-1- 2025:CGHC:40297 AFR HIGH COURT OF CHHATTISGARH AT BILASPUR MAC No. 1577 of 2019 The Oriental Insurance Company Ltd. Through Divisional Manager Divisional Office Kachari Chowk, Raipur, District Raipur Insurer Of Vehicle Truck Bearing Registration No. UP - 63 - E - 9039. ... Appellant (s) versus 1 - Namdas S/o Bondru Markande Aged About 47 Years 2 - Smt. Deoki Bai W/o Namdas Markande Aged About 42 Years All R/o Village Gaura Chowk Gadhidih, Post - Kahraud, Police Station Kashdol, District Baloda Bazar Bhatapara Chhattisgarh. Pin Code - 493332. (Claimants) 3 - Anirudh Kumar S/o Bhagwan Prasad Choube Aged About 32 Years R/o Village - Baghera, Police Station - Jigna, District Mirjapur, (Uttar Pradesh) Driver Of Offending Vehicle Truck, Bearing Registration No. Up - 63- E – 9039 4 - Bhagwan Prasad S/o Ramkishore Choube R/o Village - Bagheda Police Station Jigna, District Mirjapur, Uttar Pradesh. Registered Owner Of Truck Bearing Registration No. UP 63- E - 9039. ... Respondent(s) ________________________________________________________ For Appellant (s) : Mr. H.P. Agrawal, Advocate For Resp. No. 1 & 2 : Mr. Praveen Dhurandhar, Advocate _______________________________________________________ S.B.: Hon'ble Shri Parth Prateem Sahu, Judge Judgment On Board Digitally signed by PRAVEEN KUMAR SINHA Date: 2025.09.09 11:44:30 +0530 -2- 11 /08/2025 1. This appeal under Section 173 of the Motor Vehicles Act, 1988 (for short “Act of 1988”) is filed by appellant-Insurance Company challenging the award dated 27.03.2019 passed by learned Second Additional Motor Accidents Claims Tribunal, Balodabazar (CG) vide award dated 27.03.2019 passed in Motor Accident Claim Case No.H- 88 of 2017. 2. Facts relevant for disposal of this appeal are that respondents No. 1 & 2/claimants filed an application under Sections 166, 140 of the Act of 1988 before learned Claims Tribunal pleading therein that on 05.04.2017, Lokeshwar Markande was traveling to Banaras in car No. UP-AH-0405. In the morning of 06.04.2017, on Khatkhari Main Road, driver of truck bearing registration No. UP-63-E-9039 drove the truck at high speed and in a reckless manner, suddenly applied brakes without giving any signal. This caused an accident in which one passenger in the car died on the spot. Lokeshwar Markande, driver of the car, succumbed to serious head and other bodily injuries on 09.04.2017 while undergoing treatment at CIMS Hospital, Bilaspur. Due to untimely death of Lokeshwar Markande in the motor accident, claimants have claimed total compensation of Rs.29,18,000/- under different heads. 3. Non-applicants No. 1 & 2 (driver and owner) have filed their written statement denying the pleadings made in claim application and further pleaded inter alia that said accident did not occur due to negligence of non-applicant No. 1/ driver. When the truck was parked on its side on Khatkhari Main Road and driver was having tea and breakfast, at that -3- time, driver of the car hit the truck from behind. At the time of accident, truck No. UP-63-E-9039 was insured with non-applicant No.3, therefore, liability to pay amount of compensation, if any, would be upon non-applicant No.3/insurance company. 4. Non-applicant No.3/insurance company by filing its written statement also resisted the claim and pleaded inter alia that on the date of accident, driver of car No. UP-65-AH-0405 drove his car rashly and negligently and hit the truck from behind, hence, the incident happened due to negligence of the deceased himself. Accident happened due to collision of both the vehicles for which driver of car is also responsible. Compensation if any to claimants should be determined on the basis of contributory negligence. 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 Lokeshwar Markande suffered fatal injuries and died. Assessing income of the deceased as Rs.7,500/- per month, calculated amount of compensation under different heads, awarded total compensation of Rs.13,05,000/-. 6. Learned counsel for the appellant insurance company would submit that learned Claims Tribunal erred in not considering that deceased driver of the car who hit the offending truck from its backside in running condition, if at all, was contributory negligent in the accident. He -4- submits that as per Rule 23 of the Rules of the Road Regulations, 1989 (for short “Regulations of 1989”) proper distance from the vehicle running in front is to be maintained and maintaining distance from front vehicle is upon the driver of vehicle running behind said vehicle. He submits that as the deceased dashed the running truck from its backside, there is pleading that accident occurred due to sudden application of brake by the offending truck running in front of car, it ought to have been held that deceased was contributory negligent in the accident to the extent of 50%. In support of his contention, he places reliance upon the decision in the case of Nishan Singh & Ors. Vs. Oriental Insurance Co. Ltd. and Ors. (2018 ACJ 1466). He next contended that learned Claims Tribunal erred in awarding compensation on higher side. Income of deceased is assessed as Rs.7,500/-, whereas, minimum wages on the date of accident as notified by the competent authority under Minimum Wages Act, 1948 was of Rs.6,506/- for ‘unskilled labourer’ and Rs.6,648/- for ‘skilled labourer’. If the deceased is to be considered to be ‘skilled labourer’ as he was shown to be working as Driver, then also, the assessment of income of Rs.7,500 /- is much more than that of prevailing on the date of accident. He next contended that deceased was unmarried, however, Claims Tribunal deducted 1/3 towards his personal and living expenses, awarded Rs.1,00,000/- each to claimants towards love and affection and Rs.25,000/- towards funeral expenses. He submits that in view of above, amount of compensation be recomputed and reduced accordingly. -5- 7. Learned counsel for respondents No. 1 & 2/claimants would oppose submission of learned counsel for appellant and would submit that evidence of Namdas Markande AW1 which is relied upon by learned counsel for appellant insurance company is father of deceased who was not present at the time of accident and therefore his evidence to prove manner in which accident occurred would be not of much relevance. Evidence of Naveen Rathor AW2 who is an eyewitness to accident is relevant in the fact of case to prove the reasons and manner in which accident occurred. AW2 in his evidence has clearly stated that offending truck overtook the car and suddenly came in front of it resulting into dashing of car from back side of the truck and therefore it cannot be said that deceased was negligent to the accident to the extent of 50% and therefore submission of learned counsel for the appellant insurance company to that extent is not sustainable. He next contended that he has also filed cross-objection seeking enhancement of amount of compensation on the ground that learned Claims Tribunal has assessed income on lower side of Rs.7500/- overlooking the pleadings and evidence before it that deceased on the date of accident was working as Driver, died in an accident while driving the car and his income as Rs.15,000/- per month. He next contended that Claims Tribunal has not awarded any compensation towards future prospects and award of interest is also on lower side. Compensation under head of loss of estate has also not been awarded. He submits that amount of compensation be recomputed and be enhanced suitably. -6- 8. I have heard learned counsel for the parties and also perused the record claim case. 9. So far as the first submission of learned counsel for the appellant insurance company that Claims Tribunal erred in not holding the deceased to be contributory negligent in the accident is concerned, from perusal of the impugned award would show that learned Claims Tribunal has not framed any issue in this regard. 10. Perusal of the order sheets of learned Claims Tribunal would also reflect that the appellant insurance company has not made any attempt to get the issue of contributory negligence framed in view of pleading made in reply. In absence of any steps taken by insurance company before the Claims Tribunal for framing of issue on “contributory negligence”, in the opinion of this Court, counsel for appellant insurance company will not be permitted to raise said ground before this Court in appeal. 11. Hon’ble Supreme Court in the case of M. Nithya & Ors. Vs. SBI General Insurance Company Ltd. [ SLP (Civil) No. 833-834 of 2023, decided on 3rd January 2025] while dealing with the case of not framing issue on ‘contributory negligence’ before the Claims Tribunal, held as under : “7. It is pertinent to observe that the Tribunal noted that the Insurance Company in their Counter contend that contributory negligence of the part of the deceased has to be fixed. However, the Tribunal did not frame any specific issue in that regard for determination. The Tribunal clearly finds negligence only on part of the -7- driver of the lorry and therefore, the owner of the lorry and the Insurance Company which insured the said lorry are jointly and severally found liable to pay compensation. Therefore, when the Tribunal did not even frame an issue on contributory negligence, the High Court ought not to have considered that argument in order to reduce the compensation awarded. Even otherwise the Insurance Company did not lead any evidence on this aspect nor insisted for framing an issue. Merely making a bald assertion in their Counter Affidavit cannot derive any advantage. Hence, we are in agreement with the findings of the Tribunal that the accident took place only due to the negligence of the driver of the lorry and therefore, the contributory negligence awarded on part of the deceased by the High Court suffers from an error and cannot be sustained.” 12. For the foregoing discussions and decision as referred to above, I am not inclined to accept submission of learned counsel for appellant – Insurance Company that learned Claims Tribunal erred in not considering aspect of contributory negligence on the part of deceased. The said submission is accordingly repelled. 13. So far as the ground raised by both the sides with regard to assessment of income and quantum of award of compensation is concerned, submission of learned counsel for appellant insurance company is that income of deceased assessed Rs.7,500/- per month is much more than the wage rate prevailing and further the submission of learned counsel for claimants in cross-appeal is that monthly income of Rs.7,500/- assessed is on lower side in view of nature of occupation of -8- deceased to be working as driver of car is concerned, perusal of the record would show claimants could not able to prove income of deceased however the occupation of deceased to be driver is proved as he while driving the car met with an accident. He was carrying passengers to Varanasi may be the relatives of bereaved family members and dead body was being carried in other car running behind him. In the aforementioned facts of case occupation of deceased can be considered to be ‘skilled labourer’ and as per notification issued by the competent authority under Minimum Wages Act, 1948 of ‘skilled labourer’ from period from 01.04.2017 till 30.09.2017 was fixed as Rs.10530/- per month and, therefore, in absence of specific proof of income on the date of accident i.e. 06.04.2017, I find it appropriate to assess income of deceased as Rs.10,530/- per month. 14.Learned Claims Tribunal has not awarded any amount of compensation towards ‘future prospects’. According to decision of case of National Insurance Company Ltd. Vs. Pranay Sethi and Ors. (2017) 16 SCC 680, deceased who was not in permanent employment aged less than 40 years, there shall be addition of 40% to the assessed income towards future prospects. It is ordered accordingly. 15. Learned Tribunal has applied deduction of 1/3 towards personal and living expenses. In the case at hand undisputedly deceased was unmarried person and there is no other dependent siblings, therefore, as per law laid down by Hon'ble Supreme Court in case of Sarla Verma (Smt.) and Ors. Vs. Delhi Transport Corporation and Anr. (2009) 6 SCC 121, there shall be deduction of ½ towards personal and -9- living expenses of deceased and therefore appropriate deduction in the facts of case would be ½ instead of 1/3 as applied by Claims Tribunal. It is ordered accordingly. 16. Multiplier of 18 applied by learned Claims Tribunal is just and proper. Learned Claims Tribunal has further awarded Rs.25,000/- towards ‘funeral expense’ which is on higher side. Award of compensation under other conventional heads has been specified and quantified by Hon'ble Supreme Court in case of Pranay Sethi (supra) wherein it is held that Rs.15,000/- towards ‘funeral expenses’, Rs.15,000/- towards ‘loss of estate’, Rs.40,000/- towards ‘loss of consortium’ each, is to be awarded to claimants. Loss of consortium has further been categorized and explained as loss of ‘spousal consortium’, ‘loss of parental consortium’ and ‘loss of filial consortium’. Claimants are being parents are entitled for loss of filial consortium of Rs.40,000/- each. 17. Clams Tribunal erred in awarding Rs.1,00,000/- each towards ‘loss of love and affection and consortium’. As the claimants have been held to be entitled for loss of filial consortium, compensation of ‘love and affection’ subsumes in the compensation awarded under the head ‘loss of consortium’ and, therefore, claimants will not be entitled for compensation as awarded by learned Claims Tribunal under head of loss of ‘love and affection’. 18. For the foregoing discussions, I find it appropriate to re-compute the amount of compensation as under:- 1. Loss of Income/Dependency : Rs. 15,92,136 -10- (A) Income 10530 x 12 = 126360 (B) Addition towards future prospects @ 40% (126360 x 40% =50544) 126360 + 50544 = 1,76,904 (C) Deduction of 1/2 towards personal and living expenses (1,76,904 x 1/2 =88452) 1,76,904 - 88452 = 88,452 (D) Multiplier of 18 88,452 x 18 = 15,92,136 2. Funeral Expenses : (+) Rs. 15,000 3 Loss of Estate : (+) Rs. 15,000 4. Loss of Filial Consortium of Rs.40,000/- to each claimant (40,000 x 2 =80,000) : (+) Rs. 80,000 Total compensation : Rs. 17,02,136 19. Now respondents No. 1 & 2/claimants are awarded total compensation of Rs. 17,02,136/- instead of Rs.13,05,000/- 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 has now been calculated and awarded by this Court. Rest of conditions of impugned award shall remain intact.f 2 21. In the result, appeal filed by appellant- Insurance Company and cross- -11- objection filed by respondents No. 1 & 2/claimants both are partly allowed. Impugned award stands modified to the extent indicated above. Sd/- Sd/-d/- (Parth Prateem Sahu) Judge Praveen