• Iffco Tokiyo General Insurance Company Limited Through Legal Manager, Now Current Address 205 v. 1. Nikhil Kumar Jha S/o Vidyanand Jha Aged About 49 Years R/o Ward No
Case Details
1 / 6 2025:CGHC:33149 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR MAC No. 585 of 2020 • Iffco Tokiyo General Insurance Company Limited Through Legal Manager, Now Current Address 205, Second Floor, M.M. Silver Plaza, In Front Of Udyog Bhawan, Near Mining Office, Ring Road No. 1, Raipur, District Raipur Chhattisgarh --- Appellant/Non-applicant No. 2 versus 1. Nikhil Kumar Jha S/o Vidyanand Jha Aged About 49 Years R/o Ward No. 13, Ambagarh Chowki, Tahsil Ambagarh Chowki, District Rajnandgaon Chhattisgarh, …….non-applicant No. 1-Driver and Owner
Legal Reasoning
2. Smt. Lukeshwari Sahu W/o Late Kirti Kumar Sahu Aged About 30 Years R/o Village Ratapayali, Police Station And Tahsil Dongargaon, District Rajnandgaon Chhattisgar 3. Lilance Sahu S/o Late Kirti Kumar Aged About 15 Years Minor Through Natural Guardian Mother Lukeshwari Sahu, W/o Late Kirti Kumar Sahu, R/o Village Ratapayali, Police Station And Tahsil Dongargaon, District Rajnandgaon Chhattisgar 4. Tomeshwar Sahu S/o Late Kirti Kumar Sahu Aged About 11 Years Minor Through Natural Guardian Mother Lukeshwari Sahu, W/o Late Kirti Kumar Sahu, R/o Village Ratapayali, Police Station And Tahsil Dongargaon, District Rajnandgaon Chhattisgarh 5. Smt. Geeta Sahu W/o Late Baliram Sahu Aged About 53 Years R/o Village Ratapayali, Police Station And Tahsil Dongargaon, District Rajnandgaon Chhattisgarh …..claimants ---Respondents PAWAN KUMAR JHA Digitally signed by PAWAN KUMAR JHA ____________________________________________________________ For Appellant : Mr. P.R. Patankar, Advocate For Respondent No. 1 : Mr. Basant Dewangan, Advocate 2 / 6 Hon'ble Shri Justice Parth Prateem Sahu Order On Board 15/07/2025 1. Appellant-insurance company has filed this appeal under Section 173 of the Motor Vehicles Act, 1988 (for short “Act of 1988”) challenging the award dated 24.12.2019 passed by Learned Additional Motor Accident Claims Tribunal, FTC, Rajnandgaon, Chhattisgarh (for short “Claims Tribunal”) in Claim Case No. 30/2018, whereby learned Claims Tribunal allowed the application filed by applicants-claimants therein under Section 166 of the Act, 1988 in part and awarded total sum of ₹ 9,46,000/- as compensation in motor accidental death case. 2. Facts of the case relevant for disposal of this appeal are that on 17.06.2017 Kirti Kumar Sahu along with his friend Mahendra Nishad was riding on a motorcycle and returning back to his house from Metepar. When they reached village Kotra, another motorcycle bearing number CG08 AA 5674 (hereinafter referred to as “offending vehicle”) driven by non-applicant No. 1 rashly and negligently dashed the motorcycle of Kirti Kumar and caused accident. In the accident, Kirti Kumar Sahu and his friend suffered fatal injuries. They were taken to District Hospital, Rajnandgaon where Kirti Kumar Sahu was declared dead. Accident was reported to police station Ambagarh Chowki, based on which Crime No. 137/2017 for alleged offence under Section 304A of IPC was registered against non-applicant No. 1. Respondents No. 2 to 5/ applicants-claimants, widow, children and mother of deceased- Kirti Kumar Sahu filed an application under Section 166 of the Act of 1988 seeking compensation of ₹ 32,90,000/- on the basis of pleadings made therein. Non-applicant No. 1 -driver cum owner of the offending vehicle filed reply to the application, denying the facts pleaded therein. It was further pleaded that 3. 4. 3 / 6 the non-applicant No. 1 was not driving the offending vehicle rashly and negligently. The accident occurred due to negligence of driver of motorcycle who was driving his motorcycle in inebriated condition on which deceased was riding. It was stated that on the date of accident, offending vehicle was insured by non-applicant No. 2 and was having a valid policy. 5. Appellant/ Non-applicant No. 2/ Insurance Company filed its reply to the claim application, while denying all the adverse pleadings made in the application, it was further pleaded that on the date of accident the offending vehicle was plying in breach of policy conditions, three persons were travelling on the vehicle whereas the seating capacity fo the vehicle for which the policy was issued is two. Driver of offending vehicle was not possessed with valid and effective driving licence. Deceased was in inebriated condition at the time of riding the motorcycle. 6. Learned Claims Tribunal, upon appreciation of pleadings and evidence placed on record by respective parties, held that deceased -Kirti Kumar Sahu died because of grievous injuries suffered by him in the accident arising out of rash and negligent driving of offending vehicle driven by non-applicant No. 1. Breach of conditions of insurance policy and contributory negligence was not found to be proved. Tribunal calculated the amount of compensation and awarded ₹ 9,46,000/- as total compensation with interest @ 7% p.a. from the date of filing of claim application till its realization and fastened liability to satisfy the award upon non-applicants jointly and severally. 7. Learned counsel for appellant-insurance Company would submit that the appellant-insurance company has filed this appeal challenging the impugned award on three grounds; first, that the Claims Tribunal earned in deciding the issue of contributory negligence against appellant- Insurance Company without considering the fact that on the date of accident three persons were riding on the motorcycle driven by deceased, whereas the seating capacity of 4 / 6 the motorcycle is only two. He next contended that Claims Tribunal erred in awarding the amount of compensation under the head of loss of consortium to all claimants. 8. Learned counsel for respondent No. 1, driver-cum-owner would support the impugned award. He would further submit that the pleadings made in the claim application were opposed by the non-applicant No. 1, however, he has not challenged the impugned award as the liability to satisfy the amount of compensation is upon appellant-Insurance Company. There is no representation on behalf of Respondents No. 2 to 5, though served. I have heard learned counsel for the respective parties and also perused the 9. 10. record. 11. So far as the first ground raised by the appellant-insurance company that the Claims Tribunal has decided the issue of contributory negligence erroneously against it, is concerned, perusal of record of claim case would show that the appellant-Insurance company/ non-applicant No. 2 had filed preliminary objection/ reply to the claim application. In the reply it is pleaded that the deceased at the time of riding on offending vehicle consumed liquor and three persons were travelling on it, therefore there was breach of provision under the Act of 1988 and further that the deceased himself was negligent for the accident. Claimants have placed on record copy of post mortem report of the deceased as Ext. P-5, from perusal of which it does not reflect the doctor conducting Autopsy has found trace of alcohol. 12. As there is no such mentioned in the post mortem report and no other evidence is lead by the appellant-insurance company to prove the pleadings that the deceased on the date of accident consumed liquor, in the aforementioned facts of the case the defence taken by the appellant- 5 / 6 insurance company that at the time of accident deceased had consumed liquor while driving the motorcycle is not sustainable and it is repelled. 13. So far as the submission of learned counsel for appellant that there was contributory negligence because there was head-on-collision between two motorcycles is concerned, merely the accident of two vehicles would not automatically attract the principle of contributory negligence of either of the driver of vehicle. Appellant-insurance company has not examined any witness to prove the plea of contributory negligence on the part of the deceased. The plea of contributory negligence raised by one party to the claim application is a fact required to be proved by the parties raising the said plea by placing evidence in this regard, in which the insurance company utterly failed. Claims Tribunal based on the evidence available on record has concluded that rash and negligent driving of the deceased could not be proved by the appellant-insurance company and had rejected the said defence taken by it. The said finding in the facts of the case and the evidence available on record cannot be said to be erroneous or perverse. 14. For the foregoing discussion, the plea of insurance company that the claims Tribunal has decided the issue of contributory negligence erroneously is not sustainable and accordingly it is repelled. 15. So far as the other ground raised by counsel for appellant-insurance company that three persons were travelling at the time of accident on motorcycle and therefore deceased was contributory negligent to the accident is also not sustainable. Merely travelling more person than the seating capacity in itself is not sufficient to prove the fact of contributory negligence, it is required to be proved in accordance with law, as observed in preceding paragraph, and therefore, the said ground raised by counsel for appellant-insurance company is also not sustainable. 16. So far the the last submission of learned counsel for appellant-insurance company with regard to awarding of compensation under the head of loss of 6 / 6 consortium to all the claimants is concerned, the award of compensation under the head of loss of consortium to all claimants is well settled by the Hon’ble Supreme Court in the case of Magma General Insurance Company vs. Nanu Ram alias Chuhuru Ram and others reported in (2018) 18 SCC 130. In the said decision, Hon’ble Supreme Court has observed that the widow/ husband, children and parents of the deceased will also be entitled for compensation under the head of loss of consortium ie. loss of spousal consortium, loss of parental consortium and loss of filial consortium to the tune of Rs. 40,000/- each respectively. In the case at hand, claimants are widow, children and mother of deceased and therefore, they are also entitled for the compensation under the head of loss of consortium. Hence the award of compensation under the head of loss of consortium to all the claimants cannot be said to be erroneous. The said submission of counsel for appellant-insurance company is also not sustainable, it is repelled. 17. For the foregoing discussion, I do not find any merit in this appeal. The appeal being sans merit is liable to be and is hereby dismissed accordingly. pwn Sd/- (Parth Prateem Sahu) Judge