1 2025:CGHC:52253 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR MAC No. 74 of 2023 1 - Naar Singh, S/o. Hemsay, Aged About 50 Years, R/o. Village Chandan Nagar, Police Station And Tahsil Premnagar, District : Surajpur, Chhattisgarh 2 - Thakuri Uike, W/o. Naar Singh, Aged About 40 Years, R/o. Village Chandan Nagar, Police Station And Tahsil Premnagar, District : Surajpur, Chhattisgarh 3 - Ram Singh Uike, S/o. Naar Singh, Aged About 15 Years, Minor, Through Natural Guardian Father Naar Singh, R/o. Village Chandan Nagar, Police Station And Tahsil Premnagar, District : Surajpur, Chhattisgarh 4 - Jot Singh Uike, S/o. Naar Singh, Aged About 18 Years, R/o. Village Chandan Nagar, Police Station And Tahsil Premnagar, District : Surajpur, Chhattisgarh --- Appellants versus ASHOK SAHU Digitally signed by ASHOK SAHU Date: 2025.10.28 14:18:04 +0530 2 1 - Ramsariwan Sahu, S/o. Vijay Ram Sahu, Aged About 40 Years, R/o. Village Raghunathpur, Police Station And Tahsil Premnagar, District : Surajpur, Chhattisgarh..........(Driver Of Vehicle) 2 - Rajesh Kumar Sahu, S/o. Visnath Sahu, Aged About 35 Years, R/o. Village Patna, Police Station Patna, Tahsil Baikunthpur, District : Koriya, Chhattisgarh............(Owner Of Vehicle) 3 - H.D.F.C. Ergo General Insurance Company Limited, 3rd Floor, Chawla Complex, Devendra Nagar, Sai Nagar, Raipur, District : Raipur, Chhattisgarh................(Insurer Of Vehicle) --- Respondent(s) MAC No. 83 of 2023 1 - Mangaldev Singh, S/o. Nanka Ram, Aged About 60 Years, R/o. Village Chandan Nagar, Police Station And Tahsil Premnagar, District : Surajpur, Chhattisgarh. 2 - Janki Devi, W/o. Mangaldev Singh, Aged About 55 Years, R/o. Village Chandan Nagar, Police Station And Tahsil Premnagar, District : Surajpur, Chhattisgarh 3 - Likhan Singh, S/o. Mangaldev Singh, Aged About 24 Years, R/o. Village Chandan Nagar, Police Station And Tahsil Premnagar, District : Surajpur, Chhattisgarh 4 - Ku. Penwati Singh, D/o. Mangaldev Singh, Aged About 21 Years, R/o. Village Chandan Nagar, Police Station And Tahsil Premnagar, District : Surajpur, Chhattisgarh ---Appellants 3 Versus 1 - Ramsariwan Sahu, S/o. Vijay Ram Sahu, Aged About 40 Years, R/o. Village Raghunathpur, Police Station And Tahsil Premnagar, District Surajpur (C.G.)...........(Driver Of Vehicle) 2 - Rajesh Kumar Sahu, S/o. Visnath Sahu, Aged About 35 Years, R/o. Village Patna, Police Station Patna, Tahsil Baikunthpur, District Koriya (C.G.)............(Owner Of Vehicle) 3 - H.D.F.C. Ergo General Insurance Company Limited, 3rd Floor, Chawla Complex, Devendra Nagar, Sai Nagar, Raipur, District Raipur (C.G.)................(Insurer Of Vehicle) --- Respondent(s) & MAC No. 84 of 2023 1 - Thakur Ram Uike, S/o. Hemsay, Aged About 55 Years, R/o. Village Chandan Nagar, Police Station And Tahsil Premnagar, District Surajpur, Chhattisgarh. 2 - Manmatiya, W/o. Thakur Ram Uike, Aged About 50 Years, R/o. Village Chandan Nagar, Police Station And Tahsil Premnagar, District Surajpur, Chhattisgarh. 3 - Bhupendra Singh, S/o. Thakur Ram Uike, Aged About 14 Years, Minor, Through Natural Guardian Father Thakur Ram Uike, R/o. Village Chandan Nagar, Police Station And Tahsil Premnagar, District Surajpur, Chhattisgarh. 4 4 - Ku. Suman Singh, D/o. Thakur Ram Uike, Aged About 8 Years, Minor, Through Natural Guardian Father Thakur Ram Uike, R/o. Village Chandan Nagar, Police Station And Tahsil Premnagar, District Surajpur, Chhattisgarh. ---Appellants Versus 1 - Ramsariwan Sahu, S/o. Vijay Ram Sahu, Aged About 40 Years, R/o. Village Raghunathpur, Police Station And Tahsil Premnagar, District Surajpur, Chhattisgarh (Driver Of Vehicle) 2 - Rajesh Kumar Sahu, S/o. Visnath Sahu, Aged About 35 Years, R/o. Village Patna, Police Station Patna, Tahsil Baikunthpur, District Koriya, Chhattisgarh. (Owner Of Vehicle) 3 - H.D.F.C. Ergo General Insurance Company Limited, 3rd Floor, Chawla Complex, Devendra Nagar, Sai Nagar, Raipur, District Raipur, Chhattisgarh. (Insurer Of Vehicle) --- Respondent(s) For Appellants : Mr. Anil Gulati, Advocate For Respondents- Owner & Driver : Mr. Praveen K. Dhurandhar, Advocate For Respondent- H.D.F.C. General Insurance Company : Mr. Harshmander Rastogi, Advocate (Single Bench) * Hon'ble Shri Justice Sanjay K. Agrawal Judgment on Board 5 27.10.2025 1. This order shall govern the disposal of MAC No.74/2023, MAC No.83/2023 & MAC No.84/2023. Since common question of law and facts are involved in these three appeals, they are being clubbed together, heard together and disposed of by this common order. 2. A road accident occurred on 06.10.2019 and driver of the motorcycle namely Jitendra Singh and two pillion riders namely Jai Singh & Amarnath died and three claim cases bearing Motor Accident Claim Case Nos. 179/2019, 180/2019 & 181/2019 were preferred in which the learned Claims Tribunal has passed an award of compensation, but 50% of the awarded amount has been deducted towards contributory negligence of the deceased driver Jitendra Singh. Therefore, three appeals have been preferred challenging the impugned award of compensation dated 01.10.2022, by which 50% of the amount under award has been deducted towards contributory negligence of the deceased driver holding that the deceased driver was driving the motorcycle, in which two other deceased persons were sitting, under the influence of liquor as per the post-mortem 6 report (Ex.P-2) and he also did not have valid and effective driving licence to drive the motorcycle. 3. Mr. Anil Gulati, learned counsel for the appellants, would submit that the finding of contributory negligence is based on no evidence and, therefore, it is liable to be set aside. He would rely upon the decision rendered by the Supreme Court in the matter of Oriental Insurance Company Ltd. v. Smt. Seema Pandey & Others1. 4. Mr. Praveen K. Dhurandhar, learned counsel appearing for the owner & driver and Mr. Harshmander Rastogi, learned counsel appearing for the insurance company would support the impugned award passed by the learned Claims Tribunal. 5. I have heard learned counsel for the parties, considered their rival submissions made herein-above and gone through the records meticulously. 6. It is not in dispute that the insurance company in all the three cases has taken a plea in para 11 of the written statement that the stationary tractor trolley was dashed by the deceased driver Jitendra Singh along-with two pillion riders Jai Singh & Amarnath and he was in the state of intoxication and further taken a plea that three persons were sitting in the 1 2014(1) C.G.L.J.270 7 motorcycle having capacity of only two person. Therefore, the principles of res ipsa loquitur would apply and deceased was also liable for contributory negligence. However, on behalf of the insurance company only the Investigator Dashrath Prasad Gupta has been examined and no evidence has been led on behalf of the insurance company to prove the said fact. 7. In this regard, this Court in the matter of Oriental Insurance Company Ltd. v. Smt. Seema Pandey and Others 2 has held as under:- “10. It is well settled that the Insurance Company taking a plea of contributory negligence on the part of the victim, must lead evidence with regard thereto and unless such evidence is led by the Insurance Company, the Insurance Company's plea with regard to the contributory negligence cannot succeed. The Insurance Company must state specifically that there was some causal connection of the deceased with the damage suffered by him to hold that the conduct of the deceased amounted to contributory negligence. Similarly, there had to be some connection on the part of the deceased showing absence of reasonable care for his own safety which contributed to the damage. 11. The Law of Torts by Justice G.P. Singh, the following propositions of law regarding contributory negligence have been stated: 2 2014 (1) C.G.L.J. 270 [MAC No.653/2012; decided on 8.11.2013] 8 "It is to be noted that negligence of the plaintiff which can be described as contributory negligence must have casual connection with the damage suffered by him." "The question simply is whether the plaintiff or the deceased (in case of claims arising out of death) had failed to take reasonable care of his own safety which had contributed to the damage." 12. In Case of Municipal Corporation of Greater Bombay Vs. Shri Laxman Iyer and another 3 , the Supreme Court held as under:– 6 . ……... Where an accident is due to negligence of both parties, substantially there would be contributory negligence the crucial question on which liability depends would be whether either party could, by exercise of reasonable care, have avoided the consequence of other's whichever party could have avoided the consequence of other's would be liable for the accident. It a person's negligent act or omission was the proximate and immediate cause of death, the fact that the person suffering injury was himself negligent and also contributed to the accident or other circumstances by which the injury was caused would not afford a defence to the other. Contributory negligence is applicable solely to the conduct of a plaintiff. It means that there has been an act or omission on the part of the plaintiff which has materially contributed to the damage, the act or omission being of such a nature that it may properly be described as negligence, although negligence is not given its usual meaning. (See Charles worth on Negligence, 3rd Edn. Page 328). It is now well settled that 3 (2003) 8 SCC 731 9 in the case of contributory negligence, Courts have power to apportion the loss between the parties as seems just and equitable. Apportionment in that context means that damages are reduced to such an extent as the Court thinks just and equitable having regard to the claim shared in the responsibility for the damage. But in a case where there has been no contributory negligence on the part of the victim, the question of apportionment does not arise. 13. In case of Pramodkumar Rasikbhai Jhaveri Vs. Karmasey Kunvargi Tak and others 4 , the Supreme Court held as under :– 8. We do not think that these two reasons given by the High Court fully justify the accepted principles of contributory negligence. The question of contributory negligence arises when there has been some act or omission on the claimant's part, which has materially contributed to the damage caused, and is of such a nature that it may properly be described as 'negligence'. Negligence ordinarily means breach of a legal duty to care, but when used in the expression "contributory negligence" it does not mean breach of any duty. It only means the failure by a person to use reasonable care for the safety of either himself or his property, so that he becomes blameworthy in part as an "author of his own wrong. 9. Subject to non-requirement of the existence of duty, the question of contributory negligence is to be decided on the same principle on which the question of defendant's negligence is decided. The standard of 4 (2002) 6 SCC 455 10 reasonable man is as relevant in the case of plaintiff's contributory negligence as in the case of defendant's negligence. But the degree of want of care which will constitute contributory negligence, varies with the circumstances and the factual situation of the case. The following observation of the High Court of Australia in Astley Vs. Austrust Ltd. (1999) 13 ALJR 403 is worthy of quoting: "A finding of contributory negligence turns on a factual investigation whether the plaintiff contributed to his or her own loss by failing to take reasonable care of his or her person or property. What is reasonable care depends on the circumstances of the case. In many cases, it may be proper for a plaintiff to rely on the defendant to perform its duty. But there is no absolute rule. The duties and responsibilities of the defendant are a variable factor in determining whether contributory negligence exists and, if so, to what degree. In some cases, the nature of the duty owed may exculpate the plaintiff from a claim of contributory negligence; in other cases, the nature of the duty may reduce the plaintiff's share of responsibility for the damage suffered; and in yet other cases the nature of the duty may not prevent a finding that the plaintiff failed to take reasonable care for the safety of his or her person or property. Contributory negligence focuses on the conduct of the plaintiff. The duty owed by the defendant, although relevant, is one only of many factors that must be weighed in determining whether the plaintiff has so conducted itself that it 11 failed to take reasonable care for the safety of its person or property." 14. In a recent decision in Minu Rout & Anr. Vs. Satya Pradyumna Mohapatra & Ors. 5 , the plea of contributory negligence was taken by Insurance Company, but neither driver nor any independent witness was examined to prove the allegation of contributory negligence. The Supreme Court while setting aside the finding of contributory negligence, held as under :– "12. ……...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 Sections 279 read with Section 302 of IPC read with the provisions of the M.V. Net 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 Verile, it did not choose to examine either the driver of the truck or any other independent eye witness 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 should not have placed reliance on the charge-sheet- Exh 1 in 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 PW3 in their cross-examination and placed reliance on them to record the finding on issue 5 2013 AIR SCW 5375 12 No. 1. For the aforesaid reasons, the findings and reasons recorded by the Tribunal on the contentious issue No. 1 holding that there is contributory negligence on the part of the deceased driver in the absence of legal evidence adduced by the Insurance Company to prove the plea taken by it that accident did not take place on account of rash and negligent driving of the truck driver is erroneous in law." 8. Coming to the facts of the present case in light of principle of law laid down in the aforesaid decision, it is quite vivid that mainly because three persons were traveling in the motorcycle, in absence of evidence, inference that the deceased driver was negligent cannot be drawn and at the best it will be in violation of Motor Vehicle Rules and constitute an offence under the provisions of Motor Vehicles Act, 1988. Furthermore, as per the post-mortem report (Ex. P-2), alcohol has been found in the body of the deceased, but the Doctor who has conducted the post-mortem and who could prove the post-mortem report i.e. Dr. Navin Tiwari has not been examined, therefore, it cannot be relied upon to hold that the deceased had consumed liquor unless the concerned Doctor is examined. Furthermore, since no evidence has been led by the insurance company to prove the plea of contributory negligence, the learned Claims Tribunal is absolutely unjustified in deducting 50% amount of 13 compensation towards the contributory negligent of the deceased, particularly Jitendera Singh was driving the motorcycle and other two deceased persons Jai Singh & Amarnath were sitting as pillion rider. In that view of the matter, the finding recorded by the Claims Tribunal with regard to plea of contributory negligence on the part of the deceased is hereby set aside and the appellants/ claimants are held entitled to full compensation along-with interest as awarded by the learned Claims Tribunal. Rest of the conditions of the impugned award shall remain intact. 9. Accordingly, all the three appeals are partly allowed to the extent indicated herein-above. No cost(s). Sd/- (Sanjay K. Agrawal) Judge Ashok