severally liable to the injured for payment of the entire damages and the injured person has the choice of proceeding against all or any of them. In such a case, the injured need not establish the extent of responsibility of each wrongdoer separately, nor is it necessary for the court to determine the extent of liability of each wrongdoer separately. On the other hand where a person suffers injury, partly due to the negligence on the part of another person or persons, and partly as a result of his own negligence, then the negligence on the part of the injured which contributed to the accident is referred to as his contributory negligence. Where the injured is guilty of some 5 negligence, his claim for damages is not defeated merely by reason of the negligence on his part but the damages recoverable by him in respect of the injuries stand reduced in proportion to his contributory negligence. 7. Therefore, when two vehicles are involved in an accident, and one of the drivers claims compensation from the other driver alleging negligence, and the other driver denies negligence or claims that the injured claimant himself was negligent, then it becomes necessary to consider whether the injured claimant was negligent and if so, whether he was solely or partly responsible for the accident and the extent of his responsibility, that is, his contributory negligence. Therefore where the injured is himself partly liable, the principle of “composite negligence” will not apply nor can there be an automatic inference that the negligence was 50:50 as has been assumed in this case. The Tribunal ought to have examined the extent of contributory negligence of the appellant and thereby avoided confusion between composite negligence and contributory negligence. The High Court has failed to correct the said error.” 13.In view of above, finding recorded by Claims Tribunal with respect of contributory negligence of both the drivers of offending vehicle is liable to be and is hereby set aside. Now, The insurance company is held liable to pay the entire amount of compensation as awarded by the learned Claims Tribunal and enhanced by this Court. 14.This leads to the second question whether the compensation awarded to the claimant is just and proper. Admittedly, the appellant/claimant has not examined the doctor to prove the injuries sustained by her in the accident,. The bills of medical expenses, which have been placed before the learned Claims Tribunal, have been awarded and the same 6 been conceded by learned counsel for both the parties. Further Rs. 30,000/- for mental agony was also awarded. 15.From the record, it appears that the appellant remained in hospital for about 6 days. Therefore, looking to the facts & circumstances of the case, amount of Rs. 25,000/- is directed to be awarded to the appellant/claimant over and above and amount of compensation awarded by the Claims Tribunal. 16.In view of the foregoing discussion, the appeal is partly allowed. Finding recorded by the Claims Tribunal regarding contributory negligence to the extent of 50% is set aside. Now, the respondent No.1/Insurance Company is held liable to pay entire compensation awarded by the Tribunal Rs.2,68,378/- and Rs.25,000/- enhanced by this Court i.e. Rs. 2,93,378/- . The enhanced amount of compensation i.e. Rs. 2,93,378/- shall carry interest @ 6 percent per annum from the date of application till its actual payment. Rest of the conditions of the award shall remain intact. Award is modified to the above extent. 17.The respondent No.1/Iffco Tokio General Insurance Company is granted 60 days' time for depositing the enhanced amount of compensation before the concerned Claims Tribunal. No order as to costs. amount of compensation in equal proportion before the concerned Claims Tribunal. Sd/- Sd/- (Sachin Singh Rajput ) Judge Ami AMITA DUBEY Digitally signed by AMITA DUBEY Date: 2025.09.08 17:44:28 +0530