Chattisgarh High Court
Hembai vs Johan Lal Joshi on 16 July, 2025
1
2025:CGHC:33198
NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
MAC No. 1341 of 2019
1 - Hembai W/o Late Shri Pushpendra Sahu Aged About 43 Years R/o Village Aunri,
P.S. Ranitarai, Tahsil Patan, District Durg Chhattisgarh. ---(Claimants), District :
Durg, Chhattisgarh
2 - Purshottam S/o Late Shri Pushpendra Sahu Aged About 24 Years R/o Village
Aunri, P.S. Ranitarai, Tahsil Patan, District Durg Chhattisgarh., District : Durg,
Chhattisgarh
3 - Pushpa Sahu D/o Late Shri Pushpendra Sahu Aged About 20 Years R/o Village
Aunri, P.S. Ranitarai, Tahsil Patan, District Durg Chhattisgarh., District : Durg,
Chhattisgarh
4 - Tilak Kumar S/o Late Shri Pushpendra Sahu Aged About 18 Years R/o Village
Aunri, P.S. Ranitarai, Tahsil Patan, District Durg Chhattisgarh., District : Durg,
Chhattisgarh
... Appellants
Versus
1 - Johan Lal Joshi S/o Parasram Joshi Aged About 50 Years R/o Qr. No. 410, Ward
No.15, Sikola Basti, P.S. Mohan Nagar, Tahsil And District Durg Chhattisgarh. ---
(Driver And Owner), District : Durg, Chhattisgarh
2 - Branch Manager The New India Assurance Co. Ltd. Parakh Bhawan, Station
Road, Durg, Tahsil And District Durg Chhattisgarh. ---(Insurer), District : Durg,
Chhattisgarh
... Respondents
For Appellants : Mr. P.R. Patankar, Advocate
For Respondent No. 2 : Mr. Qumrul Aziz, Advocate
SHUBHAM
DEY
Digitally
signed by
SHUBHAM
DEY
2
S.B.: Hon’ble Shri Parth Prateem Sahu, Judge
Order On Board
16/07/2025
1. This appeal is filed by the appellants seeking enhancement of the
amount of compensation awarded by the learned Claims Tribunal in its
award dated 01.05.2019 passed by the 1st Additional Claims Tribunal to
1st Additional Motor Accident Claims Tribunal, Durg, District – Durg
(C.G.) in Claim Case No. 83/2018.
2. Facts of the case in brief are that applicant/claimant filed an application
under Section 166 of the Motor Vehicles Act, 1988 pleading therein that
on 11.11.2017 at around 06:00 P.M. Pushpendra Sahu (since
deceased) was coming from village Auri, District – Durg on his
motorcycle. On the way, when he reached near the turn of village Aunri
at Jamgaon-Belhari Road, at that time, Non-applicant No. 1 driving his
two-wheeler i.e. (Activa) bearing registration no. CG 07 AV 7833
(hereinafter referred to as the offending vehicle) in a rash and negligent
manner, dashed the motorcycle and caused accident. In the said
accident, Pushpendra Sahu suffered injuries, he was taken to hospital
for treatment where, during the course of treatment on 14.11.2017,
succumbed to his injuries. Subsequent to the said accident, an FIR
was registered against the Respondent No. 1 bearing Crime No.
03/2018, P.S. Ranitarai, District – Durg for the offences punishable
under Section 279, 337, 304 (A) of the Indian Penal Code, 1860.
3. Claimants filed an application under Section 166 of the Motor Vehicles
Act, 1988 (hereinafter for short referred to as the Act, 1988) before the
learned Claims Tribunal pleading therein that on the date of accident,
deceased was aged about 46 years doing the work of Tailor and
earning Rs. 10000/- per month. In the motor vehicular accident,
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claimants have lost their bread-winner, they were dependent upon
income of deceased, claimed compensation of Rs. 21,20,000/- from the
non-applicants before the learned Claims Tribunal.
4. Non-Applicant No. 1 submitted its reply denying the pleadings made in
claim application, pleaded that the applicants have not produced any
document of occupation, age and income. The offending vehicle was
not involved in the accident and he has been falsely implicated in the
case. He contended that the deceased was driving his motorcycle in an
intoxicated condition without wearing helmet and the claimants have
not implead the insurer of the motorcycle of the deceased in the
present case. The vehicle was insured with the Non-Applicant No. 3 on
the date of accident, therefore, liability to satisfy the amount of
compensation is upon the Non-Applicant No. 3.
5. Non-Applicant No. 2/Insurance Company also submitted its reply
denying the pleadings made by the applicants/claimants and pleaded
that applicants have not produced any documents of occupation, age
and dependency as pleaded in the claim application. Mere registration
of FIR does not prove the wrong on the part of the Non-Applicant No.
2. F.I.R. was also lodged after 02 months of the date of accident. There
was no negligence of Non-Applicant No. 1. Deceased met with an
accident due to his own negligence or contributory negligence in
accident. The offending vehicle was being plied by the Non-Applicant
No. 1 in breach of policy conditions, therefore, the Non-Applicant No. 3
is not liable to pay compensation.
6. Learned Claims Tribunal upon appreciation of the facts and evidence
brought on record held that, accident was a result of contributory
negligence of drivers of both vehicle. Deceased was held 30%
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negligent and non-applicant 70%, awarded Rs. 8,51,000/- as
compensation, fastened liability to satisfy the amount of compensation
upon the Non-Applicant No. 2/Insurance Company.
7. Learned counsel for the appellant would submit that the learned Claims
Tribunal erred in holding the deceased contributory negligent in
accident to the extent of 30%, without there being any evidence in this
regard. He submits that the plea of contributory negligence has been
raised by insurance company, however, no evidence has been brought
on record by it. He also contended that the learned Claims Tribunal
erred in awarding meagre amount of compensation assessing income
of the deceased on notional basis without considering the nature of
occupation and income as pleaded in the claim application. He also
contended that the learned Claims Tribunal has awarded less amount
of compensation on other conventional heads.
8. On the other hand, learned counsel for Respondent No. 2 opposes the
submission made by the counsel for the appellants and would submit
that the learned Claims Tribunal justified in assessing income of the
deceased notionally. He submits that there was head on collision
between the two, two-wheelers and therefore, the learned Claims
Tribunal taking note of the said fact has held the deceased to be
contributory negligent in the accident which does not call for any
interference.
9. I have heard learned counsel for the parties and perused record of the
claim case.
10. So far as the submission of counsel for the appellant that the learned
Claims Tribunal erred in holding deceased to be contributory negligent
to the extent of 30% is concerned, perusal of the record of the claim
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case would show that the Non-Applicant No. 2/Insurance Company
took plea and defence of contributory negligence, however, have not
examined any witness in support of the said plea. The Non-applicant
No. 1 driver of the offending vehicle is examined as NAW- 1, except his
self-serving statement, that he was driving his vehicle on the right side,
no other witness is examined or other evidence produced. He stated
that the driver of motorcycle suddenly turned his vehicle suddenly due
to which, his vehicle colluded with two-wheeler of the deceased.
Criminal case was registered against the Non-Applicant No. 1 and
charge-sheet was also filed. The Non-applicant No. 1 has not lodged
any report in the concerned police station, if for any reason, the
accident occurred due to negligence of the deceased and false report
is made against him.
11. Hon’ble Supreme Court in the case of Pramodkumar Rasikbhai
Jhaveri v. Karmasey Kunvargi Tak reported in (2002) 6 SCC 455
while considering the issue of contributory negligence has observed
thus:
“7. The High Court found that there was
contributory negligence on the part of the appellant
for two reasons. Firstly, the appellant who was
driving the car did not slow down his vehicle when
he saw that the truck coming at a high speed from
the opposite direction was trying to overtake
another car ahead of the truck and, secondly, the
High Court found that there was a three-feet width
of the road on the left side of the car of the
appellant and on seeing the oncoming truck, the
appellant could have swerved his vehicle to the left
side.
8. We do not think that these two reasons
given by the High Court fully justify the
accepted principles of contributory negligence.
The question of contributory negligence arises
when there has been some act or omission on
6the claimant’s part, which has materially
contributed to the damage caused, and is of
such a nature that it may properly be described
as “negligence”. Negligence ordinarily means
breach of a legal duty to care, but when used
in the expression “contributory negligence” it
does not mean breach of any duty. It only
means the failure by a person to use
reasonable care for the safety of either himself
or his property, so that he becomes
blameworthy in part as an “author of his own
wrong”.
12. In the case of Yerramma v. G. Krishnamurthy reported in (2014) 15
SCC 65, Hon’ble Supreme Court while taking note of its earlier
decision in the case of Jiju Kuruvila and others v. Kunjujamma Mohan
and others reported in (2013) 9 SCC 166 considering the ground of head on
collusion between two vehicles has observed thus:-
“7. Mr C.B. Gururaj, the learned counsel for the
appellants contended that the judgment of this
Court in Jiju Kuruvila v. Kunjujamma Mohan [Jiju
Kuruvila v. Kunjujamma Mohan, (2013) 9 SCC 166
: (2013) 3 SCC (Cri) 849] is applicable to the facts
of the present case. In the above case, Joy
Kuruvila (the deceased) had a head-on collision
with a bus approaching from the opposite side. Joy
Kuruvila sustained serious injuries and died on the
way to the hospital. The Tribunal found that the
accident occurred due to the rash and negligent
driving of the bus driver. It apportioned the
contributory negligence between the driver and the
deceased in the ratio of 75 : 25. On the basis of
the pleadings and evidence on record, in the
abovesaid case this Court has held thus on the
negligence of the driver of the bus : (SCC p. 175,
para 20).
“20.5. The mere position of the vehicles after
accident, as shown in a scene mahazar,
cannot give a substantial proof as to the rash
and negligent driving on the part of one or the
other. When two vehicles coming from
opposite directions collide, the position of the
vehicles and its direction, etc. depends on a
number of factors like the speed of vehicles,
7intensity of collision, reason for collision, place
at which one vehicle hit the other, etc. From
the scene of the accident, one may suggest or
presume the manner in which the accident was
caused, but in the absence of any direct or
corroborative evidence, no conclusion can be
drawn as to whether there was negligence on
the part of the driver. In absence of such direct
or corroborative evidence, the Court cannot
give any specific finding about negligence on
the part of any individual.
20.6. The post-mortem report, Ext. A-5 shows
the condition of the deceased at the time of
death. The said report reflects that the
deceased had already taken meal and his
stomach was half-full and contained rice,
vegetables and meat pieces in a fluid with
strong smell of spirit. The aforesaid evidence,
Ext. A-5 clearly suggests that the deceased
had taken liquor but on the basis of the same,
no definite finding can be given that the
deceased was driving the car rashly and
negligently at the time of the accident. The
mere suspicion based on Ext. B-2 ‘scene
mahazar’ and Ext. A-5 post-mortem report
cannot take the place of evidence, particularly,
when the direct evidence like PW 3
(independent eyewitness), Ext. A-1 (FIR), Ext.
A-4 (charge-sheet) and Ext. B-1 (FI statement)
are on record.”
13. In the case at hand also, except the plea of the head on collusion
between the two vehicles and the self-serving statements of the driver
of the other vehicles, there is no evidence placed before the learned
Claims Tribunal. In the impugned award, learned Claims Tribunal has
only considered that there was head on collusion between the two,
two-wheelers and recorded a finding that there was contributory
negligence on the part of the deceased to the extent of 30%. The plea
of contributory negligence is a fact which is required to be proved by
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the party raising such plea in accordance with law. As there is no
evidence brought either by the Non-applicant No. 2 to prove the plea of
contributory negligence, in the opinion of this Court, learned Claims
Tribunal erred in holding that the deceased was contributory negligent
to the extent of 30%. The said finding is not sustainable in the eyes of
law, and it is set-aside.
14. So far as the first submission made by the counsel for appellant with
regard to the assessment of income of the deceased as Rs. 7,500/- per
month is concerned, claimants except the pleadings made in the claim
application and self-serving statements, no other evidence is brought
on record to prove the occupation of the deceased as Tailor and his
income to be Rs. 10,000/- per month. In the aforementioned facts of
the case, learned Claims Tribunal justified in taking recourse to assess
income of the deceased notionally, however, fell into error in not
assigning any reason to asses income of the deceased to Rs. 7,500/-
per month. In absence of the proof of income of the deceased, the
Claims Tribunal could have assessed the income keeping in mind the
price index, cost of living, wage structure and could have also taken
help of the minimum-wages fixed by the competent authority under the
Minimum Wages Act, 1948. In the aforementioned facts of the case,
where there is no suggestive material to prove wages of a daily wage
employee in the place where deceased was residing, I find it
appropriate to consider occupation of the deceased as Unskilled
Labourer and his income to be Rs. 8320/- as notified by the competent
authority under the Minimum Wages Act, 1948 for a period from
01.10.2017 till 31.03.2018. It is ordered accordingly.
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15. The learned Claims added 25% of the assessed income towards the
future prospects, applied deduction of 1/4th towards the personal and
living expenses and multiplier of 13 which is to the tune of the decision
of Hon’ble Supreme Court in the case of Sarla Verma & Ors. Vs.
Delhi Transport Corporation & Anr. reported in 2009 (6) SCC 121
and National Insurance Company Ltd. vs. Pranay Sethi, reported in
(2017) 16 SCC 680.
16. The learned Claims Tribunal has further awarded Rs. 15,000/- towards
loss of estate and Rs. 15,000/- towards funeral expenses, which is in
consonance with the decision of Hon’ble Supreme Court in the case of
Pranay Sethi (Supra). However, learned Claims Tribunal awarded loss
of consortium of Rs. 30,000/- to the Applicant/Claimant No. 1 only i.e.
widow of the deceased. The award of consortium is quantified in case
of Pranay Sethi (Supra). Types of consortium is further explained by
the Hon’ble Surpeme Court in the case of Magma General Insurance
Co. Ltd. vs. Nanu Ram @ Chuharu Ram, reported in (2018) 8 SCC.
In the said case, Hon’ble Supreme Court held that, there are three
types of consortium i.e. spousal consortium for widow/widower,
parental consortium to children and filial consortium to parents. In the
case at hand, the Appellants/Claimants No. 1 to 4 are wife and children
of the deceased, therefore, they are entitled for Rs. 40,000/- each
towards loss of spousal consortium and loss of parental consortium
(total Rs. 1,60,000/-) respectively. It is ordered accordingly. The
Claimants will also be entitled for the amount of compensation awarded
under the head of medical expenses of Rs. 48,387/- as awarded by the
learned Claims Tribunal.
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17. The Hon’ble Supreme Court in the case Pranay Sethi (Supra) has
observed that there shall be increase of 10% on the amount of
compensation awarded under other conventional heads and therefore,
the amount of compensation awarded under the head of loss of
consortium, funeral expenses and loss of estate is to be increased by
10%. It is ordered accordingly.
18. For the foregoing reason, this Court proposes to recalculate the
amount of compensation payable to the appellants.
S. Heads Compensation
No.
1. (A) Annual Income of claimant: : Rs. 12,16,800/-
8320 X 12 = 99,840
(B) Addition towards future prospects
@ 25% (99,840 X 25% = 24,960)
(99,840 + 24,960 = 1,24,800)
(C) Deduction of 1/4th towards
personal and living expenses
(1,24,800 X 1/4th = 31,200)
(1,24,800 – 31,200 = 93,600/-)
(D) Multiplier of 13
(93,600 X 13 = 12,16,800/-)
2. Medical Expenses : (+) Rs. 48,387/-
3. Funeral Expenses : (+) Rs. 16,500/-
4. Loss of Estate : (+) Rs. 16,500/-
5. Loss of spousal and parental : (+) Rs. 1,76,000/-
consortium to Claimant/Appellants @ 1.
Rs. 44,000/- each (44,000 X 4)
Total Compensation : Rs. 14,74,187/-
19. Now, the Appellants/Claimants are awarded total compensation of Rs.
14,74,187/- instead of Rs. 8,51,000/-. This enhanced amount of
compensation shall carry interest @ 8% from the date of filing of claim
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application till its realization. Rest of the conditions mentioned in the
impugned award shall remain intact.
20. Any amount already paid to Claimants/Appellants as compensation
shall be adjusted from the total amount of compensation as calculated
above.
21. In the result, appeal is allowed and the impugned award stands
modified to the extent indicated above.
22. Certified copy as per rules.
Sd/-d/–/-/——–/–/-
(Parth Prateem Sahu)
Judge
Dey