Smt. Tameshwari Kashyap Vs Vinod Kumar Banjare

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2025:CGHC:22816

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NAFR

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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MAC No. 37 of 2020

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Smt. Tameshwari Kashyap W/o Late Mohan Lal Kashyap Aged About 32 Years Minor Resident Of Pankha Dafai, Bhairotal, Surakachhar, Tahsil Katghora, District Korba Chhattisgarh. (Claimant)

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... Appellant (s)

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versus

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1 - Vinod Kumar Banjare S/o L.P. Banjare Aged About 35 Years R/o Chakarbhatha, District Bilaspur, Through Rakesh Kumar Agrawal, Son Of Balram Agrawal, R/o Through Mangat Ram Banwari Lal Agrawal, Agroha Marg, Korba, Chhattisgarh

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2 - Rakesh Kumar Agrawal S/o Shri Balram Agrawal R/o Through Mangat Ram Banwari Lal Agrawal, Agroha Marg, Korba, Police Station, Tahsil And District Korba Chhattisgarh.

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3 - New India Insurance Company Ltd. Through Divisional Manager, New India Insurance Company Ltd. Branch Office T.P. Nagar, Korba, Tahsil And District Korba Chhattisgarh.

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... Respondent(s)

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For Appellant (s) : Ms. Dhaneshwari Patel, Advocate on behalf of Mr. P.K. Patel, Advocate For Respondents No. 1 & 2 : None appears For Respondent No.3 : Mr. Azad Siddiqui, Advocate

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S.B.: Hon'ble Shri Parth Prateem Sahu, Judge

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Digitally signed by PRAVEEN KUMAR SINHA Date: 2025.06.23 10:23:37 +0530

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10/06/2025

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Judgment On Board

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With the consent of learned counsel appearing for the parties, the

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case is heard finally.

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This is the claimant’s appeal filed under Section 173 of the Motor Vehicles Act, 1988 (for short “Act of 1988”) seeking enhancement of amount of compensation awarded by learned Additional Tribunal of Upper Motor Accidents Claims Tribunal Katghora, District - Korba (CG) vide award dated 01.10.2019 passed in Claim Case No.154 of 2016.

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Facts relevant for disposal of this appeal are that applicant/claimant filed an application under Section 166 of the Act of 1988 before the learned Additional Motor Accident Claims Tribunal, Katghora, District- Korba, pleading therein that on 29/08/2016 at about 7:00 pm in the evening, appellant Tameswari, her husband Mohan Lal and their daughter Ananya were going towards Naila on motorcycle no. CG 11 CA/6675. On the way, on seeing his nephew Aman Kashyap, Mohan Lal stopped his motorcycle by parking it on the side. At the same time, the driver of Trailer no. CG 07 C/7251 i.e. non-applicant No.1 suddenly applied brake of the offending vehicle and reversed it without putting on back-light or blowing the horn and hit the motorcycle due to which, her daughter Ananya who was sitting on the motorcycle, received severe injuries. In the said accident, Ananya died on the spot. It was pleaded in the claim application that deceased Ananya Kashyap was about 9 years on the date of accident. The claimant/appellant has prayed for a total compensation of Rs. 20,00,000/- due to death of deceased Ananya in the accident along with 18% interest from the non-applicants.

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Non-applicants No.1 & 2 in their written statement have denied all the facts mentioned in the claim application and have stated that no accident has been caused by the vehicle no. CG 07/C- 7251. The aforesaid vehicle of non-applicant No.22 is insured with New India Insurance Company Limited. Therefore, the liability to pay amount of compensation, if any, is on non-applicant No.3/insurance company.

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Non-applicant No.3/Insurance Company in its written statement stated that non-applicant No.1 did not have a valid and effective driving license to drive the offending vehicle, as such there was violation of conditions of insurance policy. Deceased- Ananya Kashyap was also negligent and, hence, the non-applicant No.3 cannot be held liable for satisfying the compensation, if awarded.

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Learned Claims Tribunal, on appreciation of pleadings and evidence brought on record by respective parties, held that on the date of accident, the offending vehicle was being driven by non-applicant No.1 rashly and negligently, due to which, an accident occurred in which Ku. Ananya Kashyap sustained grievous injuries and died. Fact of contributory negligence against driver of motorcycle is also found to be proved by the Tribunal as at the time of accident more than two persons were sitting on a motorcycle. Recording a finding that breach of the conditions of insurance policy was not found proved, learned Claims Tribunal held non-applicants liable to pay amount of compensation to claimants, computed compensation of Rs.50,000/- and after deducting 50% towards contributory negligence awarded Rs.25,000/-.

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Learned counsel for the appellant submits that the finding recorded by the learned Claims Tribunal with respect to contributory negligence is incorrect as it is based only on number of persons travelling on motorcycle i.e. more than two. There is no specific evidence brought on record by the insurer to prove the fact of contributory negligence as pleaded and taken as a ground. Burden of proof of contributory negligence is upon the insurer. Insurance company has not brought any evidence to prove plea of contributory negligence. Meager sum of compensation is awarded in the facts of the case. Claimant is eligible for compensation of Rs.5,00,000/-.

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On the other hand, learned counsel for respondent No.3/Insurance Company opposed the submission of learned counsel for the appellant and submits that amount awarded by learned Claims Tribunal is just and proper upon appreciation of evidence which does not call for any interference. Finding of contributory negligence is on appreciation of evidence.

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I have heard learned counsel for the parties and also perused the records of Claim Case.

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So far as the submission of learned counsel for the appellant/claimant with regard to deduction of compensation amount to the extent of 50% in respect of death of deceased Ananya Kashyap is concerned, from the fact and evidence available on record, it is apparent that deceased was aged about 9 years. She was sitting on the motorcycle along with her parents. Even from evidence, it is apparent that at the time of accident, father of minor

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child stopped the motorcycle on the side of road to talk with his nephew. At the time of accident, motorcycle was not running. However, when Mohan Lal was talking with his nephew while sitting on his motorcycle in a standing condition, offending truck while reversing back dashed the motorcycle and caused an accident. In the said accident, minor Ananya and his father suffered grievous injuries and died on the spot. In the accident, nephew of Mohan Lal namely Aman Kashyap also suffered injuries. His claim case was also decided by the common award dated 01.10.2019. Aman Kashyap also sustained injuries with the offending vehicle. From the aforementioned facts, the fact narrated in the claim application that accident happened when Mohan Lal stopped motorcycle on the road side and was talking with his nephew, is proved.

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This Court while dealing with the appeal MAC No.68 of 2020 for enhancement of compensation awarded in respect of death of Mohan Lal father of Ananya (deceased in this case) has set aside the finding of learned Tribunal with respect of contributory negligence of the deceased therein to the extent of 50% and therefore in this case also, said finding recorded by this Court setting aside the contributory negligence will apply.

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Further the deceased was not the driver of vehicle on which she was sitting, but was a pillion rider.

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In the aforementioned fact of the case also, principle of contributory negligence will not be attracted with respect to claim of death of pillion rider as held by Hon’ble Supreme Court in case of T.O. Anthony Vs. Karvaran & Ors. (2008) 3 SCC 748, as under:-

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“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. ”

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Hon’ble Supreme Court in the case of Sushma Vs. Nitin Ganpati

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Rangole & Ors. (2024 SCC OnLine SC 2584) while dealing with the issue of contributory negligence of the passenger of the car has held as under:-

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“17. In addition, we hold that the finding of the Courts below, which reduced the claims of the legal heirs of the deceased and the injured, other than the legal heirs of the driver-Saiprasad Karande (deceased) is also invalid in the eyes of law. The Courts below uniformly applied the principle of contributory negligence while directing deduction from the compensation awarded to the respective appellant-claimants, i.e. the dependents of passengers and the injured as well as the dependents of the driver-Saiprasad Karande @ 50%. Thus, the contributory negligence of the driver of the car was vicariously applied to the passengers which is prima facie illegal and impermissible.

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18. In the case of Union of India v. United India Insurance Co. Ltd., this Court dealt with the question whether the driver's negligence in any manner vicariously attaches to the passengers of the motor vehicle of which he was the driver, and it was held as below:—

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“ 10. There is a well-known principle in the law of torts called the “doctrine of identification” or “imputation”. It is to the effect that the defendant can plead the contributory negligence of the plaintiff or of an employee of the plaintiff where the employee is acting in the course of employment. But, it has been also held in Mills v. Armstrong [[L.R.] 13 App. Cas. 1, HL] (also called The Bernina case) that that principle is not applicable to a passenger in a vehicle in the sense that the negligence of the driver of the vehicle in which the passenger is travelling, cannot be imputed to the passenger. (Halsbury's Laws of England, 4th Ed., 1984 Vol. 34, p. 74; Ratanlal and Dhirajlal, Law of Torts, 23rd Ed., 1997, p. 511; Ramaswamy Iyer, Law of Torts, 7th Ed., p. 447.) The Bernina case [[L.R.] 13 App. Cas. 1, HL] in which this principle was laid

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in 1888 related to passengers in a steamship. In that case a member of the crew and a passenger in the ship Bushire were drowned on account of its collision with another ship Bernina. It was held that even if the navigators of the ship Bushire were negligent, the navigators' negligence could not be imputed to the deceased who were travelling in that ship. This principle has been applied, in latter cases, to passengers travelling in a motor vehicle whose driver is found guilty of contributory negligence. In other words, the principle of contributory negligence is confined to the actual negligence of the plaintiff or of his agents. There is no rule that the driver of an omnibus or a coach or a cab or the engine driver of a train, or the captain of a ship on the one hand and the passengers on the other hand are to be “identified” so as to fasten the latter with any liability for the former's contributory negligence. There cannot be a fiction of the passenger sharing a “right of control” of the operation of the vehicle nor is there a fiction that the driver is an agent of the passenger. A passenger is not treated as a backseat driver . (Prosser and Keeton on Torts, 5th Ed., 1984, pp. 521-22.) It is therefore clear that even if the driver of the passenger vehicle was negligent, the Railways, if its negligence was otherwise proved — could not plead contributory negligence on the part of the passengers of the vehicle. What is clear is that qua the passengers of the bus who were innocent, — the driver and owner of the bus and, if proved, the Railways — can all be joint tortfeasors.” (emphasis supplied) 19. It is clear from the ratio of the above judgment that the contributory negligence on the part of a driver of the vehicle involved in the accident cannot be vicariously attached to the passengers so as to reduce the compensation awarded to the passengers or their legal heirs as the case may be.

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20. Thus, we have no hesitation in holding that the

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Courts below: committed gross error in law while reducing the compensation awarded to the appellant-claimants, being the dependents of the deceased-passengers and Smt. Sushma as the claims of these claimants cannot be truncated by attaching the vicarious liability with the driver. However, the claim of the dependents of the deceased driver Saiprasad Karande would stand on a different footing. ”

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For the aforementioned facts of the case, decision of Hon’ble Supreme Court and the finding recorded by this Court in MAC No. 68 of 2020 on the issue of contributory negligence, finding of learned Claims Tribunal with regard to contributory negligence on the part of minor deceased Ananya aged about 9 years is not sustainable and it is accordingly set aside.

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Now I will consider the submission of learned counsel for the appellant/claimant with regard to quantum of compensation, as to whether learned Tribunal assessed just and reasonable compensation in the facts of the case or not ?

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Undisputedly, on the date of accident, deceased Ananya was aged about 9 years. In the case of Kishan Gopal & Anr. Vs. Lala & Ors (2014) 1 SCC 244 , Hon'ble Supreme Court in case of death of a child aged about 10 years, considering its earlier decision in the matter of Lata Wadhwa & Ors. Vs. State of Bihar & Ors. (2001) 8 SCC 197 awarded an amount of Rs.5 Lakh as compensation by assessing income of deceased on notional basis as Rs.30,000/- per annum observing that the rupee value has come down drastically

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from the year 1994. In the matter of Lata Wadhwa (supra) it was observed by Hon'ble Supreme Court that though in case of death of a child on account of injuries suffered in a motor vehicular accident, compensation could not be awarded by assessing income of child on notional basis and applying multiplier, but at the same time it is to be kept in mind that loss of a child cannot be equated in terms of money and therefore some reasonable amount of compensation should be awarded to the parents. Further, the parents would also be entitled for compensation towards loss of estate.

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Similarly, in the case of Meena Devi vs. Nunu Chand Mahto alias Nemchand Mahto & Ors. (2023) 1 SCC 204, Hon’ble Supreme Court, considering the death of a 12 years child and reiterating and applying the ratio laid down in the case of Kishan Gopal (supra) has awarded a sum of Rs.5 Lakh by adopting the income and multiplier as applied by the learned Claims Tribunal in that case.

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In the case at hand, admittedly the death of child took place in the year 2016 and in between 1994 to 2016, the value of rupee has drastically come down, which is to be taken into consideration while awarding amount of compensation. This apart, claimant/appellant herein is also entitled for compensation under the head- loss of consortium.

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Considering overall facts and circumstances of case and law laid down by Hon'ble Supreme Court in the matter of Kishan Gopal (supra) & Meena Devi (supra), in the opinion of this Court, the ends of justice would be served if a lump-sum amount Rs.5,00,000/- is

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awarded as compensation to claimants/appellants along with interest @ 9% p.a. from the date of filing of application till its realization.

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On the basis of above discussion, the claimant/appellant is held entitled for a total compensation of Rs.5,00,000/- instead of Rs.2,95,000/- as awarded by the Tribunal. Any amount of compensation already paid to the claimant 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.

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

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Sd/- -

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(Parth Prateem Sahu) Judge

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Praveen

Smt. Tameshwari Kashyap v. Vinod Kumar Banjare

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Smt. Tameshwari Kashyap v. Vinod Kumar Banjare

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