Kheek Bai Vs Bheem Kaushik

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2025:CGHC:25927

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NAFR

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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MAC No. 488 of 2019

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1 - Kheek Bai Wd/o Late Shivkumar Jangade, Aged About 39 Years Satnami By Caste, R/o Village Mohtara, Police Station And Tahsil Kasdol, District Balodabazar- Bhatapara Chhattisgarh., District : Balodabazar-Bhathapara, Chhattisgarh

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2 - Dujram S/o Late Shivkumar Jangade Aged About 21 Years Satnami By Caste, R/o Village Mohtara, Police Station And Tahsil Kasdol, District Balodabazar- Bhatapara Chhattisgarh., District : BalodabazarBhathapara, Chhattisgarh

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3 - Ku. Laxmin D/o Late Shivkumar Jangade Aged About 19 Years Satnami By Caste, R/o Village Mohtara, Police Station And Tahsil Kasdol, District Balodabazar- Bhatapara Chhattisgarh., District : Balodabazar-Bhathapara, Chhattisgarh

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4 - Minor Ku. Saraswati D/o Late Shiv Kumar Jangade Aged About 17 Years Minors Through Their Natural Guardian Mother Kheek Bai Satnami By Caste, R/o Village Mohtara, Police Station And Tahsil Kasdol, District Balodabazar- Bhatapara Chhattisgarh., District : Balodabazar-Bhathapara, Chhattisgarh

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5 - Minor Rajesh Kumar S/o Late Shiv Kumar Jangade Aged About 15 Years Minors Through Their Natural Guardian Mother Kheek Bai Satnami By Caste, R/o Village Mohtara, Police Station And Tahsil Kasdol, District Balodabazar- Bhatapara Chhattisgarh., District : Balodabazar-Bhathapara, Chhattisgarh

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... Appellant (s)

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versus

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Digitally signed by PRAVEEN KUMAR SINHA Date: 2025.06.30 10:35:23 +0530

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1 - Bheem Kaushik S/o Shri Bhagwat Kaushik Aged About 19 Years R/o Jhabadi Ward No. 14, Police Station And Tahsil Kasdol, District Baloda Bazar Bhatapara, Chhattisgarh (Driver Of Motorcycle No. Cg11ch 1922), District : Balodabazar-Bhathapara, Chhattisgarh

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2 - Deepak Kumar Kashyap S/o Late Santram Kashyap Aged About 37 Years R/o Ward No. 01, Pamgarh, Police Station Pamgarh, District Janjgir Champa Chhattisgarh.(Owner Of Motocycle No. Cg11ch/1922), District : Janjgir-Champa, Chhattisgarh

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... Respondent(s)

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__________________________________________________________ For Appellant (s) : Mr. P.K. Patel, Advocate For Respondents : Mr. Ashutosh Trivedi, Advocate

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

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Judgment On Board

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19/06/2025

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With the consent of learned counsel appearing for the parties, the case is heard finally.

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This is the claimants’ 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 Motor Accident Claims Tribunal, Balodabazar (CG) vide award dated 27.11.2018 passed in Motor Accident Claim Case No.73 of 2018.

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Facts relevant for disposal of this appeal are that the claimants/appellants filed an application under Section 166 and 140 of the Act of 1988 before learned Additional Motor Accident Claims Tribunal, Balodabazar, seeking compensation stating therein that on 18/03/17 at 08:00 pm when Shivkumar Jangde was going from Gidhauri to his village, Bhim Kaushik (non-applicant No. 1), driver of motorcycle No. CG 11 CH 1922 driving the said vehicle rashly and negligently, caused an accident, due to which Shivkumar suffered injuries on his face and other parts of the body and he died on the spot. Appellants/claimants prayed for total compensation of Rs.26,01,100/-.

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Non-applicants No. 1 and 2 by filing their joint written statement have denied all the pleadings made in claim application and have specifically stated that non-applicant No. 1, on the date of the incident, had parked his motorcycle on the roadside and went towards the field to attend nature’s call. The deceased in order to escape from the catch of police was fleeing on the stolen motorcycle at very high speed, on the way, he dashed motorcycle of non-applicant No.1, parked on roadside and fell down. Deceased himself was negligent in the accident.

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Learned Claims Tribunal, on appreciation of pleadings and evidence brought on record by respective parties, held that it is not proved that on the date of accident, offending vehicle was being driven by nonapplicant No.1 rashly and negligently and caused an accident in which Shivkumar died. Learned Claims Tribunal further recording a finding that plea of contributory negligence has not been found proved, dismissed the claim application filed by the claimants/appellant.

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Learned counsel for the appellants/claimants submits that learned Claims Tribunal erred in dismissing the claim application only observing that claimants failed to prove the rash and negligent act on the part of respondent No.1/non-applicant i.e driver of other motorcycle with which motorcycle of deceased met with an accident. He submits that immediately after the accident, third person has lodged report stating that when he reached on the spot he found both the motorcycles lying on the center of road, Shivkumar was lying dead and respondent No.1/non-applicant No.1 being the driver of the other motorcycle was lying injured on the road. Based on FIR after completion of investigation final report is also submitted which is not

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put to challenge by respondent No.1/non-applicant No.1. Learned Tribunal has not taken into consideration the documentary evidence available which are FIR and final report and have arrived at a wrong conclusion that claimants failed to prove negligence on the part of respondent No.1/non-applicant No.1 and dismissed the entire claim application . He contended that even if there is some negligence on the part of deceased also, it will be a case of contributory negligence as the accident of the motorcycle of non-applicant No.1 and deceased is not denied and therefore impugned award be set aside and this Court may award appropriate compensation.

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Learned counsel for respondents No. 1 & 2 raises objection to the submission of learned counsel for the appellants and submits that there is no eyewitness to the incident. Merely on the basis of two motorcycles involved in the accident, it cannot be said that nonapplicant No.1 was solely negligent in causing an accident. He submits that in his defence/written statement, non-applicant has taken a specific ground that while traveling on his motorcycle, he stopped at a place, parked his motorcycle on the side of the road and went to answer the nature’s call, at the time of accident vehicle of nonapplicant No.1 was not in running condition but standing stationary on side of road and, therefore, negligence if any, for committing accident is of deceased himself.

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I have heard learned counsel for the parties and also perused the records of claim case.

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Admittedly there is no eyewitness to the incident. FIR Ex.A-2 is lodged by one Agrit Lal Patel. Contents of FIR would show that when

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complainant reached on spot he found two motorcycles lying at center of road. After accident Shivkumar was lying dead on road and nonapplicant No.1/respondent No.1 was lying in injured condition. The final report Ex.A-1 was submitted by the police after completion of investigation against non-applicant No.1 and 2 both. It is not the case of non-applicant No. 1 & 2 that registration of criminal case against non-applicant No.1 & 2 was challenged by them before any Court of law. Perusal of the reply to claim application by non-applicant No.1 would show that non-applicant No.1 has taken a plea that at the time of accident he had parked his motorcycle on side of road. Deceased after committing theft of motorcycle was driving the same motorcycle rashly and negligently and the police came following him. The said fact is contrary to contents of FIR. It is not the case in the FIR that police came following the deceased at the place of incident, but FIR was registered based on report lodged by third person who was passing through the place of incident. Further, in the reply pleading is made that non-applicant No.1 was not present near the motorcycle but he was little far to answer the nature’s call. In the reply he has not made any pleading as to how he suffered injuries whereas FIR contains information that at the place of accident, non-applicant No.1 was also lying in injured condition. Non-applicant No.1 entered into witness box as N.A.W.1. In his evidence, he admitted the fact that he was also injured on the date of accident, however, he has tried to explain as to how he suffered injury and stated that when after the accident, due to fear, was trying to escape from place of incident, he fell down and suffered injury, whereas, contents of FIR speaks otherwise as the non-

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applicant No.1/respondent No.1 was also found lying at the place of incident in an injured condition.

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From the aforementioned evidence available on record, it is apparent that non-applicant No.1 has not approached the Claims Tribunal with clean hands and, therefore, pleadings made in the written statement as also oral evidence of non-applicant No.1 cannot be swallowed without a pinch of salt. Admittedly, two motorcycles are involved in accident. As per position of motorcycles both the motorcycles were lying on center of the road. Though mere position of lying of motorcycle at a particular place only would not be sufficient to hold that the accident or negligence on the part of driver of two motorcycles, however, in the facts of case where there is no eyewitness to the incident and further that non-applicant No.1/ driver of other motorcycle has not mentioned the correct facts and has suppressed the same, in the opinion of this Court, learned Tribunal fell into error in deciding the issue of contributory negligence only observing that in absence of evidence of negligence on the part of non-applicant No.1/driver of other motorcycle, it cannot be said that non-applicant No.1 in any manner contributed in the accident. Tribunal has not discussed this issue separately .

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In the aforementioned facts of case, finding recorded by learned Claims Tribunal that negligence of non-applicant No.1 has not been proved is not sustainable and accordingly this Court holds that there was contributory negligence on the part of both the drivers of both motorcycles to the extent of 50%. It is ordered accordingly.

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Learned Claims Tribunal has assessed compensation of Rs.11,53,900/- and, therefore, I find it appropriate to hold that

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appellants/claimants will be entitled for 50% of the amount of compensation i.e. Rs.5,76,950/- (11,53,900 x 50%) as computed by the Tribunal and the amount of compensation of Rs.5,76,950/- shall carry interest at the rate of 6% per annum from the date of filing of claim application till its realization. Any amount of compensation already paid to the claimants shall be adjustable from the total amount of compensation which has now been calculated and awarded by this Court.

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In the result, appeal is allowed in part. Impugned award is modified to the extent as indicated herein above.

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Sd/- Sd/-

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(Parth Prateem Sahu) Judge

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Praveen

Kheek Bai v. Bheem Kaushik

Case brief

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Kheek Bai v. Bheem Kaushik

Case brief

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