Chattisgarh High Court
Chandrika Bai Yadav vs Akhilesh Kumar @ Pintu Mishra on 26 March, 2025
Author: Parth Prateem Sahu
Bench: Parth Prateem Sahu
1
2025:CGHC:14445
NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
MAC No. 630 of 2020
1 - Chandrika Bai Yadav W/o Late Prakash @ Om Prakash Yadav Aged
About 23 Years
2 - Bhupesh Kumar S/o Late Prakash @ Om Prakash Yadav Aged About 4
Years
3 - Dagesh Kumar S/o Late Prakash @ Om Prakash Aged About 2 Years
No.2 and 3 are Minors, through : lLegal Natural Mother Chandrika Bai Yadav,
Wife Of Late Prakash @ Om Prakash Yadav, Aged About- 23 Years.
All are R/o Village- Kusmi, Tahsil And Police Station- Palari, District-
Balodabazar-Bhatapara, Chhattisgarh
--- Appellants
versus
1 - Akhilesh Kumar @ Pintu Mishra S/o Rampat Mishra, R/o Village-
Paraswada No. 1, Tahsil- Vijayraghavgarh, District- Katni, Chhattisgarh,
Present R/o Through- Charanjeet Singh, Udiya Society, Near Adarsh
Vidyalaya, B-2/16, Sector-1, Tatibandh, Raipur, District- Raipur, Chhattisgarh
(Driver Of Offending Vehicle Truck No. Cg-04-Jc-6921)
2 - Charanjeet Singh S/o Harnel @ Harnem Singh R/o Udya Society, Near
Adarsh Vidyalaya, B-2/16, Sector-1, Tatibandh, Raipur, District- Raipur
Chhattisgarh (Owner Of Offending Vehicle Truck No. Cg-04-Jc-6921)
3 - Oriental Insurance Company Limited Through- Divisional Manager, Jail
Digitally
signed by
BALRAM
PRASAD
BALRAM
PRASAD
DEWANGAN
Road, Kachhari Chowk, Raipur, District Raipur, Chhattisgarh. (Insurer Of
DEWANGAN Date:
2025.04.02
10:56:44
+0530
Offending Vehicle Truck No. Cg-04-Jc-6921)
2
4 - Bhuri Bai W/o Dukalha Yadav Aged About 49 Years R/o- Village Farhada,
Post- Kosrangi, Police Station- Kharora, District- Raipur, Chhattisgarh.
(Deceased Mother)
5 - Dukalha Yadav S/o Late Fulu Ram Yadav Aged About 50 Years R/o
Village- Farhada, Post- Kosrangi, Police Station- Kharora, District Raipur,
Chhattisgarh (Deceased Father)
--- Respondents
For Appellants : Mr. Dashrath Kushwaha, Advocate
For Res. No.1, 2, 4 &5 : None present though served.
For Respondent No.3 : Mr. Hanuman Prasad Agrawal, Advocate
Hon’ble Shri Justice Parth Prateem Sahu
Order On Board
26/03/2025
1. Claimants/appellants have filed this appeal under Section 173 of the
Motor Vehicles Act, 1988 (for short ‘the Act of 1988’) seeking
enhancement of compensation awarded by the learned Chief Motor
Accident Claims Tribunal, Raipur, District – Raipur (for short ‘the
Claims Tribunal’) vide award dated 26.02.2020 passed in Claim Case
No.789/2017 thereby allowing application in part and after deducting
50% towards contributory negligence, awarding Rs.6,77,600/- as
compensation in a death case.
2. Facts relevant for disposal of this appeal are that on 03.10.2017
Omprakash Yadav (since deceased), who was going on his Hero-
Honda Splendor motorcycle, bearing registration number CG-04KQ-
7338, at a normal and careful speed from village Kaudiya to his home
at village Kusmi, collided with the stationary truck bearing registration
3
No.C.G.-04-JC-6921, which was parked by the respondent No.1-driver
on the middle of the road without any warning signals. Due to the said
collision, Omprakash suffered severe injuries to various parts of his
body, which ultimately led to his death.
3. Claimants/appellants being the legal heirs of the deceased, filed an
application under Section 166 of the Act of 1988 seeking total
compensation of Rs.39,56,000/- pleading therein that at the time of
accident, deceased was aged about 28 years, working as Mason and
earning Rs.12,000/- per month. It was also pleaded that the
claimants/appellants were dependent upon the deceased and he was
the sole bread earner of his family. Claimants have also sought
compensation under all other heads as are available to them like
funeral expenses, for love and affection and for loss of estate etc.
4. Respondents No.1 and 2 jointly filed their replying denying the
averments made in the application. It was pleaded that the accident
was occurred due to rash and negligently driving of deceased himself
as he collided with the parked truck from behind. It was pleaded that
the truck was parked on the side of the road, it was in running
condition and deceased dashed it from rear side. It was further
pleaded that the motorcyclist was driving the motor cycle at high
speed, carelessly at the time of the accident. Respondent No.1 was
having valid and effective driving license and the truck was insured
with respondent No.3, therefore, the insurance company is liable to
pay compensation, if any.
5. Non-applicant No.3-Insurer of offending vehicle, submitted reply to
claim application and denied the pleadings made therein. It was also
4
denied that applicant No. 1 is the wife of deceased and applicants No.
2 and 3 are his children. It was pleaded that the accident occurred due
to rash and negligent driving of the deceased. It was further pleaded
that at the time of accident, the respondent No.1 was not having valid
and effective driving licence to drive the vehicle. There was breach of
condition of insurance policy, hence, insurance company is not liable
to pay any amount of compensation.
6. Upon appreciation of pleadings and evidence placed on record by
respective parties, learned Claims Tribunal held that the respondent
No.1 parked the truck carelessly, due to which the accident occurred. It
was also held that there was contributory negligence on the part of the
Om Prakash Yadav (since deceased). Breach of Policy condition was
not found to be proved. Tribunal allowed application in part, assessed
total compensation of Rs.13,55,200/- and by deducting 50% of the
said amount towards contributory neligence, awarded Rs.6,77,600/-
along with interest @ 9% per annum, fastened liability upon non-
applicant No.3-Insurance Company to pay the amount of
compensation.
7. Learned counsel for appellants submits that the learned Claims
Tribunal has wrongly held the deceased to be contributory negligence
and deducted 50% towards contributory negligence. He also submits
that learned claims tribunal assessed the income of the decased as
Rs.6,000 per month only over looking the nature of employment and
the income pleaded and stated by the claimants. He next contended
that tribunal has not awarded any amount towards loss of consortium
5
to the appellant No.2 and 3 who are children. He prays that amount of
compensation be suitably enhanced.
8. Learned counsel for the respondent No.3 opposes the submission of
learned counsel for appellants and would submit that the amount of
compensation awarded by the learned claims tribunal is just and
proper. The deceased by driving the motor cycle rashly and
negligently, dashed the stationary truck parked on the side of the road
from its rear side, hence, there is no error in the finding recorded by
the learned trial Court that the deceased was also contributory
negligent in causing the accident. It is submitted that the impugned
award passed by the learned Claims Tribunal is on proper appreciation
of facts and evidence brought on record by the respective parties,
which does not call for any interference.
9. I have heard learned counsel for parties and perused the documents
placed on record.
10. It is an admitted fact that Prakash @ Omprakash Yadav died in the
road accident while he was travelling on the motor cycle and collided
with the stationary truck from rear side, which was parked on the road.
It is also not in dispute that appellants and respondents No.4 and 6 are
legal representatives of the deceased. The respondent No.1 and 2 are
driver and owner and respondent No.3 is insurer of the offending truck.
11. As far as the question of contributory negligence is concerned, the
circumstances of the accident which are clear from the evidence and
documents presented by the appellants, it is clear that at the time of
the accident, the said truck was standing on the roadside and the
6
deceased collided with it from rear side, resulting in the accident.
Although the truck driver had parked his truck on the road without
turning on the indicator and parking lights, which shows the negligence
and carelessness of the truck driver, but it was also the responsibility
of the motorcyclist that if a truck was standing on the roadside, then he
should drive his vehicle carefully and keeping in mind the condition of
the road and the vehicles going or standing on the road. Therefore, in
this case, the contributory negligence of the deceased is also proved.
Therefore, considering the facts and circumstances of the case, 50
percent contributory negligence of the motorcyclist as held by the
Claims Tribunal does not call for any interference.
12. So far as the submission with respect to the income of the deceased
is concerned, it was pleaded and stated by the claimants that the
deceased was working as mason and earning Rs.12,000/- per month.
Perusal of the record of the Claims Tribunal would show that the
appellants failed to prove the employment as also the income of the
deceased by producing admissible piece of evidence, hence, I do not
find any error in the finding recorded by the learned Claims Tribunal
that the appellants have failed to prove the nature of employment and
income as pleaded and stated of the deceased, however, the learned
Claims Tribunal erred in not considering the income of the deceased
taking the help of notification under the Minimum Wages Act prevailing
for the said period and have taken the income of the deceased on
notional basis as Rs.6,000/- per month. The accident is of dated
03.10.2017 and according to the notification issued by the competent
authority under the Minimum Wages Act for a period from 01.10.2017
7
till 31.03.2018, the income of the unskilled labour fixed for Class-C city
is Rs.7800/-. The deceased was resident of District Balodabazar,
therefore, I find it appropriate to accept the income of the deceased
fixed under the Minium Wages Act of Class-C city as Rs.7,800/- per
month. Accordingly, monthly income of the deceased is taken as
Rs.7,800/- for computing his income.
13. The learned Claims Tribunal under the head future prospects, added
40% in the income of the deceased, for the purpose of computing
compensation as at the time of accident, the deceased was aged
about 28 years and was self employed, which is correct, as per the
decision of Hon’ble Supreme Court in case of National Insurance
Company Limited. Vs. Pranay Sethi & Ors, reported in (2017) 16
SCC 680. Accordingly, after adding 40% towards future prospects i.e.
Rs.3,120/- in the monthly income of the deceased, the total monthly
income of the deceased comes to Rs.10,920/-. Accordingly, annual
income of the deceased works out to Rs.1,31,040/-. There is no
dispute with respect to deduction of 1/4 towards personal expenses
and multiplier of 17 applied by the Claims Tribunal. Accordingly after
deduction of 1/4 towards personal expenses, the annual loss of
dependency works out to Rs.98,280/-. After applying the multiplier of
17, the total loss of dependency comes to Rs.16,70,760/-.
14. Learned Claims Tribunal has awarded further sum of Rs.40,000/-
towards loss of consortium to the wife, however, had not awarded any
amount towards loss of parental consortium to the appellant No.2 and
3. The appellant No.2 and 3 being the children, who has lost the
company of their father in a very tender age of 4 years and 2 years,
8
they are also entitled for loss of parental consortium of Rs.40,000/-
each. It is ordered accordingly. The Tribunal has failed to award any
compensation towards filial consortium to the respondents No.4 and 5,
accordingly, a sum of Rs.40,000/- each is awarded to respondent No.4
and 5 towards filial consortium. The amount of Rs.15,000/- awarded
towards loss of estate and Rs.15,000/- for funeral expenses is
maintained.
15. On the basis of above, the compensation calculated by the Tribunal is
recomputed as under :-
S.N. Head Amount.
1. Loss of income/dependency : Rs.16,70,760.00
2. For loss of consortium to the wife : Rs. 40,000.00
3. For loss of parental consortium : Rs. 80,000.00
to the appellant No.2 and 3
(Rs.40,000/- each)
2. For loss of filial consortium to the : Rs. 80,000.00
respondents No.4 and 5
(Rs.40,000/- each)
4. For loss of estate : Rs. 15,000.00
5. For funeral expenses : Rs. 15,000.00
Total Compensation : Rs.19,00,760.00
16. As this Court has held that there was contributory negligence on the
part of the deceased to the extent of 50%, which is to be deducted
from the total amount of compensation. After deducting 50% towards
contributory negligent, the amount of compensation payable to the
appellants comes to Rs.9,50,380/-.
9
17. Accordingly, the appeal is allowed in part. Now the appellants shall be
entitled for total compensation of Rs.9,50,380.00. Any amount paid to
the appellant as compensation as per impugned award shall be
adjusted. Amount of compensation shall carry interest @ 9% per
annum from the date of filing of application till its realization.
18. In the result, the appeal is allowed in part and the award impugned
stands modified to the extent indicated above.
Sd/-
(Parth Prateem Sahu)
Judge
Balram
[ad_1]
Source link