1. Smt. Baisakhin W/o Budhram Aged About 50 Years 2. Budhram S/o Basaniya Aged v. 1. Bhuwan Lal Nirmalkar S/o Pusau Ram Aged About 42 Years R/o Village Auri
Case Details
1 / 7 2025:CGHC:31622 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR MAC No. 2043 of 2019 1. Smt. Baisakhin W/o Budhram Aged About 50 Years 2. Budhram S/o Basaniya Aged About 52 Years Both are R/o Jamgaon, R, Tahsil And District Durg Chhattisgarh. --- Appellants/ Applicants/ Claimants versus 1. Bhuwan Lal Nirmalkar S/o Pusau Ram Aged About 42 Years R/o Village Auri, Post Jamgaon, Tahsil, Patan, District Durg Chhattisgarh. (Driver) 2. Chelaram Sahu S/o Latkhor Sahu Aged About 54 Years R/o Village Auri, Post Jamgaon, Tahsil Patan, District Durg Chhattisgarh. (Owner) 3. Manager United India Insurance Company Limited, Tara Complex, G.E. Road, Power House Bhilai, Police Station Chhawani, District Durg Chhattisgarh. (Insurer) ____________________________________________________________
Legal Reasoning
by Claims Tribunal and recomputed by this Court in preceding paragraphs. 17.
Arguments
For Appellants : Mr. Shashi Kumar Kushwaha, Advocate on behalf of Mr. G.P. Mathur, Advocate ---Respondents/ Non-applicants PAWAN KUMAR JHA Digitally signed by PAWAN KUMAR JHA For Respondents No. 1 & 2 : None. Though served. For Respondent No. 3 : Mrs. Swati Agrawal, Advocate on behalf of Mr. Pankaj Agrawal, Advocate Hon'ble Shri Justice Parth Prateem Sahu Order On Board 09/07/2025 1. Appellants-claimants have filed this appeal under Section 173 of the Motor Vehicles Act, 1988 (for short “Act of 1988”) seeking enhancement of amount of compensation, challenging the award dated 07.08.2019 passed by Learned First Additional Motor Accident Claims Tribunal, Durg, Chhattisgarh 2 / 7 (for short “Claims Tribunal”) in Claim Case No. 145/2018, whereby learned Claims Tribunal allowed the application filed under Section 166 of the Act, 1988 in part and awarded total sum of ₹ 5,53,000/- as compensation in motor accidental death case. 2. Facts of the case relevant for disposal of this appeal are that on 01.02.2018 Manthir Kosare along with his friend Sagar Nirmalkar was returning to his village Jamgaon R. on motorcycle No. CG07AL3587. When they reached near Bharar Nala, Police Station Ranitarai, a Metador motor vehicle bearing registration No. CG07 CA 3189 (hereinafter referred to as “offending vehicle”) driven by non-applicant No. 1 rashly and negligently dashed the motorcycle from its behind and caused accident. In the accident, Manthir Kosare and Sagar Nirmalkar suffered grievous injuries. They were taken to District Hospital, Durg, where during initial check-up, they were declared dead. A report of the accident was lodged in the police station Ranitarai, based on which Crime No. 19/18 was registered for alleged offence under Section 304- A of the IPC. 3. Appellants-claimants who are parents of deceased- Manthir Kosare filed an application under Section 166 of the Act of 1988 seeking compensation of ₹ 16,25,000/- pleading therein that at the time of accident, deceased was physically fit person aged about 30 years. Before accident, he was doing the work of Munshi in the Shiv Shakti Traders and Transport and earning ₹ 10,000/- per month. 4. Respondents No. 1 & 2 / Non-applicants No. 1 & 2 -driver and owner of the offending vehicle filed their reply to the application, denying the facts pleaded therein. It was further pleaded that no accident has been occurred from the offending vehicle, a false report has been lodged against them in the police station. Exaggerated amount of compensation is sought by the claimant, on false grounds. It is submitted that on the date of accident, non-applicant No. 3 / 7 1 was possessed with valid and effective driving licence to driver the offending vehicle and the vehicle was insured with non-applicant No.3. 5. Respondent No. 3/ Non-applicant No. 3/ Insurance Company filed its reply to the claim application, while denying all the adverse pleadings made in the application, it was further pleaded that no document has been produced by the claimants to support age, occupation and income of deceased. Accident occurred due to own negligence of deceased. The insurance company of the motorcycle driven by deceased was not made party. Thus, non-applicant No. 3 is not liable to pay any compensation. 6. Learned Claims Tribunal, upon appreciation of pleadings and evidence placed on record by respective parties, held that deceased -Manthir Kosare died because of grievous injuries suffered by him in the accident arising out of rash and negligent driving of offending vehicle owned by non-applicant No. 2 and driven by non-applicant No. 1. Tribunal held that there was contributory negligence on the part of deceased to the extent of 50%. Breach of conditions of insurance policy was not found to be proved. Tribunal calculated the amount of compensation and awarded ₹ 5,53,000/- (50% of the total calculated amount) as total compensation with interest @ 9% p.a. from the date of filing of claim application till its realization and fastened liability to satisfy the award upon non-applicant No. 3/ Insurance Company. 7. Learned counsel for appellants-claimants would submit that Claims Tribunal has awarded meager amount of compensation by assessing income of deceased as ₹ 7,500/- per month only, overlooking the pleadings and nature of occupation as also evidence brought on record. It is also contended that the amount of compensation under the other conventional heads is also on lower side and prays for enhancement of amount of compensation suitably. He next contended that the Claims Tribunal held the deceased, who was a 4 / 7 pillion rider, to be contributory negligence in the accident without there being any admissible evidence in this regard. 8. Mrs. Swati Agrawal, learned counsel for Respondent No. 3 opposes the submission of learned counsel for appellants-claimants and would submit that the Claims Tribunal considering the fact that there was head-on-collision between two vehicles, has rightly concluded that there was contributory negligence on the part of deceased which does not call for any interference. Claimants failed to prove nature of occupation and income of deceased as pleaded in the claim application by cogent and clinching evidence. Hence, the Tribunal assessed the income of deceased on notional basis which also does not call for any interference. The amount of compensation computed is just and proper which does not call for any interference. 9. I have heard learned counsel for the parties and also perused the record of claim case. 10. In the application, claimants have pleaded occupation of deceased to be working as Munshi in Shiv Shakti Traders and Transport and earning ₹ 10,000/- per month. To prove the said pleading, claimants had examined Budhram-applicant No. 2, father of deceased, as AW-1, Shashikant Sahu as AW-2. AW-2 is an eye-witness to the accident, he has not made any specific statement with regard to engagement of deceased as Munshi in the Shiv Shakti Transport and earning ₹ 10,000/- per month. There is evidence of only one witness Budhram ie., father of deceased. Claimants have not examined employer nor have produced salary certificate or evidence with regard to payment of wages of ₹ 10,000/- per month to the deceased. 11. In the aforementioned facts of the case, except the self serving statement of father who is near relative to the deceased, no other independent witness is examined to prove work of deceased as Munshi and further the employer is also not examined to prove payment of salary made to him, I do not find any 5 / 7 illegality or perversity in the finding of the Claims Tribunal that the claimants failed to prove nature of occupation and income of deceased as pleaded in claim application. Claims Tribunal justified in considering the occupation of deceased to be a labourer. However, Claims Tribunal fell into error in assessing income of deceased as ₹ 7,500/- per month only. When claimants failed to prove nature of occupation/ work of deceased and his income, it is for the Courts and the Tribunal to assess income of deceased keeping in mind certain factors like age of the deceased, date of accident, price index, cost of living, wage structure and can also take help of the minimum wages fixed by the competent authority for that particular area etc. In the case at hand, there is no suggestive evidence to assess the wages prevailing in the area of which deceased was a resident and therefore I find it appropriate to assess the income of deceased taking note of the minimum wages fixed by the competent authority under the Minimum Wages Act, 1948 on the date of accident for the unskilled labourer. The wages fixed by the competent authority and notified for the period from 01.10.2017 to 31.03.2018 for C- zone area is ₹ 7,930/- per month. Therefore, I find it appropriate to assess income of deceased as ₹ 7,930/- per month. It is ordered accordingly. 12. Claims Tribunal has added 40% of the assessed income towards loss of future prospects, applied deduction of 1/2 and multiplier of 17 which is to the tune of decision of Hon’ble Supreme Court in the case of Sarla Verma vs . Delhi Transport Corporation reported in (2009) 6 SCC 121 and National Insurance Co. Ltd. vs. Pranay Sethi reported in (2017) 16 SCC 680. Claims Tribunal has further awarded consolidated amount of ₹ 30,000/- towards funeral expenses and loss of estate, which also cannot be said to be on lower side. However, Tribunal has not awarded any amount of compensation under the head of loss of consortium. Claimants being parents of deceased are entitled for sum of ₹ 40,000/- each towards loss of filial consortium, ie., ₹ 80,000/-. It is ordered accordingly. 6 / 7 13. For the foregoing discussion, the amount of compensation to be awarded to appellants-claimants requires recomputation, which is as under. Particulars Compensation A) Annual Loss of income = ₹ 95,160/- (₹ 7930x12) ₹ 11,32,404/- B) Addition towards loss of future prospects @ 40% (₹ 95160 + 40% of ₹ 95160 = ₹ 1,33,224) C) Deduction of 1/2 towards personal and living expenses (₹ 1133224 x 1/2= ₹ 66612); D) Multiplier of 17 ₹ 66612 x 17 = ₹ 11,32,404/- Loss of Filial Consortium to Appellants Loss of estate Funeral Expenses Total ₹ 80,000/- ₹ 15,000/- ₹ 15,000/- ₹ 12,42,404/- 14. Now the appellant/claimant shall be entitled for total sum of compensation of ₹ 12,42,404/-. The enhanced amount of compensation shall carry simple interest @ 9% p.a. from the date of filing of claim application till its realization. • Any amount paid to the appellants-claimants pursuant to the impugned award shall be adjusted from the amount of compensation as calculated above. Other conditions of the impugned award shall remain intact. 15. So far as the submission of learned counsel for appellants-claimants that the Claims Tribunal erroneously deducted 50% of amount of compensation towards contributory negligence recording that the deceased was also contributory negligent to the extent of 50% is concerned, perusal of Ext. P-3, copy of F.I.R. and Ext. P-1, copy of Final Report, would show that the motorcycle bearing No. CG07AL3587 was being driven by Sagar Nirmalkar and deceased Manthir @ Raju Kosare was a pillion rider. Claimants in this appeal are parents of late Manthir Kosale. In the accident, driver and the pillion rider succumbed to injuries. As deceased was not driving the motorcycle which met with accident with offending vehicle bearing number CG07 CA 3189, principle of contributory negligence would not be attracted for him. For deceased Manthir Kosare it would be composite negligence. 7 / 7 Hon’ble Supreme Court in the case of T. O. Anthony v. Karvarnan and others reported in (2008) 3 SCC 748, has considered the very issue and observed thus: “6. “Composite negligence” refers to the negligence on the part of two or more persons. Where a person is injured as a result of negligence on the part of two or more wrongdoers, it is said that the person was injured on account of the composite negligence of those wrongdoers. In such a case, each wrongdoer is jointly and severally liable to the injured for payment of the entire damages and the injured person has the choice of proceeding against all or any of them. In such a case, the injured need not establish the extent of responsibility of each wrongdoer separately, nor is it necessary for the court to determine the extent of liability of each wrongdoer separately. On the other hand where a person suffers injury, partly due to the negligence on the part of another person or persons, and partly as a result of his own negligence, then the negligence on the part of the injured which contributed to the accident is referred to as his contributory negligence. Where the injured is guilty of some negligence, his claim for damages is not defeated merely by reason of the negligence on his part but the damages recoverable by him in respect of the injuries stand reduced in proportion to his contributory negligence.” 16. In the aforementioned facts of the case, Claims Tribunal fell into error in holding the deceased Manthir Kosale (pillion rider) also to be contributory negligent in the accident which is erroneous and is not sustainable in the eye of law. Accordingly the said finding is set aside. Now the appellants- claimants will be entitled for the entire amount of compensation as awarded
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