1 2025:CGHC:29601 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR MAC No. 453 of 2019 United India Insurance Company Limited Micro Office Paras Complex Opposite State Bank Of India Gurudwara Dtation Road Durg District Durg Through Authorized Signatory United India Insurance Company Limited Divisional Office, 2nd Floor Guru Kripa Towers Vyapar Vihar Road Bilaspur Chhattisgarh. (NA No.3) ... Appellant versus 1 - Abdul Hafiz, S/o Abdul Rehman, Aged About 68 Years, R/o Duggal Colony Shastri Nagar Supela Bhilai, Tehsil And District Durg Chhattisgarh. (Claimant) 2 - Sanjay Mishra, S/o Daroga Mishra, Aged About 34 Years, R/o Fouzi Nagar Housing Board Jamul, Police Station Jamul Bhilai, Tehsil And District Durg Chhattisgarh. (Driver) 3 - Anil Kumar Singh, S/o Ram Tapasya Singh, Aged About 39 Years, R/o M.P. Housing Board Bhilai, Police Station Jamul Tehsil And District Durg Chhattisgarh. (Owner) ... Respondents For Appellant : Mr. Abhishek Mishra, Advocate appears on behalf of Mr. B.N. Nande, Advocate For Respondent No.1 : Mr. Utsav Maheshwar, Advocate appears on behalf of Mr. P.R. Patankar, Advocate For Respondents No.2 and 3 : Mr. Shyam Tiwari, Advocate appears on behalf of Mr. Achyut Tiwari, Advocate PRASHANT DEWANGAN Digitally signed by PRASHANT DEWANGAN Date: 2025.07.09 10:56:13 +0530 2 Hon'ble Shri Justice Parth Prateem Sahu Order On Board 01/07/2025 1. Appellant-Insurance Company has filed this appeal under Section 173 of the Motor Vehicles Act, 1988 (for short “ the Act of 1988”) challenging the award dated 31/10/2018 passed by learned Third Additional Motor Accident Claims Tribunal, Durg, District Durg, Chhattisgarh (for short “Claims Tribunal”) in Claim Case No. 277/2017, whereby the learned Claims Tribunal allowed the application filed under Section 166 and 140 of the Act, 1988 in part and awarded a total sum of ₹ 8,33,970/- as compensation and fastened liability upon Insurance Company. 2. Facts of the case relevant for disposal of this appeal are that, on 28/01/2017 at about 07:00 A.M., respondent No.1-claimant was returning back to his home from vegetable market on his Scooty (Hero Honda Pleasure) two wheeler bearing No. C.G.07/A.D./0976, when he reached near Chandra Mourya Talkies Square, one Truck bearing No. C.G.04/J.C./7723 coming from Raipur driven by the non-applicant No.1 rashly and negligently, dashed the two wheeler of the claimant and caused accident. In the accident, claimant suffered injuries over his person. He was taken to B.S.R. Apollo Hospital, where upon diagnosis, it was found that the victim suffered injuries on his left leg and lacerated wound over the right leg, apart from other injuries over the body. He took treatment as in-patient, however, even after taking the treatment, the injuries suffered by him could not be cured fully and he 3 suffered permanent disability and claimed total sum of Rs.20,32,081/- as compensation from the non-applicants therein. Non-applicants No.1 and 2, driver and owner of the offending vehicle remained absent from the proceedings and they were proceeded ex-parte. Non-applicant No.3-Insurance Company submitted reply to the claim application and denied the pleadings made therein. It was further pleaded that, there was contributory negligence on the part of the claimant being driver of two wheeler, the owner and the insurance company of the two wheeler have not been made party to proceeding and, therefore, the claim be dismissed. 3. Learned Claims Tribunal upon appreciation of pleadings brought on record before the Claims Tribunal has recorded a finding that, the accident was result of rash and negligent driving of the offending vehicle by non-applicant No.1 due to which, the claimant suffered grievous injuries resulting in permanent disability of 30% vide Ex.P/71 and the disability with respect to whole body is 15%, accordingly, computed the amount of compensation and awarded total compensation of Rs.8,33,970/-. 4. Counsel for the appellant-Insurance Company would submit that, the learned Claims Tribunal without considering the entire evidence available on record in its true perspective, has rejected the plea taken by the Insurance Company that the claimant was also contributory negligent in the accident. It is contended that the Claims Tribunal though recorded the disability with respect to the whole body would be only 15%, however, while computing the compensation has assessed the loss of income due to disability as 30%. The Tribunal erred in 4 awarding Rs.2,62,500 towards the loss of future income considering the 30% loss of earning capacity, which is contrary to the evidence available on record. The claimant has submitted the Income Tax Return for the assessment year 2016-17 and 2017-18 as Ex.P/85 to Ex.P/87, which shows that the income of the deceased was continuously increasing. He lastly contended that the claimant has not submitted any affidavit specifically pleading that he has not obtained any claim from the Insurance Company of the two wheeler towards the damage of the vehicle or own damage claim. 5. Counsel for respondent No.1-claimant would oppose the submission of the counsel for the appellant and would submit that the claimant suffered grievous injuries over his both legs in the motor accident. The disability certificate is submitted as Ex.P/15, Dr. R.K. Nayak (AW-2), Orthopedics Specialist, who issued disability certificate after examining the claimant is also examined to prove the disability certificate. He contended that disability certificate has been proved in accordance with law mentioning 30% permanent disability on account of the grievous injuries suffered by the claimant on both of his legs. He further pointed out that loss of income assessed by the Claims Tribunal is on account of loss of earning capacity of 15% only and, therefore, the submission of counsel for the appellant that computation of the amount of compensation under the loss of future income considering 30% permanent disability is not correct. It is contended that there may be Income Tax Return submitted by the claimant showing the enhanced income, however, the claimant if would have well and completely fit, would have earned more and therefore, merely showing little rise in 5 income in the Income Tax Return will not be sufficient to come to the conclusion that the claimant, who suffered permanent disability has not suffered any loss of income when he is self-employed and doing the work of agent in the Regional Transport Office. He lastly contended that, there is no evidence to come to the conclusion that, the claimant has submitted the claim for own damage from any of the Insurance Company, if it is the plea of the appellant-Insurance Company then, burden of proof is upon the appellant-Insurance Company in which appellant-Insurance Company utterly failed. 6. I have heard learned counsel appearing for the parties and also perused the entire record carefully. 7. Perusal of the record of Claim Case would show that the Insurance Company has not examined any witness to prove the fact of contributory negligence. The contributory negligence is a fact to be proved by the party raising the said ground before the Claims Tribunal in the pleading. Hon’ble Supreme Court in case of Minu Rout and another v. Satya Pradyumna Mohapatra and others reported in (2013) 10 SCC 695 while discussing the proof of contributory negligence based on the document of the Criminal Case has observed 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 6 the 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.” 8. In another judgment, in the matter of Jiju Kuruvila and others v. Kunjujamma Mohan and others reported in (2013) 9 SCC 166, has observed 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.” 9. Considering the facts of the case in light of the decision of the Hon'ble Supreme Court, it is clear that the appellant-Insurance Company has not brought any evidence on record to prove the fact of contributory negligence as pleaded in their written statement. In absence of any 7 proof of the pleading of defence in the written statement, the fact pleaded cannot be stated to be proved. Hence, I do not find any error or infirmity in the finding recorded by the Claims Tribunal that the appellant-Insurance Company failed to prove the fact of contributory negligence on the part of the claimant also. Accordingly, the first ground raised by counsel for the appellant is Sans merit and is, accordingly, repelled. 10. So far as the second submission made by learned counsel for the appellant that the claimant has not suffered any loss of future income, placing reliance upon the Income Tax Return of the claimant submitted for the year 2016-17 and 2017-18 showing little rise in the income of claimant is concerned, there is evidence available on record that the claimant could not be able to perform his day to day work with his own. He has to take assistance of other persons. The claimant has engaged one Rajesh Verma (AW-3), as assistance for discharging his day to day activities. In his evidence, this witness has stated that he has been engaged since April 2017 for taking care of the claimant and helping him in discharge of day to day activities. The services of uneducated person is hired for taking care of the claimant/insured. The claims Tribunal considering the evidence of AW-3, medical evidence available on record with respect to the nature of injuries, treatment taken, has recorded the finding that the claimant could not able to do day to day activities of his own for last about 18 months and awarded the compensation. The appellant-Insurance Company has not brought any evidence contrary to disbelieve such evidence of the witness AW-3. 8 11. In the aforementioned facts of the case, it is apparent that, even if the claimant has earned something by taking help of other persons or engaging other persons for completion of the work of the office, he might have expended some money in this regard. Though, there is no proof of the same but looking to the physical condition of the claimant and the assistance taken, it could not be said that the claimant has not suffered any loss of income. Had it been the case that the appellant could have discharged the duties of agent-ship of his own, he could have earned more than what is appearing or reflecting from ITR. 12. The claims Tribunal has not awarded any amount of compensation towards the loss of income during the laid down period and also looking to the nature of injuries- avulsion injury on thighs, period of treatment as in-patient and further, the assistance taken that the appellant may not have worked for considerable period of time, considering the entirety of the facts of the case, I am not inclined to interfere with the award of compensation of Rs.2,62,500/- to the claimant. 13. So far as the last ground raised by the learned Counsel for the appellant that, the claimant has not proved that he has taken any claim under his own damage from the Insurance Company of the two wheeler is concerned, perusal of the documents available on record would show that the appellant-Insurance Company during the course of investigation of the accident has seized the copy of RC book of two wheeler and license from possession of the claimant, however, there is no seizure of Insurance Policy. In absence of seizure of the Insurance Policy, it cannot be presumed that on the date of incident, two wheeler 9 was insured. No evidence has been brought on record by the appellant-Insurance Company that, on the date of accident there was Insurance Policy issued by any of the Insurance Company with respect to the two wheeler driving by the claimant. 14. Counsel for the appellant during the course of argument pointed out that the Income Tax Return placed on record as Ex.P/86 and P/87, is under ITR-1 and in the computation sheet, the income of the Claimant is shown to be from the guest house and, therefore, also the claimant has not suffered any loss of income. Perusal of record would show that as per pleading and oral evidence it is case of claimant that he is doing the work of R.T.O. agent and therefore considering the entire facts and evidence, keeping in mind the object of the Act of 1988 that the person who suffered due to motor accident have to be awarded just compensation, I do not find any good reason to interfere with the impugned award. 15. For the forgoing discussion, I do not find any substance in this appeal, the same is liable to be and is hereby dismissed. Sd/- (Parth Prateem Sahu) Judge Prashant