1 / 9 2025:CGHC:42766 AFR HIGH COURT OF CHHATTISGARH AT BILASPUR MAC No. 943 of 2019 1. Mukund Keshav Pandey S/o Late Shri Hutasan Prasad Aged About 55 Years Caste Brahman 2. Munni Pandey W/o Mukund Keshav Pandey Aged About 52 Years Caste Brahman Both are R/o Village Panda Tarai Tahsil Pandariya, District Kawardha, Chhattisgarh At Present R/o Pondi Uproda, Tahsil Pondo Uproda District Korba Chhattisgarh. --- Appellants/ Applicants-Claimants versus 1. Nitish Gond S/o Dwarika Prasad Aged About 22 Years Caste Gond R/o Village Khursipar, Police Station Arjunda, District Baloda Chhattisgarh. (Driver) 2. Satish Pathak S/o Late Kashianath Pathak R/o Village House No. 1 K.L.C. Block Jone -2, Khursipar Bhilai, District Durg Chhattisgarh. (Owner) 3. Branch Manager Chola, Mandalam M.S. General Insurance Comapany Limited Simran Tower, Behind L. I. C. Building Pandari Raipur, District Raipur Chhattisgarh. (Insurer) ---Respondents/ Non-applicants ____________________________________________________________ For Appellants : Mr. F.S. Khare, Advocate For Respondent No. 3 : Ms. Shrishti Upadhyay, Advocate Hon'ble Shri Justice Parth Prateem Sahu Judgment On Board 22/08/2025 1. Appellants-claimants have preferred this appeal under Section 173 of the Motor Vehicles Act, 1988 (for short “Act of 1988”), challenging the award dated 30.04.2019 passed by Learned Additional Motor Accident Claims Tribunal, Katghora, District Korba, Chhattisgarh (for short “Claims Tribunal”) PAWAN KUMAR JHA Digitally signed by PAWAN KUMAR JHA 2 / 9 in Claim Case No. 103/2017, whereby learned Claims Tribunal dismissed the application filed under Section 166 of the Act, 1988. 2. Brief facts of the case necessary for disposal of this appeal are that on 21.12.2016, at about 7:00 a.m., on Korba–Champa main road, Pradeep Pandey alias Bablu was driving pick-up vehicle No. CG 12/AP-5396 from Korba towards Champa when a Mazda 1109 truck No. CG 07/CA-8772 (hereinafter referred to as “offending vehicle”), driven by Nitish Gond from the opposite direction, allegedly came in a rash and negligent manner and collided with the pick-up. As a result of the impact, Pradeep Pandey sustained grievous injuries on his head, chest, legs and other parts of the body and died on the spot. 3. Appellants-claimants, parents of deceased- Pradeep Pandey, filed an application under Section 166 of the Act of 1988 seeking compensation of ₹ 99,60,000/- pleadings therein that before accident, deceased was physically fit person aged about 28 years. He was working as Watchman in Government Hostel, Machadoli and earning ₹ 6,000/- per month. 4. In their replies, non-applicant Nos. 1 and 2/ Respondents No. 1 & 2 denied the claim and contended that offending vehicle had valid documents and the driver held a valid licence, hence there was no breach of policy occurred and liability, if any, will be of the insurer. They further alleged that the deceased himself was driving rashly without a valid driving licence, lost control on seeing the oncoming truck and overturned his vehicle. 5. Respondent No. 3/Non-applicant No. 6–insurance company denied liability on the ground that the driver and owner of offending vehicle No. CG 07/CA- 8772 had no valid driving licence, registration, permit, fitness certificate at the time of accident, thereby there was breach of insurance policy conditions, and thus the insurer is not liable to indemnify insured. 3 / 9 6. Learned counsel for appellants-claimants would submit that Claims Tribunal erred in rejecting claim application filed under Section 166 of the Act of 1988 recording a finding that claimants failed to prove negligence on the part of driver of other vehicle, disbelieving the evidence of AW-2, who is one of the occupant of the vehicle and relying upon the documents prepared by the police during course of investigation. He contended that criminal case was registered based on the report stated to be lodged by Nitish Gond, driver of Mazda truck (offending vehicle), the other vehicle with which pickup vehicle driven by deceased dashed. In the F.I.R., there is allegation that deceased while travelling his pickup rashly and negligently came on wrong side and dashed with offending vehicle. Contents of F.I.R. or the other documents prepared by the police during course of investigation, are not proved as the author(s) of documents are not examined before the Claims Tribunal. 7. It is further contended that Non-applicants have examined only the Law Officer of the non-applicant-insurance company and no other witness has been examined. Even the driver and owner of the offending vehicle did not enter into the witness box to prove pleadings made in the reply to the claim application. Hence, in the facts of the case, if at all negligence of deceased appears then it will come within the category of contributory negligence on the part of drivers of both vehicles. Deceased being one of the driver of vehicle will be entitled for the compensation in the ratio of the contributory negligence to be fixed by this Court upon appreciation of evidence. 8. Learned counsel for Respondent No. 3 would oppose the submission of learned counsel for appellants-claimants and would submit that Claims Tribunal upon appreciation of evidence of AW-2 has found it unreliable as the Claims Tribunal has recorded a finding that at one place of his cross- examination he stated that he was driving the pickup vehicle and deceased was sitting in it. She also contended that F.I.R. was lodged by driver of 4 / 9 offending vehicle ie., non-applicant No. 1 and after death of deceased Pradeep Pandey, closure report was submitted before the court of competent jurisdiction. If at all there is negligence on the part of driver of offending vehicle Swaraj Mazda, insured by Respondent No. 3, no F.I.R. or report was lodged by any person either owner or cleaner of pickup vehicle. There is no error in the finding recorded by the Claims Tribunal that deceased died due to his own negligence. 9. I have heard learned counsel for the parties and also perused the record of claim case. 10. According to the pleadings made in the application as also the documents available in record ie., Ext. P-1, Final Report (closure report) submitted by the police, copy of F.I.R., Ext P-2, morgue intimation, Ext. P-3 would show that in the accident deceased Pradeep Pandey, driver of pickup vehicle, died on spot and the other person, AW-2, travelling along with him in the pickup vehicle suffered grievous injuries over his person and therefore, there was no other person available to lodge report in the concerned police station against the driver of offending vehicle, ie., non-applicant No. 1. Morgue was registered by Head Constable of the police department by name Pradeep Mishra and thereafter the F.I.R. was registered on the report stated to be lodged by Nitish Gond, driver of offending vehicle. 11. Claims Tribunal placing reliance upon the copy of F.I.R. and pleadings made in the reply submitted by non-applicants No. 1 and 2, driver and owner of offending vehicle, arrived at a conclusion that as no report was lodged on behalf of deceased either by the family members or by the owner of pickup vehicle and the F.I.R. was lodged by the driver of offending vehicle, ie., other vehicle Swaraj Mazda, negligence has been shown to be on the part deceased, came to conclusion that the accident was a result of sole negligence of deceased, he is not entitled for compensation under Section 5 / 9 166 of the Act of 1988 as to succeed in claim application filed under Section 166 of the Act of 1988, negligence on the part of others is to be shown and proved. 12. The aforementioned finding recorded by the Claims Tribunal, in the opinion of this Court, appears to be without any evidence. The document which is relied upon by ie., copy of F.I.R., morgue intimation, are not proved as the author(s) of the documents is not examined before the Claims Tribunal as witness. Merely placing on record, copy of documents prepared by the police during investigation of crime is not in itself admissible in evidence. Division Bench of High Court of Madhya Pradesh in the case of Nanhu Singh vs. Jaheer reported in 2006 ACJ 803 while dealing with the issue whether the documents of criminal case merely by its production will be admissible in evidence and held thus: “12. In view of the aforesaid, we arrive at the irresistible conclusion that the finding recorded by the Tribunal on the basis of F.I.R. is incorrect, unsound and in a way paves the path of vitiation. The Tribunal had erred by relying on the F.I.R. as if it was the gospel truth or to put it differently, as if it was comparable to Einsteinean theory. In view of the aforesaid, we are not disposed to concur with the aforesaid finding and accordingly dislodge the same”. 13. Hon’ble Supreme Court in the case of National Insurance Co. Ltd. vs. Chamundeswari and others reported in (2021) 18 SCC 596 while considering the issue with regard to admissibility of contents of F.I.R. in evidence before the Tribunal has observed that the evidence which is recorded before the Tribunal has to be given weightage over the contents of F.I.R. and held as under: “8. It is clear from the evidence on record of PW 1 as well as PW 3 that the Eicher van which was going in front of the car, had taken a sudden right turn without giving any signal or indicator. The evidence of PW 1 & PW 3 is 6 / 9 categorical and in absence of any rebuttal evidence by examining the driver of Eicher van, the High Court has rightly held that the accident occurred only due to the negligence of the driver of Eicher van. It is to be noted that PW 1 herself travelled in the very car and PW 3, who has given statement before the police, was examined as eyewitness. In view of such evidence on record, there is no reason to give weightage to the contents of the first information report. If any evidence before the Tribunal runs contrary to the contents in the first information report, the evidence which is recorded before the Tribunal has to be given weightage over the contents of the first information report. 14. In the aforementioned facts of the case and the evidence available and further the decision of Division Bench of M.P. High Court and the Supreme Court as above, in the opinion of this Court, Claims Tribunal erred in relying upon the pleadings made in the reply by non-applicants No. 1 and 2 without there being entering into the witness box to prove the pleadings made in the claim application and further considering documents prepared by the police like, F.I.R. and morgue intimation report available in record as evidence. 15. 15. For the foregoing discussion, the finding recorded by the Claims Tribunal based on the documents of criminal case and the pleadings made in reply that the deceased himself was solely negligent in the accident is not sustainable and it is accordingly set aside, more so when, there is head on collision between two vehicles. 16. Claimants have examined AW-2 who is one of the occupant in the pickup vehicle which deceased was driving. In his evidence, he stated that offending vehicle coming from opposite side came from wrong side and dashed pickup vehicle. Driver of offending vehicle did not enter into witness box and no other witness has been examined on the part of non-applicants therein to prove negligence of deceased. 7 / 9 17. Contributory negligence is a fact which required to be proved by party asserting it. The owner and driver though pleaded in written statement that deceased himself was negligent, however, they did not enter into witness box and therefore plea taken by them remain unproved. Hon’ble Supreme Court in 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 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.” 18. Another judgment of the Supreme Court while dealing with the issue of contributory negligence in the matter of Minu Rout and another v. Satya Pradyumna Mohapatra and others reported in (2013) 10 SCC 695 and 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 8 / 9 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 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.” 19. The person who suffered injury on account of negligent act of other person, cannot be held contributory negligent on the ground that he could have avoided accident, if being more cautious and vigilant. Hon’ble Supreme Court in the case of Pramodkumar Rasikbhai Jhaveri v. Karmasey Kunvargi Tak and Others, reported in (2002) 6 SCC 455 has observed that where once there is negligence, if one party places another in a situation of danger, which compels that other to act quickly in order to extricate himself, it does not amount to contributory negligence if that other acts in a way, which, with the benefit of hindsight, is shown not to have been the best way out of the difficulty. 20. In the aforementioned facts of the case, in absence of evidence of contributory negligence on the part of deceased and further considering 9 / 9 evidence of AW-2, it cannot be said that deceased was also negligent in the accident in any manner. 21. As the compensation is not computed by the Claims Tribunal, the matter is remitted back to the Claims Tribunal for computation of amount to be awarded to the claimants based on the observation made by this Court that deceased cannot be said to be contributory negligent in the accident and upon appreciation of evidence available on record after providing opportunity of hearing to all parties. 22. Parties are directed to appear before the Claims Tribunal on 10th November 2025. 23. Accordingly, appeal is disposed of in the aforesaid terms. Record of claim case be sent back to the concerned Tribunal forthwith. Sd/- (Parth Prateem Sahu) Judge pwn