1 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR MAC No. 1257 of 2016 • Ganesh Prasad Khetan, S/o Late Tejpal Khetan, aged about 75 Years, R/o- Khetan Building, Maudhapara, Raipur, District- Raipur, Chhattisgarh, (Owner) ... Appellant versus 1. Shyamlal Khairwar, S/o Dukhuram Khairvar, R/o- Village- Dongdarha, District- Korba,Chhattisgarh. (Driver) 2. Smt. Kalyan Bai, W/o Late Shobharam, aged about 23 Years, 3. Ku. Manshi, D/o Late Shobharam, aged about 2 ½ years, 4. Bhupendra, S/o Late Shobharam, aged about 6 months, Both 3 & 4 since minor through Mother Kalyani Bai, All respondent Nos. 1 to 3 are R/o- Pahanda, Police Station- Arang, District- Raipur, Chhattisgarh. 5. HDFC ERGO General Insurance Company Limited, HDFC Building, Near Vanijya Bhawan, Devendra Nagar Road, Raipur, Chhattisgarh. 6. Nathuram Yadav, S/o Dasaruram Yadav, aged about 60 Years, 7. Deleted (Smt. Laltabai) as per Honble Court Order Dated- 28-04-2022 Both are respondent Nos. 6 & 7 are resident of village Pahanda, Police Station Arang, District Raipur, C.G. ... Respondents For Appellant : Mr. Devendra Pratap Singh, Advocate. For Respondent No.1 : None. For Respondent Nos. 2 to 4 : Mr. Vivekanand Samaddar, Advocate on behalf of Mr. Sanjay Patel, Advocate. For Respondent No.5 : Mr. Yashraj Verma, Advocate on behalf of Mr. Amrito Das, Advocate. For Respondent No.6 : None. Hon’ble Shri Justice Radhakishan Agrawal, Judgment on Board 08/05/2025 AKHILESH BEOHAR Digitally signed by AKHILESH BEOHAR Date: 2025.05.12 10:29:57 +0530 2 1. This appeal is by the owner against the award dated 16.06.2016 passed by the 9th Additional Motor Accident Claims Tribunal, Raipur, C.G. in Claim Case No.26/2013, awarding total compensation of Rs.4,60,250/-, after deducting contributory negligence on the part of the deceased to the extent of 30%, along with interest @ 6% per annum from the date of application till realization while fastening liability upon the non-applicants Nos.1 and 2 jointly and severally i.e. owner and driver. 2. Respondents No.2 to 4 / claimants have also filed cross objection / appeal under Order 41 Rule 22 of CPC challenging the quantum and liability part to the extent of 30% towards contributory negligence. 3. As per averments made in the claim petition, on 16.01.2013 at about 7:30 pm, deceased- Shobharam along with his friend was going to village Pahanda from village Navapara on his motorcycle. However, on the way, near village pond, non-applicant No.1-Shyamlal Kherwar had parked the Roller Machine bearing Engine No.6H 25971200391 (hereinafter called as ‘offending vehicle) in the middle of the road without any signal or indicator in a negligent manner, as a result of which, the motorcycle of deceased dashed the offending vehicle from its rear side and deceased died on account of grievous injuries. At the time of accident, the offending vehicle was owned by non-applicant No.2- Ganesh Prasad Khetan and insured with non-applicant No.3/HDFC Ergo General Insurance Company Limited. 4. On claim petition being filed by the claimants under Section 163-A of the Motor Vehicles Act seeking compensation to the tune of Rs.13,50,000/-, the Tribunal, considering the evidence led by both the parties, passed an award as mentioned above. 3 5. Learned counsel for the appellant/Owner, in appeal as well as in cross appeal, submits that the Tribunal has wrongly fastened the liability upon the owner and driver of the offending vehicle to the extent of 70%, whereas, at the time of accident, offending vehicle was insured with non-applicant No.3/Insurance Company. He further submits that at the time of accident, offending vehicle was in a stationary condition and was not plying on the road, therefore, Insurance Company is fully liable to indemnify the compensation, as such, it is prayed that appellant/owner be exonerated from its liability. He also submits that Tribunal has rightly held the deceased negligent to the extent of 30% towards contributory negligence as he himself found to be driving the motorcycle in a rash and negligent manner and dashed the offending vehicle from its rear side and that the amount of compensation awarded by the Tribunal is also just and proper and there is no scope for any enhancement. 6. Learned counsel for the respondent Nos. 2 to 4 / claimants submits that the Tribunal has erred in holding that there was contributory negligence on the part of the deceased to the extent of 30%, whereas, as per the evidence available on record, it is the non-applicant No.1- Shyamlal Kherwar, who has negligently parked the offending vehicle in a public place without any signal or indicator, as a result of which, accident occurred and deceased died. He further submits that the claimants have filed an appeal under Section 163-A of the Motor Vehicles Act where negligence is not required to be proved and only the use of vehicle is required to be seen. Therefore, the Tribunal ought to have fastened the entire liability upon the non-applicant Nos. 1 & 2 i.e. driver and owner of offending vehicle. As regards the compensation awarded 4 by the Tribunal, he submits that the Tribunal has erred in not awarding any amount towards future prospects, whereas it should have been awarded and that the amount awarded by the Tribunal under conventional heads is also on lower side, which needs to be enhanced suitably. Reliance has been placed on the decisions of Hon’ble Supreme Court in the matters of National Insurance Company Limited vs Pranay Sethi and others, (2017) 16 SCC 680 & Magma General Insurance Company Limited vs. Nanu Ram @ Chuhru Ram and others reported in (2018) 18 SCC 130. 7. Learned counsel for the Insurance Company/Respondent No.5, while admitting that no separate appeal has been filed by the Insurance Company against the impugned award, supports the impugned award and submits that the Tribunal, after appreciating the evidence available on record, has rightly exonerated the Insurance Company and fastened the liability upon the driver and owner of the offending vehicle, which needs no interference by this Court. He further submits that the compensation awarded by the Tribunal to the claimants is also just and proper. 8. Heard learned counsel for the parties and perused the material available on record. 9. Now, the question that arises for consideration as to whether the learned Claims Tribunal was justified in fixing the liability upon the driver & owner of the offending vehicle while exonerating the Insurance Company from its liability? 10. In order to appreciate the arguments, I shall deal with the evidence led by the parties. AW-2 Digambar Sahu, who is cited as an eye-witness to the incident, has specifically stated that on the date of accident i.e. 5 16.01.2013 at about 7:15 pm, he was going on his motorcycle to village Navapara behind the motorcycle being driven by the deceased and as soon as, this witness reached near village pond, he saw the offending vehicle parked in the middle of the road without any signal or indicator in a negligent manner, due to which, the motorcycle of deceased dashed the offending vehicle from back side and deceased died on account of grievous injuries. In cross-examination, he also specifically admitted that the offending vehicle was standing in the middle of the road. He also admitted that at the time of accident, deceased's brother namely Pardeshi was sitting on the motorcycle as a pillion rider. This apart, NAW-1 Shyamlal Kherwar, driver of the offending vehicle, in his cross- examination, admitted that in the present case, he has not filed any written statement and on the one hand, he admitted that the offending vehicle, which was parked on the road, was not having any parking light or any other light was on, but on the other hand, he admitted that indicator of the offending vehicle was on and a red cloth was tied on it. He also admitted that after the accident, he did not lodge any report before the police station. He also admitted that at the time of accident, after parking the offending vehicle, he was having a tea at a distance of 500-600 metres away from the said offending vehicle and from there, the offending vehicle was visible to him. 11. Now, this Court has to examine whether the driver of the offending vehicle, while parking the offending vehicle, was required to follow the traffic rules. 12. Section 122 of the Motor Vehicles Act, 1988 reads as under:- “122. Leaving vehicle in dangerous position.- No person in charge of a motor vehicle shall cause or allow the 6 vehicle or any trailer to be abandoned or to remain at rest on any public place in such a position or in such a condition or in such circumstances as to cause or likely to cause danger, obstruction or undue inconvenience to other users of the public place or to the passengers.” 13. Rule 109 of the Central Motor Vehicles Rules, 1989 reads as hereunder: “109. Parking light.- Every construction equipment vehicle and every motor vehicle other than motorcycle and three-wheeled invalid carriages shall be provided with one white or amber parking light on each side in the front. In addition to the front lights, two red parking lights one on each side in the rear shall be provided. The front and rear parking lights shall remain lit even when the vehicle is kept stationary on the road...” 14. By a combined reading of Section 122 of Motor Vehicles Act, 1988 and Rule 109 of Central Motor Vehicles Rules, 1989, it is clear that the front and rear parking lights are required to be lit even if the vehicle is kept in stationary condition on the road. Admittedly, in the instant case, driver of the offending vehicle/NAW-1 had not switched on the parking lights and it was parked in a public place in negligent manner as is evident from the statement of AW-2 Digambar Sahu, eye-witness to the accident. Though in the FIR (Ex.P-1) and merg intimation (Ex.P-2), it is mentioned that the offending vehicle was parked on the side of the road and deceased himself dashed the offending vehicle, but Pardeshi, brother of deceased/pillion rider, who lodged the FIR (Ex.P-1) and merg intimation (Ex.P-2) has not been examined before the Tribunal. Therefore, it is clear that there is negligence on the part of the driver of the offending vehicle/non-applicant No.1 in parking the offending vehicle without switching on the parking lights to enable the passers-by to know that such a vehicle has been parked on the road. That apart, NAW-3(4) Vijay Tiwari, Assistant Grade-II, RTO Office 7 Bilaspur, C.G. has stated that as per the details mentioned in Ex.D-4, the computerized licence (CG10 19900008552) has been renewed in the name of Shyamlal Khairwar for motorcycle, light motor vehicle and transport vehicle from his RTO Office, Bilaspur for the period from 21.01.2015 to 20.01.2018. He has further stated that the said licence was earlier renewed from his Office for the period from 17.12.2007 to 16.12.2010 as per the licence register Ex.D-1 and the said licence was lapsed from 17.12.2010 to 20.01.2015 and was not renewed from his Office. Moreover, NAW-3(2) Umesh Tripathi, AG-III, RTO Bilaspur Office also admitted, in his cross-examination, that offending vehicle falls in the category of heavy vehicle and its driver/non-applicant No.1 Shymlal Kherwar was a licence holder of goods vehicle and was authorized to drive the offending vehicle, then in that view of the matter, as to why the non-applicant No.1 has not got his licence renewed. Furthermore, NAW-1 Shyamlal Kherwar, driver of the offending vehicle, also admitted in his cross-examination that his licence was renewed in the month of February and March after the accident, whereas the accident occurred on 16.01.2013, meaning thereby, his licence was not renewed at the time of accident and that no document has been submitted by NAW-1 driver of the offending vehicle to show that the licence which he held was valid or renewed at the time of accident. 15. Thus, considering the evidence brought on record, the facts and circumstances of the case and the manner in which the accident occurred, this Court is of the opinion that on the date of incident, it is the driver of the offending vehicle/NAW-1 who parked the offending vehicle on the road without any signal or indicator in a negligent manner, due to which accident occurred, therefore, it is held that non-applicant Nos. 1 & 8 2 i.e. driver and owner of the offending vehicle are liable to pay whole compensation to the claimants. That apart, it is not in dispute that claimants have filed appeal under Section 163-A of the Motor Vehicles Act under no fault liability scheme and this Court has already held in above paragraph that the accident occurred due to negligent parking of offending vehicle by its driver/non-applicant No.1, therefore, the Tribunal was not justified in holding the deceased negligent to the extent of 30% towards contributory negligence in causing the accident and the said finding of the Tribunal in this regard deserves to be and is hereby set aside and it is held that there was no contributory negligence on the part of the deceased. 16. Now, I shall deal with the cross objection / appeal filed by the claimants No. 2 to 4 for enhancement of compensation. 17. So far as non-grant of any amount towards future prospects is concerned, the Tribunal considering the pleadings, evidence, oral and documentary, available on record, determined the age of the deceased as 27 years, however, erred in not granting any amount towards future prospects, which in the considered opinion of this Court is not just and proper. The Hon’ble Supreme Court in the matter of Pranay Sethi (supra) has considered 40% towards loss of future prospects for the self- employed persons who are below 40 years. Therefore, in the present case, looking to the age of the deceased i.e. 27 years as assessed by the Tribunal, the applicable percentage towards future prospects would be 40%. Further, taking the guidance from the decisions of the Hon'ble Supreme Court in Smt. Sarla Verma and others VS. Delhi Transport Corporation and another, (2009) 6 SCC 121, Pranay Sethi (supra) & Magma General Insurance Co. Ltd. (supra), this Court recomputes the 9 compensation in the following manner:- Sl. No. Heads Calculation (in rupees) 01. Income of the deceased @ Rs.3,000/- per month as assessed by the Tribunal Rs.36,000/- per annum 02. 40% of (i) above to be added towards future prospects. Rs.14,400/- Rs.36,000/- + Rs.14,400= Rs.50,400/- 03. Multiplier of 18 to be applied Rs.50,400/- x 18 Rs.9,07,200/- 04. 1/3 deduction towards personal and living expenses of the deceased Rs.3,02,400/- Rs.9,07,200/- – Rs.3,02,400/- = Rs.6,04,800/- 05. Towards loss of estate and funeral expenses Rs.30,000/- 06. Towards loss of consortium to respondent Nos.2 to 4 (wife and children of deceased) and respondent No.6- Nathuram Yadav (father of the deceased) (Rs.40,000/- each) Rs.1,60,000/- Total Compensation Rs.7,94,800/- Since it is already held by this Court in previous paragraph that there was no contributory negligence on the part of the deceased, therefore, the claimants are entitled for total compensation of Rs.7,94,800/- without any deduction towards contributory negligence. In view of above, after deducting an amount of Rs.4,60,250/- (already awarded by the Tribunal) from the above amount i.e. Rs.7,54,800/- (awarded by this Court), the claimants are held entitled for an additional compensation of Rs.3,34,550/- which shall carry interest as awarded by the Tribunal. However, rest of the conditions of the impugned award shall remain intact. 18. As regards the payment of compensation, considering the facts and circumstance of the case, the fact that the offending vehicle was duly 10 insured with Non-applicant no.3/Insurance Company at the relevant time and keeping in view the benevolent provisions of the Motor Vehicles Act, this Court is of the opinion that the ends of justice would be served if the Insurance Company is directed to pay the entire amount of compensation to the claimants first and then recover the same from the owner (appellant herein) and respondent No.1/driver of the offending vehicle in question, in accordance with law. Ordered accordingly. 19. In the result, the appeal is allowed in part with modification in the impugned award to the above extent. Sd/- (Radhakishan Agrawal) Judge Akhilesh