1 2025:CGHC:25918 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR MAC No. 465 of 2019 United India Insurance Company Limited By Divisional Manager United India Insurance Company Limited Kutchery Square Raipur District - Raipur Chhattisgarh. Through Authorized Signatory United India Insurance Company Limited Divisional Office, 2nd Floor Guru Kripa Towers Vyapar Vihar Road Bilaspur Chhattisgarh. --- Appellant versus 1 - Sanjay Netam, S/o. Narad Netam Aged About 25 Years R/o Modern Town Bombay Awas House No. 19, Nehru Nagar Bhilai, Tahsil And District - Durg Chhattisgarh. 2 - Subhakaram Prasad S/o Bhartesvar Prasad C/o Abhishek Roadways Ranvabhata, Police Station Khamtarai, District - Raipur Chhattisgarh. 3 - Sanjiv Kumar S/o Late Jamuna Prasad C/o Abhishek Roadways, Ranvabhata, Police Station Khamtarai, District - Raipur Chhattisgarh --- Respondents For Appellant : Mr. B.N. Nandey, Advocate For Respondent No.1 : Mr. Rakesh Thakur, Advocate Hon'ble Shri Justice Parth Prateem Sahu Order On Board 19/06/2025 1. Appellant/Insurance Company has filed this appeal under Section 173 of the Motor Vehicles Act, 1988 against the impugned award dated 25.07.2018, passed in Claim Case No.231/2015, whereby the learned First Additional Motor Accidents Claims Tribunal, Raipur, District – Raipur (C.G.) has partly allowed the claim application filed by the BALRAM PRASAD DEWANGAN Digitally signed by BALRAM PRASAD DEWANGAN 2 claimant/respondent No.1 and awarded compensation of Rs.1,50,853/- in an injury case. 2. Facts relevant for disposal of this appeal are that claimant/respondent No.1 filed an application under Section 166 of the Act of 1988 claiming total compensation of Rs.19,12,000/- under different heads on account of injury suffered by him in the road accident. It was pleaded that on 28.11.2023, at about 7.30 o’clock on Main Road, near canal of village Dodekhurd, P.S. Vidhansabha, District – Raipur, the non-applicant No.1, driver of the offending vehicle truck bearing registration No.BR- 21/F-7172 by driving the said vehicle in rash and negligent manner dashed the vehicle of the claimant in which he was travelling and caused accident, due to which, claimant suffered fracture on his right leg below the knee and in thigh, he suffered permanent disablement. It was pleaded that at the time of accident, injured was 25 years of young and healthy man, was working as driver and earing Rs.7,000/- per month and due to the accident, he is unable to do the work in the manner he was doing before the accident. 3. The non-applicants 1 and 3 filed their reply to the claim application and resisted the claim of the claimants. It was pleaded that accident occurred due to self negligence of the claimant and he is guilty of contributory negligence. Claimant has not suffered any permanent disablement and the claim application was filed exaggerating the amount of compensation. 4. The learned Claims Tribunal upon appreciation of the pleadings and the evidence brought on record by respective parties, partly allowed 3 the claim application of the claimants/injured and awarded Rs.1,50,853/-. 5. Learned counsel for the appellant/Insurance Company submits that the learned Claims Tribunal erred in fastening the liability to satisfy the amount of compensation upon the appellant/insurance Company. From the evidence available on record, it is apparent that claimant/respondent No.1 himself was negligent in the accident. It is contended that the claimant/respondent No.1 is contributory negligent in the accident, however, the learned Claims Tribunal while dealing with the arguments/submission made in this regard has turned down the same without discussing the entire evidence available in record. He next contended that learned Claims Tribunal erred in awarding the compensation of Rs.30,000/- towards loss of income overlooking the fact that the claimant could not able to produce admissible piece of evidence with regard to permanent disability. 6. Learned counsel for respondent No.1/claimant vehemently opposes the submission of learned counsel for appellant and would submit that the FIR lodged immediately after accident clearly mentions that the accident occurred due to rash and negligent act of the driver of the offending vehicle, which was insured by the appellant/Insurance Company. Learned Claims Tribunal after appreciation of the documents and evidence available on record in claim case has rightly come to the conclusion that the driver of the offending vehicle i.e. non- applicant No.1/respondent No.2 is solely negligent and instrumental to the accident. He also pointed out that in the FIR (Ex.P-2) and final report (Ex.P-1) there is clear mention that the accident occurred due to 4 rash and negligent driving of the offending vehicle by the non-applicant No.1. The final report is submitted after conclusion of the investigation against non-applicant No.1. He contended that learned Claims Tribunal awarded Rs.30,000/- under the head of loss of income during the laid down period i.e. during the period of treatment, hence, it cannot be said to be erroneous. Learned counsel for respondent No.1 submits that the issue with regard to contributory negligence has not been framed. 7. I have heard learned counsel for the parties and also perused the documents placed on record. 8. To appreciate the submission of learned counsel for the appellant, perused the evidence available on record. The claimant/respondent No.1 in para-11 of his cross-examination admitted that he himself was driving the vehicle in high speed and lost control of his vehicle. In view of such admission of negligence on his part also, it cannot be said that the accident occurred on account of the sole negligence of the offending vehicle, driven by the non-applicant No.1/driver. 9. The Hon’ble Supreme Court in case of Pramodkumar Rasikbhai Jhaveri v. Karmasey Kunvargi Tak, reported in (2002) 6 SCC 455 while examining the issue of contributory negligence has held as under :- “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 the defendant's negligence is decided. The standard of a reasonable man is as relevant in the case of a plaintiff's contributory negligence as in the case of a defendant's 5 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 v. Austrust Ltd. [(1999) 73 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 failed to take reasonable care for the safety of its person or property.” 10. In the case at hand, the claimant in his cross-examination, who is none other than the driver of the other vehicle, which met with an 6 accident with the offending vehicle admitted that he lost his control over the vehicle due to high speed. Learned Claims Tribunal erred in recording a finding that the accident occurred due to the sole negligence on the part of the offending vehicle i.e. non-applicant No.1. In view of the aforementioned evidence of the claimant/respondent No.1, it is apparent that he also contributed to the accident. In the aforementioned facts and evidence of the case, I find it appropriate to hold that the claimant/respondent No.1 is contributory negligent to the extent of 25% for causing the accident in the facts of the case. 11. So far as the submission of learned counsel for the appellant/Insurance Company with respect to the assessment of compensation of Rs.30,000/- towards loss of income is concerned, perusal of the award would show that the learned Claims Tribunal considering the period for the recovery from injuries suffered by the claimant has assessed the loss of income of Rs.30,000/- for six months during period of treatment and is not a compensation towards the loss of future income due to loss of earning capacity. The loss of income during the laid down period cannot be said to be erroneous, therefore, the said submission of the learned counsel for the appellant is not sustainable and it is accordingly repelled. 12. So far as the contention raised by the learned counsel for respondent No.1 that the issue with regard to contributory negligence has not been framed is concerned, the proceedings in the Motor Vehicle Act is in nature of enquiry. In reply submitted by the appellant/Insurance Company, plea has been taken of the contributory negligence that claimant himself was negligent as he was driving the vehicle rashly 7 and negligently and the accident was the result of rash and negligent driving of the vehicle No.C.G.-04/JC-9526 by claimant himself. The arguments with regard to contributory negligence on the part of the claimant is also raised, which was considered by the learned Claims Tribunal in para-11 of the impugned award. For the said reason, the submission of learned counsel for the respondent No.1/claimant that the appellant/Insurance Company is not permitted to raise the said ground of contributory negligence before this Court in appeal, is not sustainable and it is accordingly repelled. 13. As this Court has held that there was contributory negligence on the part of the claimant/respondent No.1 to the extent of 25%, which is to be deducted from the total amount of compensation of Rs.1,50,853/- awarded by the learned Claims Tribunal and after deducting the same, the amount of compensation payable to the claimant/respondent No.1 comes to Rs.1,13,140/-. It is ordered accordingly. 14. For the forgoing discussions, the appeal is allowed in part to the extent indicated here-in-above. Sd/- (Parth Prateem Sahu) Judge Balram