1. Budhanbai W/o Late Ghudauram Aged About 55 Years 2. Suresh Kumar S/o Late v. 1. Jaishankar Nishad S/o Bisauram Nishad Aged About 38 Years R/o Patharaguda Virsavarkar, Jagdalpur
Case Details
1 / 10 2025:CGHC:36626 AFR HIGH COURT OF CHHATTISGARH AT BILASPUR MAC No. 523 of 2019 1. Budhanbai W/o Late Ghudauram Aged About 55 Years 2. Suresh Kumar S/o Late Ghudauram Aged About 29 Years Both are R/o Jamkotapara, Kondagaon, Police Station And District Kondagaon Chhattisgarh. --- Appellants/ Applicants-Claimants versus 1. Jaishankar Nishad S/o Bisauram Nishad Aged About 38 Years R/o Patharaguda Virsavarkar, Jagdalpur, District Jagdalpur Chhattisgarh. (Driver) 2. Smt. Jogeshwary Rao W/o P. Danteshwar Rao, Aged About 52 Years (Wrongly Mentioned In Impugned Order As 523) R/o House No. 182, Bansmunda Road, Patharagudapara, Jagdalpur, District Jagdalpur Chhattisgarh. (Owner) 3. Oriental Insurance Company Limited, Hotel Laxman Avenue, Medical College Road Jagdalpur District Baster, Chhattisgarh. (Insurance Company) ____________________________________________________________ For Appellants : Mr. Shobhit Koshta, Advocate For Respondent No. 3 : Mr. Raj Awasthi, Advocate ---Respondents/ Non-applicants
Legal Reasoning
Hon'ble Shri Justice Parth Prateem Sahu Judgment On Board 28/07/2025 1. Appellants-claimants have filed this appeal under Section 173 of the Motor Vehicles Act, 1988 (for short “Act of 1988”), challenging the award dated 11.10.2018 passed by Learned Motor Accident Claims Tribunal, Kondagaon, PAWAN KUMAR JHA Digitally signed by PAWAN KUMAR JHA Chhattisgarh (for short “Claims Tribunal”) in Claim Case No. 42/2018, whereby learned Claims Tribunal allowed the application filed under Section 2 / 10 166 of the Act, 1988 in part and awarded total sum of ₹ 14,68,344/- as compensation in motor accidental death case. 2. Motor accident occurred on 12.03.2018 at about 08:00 p.m. near Juganipul, National Highway-30 by the negligent parking of truck bearing number CG04 J 1421 (hereinafter referred to as “offending truck”) without any precautionary measures by its driver non-applicant No. 1 and death of Lokesh Kumar (deceased) is not in dispute. Appellants-claimants have filed this appeal seeking enhancement of amount of compensation awarded by the Claims Tribunal. 3. For the foregoing discussion, this Court is not dealing with the facts of accident as pleaded by the parties in their claim application, reply to the claim application and further adverted in the impugned award but only considering the ground raised by the appellants-claimants seeking enhancement of compensation. 4. Learned counsel for appellants-claimants would submit that the Claims Tribunal erred in recording a finding that the deceased was also contributory negligent to the extent of 50% overlooking the fact that the offending truck was parked on the road without there being any sign or indication nor indicators lights were on. The accident occurred in night at about 08:00 pm and therefore accident would be a result of composite negligence on the part of driver of offending truck as also the owner. He also contended that the Claims Tribunal erred in not awarding amount of compensation under the head of loss of consortium to mother of deceased (claimant No. 1). 5. Learned counsel for Respondent No. 3-Insurance Company opposes the submission of learned counsel for appellants-claimants and would submit that the amount of compensation awarded by the Claims Tribunal in the facts of the case is just and proper and it does not call for any interference. 6. I have heard learned counsel for the parties and also perused the record of claim case. 3 / 10 7. So far as the submission made by learned counsel for appellants-claimants that the claims Tribunal erred in recording a finding that deceased was also held contributory negligent to the extent of 50% erroneously, perusal of record would show that the claimants who are mother and brother of deceased in the pleading of the claim application have pleaded that the deceased was returning from his place of work ie., Bank of India, Branch- Badedongar, Kondagaon. At NH-30 he met with an accident with the stationary truck parked on the road without there being any sign or indication or putting the indicators of the ill-fated vehicle. Claimants in support of claim application have also submitted documents of the criminal case prepared by the police during course of investigation along with spot map. In the spot map, there is mention that the offending truck was parked on the center of the road without there being any indication, marking or putting on indicator lights. Non-applicant No. 1, driver of the offending truck, was also examined as NAW-3-1. In his evidence, he stated that as offending truck ran out of diesel fuel it suddenly stopped. The truck was parked in the left side of the road. He put some stones and boulders as markings, put on indicators and went to purchase some diesel. He received a phone call from the owner of offending truck that someone dashed with the truck from its rear side. The suggestion given to this witness about the negligent parking of the truck without any indication and putting indicators lights on, was denied. No other witnesses were examined by the non-applicants. 8. Claims Tribunal while deciding the issue with regard to contributory negligence has framed issue No. B, has considered the evidence of NAW-1, Jaiprakash, driver of offending truck and concluded that the truck was parked on the left side at national highway road without taking precautionary measure. The said finding of the Claims Tribunal is perverse to the documentary evidence available in record. The spot map prepared by the police during course of investigation. In the spot map, it is clearly mentioned 4 / 10 that the truck was parked on the center of the road without there being any indication. There is no eye-witness to the accident. Claimant AW-1 and AW-2 and non-applicant No. 1 were not present on the spot and therefore the issue with respect to contributory negligence is to be decided considering the oral, documentary evidence available on record. The document which is available shows the place and manner in which accident occurred is the spot map filed as Ext. P-4. In Ext. P-4, it is appearing that the truck was parked in the center of the road negligently without putting any indications, any marking or indications nearby the truck that it was not in running condition. 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. 9. Regulation 15 of the Rules of Road Regulation, 1989 provides that every driver of a motor vehicle shall park the vehicle in such a way that it does not cause or is not likely to cause danger, obstruction or undue inconvenience to other road users. It casts a duty on the drivers of a motor vehicle stating that the vehicle shall not be parked at or near a road crossing or in a main road. 10. Hon’ble Supreme Court recently in the case of Sushma vs. Nitin Ganapati Rangole reported in 2024 SCC OnLine SC 2584 considering the decision in the case of Swadling vs. Cooper [1931 AC 1], observed that merely failure to avoid collision through extraordinary precautions does not inherently constitute negligence. It further observed with regard to statutory provisions under the road regulations and observed thus: “27. A highway or a road is a public place as defined in Section 2(34) of the Act: - 5 / 10 “2(34) “public place” means a road, street, way or other place, whether a thoroughfare or not, to which the public have a right of access, and includes any place or stand at which passengers are picked up or set down by a stage carriage;” 28. Section 121 of the Act provides that the driver of a motor vehicle shall make such signals and, on such occasions, as may be prescribed by the Central Government. 29. Section 122 of the Act provides that no person in charge of a motor vehicle shall cause or allow the vehicle or any trailer to be abandoned or to remain at rest on any “public place” in such a position or in such a condition or in such circumstances so as to cause or likely to cause danger, obstruction or undue inconvenience to other users of the public place or to the passengers. 30. Section 126 of the Act provides that no person driving or in charge of a motor vehicle shall cause or allow the vehicle to remain stationary in any public place. 31. Section 127(2) of the Act provides that where any abandoned, unattended, wrecked, burnt or partially dismantled vehicle is creating a traffic hazard, because of its position in relation to the public place, or its physical appearance is causing the impediment to the traffic, its immediate removal from the public place by a towing service may be authorised by a police officer having jurisdiction. 32. Regulation 15 of the Rules of Road Regulation, 1989 which were prevailing on the date of the incident provides that every driver of a motor vehicle shall park the vehicle in such a way that it does not cause or is not likely to cause danger, obstruction or undue inconvenience to other road users. It casts a duty on the drivers of a motor vehicle stating that the vehicle shall not be parked at or near a road crossing or in a main road. 33. These legal provisions leave no room for doubt that the person in control of the offending truck acted in sheer violation of law while abandoning the vehicle in the middle of the road and that too without taking precautionary measures like switching on 16 the parking lights, reflectors or any other appropriate steps to warn the other vehicles travelling on the highway. Had the accident taken place during the daytime or if the place of accident was well illuminated, then perhaps, the car driver could have been held equally 6 / 10 responsible for the accident by applying the rule of last opportunity. But the fact remains that there was no illumination at the accident site either natural or artificial. Since the offending truck was left abandoned in the middle of the road in clear violation of the applicable rules and regulations, the burden to prove that the placement of the said vehicle as such was beyond human control and that appropriate precautionary measures taken while leaving the vehicle in that position were essentially on the person in control of the offending truck. However, no evidence was led by the person having control over the said truck in this regard. Thus, the entire responsibility for the negligence leading to the accident was of the truck owner/driver.” 11. In the case of Archit Saini and another vs. Oriental Insurance Co. Ltd. And others reported in (2018) 3 SCC 365 while considering parking of the motor vehicle on the road in the night without there being any parking lights/ indicators or signals has observed thus: “8. After having perused the evidence of PW 7, site map (Ext. P-45) and the detailed analysis undertaken by the Tribunal, we have no hesitation in taking the view that the approach of the High Court in reversing the conclusion arrived at by the Tribunal on Issue 1 has been very casual, if not cryptic and perverse. Indeed, the appeal before the High Court is required to be decided on fact and law. That, however, would not permit the High Court to casually overturn the finding of fact recorded by the Tribunal. As is evident from the analysis done by the Tribunal, it is a well- considered opinion and a plausible view. The High Court has not adverted to any specific reason as to why the view taken by the Tribunal was incorrect or not supported by the evidence on record. It is well settled that the nature of proof required in cases concerning accident claims is qualitatively different from the one in criminal cases, which must be beyond any reasonable doubts. The Tribunal applied the correct test in the analysis of the evidence before it.” 12. In the case of Sushma (supra), Hon’ble Supreme Court has further considered the accident arising out of negligent and dangerous parking of the motor vehicle on the road and observed thus: 7 / 10 “40. On a holistic analysis of the material available on record, it is established beyond the pale of doubt that the offending truck was parked in the middle of the road without any parking lights being switched on and without any markers or indicators being placed around the stationary vehicle so as to warn the incoming vehicular traffic. This omission by the person in control of the said truck was in clear violation of law. The accident took place on a highway where the permissible speed limits are fairly high. In such a situation, it would be imprudent to hold that the driver of a vehicle, travelling through the highway in the dead of the night in pitch dark conditions, would be able to make out a stationary vehicle lying in the middle of the road within a reasonable distance so as to apply the brakes and avoid the collision. The situation would be compounded by the headlights of the vehicles coming from the opposite direction and make the viewing of the stationary vehicle even more difficult. Thus, the conclusion drawn by the Courts below that the driver of the car could have averted the accident by applying the brakes and hence, he was equally negligent and contributed to the accident on the application of principle of last opportunity is ex- facie perverse and cannot be sustained. Hence, it is a fit case warranting exercise of this Court’s powers under Article 136 of the Constitution of India to interfere with the concurrent finding of facts.” 13. For the foregoing discussion, considering the facts, evidence available on record, in particular the spot map Ext. P-4, I am of the considered view that the finding recorded by the Claims Tribunal holding the deceased contributory negligent in the accident to the extent of 50% is not sustainable, accordingly it is set aside. It is held that the accident occurred only because of sole negligent act on the part of driver of offending truck by parking the vehicle negligently on road in night. 14. So far as the other submission of learned counsel for appellants-claimants with regard to assessing the income of salary paid employees is concerned, this issue is also well settled by the Hon'ble Supreme Court in case of National Insurance Company Limited vs. Indira Srivastava and others reported in (2008) 2 SCC 763 wherein it is held that that statutory deduction 8 / 10 of tax payable must be deducted for computing amount of compensation under the Act of 1988. Perusal of salary slip of the deceased filed as Ext. P-1 would show that the total earning of the deceased as ₹ 19,257. Claimant No. 1 being mother of deceased was residing in the house with deceased and therefore in the opinion of this Court except the washing allowance forming part of the gross salary all the other allowances to be treated as income of deceased as it is used for all family members. Hence, total earning of the deceased will be ₹ 19,107 (₹ 19,257- ₹ 150). As the income of deceased is not coming within the slab of taxable income and therefore there shall be no deduction towards tax and entire income as above is to be considered for calculating the amount of compensation. 15. Claims Tribunal has added 50% of the assessed income towards future prospects, applied deduction of 1/2, and further awarded ₹ 15,000 towards loss of estate, ₹ 15,000 towards funeral expenses, which are to the tune of decisions of Hon’ble Supreme Court in the case of National Insurance Company Limited vs. Pranay Sethi & ors, reported in (2017) 16 SCC 680 and Sarla Verma & others v. Delhi Transport Corp. & anr. reported in (2009) 6 SCC 121. Claims Tribunal has applied multiplier of 18 looking to the age of deceased pleaded by the claimants, which is not correct. The date of birth of deceased as mentioned in the salary slip Ext. P-1 to be 03.04.1986 and on the date of accident he would have been 32 years of age. Therefore, appropriate multiplier would be 16 instead of 18 in view of Sarla Verma’s case (supra). It is ordered accordingly. 16. Learned Tribunal further erred in not awarding compensation towards loss of filial consortium to claimant No. 1, mother of deceased. Hon’ble Supreme Court in the case of Nanu Ram alias Chuhuru Ram (supra) has held that apart from awarding loss of spousal consortium to widow/ husband, children and parents of the deceased will also be entitled for loss of consortium under 9 / 10 the head of loss of parental consortium and loss of filial consortium respectively. In the case at hand, appellant No. 1 is mother, therefore, she is also entitled for loss of filial consortium of ₹ 40,000/-. It is ordered accordingly. Hon’ble Supreme Court in the case of Pranay Sethi (supra) has further observed that compensation under the head of other conventional heads is to be enhanced by 10% in every three years and therefore amount of compensation under the heads of funeral expenses would be ₹ 16,500, loss of estate would be ₹ 16,500, and loss of consortium would be ₹ 44,000. 17. For the foregoing discussion, the amount of compensation to be awarded to appellants-claimants requires re-computation, which is as under. Particulars • Annual Loss of income/ dependency = ₹ 2,29,284/- (₹ 19107x12) • Addition towards loss of future prospects @ 50% (₹ 2,29,284 + 50% of ₹ 2,29,284 = ₹ 3,43,926) • Deduction of 1/2 towards personal and living expenses (₹ 3,43,926 x 1/2= ₹ 1,71,963) • Multiplier of 16 ₹ 1,71,963 x 16 = ₹ 27,51,408/- Loss of Filial consortium to Appellant No. 1 Loss of estate Funeral Expenses Total Compensation ₹ 27,51,408/- ₹ 44,000/- ₹ 16,500/- ₹ 16,500/- ₹ 28,28,408/- 18. As this Court has set aside the finding of Claims Tribunal with regard to contributory negligence on the part of deceased, now the appellants/claimants shall be entitled for total sum of compensation of ₹ 28,28,408/- instead of ₹ 14,68,344/- as awarded by learned Claims Tribunal. The enhanced amount of compensation shall carry interest @ 8% p.a. from the date of filing of claim application till its realization. 10 / 10 • Any amount paid to the appellants-claimants pursuant to the impugned award shall be adjusted from the amount of compensation as calculated above. • Rest of the conditions as imposed by the Claims Tribunal in the impugned award shall remain intact. 19.
Decision
In the result, appeal is allowed in part and the impugned award is modified to the extent as indicated herein-above. pwn Sd/- (Parth Prateem Sahu) Judge