1 / 9 2025:CGHC:31623 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR MAC No. 2067 of 2019 1. Smt. Pratibha W/o Late Sagar Nirmalkar Aged About 28 Years 2. Vansh Nirmalkar S/o Late Sagar Nirmalkar Aged About 5 Years Minor Through Natural Guardian Mother Smt. Pratibha Nirmalkar 3. Tejram Nirmalkar S/o Chaitram Nirmalkar Aged About 58 Years 4. Kalabai W/o Tejram Nirmalkar Aged About 45 Years All are R/o House No.111, Ward No.36, Sanjay Nagar Khursipar, Bhilai, District Durg, Chhattisgarh. --- Appellants/ Applicants- Claimants versus 1. Bhuwan Lal Nirmalkar S/o Pusau Ram Aged About 42 Years R/o Village Auri, Post Jamgaon, Tahsil Patan, District Durg, Chhattisgarh. (Driver) 2. Chelaram Sahu S/o Latkhor Sahu Aged About 54 Years R/o Village Auri, Post Jamgaon, Tahsil Patan, District Durg, Chhattisgarh. (Owner) 3. Manager United India Insurance Company Limited, Tara Complex, G.E. Road, Power House Bhilai, Police Station Chhawani, District Durg, Chhattisgarh. (Insurer) ---Respondents/ Non-applicants ____________________________________________________________ For Appellants : Mr. Shashi Kumar Kushwaha, Advocate on behalf of Mr. G.P. Mathur, Advocate For Respondents No. 1 & 2 : None. Though served. For Respondent No. 3 : Mrs. Swati Agrawal, Advocate on behalf of Mr. Pankaj Agrawal, Advocate Hon'ble Shri Justice Parth Prateem Sahu Judgment On Board 09/07/2025 1. Appellants-claimants have filed this appeal under Section 173 of the Motor Vehicles Act, 1988 (for short “Act of 1988”) seeking enhancement of amount PAWAN KUMAR JHA Digitally signed by PAWAN KUMAR JHA 2 / 9 of compensation, challenging the award dated 07.08.2019 passed by Learned First Additional Motor Accident Claims Tribunal, Durg, Chhattisgarh (for short “Claims Tribunal”) in Claim Case No. 164/2018, whereby learned Claims Tribunal allowed the application filed under Section 166 of the Act, 1988 in part and awarded total sum of ₹ 13,82,000/- as compensation in motor accidental death case. 2. Facts of the case relevant for disposal of this appeal are that on 01.02.2018 Sagar Nirmalkar along with his friend Manthir Kosare was returning to his village Jamgaon R. on motorcycle No. CG07AL3587. When they reached near Bharar Nala, police station Ranitarai, a Metador motor vehicle bearing registration No. CG07 CA 3189 (hereinafter referred to as “offending vehicle”) driven by non-applicant No. 1 rashly and negligently dashed the motorcycle from its behind and caused accident. In the accident, Sagar Nirmalkar and Manthir Kosare suffered grievous injuries. They were taken to District Hospital, Durg, where during initial check-up, they were declared dead. Accident was reported to the Police Station Ranitarai, based on which Crime No. 19/18 was registered for alleged offence under Section 304-A of IPC. 3. Appellants-claimants who are widow, minor child and parents of deceased- Sagar Nirmalkar filed an application under Section 166 of the Act of 1988 seeking compensation of ₹ 46,85,000/- pleadings therein that at the time of accident, deceased was physically fit person aged about 32 years. Before accident, he was running his own medical store and earning ₹ 20,000/- per month. 4. Respondents No. 1 & 2 / Non-applicants No. 1 & 2 -driver and owner of the offending vehicle filed their reply to the application, denying the facts pleaded therein. It was further pleaded that no accident has been occurred from the offending vehicle, a false report has been lodged against them in the police station. Exaggerated amount of compensation is sought by the claimant, on 3 / 9 false grounds. It is submitted that on the date of accident, non-applicant No. 1 was possessed with valid and effective driving licence to driver the offending vehicle and the vehicle was insured with non-applicant No.3. 5. Respondent No. 3/ Non-applicant No. 3/ Insurance Company filed its reply to the claim application, while denying all the adverse pleadings made in the application, it was further pleaded that no document has been produced by the claimants to support age, occupation and income of deceased. Accident occurred due to own negligence of deceased. The insurance company of the motorcycle driven by deceased was not made party. Thus, non-applicant No. 3 is not liable to pay any compensation. 6. Learned Claims Tribunal, upon appreciation of pleadings and evidence placed on record by respective parties, held that deceased - Sagar Nirmalkar died because of grievous injuries suffered by him in the accident arising out of rash and negligent driving of offending vehicle owned by non-applicant No. 2 and driven by non-applicant No. 1. Tribunal held that there was contributory negligence on the part of deceased to the extent of 50%. Breach of conditions of insurance policy was not found to be proved. Tribunal calculated the amount of compensation of ₹ 27,63,000/- and awarded ₹ 13,82,000/- (50% of the total calculated amount) as compensation with interest @ 9% p.a. from the date of filing of claim application till its realization and fastened liability to satisfy the award upon non-applicant No. 3/ Insurance Company. 7. Learned counsel for appellants-claimants would submit that the Claims Tribunal erred in awarding meager sum of compensation to the claimants. Claims Tribunal has assessed income of deceased on lower side as ₹ 15,000/- per month only instead of ₹ 20,000/- per month from the medical store run by him even after finding prove that the deceased on the date of accident was running a medical store and having a licence in his name. He 4 / 9 next contended that the Tribunal has further erred in not awarding sufficient amount of compensation on other conventional heads. He lastly contended that the Tribunal erred in holding the deceased 50% contributory negligent in the accident. 8. Mrs. Swati Agrawal, learned counsel for Respondent No. 3-Insurance Company opposes the submission of learned counsel for appellants- claimants, would submit that the amount of compensation as awarded by the Claims Tribunal in the facts of the case is just and proper and does not call for any interference. She further submits that the deceased Sagar Nirmalkar is the driver of motorcycle, which met accident with offending vehicle. Tribunal upon appreciation of evidence found that the deceased Sagar Nirmalkar while riding his motorcycle was also negligent in the accident. There is head-on-collision between the two motor vehicles and therefore the Tribunal justified in holding the deceased contributory negligent to the extent of 50%. 9. I have heard learned counsel for the respective parties and also perused the record. 10. So far as the submission of learned counsel for appellants-claimants with regard to award of compensation on lower side is concerned, perusal of pleadings made in the claim application would show that the claimants have pleaded occupation of deceased as Chemist, running his own medical store. Claimants to prove the occupation of deceased have examined Smt. Laxmi Verma as AW-3 who is Drug Inspector. In her evidence, she stated that one Nirmal Medical Store was running in Jamgaon R., place of resident of deceased. In the official document brought by her it mentions that on 16.10.2017 a licence of proprietorship was issued in the name of Sagar Nirmalkar of Nirmal Medical Store. 5 / 9 11. From the aforementioned facts of the case, it is proved that the deceased was having the medical store in his name. Except the said evidence, claimants have not produced any documentary evidence to prove the income of deceased. In absence of proof of income, Claims Tribunal has assessed the income of deceased on notional basis, keeping in mind nature of occupation as Chemist, running medical store at Jamgaon R., which was proved and assessed his income as ₹ 15,000/- per month. 12. In view of evidence available on record, in particular in absence of any admissible piece of evidence showing income of deceased from running medical store, in the opinion of this Court, Claims Tribunal has not committed any error in assessing the notional income of deceased as ₹ 15,000/- per month in the facts of the case. Assessment of income of deceased as ₹ 15,000/- is affirmed. 13. So far as the submission of learned counsel for appellants-claimants that the Claims Tribunal fell into error in not awarding sufficient amount of compensation on other heads, Claims Tribunal has awarded ₹ 70,000/- towards funeral expenses, loss of estate and loss of consortium. In the case of National Insurance Company Limited vs. Pranay Sethi & ors, reported in (2017) 16 SCC 680, Hon’ble Supreme Court has quantified the amount of compensation to be awarded under the aforementioned heads as ₹ 15,000/- towards funeral expenses and ₹ 15,000/- towards loss of estate and ₹ 40,000/- towards loss of consortium which makes the total amount as ₹ 70,000/-. Claims Tribunal has already awarded ₹ 70,000/- which is in the tune of decision of Hon’ble Supreme Court in the case of Pranay Sethi (supra) . Claimants are widow, child and parents of the deceased. According to the decision of Hon’ble Supreme Court in the case of Magma General Insurance Company vs. Nanu Ram alias Chuhuru Ram and others reported in (2018) 18 SCC 130, children and parents of the deceased are 6 / 9 also entitled for the compensation under the head of loss of parental consortium and filial consortium of ₹ 40,000/- each. 14. For the foregoing discussion, claimant No. 2 shall be entitled for ₹ 40,000/- towards loss of parental consortium, and claimants No. 3 & 4 shall be entitled for ₹ 80,000 (₹ 40,000 each) towards loss of filial consortium. It is ordered accordingly. Claims Tribunal has added 40% of the assessed income towards loss of future prospects, made deduction of 1/3, applied multiplier of 16 considering the age of deceased as 33 years, which does not call for any interference. 15. For the foregoing discussion, the amount of compensation to be awarded to appellants-claimants requires recomputation, which is as under. Particulars Compensation A) Annual Loss of income = ₹ 1,80,000/- (₹ 15000x12) B) Addition towards loss of future prospects @ 40% (₹ 180000 + 40% of ₹ 180000 = ₹ 2,52,000) C) Deduction of 1/3 towards personal and living expenses (₹ 252000 x 1/3= ₹ 84,000); ₹ 252000-₹ 84,000 = ₹ 1,68,000 D) Multiplier of 16 ₹ 168000 x 16 = ₹ 26,88,000 ₹ 26,88,000/- Loss of Spousal Consortium to Appellant No. 1 ₹ 40,000/- Loss of parental consortium to Appellant No. 2 ₹ 40,000/- Loss of Filial Consortium to Appellants No. 3 & 4 (₹ 40,000 each) ₹ 80,000/- Loss of estate ₹ 15,000/- Funeral Expenses ₹ 15,000/- Total ₹ 28,78,000/- 16. Now the appellant/claimant shall be entitled for total sum of compensation of ₹ 28,78,000/- instead of ₹ 27,63,000/- as computed by the Claims Tribunal. 17. Now I will consider the submission of learned counsel for appellants- claimants that the Claims Tribunal erred in deducting 50% of the amount of 7 / 9 compensation computed amount of compensation towards contributory negligence. 18. Claims Tribunal in paras-16 to 22 of the impugned award had considered the issue of contributory negligence. Tribunal has considered the contents of Crime Details Form Ext. P-11, in which the hand made spot map is forming part of and concluded that the offending vehicle Metador was running on its own side and the motorcycle while going on wrong side hit the Metador. The other evidence available on record is the evidence of driver of offending vehicle who in his statement has stated that on his left side/ conductor side there was two- feet pit and the motorcycle came and dashed with the diesel tank of the offending vehicle. 19. From the aforementioned evidence of driver of offending vehicle, it appears that on the left side, there was pit and he drove his vehicle by driving towards his right side. From the evidence of driver of offending Metador, NAW-3-1, it is clear that the Claims Tribunal arrived at a wrong conclusion that the offending vehicle was running on his own side, however, merely contents of documents of criminal case and the spot map as available in record of claim case in itself will not be sufficient to prove the fact of contributory negligence. Contributory negligence is a fact which is required to be proved by the person raising that ground by acceptable piece of evidence. 20. In the case at hand, though the non-applicant No. 3-Insurance Company has raised the ground of contributory negligence, however, no evidence has been brought on record by it before the Claims Tribunal. Hon’ble Supreme Court in the case of Jiju Kuruvila and others v. Kunjujamma Mohan and others reported in (2013) 9 SCC 166, 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 8 / 9 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.” 21. Another judgment of the Supreme Court in the matter of Minu Rout and another v. Satya Pradyumna Mohapatra and others reported in (2013) 10 SCC 695 while dealing with the issue of contributory negligence has 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 9 / 9 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.” 22. Considering the aforementioned decisions of Hon’ble Supreme Court and the facts of the case, in the considered opinion of this Court, Claims Tribunal fell into error in recording a finding that the deceased, driver of motorcycle, was also contributory negligent to the extent of 50% which is not sustainable, it is accordingly set aside. 23. As this Court has set aside the finding of Claims Tribunal with regard to contributory negligence on the part of deceased, driver of motorcycle, now the appellants-claimants will be entitled for the entire amount of compensation of ₹ 28,78,000/- computed by this Court in preceding paragraph(s). The enhanced amount of compensation shall carry simple interest @ 9% p.a. from the date of filing of claim application till its realization. • Any amount paid to the appellants-claimants pursuant to the impugned award shall be adjusted from the amount of compensation as calculated above. Other conditions of the impugned award shall remain intact. 24. In the result, appeal is allowed in part and the impugned award is modified to the extent as indicated herein-above. Sd/- (Parth Prateem Sahu) Judge pwn