Ayush Xess, Vs Santosh Kumar Yadav

¶1

1

¶2

SYED ROSHAN ZAMIR ALI

¶3

Digitally signed by SYED ROSHAN ZAMIR ALI

¶4

2025:CGHC:41434 NAFR

¶5

HIGH COURT OF CHHATTISGARH AT BILASPUR

¶6

MAC No. 216 of 2024

¶7

Ayush Xess, S/o Late Munna Xess Aged About 10 Years Minor, Through Legal Guardian/grandmother Balmadeena W/o Late Nohar Sai, Caste Oraon, R/o Village Koldhodhi, P.S. And Tahsil Pathhalgaon, District Jashpur, Permanent R/o Village Bakalo, P.S. Kapu, District Raigarh, C.G.

¶8

Balmadeena Xess W/o Late Nohar Sai Xess, Aged About 60 Years R/o Village Koldhodhi, P.S. And Tahsil Pathhalgaon, District Jashpur, Permanent R/o Village Bakalo, P.S. Kapu, District Raigarh, C.G.

¶9

... Appellants-claimants

¶10

versus

¶11

Santosh Kumar Yadav, S/o Sugriv Prasad Yadav Aged About 22 Years (Vehicle Driver) Occupation Vehicle Driver, R/o Village Harrachandel (Beside Bhagatram Sarpanch 039s Home), P.S. Jiyavan, District Singrouli (M.P.)

¶12

Sandeep Kumar Jaiswal S/o Shivdhari Jaiswal Aged About 35 Years (Vehicle Owner) Occupation Vehicle Owner, R/o Village Batra-Schoolpara, P.S. And Tahsil Vishrampur, District Surajpur, C.G.

¶13

Branch Manager, The Oriental Insurance Company Limited (Insurance Company) Divisional Office Manendragarh Road, Near Ambedkar Chowk, Ambikapur, P.S. And Tahsil Ambikapur, District Surguja, C.G.

¶14

... Respondent(s)

¶15

2

¶16

For Appellants : Mr. CJK Rao, Advocate For Respondents No.1 & 2 : Mr. Nishikant Sinha, Advocate For Respondent No.3 : Mr. Anil Gulati, Advocate

¶17

Hon'ble Shri Justice Parth Prateem Sahu

¶18

Order on Board

¶19

18/8/2025

¶20

With the consent of learned counsel for respective parties, this appeal is heard finally at motion state.

¶21

Appellants-claimants have filed this appeal under Section 173 of the Motor Vehicles Act, 1988 (henceforth 'the Act of 1988') challenging award dated 20.4.2023 passed by learned Motor Accident Claims Tribunal, Surguja (Ambikapur) (for short 'the Claims Tribunal') in Claim Case No.11/2022 whereby the Claims Tribunal allowed claim application in part; awarded total compensation of Rs.6,96,400/- along with interest at the rate of 6% p.a. after deducting 50% of entire amount of compensation towards contributory negligence.

¶22

Facts of the case, in brief, are that claimants-appellants filed an application under Section 166 of the Motor Vehicles Act, 1988 (for short ‘the Act of 1988’) seeking compensation to the tune of Rs.18,33,600/- under various heads, against death of Munna Khess in a motor vehicular accident. According to claimants, who are son and mother of deceased, on 15.7.2021 at about 8:00-9:00 p.m. Munna Khess was travelling as Cleaner (Khalasi) in Swaraj Mazda vehicle bearing registration No.CG13-L-2619 and returning to

¶23

3

¶24

Pathalgaon from Ambikapur. On the way near Sugreev Hotel, Village Guturma, said vehicle collied with stationary truck bearing registration No.CG15-DC-1419 as a result Munna Khess sustained grievous injuries and died spontaneously. It was further pleaded that deceased was 30 years of age, working as Conductor of Swaraj Mazda truck and earning Rs.9,000/- per month.

¶25

Non-applicant No.1 and 2, driver and owner of offending vehicle did not take part in proceeding before Claims Tribunal and therefore they were proceeded exparte.

¶26

Non-applicant No.3-Insurance Company filed reply to claim application denying the pleadings made therein. It was pleaded that accident occurred due to negligence on the part of driver of vehicle in which deceased was travelling. Offending vehicle has been falsely involved in accident. At the time of accident, driver of offending vehicle was not holding a valid and effective driving licence and even there was no valid permit and fitness certificate in favour of offending vehicle, therefore, insurance company is not liable to indemnify the owner.

¶27

Learned Claims Tribunal after appreciating the pleadings and evidence placed on record (oral and documentary both) by respective parties, arrived at a conclusion that accident was result of rash and negligent driving of drivers of both vehicles

¶28

4

¶29

involved in accident; there was no violation of any condition of insurance policy and accordingly, the Claims Tribunal allowed claim application of claimants in part, awarded total compensation of Rs.6,96,400/-, after deducting 50% towards contributory negligence of deceased, along with interest @ 6% p.a. and fastened liability upon non-applicants, jointly and severally, to pay the amount of compensation to claimants.

¶30

Learned counsel for claimants/appellants submits that deduction of 50% compensation towards contributory negligence by learned Claims Tribunal is erroneous. He contended that deceased was travelling in Swaraj Mazda vehicle as a Conductor (khalasi) and as such, he was an occupant in said vehicle, therefore, he cannot be held to be contributory negligent in any manner in happening of accident. As the deceased was occupant, therefore, for him it will be a composite negligence of driver of both vehicles. He next contended that learned Claims Tribunal erred in assessing income of deceased as Rs.7,000/- per month only recording finding that deceased could not able to prove income as pleaded in claim application. In absence of any proof of income, learned Claims Tribunal ought to have considered minimum wage rate fixed by the Competent Authority for the period when accident occurred, which would be more than the income assessed by Claims Tribunal. He

¶31

5

¶32

next contended that Claims Tribunal has not awarded compensation under the head of consortium to claimants, who are mother and son of deceased.

¶33

Learned counsel for respondent No.3 does not dispute that first liability to satisfy impugned award is upon insurance company. He, however, submits that amount of compensation awarded by Claims Tribunal is just and proper in the facts and circumstances of the case and does not call for any interference.

¶34

Learned counsel appearing on behalf of respondent No.1 and 2 has supported the award passed by learned Claims Tribunal.

¶35

Heard learned counsel for respective parties and perused the record of claim case.

¶36

In pleadings of claim application, claimants have categorically pleaded occupation of deceased as Conductor / Khalasi of Swaraj Mazda vehicle and his income as Rs.9,000/- per month. In order to prove pleadings made in claim application, claimants have examined claimant No.1 as AW-2, who in her examination-in-chief stated according to pleadings made in claim application that her son was working as Khalasi in Swaraja Mazda vehicle. Nothing adverse has come in her cross-examination. Manvel Khess, brother of deceased, was examined as AW-2 and he also stated occupation of

¶37

6

¶38

deceased brother to be Khalasi in Swaraj Mazda vehicle. Learned Claims Tribunal in Para-9 of impugned award, upon appreciation of evidence, recorded a finding that deceased at the time of accident was travelling in Swaraj Mazda vehicle as a Conductor (Khalasi). It is further recorded that there was contributory negligence on the part of driver of Swaraj Mazda vehicle also to the extent of 50%. Learned Claims Tribunal in Para-17 of impugned award, deducted 50% of assessed compensation towards contributory negligence of deceased also. Deceased was not driver of either vehicle involved in accident but only an occupant of Swaraj Mazda vehicle which dashed with offending vehicle and this being the position, contributory negligence would not be applied to him. For deceased Conductor (Khalasi), it would be composite negligence and not contributory negligence. Hon’ble Supreme Court in case of T.A. Antony vs Karvaran & ors reported in (2008) 3 SCC 748 has observed thus:-

¶39

“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 wrong doers, it is said that the person was injured on account of the composite negligence of those wrong-doers. In such a case, each wrong doer, 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

¶40

7

¶41

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 wrong- doer 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 of 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 stands reduced in proportion to his contributory negligence.”

¶42

In the aforementioned facts of case and above decision of

¶43

Hon’ble Supreme Court, in the opinion of this Court, the finding recorded by learned Claims Tribunal that deceased was also contributory negligent in accident to the extent of 50% is not sustainable and is hereby set aside. It is held that for the deceased it will be composite negligence of driver of Swaraj Mazda vehicle in which deceased was travelling as a Conductor/Khalasi.

¶44

As regard income of deceased, claimants have not produced any oral or documentary evidence to prove income of deceased as pleaded in claim application i.e. Rs.9,000/-, therefore, learned Claims Tribunal proceeded to assess income of deceased on notional basis, which is proper in the

¶45

8

¶46

given facts of case. However, looking to wage rate fixed by the competent authority under Minimum Wages Act, 1948 for the period during which accident occurred, fixation of Rs.7,000/- as monthly income of deceased appears to be on lower side. Accident occurred on 15.7.2021 and at that point of time deceased was resident of District Jashpur, which comes within Zone ‘C’ area. Minimum wage rate of an unskilled labourer of Zone-C area of the State for the period from 1.4.2021 to 30.9.2021, prescribed by the Competent Authority under the Minimum Wages Act, 1948 was Rs.9,200/- per month. However, since the claimant themselves have pleaded that deceased was earning Rs.9,000/- per month, therefore, I find it appropriate to fix monthly income of deceased as Rs.9,000/- in place of Rs.7,000/- per month as assessed by the Claims Tribunal. It is ordered accordingly.

¶47

Considering that deceased was 30 years and he was survived by two dependent family members i.e. son and mother, addition of 40% towards future prospects, deduction of onethird towards personal and living expenses of deceased and application of multiplier of 17 by the Claims Tribunal to compute the compensation under the head of loss of dependency is in terms of decision of Hon’ble Supreme Court in cases of Sarla Verma vs. DTC, reported in (2009) 6 SCC

¶48

9

¶49

121 and National Insurance Company Ltd. vs. Pranay Sethi, reported in (2017)16 SCC 680, and the same needs no interference. Likewise, compensation towards funeral expenses and loss of estate is also in terms of decision in case of Pranay Sethi (supra) and it also need no interference.

¶50

Perusal of impugned award reveals that while computing the compensation the Claims Tribunal has not awarded any amount to the claimants towards loss of consortium, besides award towards loss of estate and funeral expenses. As per decision of Hon’ble Supreme Court in case of National Insurance Company Ltd. vs. Pranay Sethi , reported in (2017) 16 SCC 680 and Magma General Insurance Co. Ltd. vs. Nanu Ram @ Chuhru Ram & ors reported in (2018) 18 SCC 130 , each of claimants is entitled to consortium under spousal, filial and parental respectively in case claimants are wife/husband, parents and children at the rate of Rs.40,000/each. In case at hand, appellants being mother and son of deceased are entitled for Rs.40,000/- each towards loss of filial consortium. It is ordered accordingly.

¶51

For the foregoing, this Court proposes to recalculate amount of compensation payable to the claimants/appellants.

¶52

Accordingly, income of deceased is taken as Rs.9,000/- per month and after adding 40% towards future prospects, total income comes to Rs.12,600/-. Thus, annual income of

¶53

10

¶54

deceased for the purpose of calculating compensation comes to Rs.1,51,200/-. Out of this amount, one-third is to be deducted towards personal and living expenses of deceased and after deducting one-third, annual loss of dependency would come to Rs.1,00,800/-. By applying multiplier of 17, as applied by Claims Tribunal, to annual loss of dependency, total loss of dependency would come to Rs.17,13,600/-. Besides this, appellant No.1 is entitled for a sum of Rs.40,000/- towards filial consortium and appellants No.2 is entitled for a sum of Rs.40,000/- towards loss of parental consortium. Appellants are also entitled for a sum of Rs.15,000/- each for loss of estate and funeral expenses. However, as per decision of Hon’ble Supreme Court in case of Pranay Sethi (supra), the amount of compensation under the aforesaid heads i.e. loss of consortium, funeral expenses and loss of estate, is to be increased @ 10% after every three years, which will make the compensation payable to claimants under the head of loss of consortium as Rs.44,000/- (10% of 40000 + 40000) each; loss of estate as Rs.16,500/- (10% of 15000 + 15000) and funeral expenses as Rs.16,500/- (10% of 15000 + 15000). Thus, total amount of compensation comes to Rs.18,34,600/- . The enhanced amount of compensation shall carry interest @ 8% p.a. from the date of filing of claim application till its realization. Rest of

¶55

11

¶56

the conditions mentioned in the impugned award shall remain intact. Any amount already paid to claimants/appellants as compensation shall be adjusted from total amount of compensation as calculated above.

¶57

In the result, the appeal is allowed in part and the impugned award stands modified to the extent indicated above.

¶58

(Parth Prateem Sahu) Judge

¶59

roshan/-

Ayush Xess, v. Santosh Kumar Yadav

Case brief

What is this about?

What did the court decide?

Ayush Xess, v. Santosh Kumar Yadav

Case brief

What is this about?

What did the court decide?

Why is it important?

What the court decided

Issues for consideration

Cases cited

Statutes considered

Procedural history

Parties & counsel

Coram

Case details

Similar cases

The Oriental Insurance Company Limited Vs Gaindlal

National Insurance Company Limited Vs Omkar Prasad Thakur

Janki Dhruv Vs Amit Kumar Ratre

Manoj Vs Shanti Bai

Vistarni Kurre Vs Samundbai

Smt. Aasmati @ Asmati Vs Harriram Bedvyas