1 - Smt. Leela Bai Jhadi Wd/o Late Amaiya Jhadi Aged About 35 Years v. 1 - Avinash Thakur S/o Komal Singh Thakur Aged About 20 Years R/o Kathmandu
Case Details
-1- 2025:CGHC:23130 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR MAC No. 1178 of 2019 1 - Smt. Leela Bai Jhadi Wd/o Late Amaiya Jhadi Aged About 35 Years 2 - Miss Nam Devi D/o Late Amaiya Jhadi Aged About 20 Years 3 - Charnamrit S/o Late Amaiya Jhadi Aged About 19 Years 4 - Ygyamrit S/o Amaiya Jhadi Aged About 22 Years (now) All are R/o Village Papanpal Police Station Bijapur District Bijapur Chhattisgarh ... Appellant (s) versus 1 - Avinash Thakur S/o Komal Singh Thakur Aged About 20 Years R/o Kathmandu Camp Bacheli Police Station Bacheli, Present Address Sanjay Para Bijapur Tahsil And District Bijapur Chhattisgarh. (Driver Of The Vehicle ) 2 - D. Usanna S/o Late D. Lingaiya R/o Dipopara Bijapur District Bijapur Chhattisgarh. (Owner Of The Vehicle) 3 - The Bajaj Alliance General Insurance Co. Ltd. Through Branch Manager Vidhan Sabha Marg Pandari Raipur District Raipur Chhattisgarh. (Insurer ) ... Respondent(s) __________________________________________________________ For Appellant (s) : Mr. P.K. Tulsyan, Advocate For Respondents No. 1 : None appears For Respondents No. 2 : Mr. Anand Kumar Gupta, Advocate For Respondent No. 3 : behalf of Mr. Utsav Mahiswar, Advocate ___________________________________________________________ Ms. Santoshi Yadav, Advocate on Digitally signed by PRAVEEN KUMAR SINHA Date: 2025.06.18 10:50:38 +0530 -2- S.B.: Hon'ble Shri Parth Prateem Sahu, Judge Judgment On Board 11/06/2025
Facts
1. With the consent of learned counsel appearing for the parties, the case is heard finally. 2. This is the claimant’s appeal filed under Section 173 (2) of the Motor Vehicles Act, 1988 (for short “Act of 1988”) seeking enhancement of amount of compensation awarded by learned Additional Motor Accidents Claims Tribunal, Dantewada (CG) vide award dated 17.07.2017 passed in Claim Case No.182 of 2014. 3. Facts relevant for disposal of this appeal are that the claimants/appellants filed an application under Section 166 read with Section 140 of the Act of 1988 seeking compensation stating therein that on 02.10.2012, Amaiya Jhadi was returning from Balodabazar, Bhatapara to village Papanpal district Bijapur in a Bolero vehicle number CG 18 D 0981. At that time driver of Bolero vehicle, driving that vehicle rashly and negligently, dashed against a Trailer parked on the side of the road. As a result of that accident, Amaiya Jhadi, who was sitting in that Bolero vehicle, suffered serious injuries, due to which, he died on the spot. The age of the deceased Ameya Jhadi was 37 years. Before that accident, he was running his own Auto, was also engaged in the agriculture and forest produce work, from which he was earning Rs. 15,000/- per month. The applicants were dependents on the deceased Amaiya Jhadi. Applicants/claimants prayed for total compensation amount of -3- Rs. 24,49,000/- for the loss suffered by the applicants due to death of Amaiya Jhadi in a motor accident. 4. A joint written statement has been filed on behalf of non-applicants No. 1 and 2. It has been admitted by them that on 02.10.2012 when Amaiya Jhadi was coming from Balodabazar-Bhatapara to his village Papanpal in a Bolero vehicle No. CG 18 D 0981, he met with an accident and died due to the injuries sustained by him. Alternatively, it is also pleaded that non-applicant No. 1 had a valid driving license to drive that Bolero vehicle and on the date of the accident, it was insured through non-applicant No.3. Therefore, it is the non-applicant No.3 which is liable for payment of compensation, if awarded. 5. Non-applicant No.3/ insurance company, in its reply, has summarily denied all the pleadings made by the claimants. It has also been specifically stated that the driver of the offending vehicle i.e. non- applicant No. 1 did not have a valid and effective driving license to drive that vehicle. Therefore in such a situation, non-applicant No. 3 is not liable for payment of any amount of compensation. 6. Learned Claims Tribunal, on appreciation of pleadings and evidence brought on record by respective parties, held that on the date of accident, offending vehicle was being driven by non-applicant No.1 rashly and negligently, due to which, an accident occurred in which Amaiya Jhadi suffered grievous injuries and died. Recording a finding that breach of conditions of the insurance policy was not found proved, learned Claims Tribunal held non-applicants liable to pay the amount of compensation. Assessing income of the -4- deceased as Rs.6,000/- per month, calculating amount of compensation under different heads, awarded total compensation of Rs.14,60,000/ -. 7. Learned counsel for the appellants/claimants submits that the learned Claims Tribunal erred in assessing income of deceased on lower side and awarding Rs.14,60,000/- only as compensation. He contended that before Tribunal claimants have produced copy of Fee Receipt as Ex.A-11 of Lovekush School of Nursing, Dantewada, showing that fee has been deposited for Charnamrit i.e. appellant No.3 (son of deceased). He next contended that in view of documentary evidence produced, learned Claims Tribunal ought to have assessed income of deceased as Rs.15,000/- per month as submitted in the claim application. He also contended that claimants have also filed an application (IA No.2/2024) under Order 41 Rule 27 of CPC to take additional evidence on record which is a certificate issued by Chhattisgarh Paramedical Council and mark- sheet issued by the Regional Health and Family Welfare Training Centre, Bilaspur, which is of year 2014. From aforementioned documents, it is apparent that deceased during his lifetime, was also paying tuition fee /nursing training fee for his son/appellant No.3. As per fee receipt, applicant deposited total amount of Rs.55,000/- in the year 2012 from which it is apparent that deceased was having much more income than what has been assessed by the Tribunal.
Legal Reasoning
8. As observed and held by this Court in A. Andisamy Chettiar v. A. Subburaj Chettiar [A. Andisamy Chettiar v. A. Subburaj Chettiar, (2015) 17 SCC 713 : (2017) 5 SCC (Civ) 514] , the admissibility of additional evidence does not depend upon the relevancy to the issue on hand, or on the fact, whether the applicant had an opportunity for adducing such evidence at an earlier stage or not, but it depends upon whether or not the appellate court requires the evidence sought to be adduced to enable it to pronounce judgment or -11- for any other substantial cause. It is further observed that the true test, therefore is, whether the appellate court is able to pronounce judgment on the materials before it without taking into consideration the additional evidence sought to be adduced.” 16. Considering the entirety of facts and evidence available on record and the decisions of Hon’ble Supreme Court as above, I am inclined to allow the application (IA No.2/2024) under Order 41 Rule 27 of CPC and to accept additional evidence placed on record. Upon accepting the additional evidence and considering the documents Ex.P-11 to Ex.P-14, I am of the view that learned Tribunal erred in assessing the income as Rs.6,000/- per month only. The said assessment is erroneous and, hence, it being unsustainable is set aside. 17. In view of aforementioned discussions, I find it appropriate to assess the income of deceased as Rs.8,000/- per month. It is ordered accordingly. 18. Learned Tribunal has added 50% of the assessed income towards future prospects, which, in the facts of case, is on higher side. According to decision of Pranay Sethi (supra), the appropriate percentage would be 40% of assessed income as on the date of accident deceased was aged about 37 years which is less than 40 years. There shall be deduction of 1/4 towards personal and living expenses of deceased. Application of multiplier of 15 has rightly been applied by the Tribunal. The claimant/appellant No.1 will further be entitled to get Rs.40,000/- towards loss of spousal -12- consortium and appellants/claimants No.2 to 4 are entitled to get Rs.40,000/- each towards loss of parental consortium. Appellants/claimants shall further be further entitled to Rs.15,000/- towards loss of estate and Rs.15,000/- towards loss of funeral expenses. Learned Tribunal has awarded Rs.1 lakh to appellant/claimant No.1 towards loss of spousal consortium and compensation towards funeral expenses and loss of estate, which is erroneous in view of decision in the case of Pranay Sethi (supra) and Magma General Insurance Co. Ltd. Vs. Nanu Ram alias Chuhru Ram & Ors. (2018) 18 SCC 130, hence, it is not sustainable and set aside and recomputed. 19. In the aforementioned facts of the case, I find it appropriate to re-compute the amount of compensation as under:- S. N. Heads Compensation 1. A) Loss of Income/dependency : Rs. 15,12,000 8,000 x 12 = 96,000 Addition (B) future prospects @ 40% (96,000 x 40% =38400) towards 96000+ 38400 = 1,34,400 (C) Deduction of 1/4 towards personal and living expenses (1,34,400 x 1/4 =33600) 1,34,400- 33600 = 100800 (D) Multiplier of 15 100800 x 15 = 15,12,000 2. 3. 4. Consortium Spousal claimant/appellant No.1 (wife) to : (+) Rs. 40,000 Funeral Expenses Loss of Estate : : (+) Rs. 15,000 (+) Rs. 15,000 -13- 5. Loss of parental consortium to claimants/appellants No. 2 to 4 @ 40,000/- each (+) Rs. 1,20,000 Total compensation Rs. 17,02,000 20. Now the appellant/claimant is awarded total compensation of Rs. 17,02,000 instead of Rs.14,60,000/- as awarded by the Claims Tribunal. 21. Aforementioned total amount of compensation shall carry interest @ 7.5 % per annum from the date of filing of claim application till its realization. Any amount of compensation already paid to the claimants shall be adjustable from the total amount of compensation which has now been calculated and awarded by this Court. Other conditions of impugned award shall remain intact. 22.
Arguments
8. Learned counsel for the respective respondents vehemently oppose the submission of learned counsel for the appellants and submit -5- that though document Ex.A-11 to Ex.A-14 have been placed on record, however, author of the documents has not been examined before the Tribunal to prove the same. Merely submitting documents will not be ifso facto sufficient to prove the contents of document. Hence, in the facts of case, learned Tribunal is well justified in assessing income of deceased on notional basis treating the deceased to be engaged as Labourer . It is also contention of learned counsel for the respondents that Tribunal has added 50% towards loss of future prospects instead of 40% as held by Hon'ble Supreme Court in the case of National Insurance Company Ltd. Vs. Pranay Sethi and Ors. (2017) 16 SCC 680 and have further awarded Rs.20,000/- as compensation under head of ‘loss of love and affection’, which is not the amount to be awarded. Learned Claims Tribunal has awarded much more amount on other conventional heads. Excessive amount of compensation has been awarded to appellants/claimants. Hence, appellants will not be entitled for enhancement of amount of compensation in any manner. 9. The primary ground raised by learned counsel for the appellants is with respect to assessment of income of deceased on lower side. True it is that the appellants failed to prove the nature of occupation and income of deceased by placing reliable piece of evidence, however, the claimants have submitted the fee receipt issued by Lovekush School of Nursing, Dantewada in the name of appellant No.3 who is son of deceased. As per the fee receipt enclosed as Ex.A-11 to Ex.A-14, total fee deposited by the deceased in the year -6- 2012 is Rs.55,000/-. According to income of the deceased as assessed by Tribunal, total annual income comes to Rs.72,000/- (6,000 per month) and if the deceased Amaiya Jhadi is having the family of 5 members, it will not be possible to survive with remaining amount out of 72,000/- for the five members of family. 10. Act of 1988 is beneficial piece of legislation. The object of the Act of 1988 is to provide just and fair compensation to affected persons, more so when the claimants approaching Tribunal /Court have lost the bread-winner of the family. Deceased was survived by widow and three children. Two of them are sons and one is daughter. Hon’ble Supreme Court in the case of Sarla Verma (Smt.) and Ors. Vs. Delhi Transport Corporation and Anr. (2009) 6 SCC 121 observed that “Just compensation” is adequate compensation which is fair and equitable, on the facts and circumstances of the case, to make good the loss suffered as a result of the wrong, as far as money can do so, by applying the well-settled principles relating to award of compensation. 11. Hon’ble Supreme Court in the case of Meena Devi Vs. Nunu Chand Mahto alias Nemchand Mahto and Ors. (2023) 1 SCC 204 has observed that objective of granting compensation under the Act of 1988 is to ensure that just and fair compensation is paid to aggrieved party. In the said decision (Nunu Chand Mahto), Hon’ble Supreme Court considering its earlier decision in case of Nagappa Vs. Gurudayal Singh (2003) 2 SCC 274, has observed that “there is no restriction that the Tribunal/Court cannot award compensation exceeding the amount so claimed. Tribunal/Court ought to award -7- “just” compensation which is reasonable in the facts relying upon the evidence produced on record. Therefore, less valuation, if any, made in the claim petition would not be impediment to award just compensation exceeding the claimed amount”. 12. In absence of admissible piece of evidence, the Court can assess the income of the deceased by doing the guess work also considering the material and evidence placed on record by respective parties. 13. Claimants/ appellants have filed an application (IA No.2/24) under Order 41 Rule 27 of CPC for taking additional evidence on record by way of submitting the copy of registration certificate issued by Chhattisgarh Paramedical Council and mark-sheet issued by Regional Health and Family Welfare Centre, Bilaspur, in which the name of Institution of appellant No.3 is also mentioned from where he is stated to have prosecuted his paramedical course/study. 14. Hon’ble Supreme Court in the case of North Eastern Railway Administration, Gorakhpur Vs. Bhagwan Das (Dead) by LRs. (2008) 8 SCC 511, while dealing with the issue of taking additional evidence at the appellate stage under Order 41 Rule 27 of CPC, has observed thus: “13. Though the general rule is that ordinarily the appellate court should not travel outside the record of the lower court and additional evidence, whether oral or documentary is not admitted but Section 107 CPC, which carves out an exception to the general rule, enables an appellate court to take additional evidence or to require such evidence to be taken subject to such conditions and limitations as may -8- be prescribed. These conditions are prescribed under Order 41 Rule 27 CPC. Nevertheless, the additional evidence can be admitted only when the circumstances as stipulated in the said Rule are found to exist. The circumstances under which additional evidence can be adduced are: (i) the court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted [clause (a) of sub-rule (1)], or (ii) the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within the knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed [clause (aa), inserted by Act 104 of 1976], or (iii) the appellate court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause [clause (b) of sub-rule (1)]. 14. It is plain that under clause (b) of sub-rule (1) of Rule 27 Order 41 CPC, with which we are concerned in the instant case, evidence may be admitted by an appellate authority if it “requires” to enable it to pronounce judgment “or for any other substantial cause”. The scope of the Rule, in particular of clause (b) was examined way back in 1931 by the Privy Council in Parsotim Thakur v. Lal Mohar Thakur [AIR 1931 PC 143] . While observing that the provisions of Section 107 as elucidated by Order 41 Rule 27 are clearly not intended to allow litigant, who has been unsuccessful in the lower court, to patch up the weak parts of his case and fill up omissions in the court of appeal, it was observed as follows : (AIR p. 148) “… Under clause (1)(b) it is only where the -9- appellate court ‘requires’ it (i.e. finds it needful) that additional evidence can be admitted. It may be required to enable the court to pronounce judgment or for any other substantial cause, but in either case it must be the court that requires it. This is the plain grammatical reading of the sub-clause. The legitimate occasion for the exercise of this discretion is not whenever before the appeal is heard a party applies to adduce fresh evidence, but ‘when on examining the evidence as it stands some inherent lacuna or defect becomes apparent’.” 15. Again in K. Venkataramiah v. A. Seetharama Reddy [AIR 1963 SC 1526 : (1964) 2 SCR 35] a Constitution Bench of this Court while reiterating the aforenoted observations in Parsotim case [AIR 1931 PC 143] pointed out that the appellate court has the power to allow additional evidence not only if it requires such evidence “to enable it to pronounce judgment” but also for “any other substantial cause”. There may well be cases where even though the court finds that it is able to pronounce judgment on the state of the record as it is, and so, it cannot strictly say that it requires additional evidence “to enable it to pronounce judgment”, it still considers that in the interest of justice something which remains obscure should be filled up so that it can pronounce its judgment in a more satisfactory manner. Thus, the question whether looking into the documents, sought to be filed as additional evidence, would be necessary to pronounce judgment in a more satisfactory manner, has to be considered by the Court at the time of hearing of the appeal on merits.” 15. In the case of Sanjay Kumar Singh Vs. State of Jharkhand -10- (2022) 7 SCC 217, Hon’ble Supreme Court held as under :- “7. It is true that the general principle is that the appellate court should not travel outside the record of the lower court and cannot take any evidence in appeal. However, as an exception, Order 41 Rule 27CPC enables the appellate court to take additional evidence in exceptional circumstances. It may also be true that the appellate court may permit additional evidence if the conditions laid down in this Rule are found to exist and the parties are not entitled, as of right, to the admission of such evidence. However, at the same time, where the additional evidence sought to be adduced removes the cloud of doubt over the case and the evidence has a direct and important bearing on the main issue in the suit and interest of justice clearly renders it imperative that it may be allowed to be permitted on record, such application may be allowed. Even, one of the circumstances in which the production of additional evidence under Order 41 Rule 27CPC by the appellate court is to be considered is, whether or not the appellate court requires the additional evidence so as to enable it to pronounce judgment or for any other substantial cause of like nature.
Decision
In the result, appeal is allowed in part. Impugned award is modified to the extent as indicated herein above. Sd/- (Parth Prateem Sahu) Judge Praveen