1 2025:CGHC:19094 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR MAC No. 1535 of 2017 Judgment Reserved on : 04.03.2025 Judgment Delivered on : 28.04.2025  Ajay Kumbhkar, S/o Panchu Ram, Aged About 27 Years, R/o Ward No. 11, Chhuikhadan, District- Rajnandgaon, Chhattisgarh.................. Owner/Driver of Vehicle No. CG- 08-NB-0371. ... Appellant versus 1. Saraswati Bai W/o Late Priyank Kumbhkar, Aged About 23 Years, R/o Ward No. 11, Chhuikhadan, District Rajnandgaon, Chhattisgarh................. Claimant. 2. The Oriental Insurance Company Limited, Branch Office, Near Railway Station, Rajnandgaon, District Rajnandgaon, Chhattisgarh................................ Insurer Of Vehicle No. CG- 08-NB-0371. 3. Ramesh Lilhare S/o Babulal Lilhare (Wrongly Mentioned As Lilhor In The Award), R/o Indira Nagar, Dongargarh, District Rajnandgaon, Chhattisgarh................................ Owner Of Vehicle No. CG-08-NA-3687. 4. I.C.I.C Lombard General Insurance Company Limited Raipur, District Raipur, Chhattisgarh....................... Insurer of Vehicle No. CG-08-NA-3687. ... Respondent(s) For Appellant : Mr. Abhishek Sharma, Advocate. For Respondent No.1 : Mr. Sumit Shrivastava, Advocate For Respondent No.2 : Mr. Raj Awasthi, Advocate. Digitally signed by VIJAY BHARATRAO PEKDE 2 (Hon'ble Smt Justice Rajani Dubey) (C.A.V. Judgment) 1. This appeal arises out of the award dated 27.07.2017 passed by Additional Motor Accident Claims Tribunal (for short the “Tribunal”), Khairagarh, District Rajnandgaon (C.G.), in Claim Case No.67/2012 awarding a compensation of Rs.4,52,000/- in favour of the claimant/respondent No.1 herein for the death of Priyank Kumbhkar (since deceased). 2. Facts of the case in brief are that on 29.10.2011 at about 5.00 PM, deceased Priyank Kumbhkar along with Ajay Kumbhkar – appellant herein was returning from Dongargarh on Hero Honda motorcycle. When they reached near Indane Gas Agency, Dongargah, respondent No.3 - the driver of vehicle Hero Honda Deluxe bearing registration No. CG-08-NA-3687, driving his motorcycle in rash and negligent manner, dashed the Hero Honda motorcycle, as a result of which deceased Priyank Kumbhkar sustained grievous injuries and died in the Govt. Hospital, Dongargarh during the course of treatment. Upon receiving the information of the accident, FIR was lodged against non- applicant No.1 – appellant herein and driver/respondent No.3 – Ramesh Lilhare under Crime No.380/2011 in Police Station – Dongargarh. 3 3. A claim case was filed by the claimant/respondent No.1 herein, who happen to be the legal heir of the deceased claiming a compensation of Rs.23,15,000/- inter alia pleading that the deceased was the sole bread earner of the family and was earning Rs.200/- per day. 4. Pleading of the claimant have, however, been denied by the non-applicant No.1- appellant herein, non-applicants - respondents No.2, 4-Insurance Company and non-applicant No.3/respondent No.3 except admitted fact. 5. After evaluating the evidence available on record, the learned Tribunal recorded its finding that the accident occurred due to head on collision, therefore, the principle of contributory negligence applied in the case. It was also proved that only the non-applicant No.1-appellant herein violated the policy conditions, as such, the non-applicant No.2/respondent No.2 - Insurance Company is not liable to pay compensation to the claimant. The tribunal also recorded its finding that non-applicant No.3-respondent No.3 had sold his vehicle to Dumman Lal but on the date of accident, the said vehicle was registered in the name of respondent No.3, which was insured with respondent No.4 and thus held non-applicant No.1/appellant herein to pay 50% of compensation amount and respondent No.3 & 4 jointly and severally liable to pay 50% compensation 4 amount to the claimant, and awarded the compensation of Rs.4,52,000/- along with interest @ 9% per annum in favour of the claimants/respondent No.1 herein taking the annual income of the deceased as Rs.36,000/-, deducting 1/3rd towards personal expenses and applying the multiplier of 18. Hence, this appeal by non-applicant No.1/appellant herein for exonerating him from 50% payment of liability i.e. Rs.2,26,000/- by modifying the award and further fasten the liability upon respondent Nos. 2 and 4 herein. 6. Learned counsel for the non-applicant No.1/appellant herein submits that the impugned award passed by the learned Tribunal is bad in law as well as on fact. The learned Tribunal committed gross illegality in para 14 of the award by giving a finding that it is a case of contributory negligence, in fact it is a case of composite negligence because deceased Priyank Kumbhkar was sitting as pillion rider and not contributed any negligency. Learned counsel further submits that the learned Tribunal failed to appreciate that the is no material on record to prove that three persons were sitting on the motorcycle, and in para 19 of the award, the learned Tribunal wrongly relied on Ex.P-2 and P-11 i.e. F.I.R.. The learned Tribunal further failed to appreciate that author of that document has not been examined by the Insurance Company. Learned counsel also submits that the 5 learned Tribunal committed gross illegality by exonerating the Insurance Company because in Claim Case No.8/2012 arising out of the same accident, Insurance Company (Oriental Insurance Company), paid/settle the compensation to legal heirs of offending vehicle i.e. C.G.-08-NA-3687 vide order dated 20.01.2013 (Annexure A-3). Therefore, the appeal may be allowed and the appellant be exonerated from payment of liability modifying the award and fasten the liability upon respondent Nos. 2 and 4, in the interest of justice. 7. Learned counsel for respondent No.1/claimant filed cross appeal under Order 41 Rule 22 of CPC and submits that the learned Tribunal wrongly calculated notional income of deceased as Rs.300/- per month. The accident occurred on 20.10.2011 and at the relevant time, notional income was to be considered as Rs.4500/- per month and the claimant had pleaded the monthly income of the deceased as Rs.6,000/- per month producing oral as well as documentary evidence in that regard. Learned counsel further submits that the Tribunal has committed error of law in holding the contributory negligence and fixed the 50% of Insurance Company and 50% liability of appellant to satisfy the award, this finding of the learned Tribunal is bad in law. The learned Tribunal also erred in not considering the future 6 prospect of the deceased as the deceased at the time of accident was aged about 25 years, as such, the compensation awarded by the learned Tribunal is on the lower side, which requires to be enhanced suitably. In support of his submission, learned counsel placed reliance on the decisions of Hon’ble Apex Court in the matter of Mohd. Siddique & Anr. Vs. Natinal Insurance Company Ltd. & Ors. reported in 2020 3 SCC 57 and T.O. Anthony Vs. Karvarnan and Others reported in (2008) 3 SCC 748. 8. Learned counsel for respondent No.2 supporting the impugned award submits that the instant appeal and cross appeal are without any merit and liable to be dismissed, however, learned counsel admitted this fact that the Insurance Company/Respondent No.2 entered into compromise with claimant in Claim Case No.08/2012 (Annexure A-3) which was filed by the claimant arising out of the same accident. 9. Heard both the counsel for the parties and perused the material available on record. 10. The appellant has filed copy of award dated 20.01.2013 (Annexure A-3) passed by the Lok Adalat, wherein respondent No.2 – Oriental Insurance Company entered 7 into compromise and admitted its liability. 11. The learned Tribunal, on the basis of pleading of the parties and in order to arrive at principle of contributory negligence framed as many as 6 Issues, out of which issue No.4 being significant is reproduced herein as under :- dza okn iz’u fu”d”kZ 1- D;k izdj.k esa ;ksxnk;h mis{kk dks fl)kr ykxw gksrk gS \ gkWA 12. The learned Tribunal finds that FIR (Ex.P-1 and P-11) have been lodged by Santu Kumbhkar but he did not appear before the learned Tribunal as witness and on the basis of both the aforesaid documents, the learned Tribunal arrived at finding that both drivers are accountable for the accident and driver and owner committed breach of policy condition but the learned Tribunal completely ignored this aspect of the matter that Santu Kumbhkar did not appear before the Tribunal as witness and non-applicant No.1/appellant herein has admitted in para 4 of his cross-examination that the case was registered against him saying that the accident occurred due to his negligence. He has also admitted that a criminal case was registered against him for this accident but the learned Tribunal did not appreciated this fact and this is also admitted by the Insurance Company that Insurance Company entered into agreement in case of 8 claimant Meena Pandey bearing Claim Case No.8/2012 arising out of the same accident and award was passed against Insurance Company/respondent No.2. 13. The Hon’ble Apex Court in the matter of Mohammed Siddique (supra) held in para 13 as under :- “13. But the above reason, in our view, is flawed. The fact that the deceased was riding on a motor cycle along with the driver and another, may not, by itself, without anything more, make him guilty of contributory negligence. At the most it would make him guilty of being a party to the violation of the law. Section 128 of the Motor Vehicles Act, 1988, imposes a restriction on the driver of a two-wheeled motor cycle, not to carry more than one person on the motor cycle. Section 194-C inserted by the Amendment Act 32 of 2019, prescribes a penalty for violation of safety measures for motor cycle drivers and pillion riders. Therefore, the fact that a person was a pillion rider on a motor cycle along with the driver and one more person on the pillion, may be a violation of the law. But such violation by itself, without anything more, cannot lead to a finding of contributory negligence, unless it is established that his very act of riding along with two others, contributed either to the accident or to the impact of the accident upon the victim. There must either be a causal connection between the violation and the accident or a causal connection between the violation and the impact of the accident upon the victim. It may so happen at times, that the accident could have been averted or the injuries sustained could have been of a lesser degree, if there had been no violation of the law by the victim. What could otherwise have resulted in a simple injury, might have resulted in a grievous injury or even death 9 due to the violation of the law by the victim. It is in such cases, where, but for the violation of the law, either the accident could have been averted or the impact could have been minimized, that the principle of contributory negligence could be invoked. It is not the case of the insurer that the accident itself occurred as a result of three persons riding on a motor cycle. It is not even the case of the insurer that the accident would have been averted, if three persons were not riding on the motor cycle. The fact that the motor cycle was hit by the car from behind, is admitted. Interestingly, the finding recorded by the Tribunal that the deceased was wearing a helmet and that the deceased was knocked down after the car hit the motor cycle from behind, are all not assailed. Therefore, the finding of the High Court that 2 persons on the pillion of the motor cycle, could have added to the imbalance, is nothing but presumptuous and is not based either upon pleading or upon the evidence on record. Nothing was extracted from PW-3 to the effect that 2 persons on the pillion added to the Imbalance.” 14. It is not a case of the Insurance Company that the accident occurred itself as a result of three persons riding on motorcycle but the learned Tribunal did not appreciate this fact and only on the basis of FIR (Ex.P-1 and P-11) decided this issue of contributory negligence against claimant. As such, the finding recorded by the learned Tribunal is not correct and not sustainable in the eye of law. Thus, the appeal filed by the non-applicant No.1/appellant herein is allowed and he is exonerated from payment of liability and the respondent No.2 – Oriental Insurance Company is held 10 liable to pay compensation to the claimant. Consequently, the finding of learned Tribunal in para 27 (4) is set aside and respondent No.2 - Oriental Insurance Company is thus held liable to pay compensation jointly and severally to the claimant. 15. As regards cross objection of claimant, it is apparent that the claimant did not adduce any documentary evidence showing that the deceased was earning Rs.200/- per month and the learned Tribunal assessed the monthly income of the deceased as Rs.3,000/-. Admittedly, the accident took place in the year 2011 and at the relevant time, the notional income of a unskilled labour was Rs.4,277/- per month, which the learned Tribunal has failed to assess the monthly income of the deceased as Rs.4,277/-. The deceased at the time of accident was young aged around 25 years which is evident from the postmortem report and other relevant documents but the learned Tribunal has also not considered future prospect and has also awarded less amount under conventional heads. The Supreme Court in the matter of National Insurance Company Vs. Pranay Sethi reported in (2017) 16 SCC 680 and Magma Vs. Nanu Ram @ Chuhru Ram reported in 2018 (18) SCC 130 dealt with the various heads under which compensation is to be awarded in a death case. Thus, keeping in view all these things, above 11 discussion and in view of decisions of Hon'ble Supreme Court in the matter of Magma and Pranay Sethi (supra), this Court is of the view that the amount awarded by the Claims Tribunal is on lower side and requires reconsideration. The claimants/appellants are entitled for compensation in the following manner:- Head Awarded by Tribunal Awarded by this Court Income Rs.36,000/- (Rs.3000/- per month x 12) Rs.51,324/- (Rs.4,277/- per month x 12) Future Prospect Nil Rs.20,530/- (40% of Rs.51,324/-) Deduction towards living and personal expenses Rs. 12,000/- (1/3th of 36,000/-) Rs.23,951/- (1/3rd of 71,854/-) Total Loss of Dependency Rs.24,000/- (36,000– 12,000) Rs.47,903/- (71,854 – 23,951/-) Multiplier applied 18 18 Loss of Future Income Rs.4,32,000/- (Rs.24,000 x 18) Rs.8,62,254 (Rs.47,903 x 18) Towards conventional head like funeral expenses, loss of estate, love & affection Rs.20,000/- Towards spousal Consortium to claimant - Rs.40,000/-/ Towards loss of estate to claimant - Rs.25,000/- Towards last rites – Rs.10,000/- Towards Funeral Expenses – Rs.15,000/- Total Rs.90,000/- Total Compensation awarded Rs. 4,52,000/- Rs.9,52,254/- 12 16. Thus, the total compensation including the amount awarded on conventional heads comes to Rs.9,52,254/- i.e. (8,62,254 + 90,000/-) for which the claimant is entitled to receive as compensation, is just and proper, for the death of deceased Priyank Kumbhkar. Since the Tribunal has already awarded Rs.4,52,000/-, after deducting the same the claimant/respondent No.1 is entitled for enhanced amount of Rs.5,00,254/-. This additional amount of compensation shall carry interest @ 9% p.a. from the date of filing of claim application till its realization. The amount received by the claimant, if any, shall be adjusted in the enhanced sum. 17. Appeal and the cross appeal are thus allowed with the modification as stated above. Sd/- (Rajani Dubey) Judge pekde