1 2025:CGHC:19566 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR MAC No. 108 of 2020 1 - Smt. Pushpa W/o Late Rakesh Chauhan Aged About 25 Years R/o Village Khairmuda Dumarpali Tundri , Thana Dabhara, District Janjgir Champa Chhattisgarh. Hall Mukam - Bannak Chouk, Thana Sirgitti District Bilaspur Chhattisgarh., District : Bilaspur, Chhattisgarh 2 - Humesh S/o Late Rakesh Chauhan Aged About 5 Years Minor Through Legal Guardian Mother Smt. Pushpa Chauhan, R/o Village Khairmuda Dumarpali Tundri , Thana Dabhara, District Janjgir Champa Chhattisgarh. Hall Mukam - Bannak Chouk, Thana Sirgitti District Bilaspur Chhattisgarh., District : Bilaspur, Chhattisgarh 3 - Yes S/o Late Rakesh Chauhan Aged About 2 Years Mionr Through Legal Guardian Mother Smt. Pushpa Chauhan, R/o Village Khairmuda Dumarpali Tundri , Thana Dabhara, District Janjgir Champa Chhattisgarh. Hall Mukam - Bannak Chouk, Thana Sirgitti District Bilaspur Chhattisgarh., District : Bilaspur, Chhattisgarh 4 - Ganeshi Bai W/o Late Rambhagat Chauhan Aged About 60 Years R/o Village Khairmuda Dumarpali Tundri , Thana Dabhara, District Janjgir Champa Chhattisgarh. Hall Mukam - Bannak Chouk, Thana Sirgitti District Bilaspur Chhattisgarh., District : Bilaspur, Chhattisgarh --- Appellants Versus 1 - Bhagirathi S/o Sukhsay Urao Aged About 43 Years R/o Chandrashekharpur, Bhandha Pali , Thana Chhal , Tahsil Kharsiya, District Raigarh Chhattisgarh... (Driver Of The Offending Vehicle Trailer No, C.G. 13/a.L./4993)..(Driver), District : Raigarh, Chhattisgarh 2 - Rajeev Kumar S/o Manohar Prasad Aged About 50 Years R/o Navapara Tahsil Kharsiya, District Raigarh Chhattisgarh.(Owner Of The Offending Vehicle Trailer No. C.G. 13/a.L./4993)..(Owner), District : Raigarh, Chhattisgarh SHUBHAM DEY Digitally signed by SHUBHAM DEY 2 3 - Chola Mandalam General Insurance Company Limited Through Branch Manager, Simiran Tower 2nd Floor, In Front Of L.I.C. Office , Vidhan Shabha Road Pandri Raipur Tahsil And District Raipur Chhattisgarh..(Insurer Of The Offending Vehicle Trailer No. C.G. 13/a.L./4993)..(Insurer), District : Raipur, Chhattisgarh --- Respondents MAC No. 177 of 2020 1 - Cholamandlam General Insurance Company Limited Through Branch Manager, 2nd Floor Simaran Tower, In Front Of Lic Buiding, Vidhansabha Road Pandri, Raipur, Tehsil And District Raipur Chhattisgarh., District : Raipur, Chhattisgarh ---Appellants Versus 1 - Smt. Pushpa W/o Late Rakesh Chouhan Aged About 25 Years R/o Village Khairmuda Dumarpali Tundri, Police Station Dabhra, District Janjgir Champa Chhattisgarh. Present Address Bannak Chowk, Police Station Sirgitti, District Bilaspur Chhattisgarh., District : Bilaspur, Chhattisgarh 2 - Humesh S/o Late Rakesh Chouhan Aged About 5 Years Minor Through Mother Smt. Pushpa Chouhan, R/o Village Khairmuda Dumarpali Tundri, Police Station Dabhra, District Janjgir Champa Chhattisgarh. Present Address Bannak Chowk, Police Station Sirgitti, District Bilaspur Chhattisgarh., District : Bilaspur, Chhattisgarh 3 - Yash S/o Late Rakesh Chouhan Aged About 2 Years Minor Through Mother Smt. Pushpa Chouhan, R/o Village Khairmuda Dumarpali Tundri, Police Station Dabhra, District Janjgir Champa Chhattisgarh. Present Address Bannak Chowk, Police Station Sirgitti, District Bilaspur Chhattisgarh., District : Bilaspur, Chhattisgarh 4 - Ganeshi Bai W/o Late Rambhagat Chouhan Aged About 60 Years R/o Village Khairmuda Dumarpali Tundri, Police Station Dabhra, District Janjgir Champa Chhattisgarh. Present Address Bannak Chowk, Police Station Sirgitti, District Bilaspur Chhattisgarh., District : Bilaspur, Chhattisgarh 5 - Bhagirathi S/o Sukhsai Uranw Aged About 43 Years R/o Chandrashekharpur, Bandha Pali, Police Station Chhal, Tehsil Kharsiya, District Raigarh Chhattisgarh. (Driver), District : Raigarh, Chhattisgarh 6 - Rajeev Kumar S/o Manohar Prasad Aged About 50 Years R/o Navapara, Tehsil Kharsiya, District Raigarh Chhattisgarh. (Owner) 3 --- Respondents MAC No. 108/2020 For Appellants : Mr. A.L. Singroul, Advocate along with Ms. Shaleeni Jangde, Advocate For Respondent No. 3 : Mr. Ghanshyam Patel, Advocate MAC No. 177/2020 For Appellant : Mr. Ghanshyam Patel, Advocate For Respondents : Mr. A.L. Singroul, Advocate along with Ms. Shaleeni Jangde, Advocate S.B.: Hon'ble Shri Parth Prateem Sahu, Judge Order On Board 30/04/2025 1. Both these appeals are arising out of the same accident and award dated 22.10.2019 in Claim Case No. 338/2019 passed by the learned 1st Additional Motor Accident Claim Tribunal, Bilaspur, District – Bilaspur (C.G.). Hence, both the appeals are heard together and decided by this common order. 2. Facts of the case in brief are that on 28.02.2019, one Rakesh Chauhan was traveling on a motorcycle and returning from Village Khairmuda, he met with a stationary truck parked on the road without lighting indicators and without any indication that the vehicle is parked on the road, dashed with the truck from its rear side. In the accident, Rakesh Chauhan suffered grievous injuries, he was taken to O.P. Jindal Hospital where, during the course of treatment, he succumbed to his injuries. Wife, children and mother of the deceased filed a claim petition under Section 166 r/w. Section 140 of the Motor Vehicles Act,1988 seeking compensation of Rs. 47,80,000/- pleading therein that on the date of accident, the deceased was working as driver of the heavy vehicle and earning Rs. 15,000/- p.m. They were dependent upon the income of the deceased and after the death of late Rakesh Chauhan, they have lost their dependency. 4 3. Learned counsel for the appellants in MAC No. 108/2020 would submit that the appellants/claimants have filed this appeal seeking enhancement of the amount of compensation on the ground that the learned Claims Tribunal erred in not awarding the proper amount of compensation under the head of loss of filial consortium, loss of love and affection, loss of estate and funeral expenses. He contended that the quantum of amount of compensation awarded is on lower side. He also submits that the learned Claims Tribunal has also not awarded proper amount of compensation towards the medical bills. The appellants have claimed Rs. 1 Lakh towards the medical expenses, however, the learned Claims Tribunal has awarded Rs. 25,446/- only. 4. Learned counsel for the Non-Appellants No. 1 & 2 vehemently opposes the pleadings made in the application and would submit that they have submitted their reply denying the pleadings made in the application that the ill-fated trailor was parked negligently on the road, false FIR was registered against the offending vehicle, the ill-fated trailor was insured with the Appellant and therefore, the liability if any, to satisfy the amount of compensation would be upon the Appellant and prayed for dismissal of the claim with respect to Non-Appellants No. 1 & 2. 5. Learned counsel for the Respondent No. 3 submitted separate reply denying the pleadings made in the claim application. It is specifically denied that the offending trailor was parked on the road without there being any indication. It was also pleaded that the driver of the offending trailor was not possessing valid and effective driving license on the date of accident. There was no valid permit and fitness of the 5 trailor. On the date of accident, the trailor was being driven in breach of conditions of the insurance policy. 6. Learned Claims Tribunal upon appreciation of pleadings and evidence brought on record by the respective parties have allowed the claim application in part and awarded Rs.33,08,446/- as compensation recording a finding that the deceased was working as the Driver of the heavy goods vehicle and earning Rs. 15,000/- p.m. 7. As the Insurance Company has challenged the finding recorded by the learned Claims Tribunal with regard to the negligence of the driver of the trailor and further, that the learned Claims Tribunal erred in accepting the income as pleaded in the claim application as Rs. 15,000/- without there being any cogent and reliable piece of evidence, therefore, I find it appropriate to deal with the grounds raised in MAC No. 177/2020 which is filed by the Insurance Company i.e. Chola Mandalam General Insurance Company Limited. 8. Learned counsel for the appellant/Insurance Company has made two fold submissions, first, the finding recorded by the learned Claims Tribunal that there was negligence on the part of the Driver is without there being any evidence and secondly, that the income as pleaded in the claim application of the deceased Rakesh Chauhan as Rs. 15,000/- p.m. is not proved by admissible piece of evidence. 9. So far as the first ground raised by the learned counsel for the appellant/Insurance Company with respect to the proof of negligence of the driver of the offending vehicle (trailor) i.e. the Respondent No. 5 in MAC No. 77/2020 is concerned, perusal of the record would show that in the claim application, there is specific pleading that the accident occurred due to the negligence of the driver of the truck. In support of 6 that pleading, the claimants have examined two witnesses, i.e. Pushpa Chauhan (AW-1) and Hemlal Chauhan (AW-2). Pushpa Chauhan is widow of late Rakesh Chauhan, she was not present. Hemlal Chauhan (AW-2) in his evidence-in-chief has stated that the truck was parked n the center of the road without there being any indicator or sign that the vehicle is parked on the road. It is also stated that no radium is affixed on the back side of the truck. In cross-examination, this witnesses was though put question with respect to, whether he was present at the time of accident on the spot or not? However, no specific question is put to this witnesses about the statement made by him that the truck was parked on the middle of the road or with regard to any indication or ligthing of the indicator of the offending truck. 10. In absence of putting specific question with respect to parking of the vehicle on the road by the counsel representing the appellant/Insurance Company/Non-Applicant No. 3, in the opinion of this court, the Appellant/Insurance Company have failed to make out a case that the evidence led by Hemlal Chauhan (AW-2) to be unbelievable and unreliable, more so, when the accident is of night. Hence, in the aforementioned facts of the case and the nature of evidence available on record, I do not find any good ground to accept the submission of the counsel for the appellant/Insurance Company that the claimants failed to prove the negligence of the driver of the offending vehicle (trailor) and the finding recorded by the learned Claims Tribunal that the driver of the offending vehicle i.e. the Non- Applicant No. 2 to be erroneous. Hence, the submission of the counsel for the appellant on the ground of negligence is repelled. 7 11.So far as the ground raised by the counsel for the appellant/Insurance Company with respect to the proof of income of the deceased driver is concerned, the claimants in the claim application have specifically pleaded that the deceased was working as Driver of heavy vehicle and was working with Uchpinda Thermal Power Project, Kharsia. In support of their pleading, the claimants have also placed on record, copy of the license of the deceased as Ex. P/11. The license of the deceased is issued for transport vehicle and for the category of LMV and MCWG. The validity of the license to drive the transport vehicle was up to 06.08.2021. The claimants have also placed on record, the gate-pass of the deceased which is of Uchpinda Thermal Power Project as Ex. P/9. Perusal of the same would show that the contractor under whom, the deceased was working is named as B.K. Vanijir and the designation of the deceased was mentioned as Operator. From the aforementioned evidence, it is evident that the deceased was possessing the license to drive the heavy vehicle and as per his designation, he was working as Operator of the heavy vehicle. 12. With respect to the income, the claimants have produced the copy of letter issued by Bharat Road Carrier Private Limited as Ex. P/10. The said document appears to be a photocopy and to prove the salary/wages paid to the deceased and his employment, the claimants have not examined the employer under whom the deceased was working. As per law, to prove the contents of the documents relied upon by the party, is upon the person who is relying upon the said document. The contents of the documents could have been proved by examining the author of the document. In the case at hand, the author of the document or any of the employee of the employer who 8 maintains the record of the employees has not been examined by the claimants. Hence, in the aforementioned facts of the case, in the opinion of this Court, the income as pleaded by the claimants that the deceased was being paid salary of Rs. 15,000/- p.m. could not be proved by the claimants by producing cogent and admissible piece of evidence. 13. The learned Claims Tribunal has not recorded any finding as to on what other evidence, the pleadings with respect to income has been admitted by the learned Claims Tribunal. In absence of proof of income by placing cogent and admissible piece of evidence, it is for the Claims Tribunal to assess the income on notional basis taking note of the nature of occupation pleaded, supporting documents, cost of living, price index, wage structure prevailing and could also have taken the help of the minimum wages fixed by the competent authority under the Minimum Wages Act, 1948. The minimum wages fixed by the competent authority for a period from 01.10.2018 to 31.03.2019 for the highly skilled employees/workers is Rs. 10,610/-. Hence, in the aforementioned facts of the case and the nature of evidence available on record, I find it appropriate to take the income of the deceased driver on the date of incident as Rs. 10,610/- instead of Rs. 15,000/-. It is ordered accordingly. 14. So far as the ground raised by the counsel for the appellants with respect to the award of the medical expenses is concerned, persual of the record would show that the claimants have produced the medical bills of O.P. Jindal Hospital as Ex. P/11. In the final bill, it has been mentioned that the advance payment has been made by the care taker of the deceased as Rs. 45,000/- and total payable amount has 9 been mentioned as Rs. 25,446/- and balance amount has been refunded. In the aforementioned facts of the case, submission of counsel for the Non-Appellants No. 1 to 4 that the learned Claims Tribunal have not awarded Rs. 01 Lakh towards the medical expenses is not sustainable. Accordingly, it is repelled. 15. Learned Claims Tribunal while computing the amount of compensation has added 40% towards the future prospect, applied multiplier of 17 and awarded Rs. 15,000/- towards the loss of estate and Rs. 15,000/- towards the funeral expenses by deducting 1/4th which is correctly applied and awarded. So far as the award of the compensation under the head of loss of consortium is concerned, learned Claims Tribunal has awarded only Rs. 40,000/- to the Non- Appellant No. 1/Claimant i.e. the wife of deceased Pushpa Chauhan. The award of compensation under the head of consortium is well considered by the Hon’ble Supreme Court in the case of National Insurance Company Ltd. vs. Pranay Sethi, reported in (2017) 16 SCC 680 and further, the types of loss of consortium has been explained by the Hon’ble Supreme Court in the case of Magma General Insurance Co. Ltd. vs. Nanu Ram @ Chuharu Ram, reported in (2018) 8 SCC. 16. Hon’ble Supreme Court in the case of Nanu Ram (Supra) has held that there are 03 types of loss of consortium i.e. loss of spousal consortium to the wife or the husband, loss of parental consortium to the children and loss of filial consortium to parents. In the case at hand, the Non- Appellant No. 2 & 3 are the children of late Rakesh Chauhan and therefore, they are entitled for loss of parental consortium of Rs. 40,000/- each. The Non-Appellant No. 4 is the mother of the deceased, 10 hence, she is entitled for Rs. 40,000/- towards loss of filial consortium. Hence, Non-Appellants No. 1 to 4 are entitled for Rs. 40,000/- each towards the loss of consortium. 17. In case of Pranay Sethi (Supra), Hon’ble Supreme Court has also held that the amounts under other conventional heads should be revisited on percentage basis in every three years and enhancement should be at the rate of 10% in a span of every three years. In case at hand, accident is of the year 2019. Hence, the appellants are entitled for 10% enhancement on the amount under other conventional heads. So, by enhancing the amount awarded under other conventional heads at the rate of 10%, the Non-Appellants No. 1 to 4 are now entitled for a sum of Rs. 16,500/- each (15,000 + 10% increase after 3 years) towards loss of estate and funeral expenses i.e. total Rs. 33,000/- under both the heads. Likewise, Non-Appellants No. 1 to 4 are entitled for Rs. 44,000/- each (40,0000 + 10% increase after 03 years) i.e. Rs. 1,76,000/- for loss of consortium (spousal, parental and filial) 18. For the foregoing reason, this Court proposes to recalculate the amount of compensation payable to the appellants. 19. Accordingly, the income of deceased as mentioned above is enhanced by 40% towards future prospects, which comes to Rs. 14,854/- (10,610 + 40%). Thus, annual income of the deceased for the purpose of calculating the compensation comes to Rs.1,78,248/- (14,854 x 12). Out of this amount, one-fourth is to be deducted towards personal and living expenses of the deceased and after deducting one-fourth from the annual income, annual loss of income of deceased would come to Rs.1,33,686/- (1,78,248 – 44,562). By applying multiplier of 17, as 11 applied by the Claims Tribunal, to annual income, the total loss of dependency would come to Rs.22,72,662/- (1,33,686 x 17). Besides this, Non-Appellant No. 2 to 4 are entitled for a sum of Rs. 1,76,000/- each towards loss of parental consortium and filial consortium, as held by the Hon’ble Supreme Court in the matter of Nanu Ram (Supra). Further, they are also entitled for Rs. 16,500 for funeral expenses and Rs. 16,500 for loss of estate as awarded by the learned Claims Tribunal. Thus, total amount of compensation comes to Rs.24,81,662/- (22,72,662 + 1,76,000 + 33,000). This amount of compensation shall carry interest @ 7.5% from the date of filing of claim application till its realization. Rest of the conditions mentioned in the impugned award shall remain intact. 20. Any amount already paid to Claimants/Appellants as compensation shall be adjusted from the total amount of compensation as calculated above. 21. Perusal of the order-sheets of the appeal bearing MAC No. 177/2020 would show that the appellant/Insurance Company has succeeded in obtaining interim order dated 27.01.2020 whereby, the impugned award has been stayed subject to Appellant/Insurance Company depositing 75% of the amount of award. There shall be no recovery of the amount of compensation from the claimants if paid, in excess, than that of the compensation as computed above. 22. In the result, both the appeals are allowed in part and the impugned award stands modified to the extent indicated above. 23. Certified copy as per rules. Sd/--/-/--------/--/- (Parth Prateem Sahu) Judge Dey