Smt. Gulawati Sahu Vs Sunil Dwivedi

5 - Vishwanath Sahu S/o Late Sudarshan Sahu Aged About 68 Years All are R/o Ward No. 4, Sagarpur, Baikunthpur, Police Station And Tahsil Baikunthpur, District Koriya, Chhattisgarh.

¶11

--- Appellants

¶12

versus

¶13

1 - Sunil Dwivedi S/o Tribhuwan Nath Dwivedi Aged About 35 Years R/o Village Temri, Police Station Patna, Tahsil Baikunthpur, District Koriya, Chhattisgarh. (Driver Cum Owner Of Offending Vehicle Motorcycle Bearing No. C.G. 15 C.K. 2127)

¶14

--- Respondent For Appellants : Mr. Anil Gulati, Advocate For Respondent : None present though served

¶15

Hon'ble Shri Justice Parth Prateem Sahu

¶16

Order On Board

¶17

17/06/2025

¶18

BALRAM PRASAD DEWANGAN Digitally signed by BALRAM PRASAD DEWANGAN

¶19

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 Motor Accident Claims Tribunal, Baikunthpur, District – Koriya (for short ‘the Claims Tribunal’) vide award dated 20.11.2019 passed in Claim Case

¶20

2

¶21

No.16/2018 thereby allowing application in part and awarding Rs.5,80,300/- as compensation in a death case.

¶22

Facts relevant for disposal of this appeal are that appellants/claimants filed an application under Section 166 of the Act of 1988 claiming total compensation of Rs.42,40,000/- under different heads against of the death of Gyan Prakash, who died in the road accident pleading that on 11.08.2017 at about 3.30 o’clock at village Dakaipara, respondent by driving the offending vehicle in a rash and negligent manner hit the motor cycle driven by Gyan Prakash and caused accident, due to which he suffered severe injuries and during the course of treatment succumbed to the injuries. It was pleaded that at the time of accident, deceased Gyan Prakash was young and healthy man, was working as driver and was earning Rs.20,000/- per month. He was the whole bread earner of his family and on account of untimely death of deceased, the claimants are facing great financial crises.

¶23

The non-applicants/respondents filed their reply to the claim application resisting the claim. The learned Claims Tribunal after appreciation of the pleadings and the evidence brought on record by respective parties, allowed the claim application in part and awarded tota l compensation of Rs.5,80,300/- as against the claim of Rs.42,40,000/- by holding the deceased 50% contributory negligent in the accident.

¶24

Learned counsel for appellants submits that learned Claims Tribunal erred in awarding meager amount of compensation. He further submits that the learned Claims Tribunal erred in holding the deceased 50% contributory negligent in the incident, only considering that

¶25

3

¶26

there is head on collision of the two motor cycle. The learned Claims Tribunal has disbelieved the evidence of Dinesh Kumar Sahu (A.W.-2), who in his evidence has categorically stated that it is the nonapplicant, who drove his motor cycle in a rash and negligent manner and caused accident by going towards wrong side. He is also eyewitnesses to the accident. Learned Claims Tribunal has assessed the income of the deceased on lower side. The date of accident is 11.08.2017, the claimants in the claim application has pleaded that on the date of accident, the deceased was working as agricultural labourer, driver and thereby earning Rs.20,000/- per month. He further contended that the amount awarded under other conventional head is also on lower side.

¶27

There is no representation on behalf of the respondent though notice has been served upon him.

¶28

So far as the first grounds raised by learned counsel for appellant with respect to holding the deceased, contributory negligence to the extent of 50% is concerned, in the claim application, there is pleading that two motor cycle collided coming from opposite direction. The accident occurred at about 3.30 PM in the day time. It is also mentioned that the new motor cycle without number driven by respondent No.1 rashly and negligently dashed the motor cycle of the deceased. The accident was reported to the concerned police station and during course of investigation, police prepared the spot map in form No.2 Crime Details Form (Ex.P-12). The place of accident as mentioned in the spot map is on center of the road. The plea of contributory negligence is taken by

¶29

4

¶30

the respondent and it is the burden on the part of the respondent to prove the same by placing cogent and admissible piece of evidence.

¶31

The Hon’ble Supreme Court in the matter of Jiju Kuruvila v. Kunjujamma Mohan, (2013) 9 SCC 166 has observed that the position of vehicle after accident as shown in the ‘scene mahazar’/spot map in itself will not be sufficient to prove the fact of contributory negligence in absence of any direct or corroborative evidence and held thus :-

¶32

“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 their direction, etc. depends on a number of factors like the speed of vehicles, intensity 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.

¶33

21. In view of the aforesaid, we, therefore, hold that the Tribunal and the High Court erred in concluding that the said accident occurred due to the negligence on the part of the deceased as well, as the said conclusion was not based on evidence but based on mere presumption and surmises.” ”

¶34

5

¶35

The Hon’ble Supreme Court in case of Minu Rout v. Satya Pradyumna Mohapatra (2013) 10 SCC 695, while dealing with the issue of contributory negligence in case of head on collusion between truck and car has observed thus :-

¶36

“17. The Tribunal, on appreciation of the oral and documentary evidence, has recorded the erroneous finding by placing strong reliance upon the chargesheet, Ext. 1 without considering the fact that the criminal case was abated against the deceased and further has made observation in the judgment that the appellants had not produced the FIR. Therefore, it has held that there was 50% contributory negligence on the part of the deceased driver in causing accident. The Tribunal ought to have seen the non-production of FIR has no consequence for the reason that chargesheet was filed against the truck driver for the offences punishable under Section 279 read with Section 304-A of IPC read with the provisions of the MV Act. The Insurance Company, though claimed permission under Section 170(b) of the Motor Vehicles Act, 1988 from the Tribunal to contest the proceedings by availing the defence of the owner of the offending vehicle, it did not choose to examine either the driver of the truck or any other independent eyewitness to prove the allegation of contributory negligence on the part of the deceased Susil Rout on account of which the accident took place as he was driving the car in a rash and negligent manner. In the absence of rebuttal evidence adduced on record by the Tribunal, the Tribunal should not have placed reliance on the charge-sheet, Ext. 1 in which the deceased driver was mentioned as an accused and on his death his name was deleted from the charge-sheet. The Tribunal has referred to certain stray answers elicited from the

¶37

6

¶38

evidence of PW 2 and PW 3 in their crossexamination and placed reliance on them to record the finding on Issue No. 1.”

¶39

In the case at hand, the learned Claims Tribunal has considered the evidence of Dinesh Kumar Sahu (A.W.-2) that there was head on collusion between two motor cycle and further considering the evidence of said witness that motor cycle of deceased went on wrong side and caused accident had recorded a finding of contributory negligence to the extent of 50%. Spot map, which is available on record shows that both the motor cycle are lying on the center of the road. In view of the documents (Ex.P-12), spot map, the evidence of Dinesh Kumar Sahu (A.W-2) cannot be accepted as gospel truth and the witness Dinesh Kumar Sahu (A.W.-2) has stated that it is the Sunil Dwivedi who was driving the motor cycle in rash and negligent manner travelling towards wrong side, caused accident. The Learned Claims Tribunal, taking into account the fact that criminal cases were registered against both drivers, there is head-on collision and held that there was contributory negligence on the part of driver of both the motorcycle to the extent of 50% each. The said finding of the learned Claims Tribunal is not sustainable as there is no direct or corroborative piece of evidence that deceased Gyan Prakash also contributed in any manner to the accident. Further considering the aforementioned decision of Hon’ble Supreme Court, wherein it is held that the contributory negligence cannot be proved on the basis of the documents of the criminal case but it is to be proved only through direct and corroborative piece of evidence brought in by parties in criminal case, which is lacking in this case, therefore, the finding

¶40

7

¶41

recorded by the learned Claims Tribunal with regard to contributory negligence to the extent of 50% is not sustainable and it is accordingly set-aside.

¶42

So far as the next ground raised by learned counsel for the appellants with respect to the assessment of the income of the deceased as Rs.4,500/- per month only is concerned, the claimants in support of the plea of the nature of occupation and income, except the self serving statement of appellant No.1 has not submitted any documentary evidence nor examined any independent witnesses. In absence of admissible piece of evidence to prove the nature of occupation and income of the deceased, the learned Claims Tribunal justified in considering the occupation of the deceased to be one of agricultural labourer and consider to assess the income on notional basis. The said decision of the Tribunal to assess the income of the deceased on notional basis in the facts of the case cannot be said to be erroneous, however, for assessing the income on notional basis the Claims Tribunal/Court are required to consider the age of the deceased, price index, cost of living, wage structure prevailing within the area on which the deceased /claimants are residing and further can take help of the minimum wages as fixed by the competent authority under the Minimum Wages Act, 1948. In the record of the claim case, there is no material to suggest, wage structure prevailing within the area in which the deceased was residing on the date of accident. Hence, in the aforementioned facts of the case I find it appropriate to assess the income of the deceased taking help of the

¶43

8

¶44

minium wages fixed by the competent authority so as to award just and fair compensation to the claimants.

¶45

Admittedly as per the pleadings made in the claim application, the deceased was doing the work of agricultural labour and therefore, he will be treated as unskilled labourer. The wage structure fixed by the competent authority for the period from 01.10.2016 till 31.03.2017 was Rs.6,206/- per month. Accordingly, the income of the deceased can be assessed as Rs.6,206/- per month treating him to be unskilled labourer. The learned Claims Tribunal has added 40% of the assessed income considering the age of the deceased as 23 years, which is in consonance of the decision of Hon’ble Supreme Court in case of National Insurance Company Limited. Vs. Pranay Sethi & Ors, reported in (2017) 16 SCC 680 . Further has applied deduction of 1/4 towards personal and living expenses and applied the multiplier of 18, which is also in consonance with the decision of Hon’ble Supreme Court in case of Sarla Verma (Smt.) & Ors. Vs. Delhi Transport Corporation & Anr., reported in (2009) 6 SCC 121.

¶46

The learned Claims Tribunal has further awarded Rs.40,000/- towards loss of consortium and Rs.15,000/- towards funeral expenses and Rs.15,000/- towards loss of estate. Hon’ble Supreme Court in case of Magma General Insurance Company Limited vs. Nanu Ram alias Chuhru Ram & Ors. reported in (2018) 18 SCC 130 has explained the type of consortium and held that there are three types of loss of consortium i.e. loss of spousal consortium for widow/widower, loss of parental consortium to the children and loss of filial consortium to parents. The appellant No.1 is widow, appellant No.2 and 3 are

¶47

9

¶48

children and appellant No.4 & 5 are parents of the deceased therefore, all the appellants/claimants are entitled for Rs.40,000/- each towards loss of consortium. It is ordered accordingly.

¶49

On the basis of above, the compensation calculated by the Tribunal is recomputed as under :-

¶50

SN	Head		Amount (in Rs.).
1.	Annual income (Rs. 6,206x12)	:	74,472.00
2.	Addition of 40% towards future prospects	:	74,472.00 + 29,788.00 = 1,04,260.00
3.	1/4 deduction towards personal expenses	:	1,04,260.00 – 26,065.00 = 78,195.00
4.	Loss of dependency after application of multiplier of 18(78,195 x 18)	:	14,07,510.00
5.	For funeral expenses	:	15,000.00
6.	For loss of estate	:	15,000.00
7.	For loss of consortium to appellants (spousal and parental filial) Rs.40,000/- each(Rs.40,000 x 5)	:	2,00,000.00
	Total compensation	:	16,37,510.00

¶51

Accordingly, the appeal is allowed in part. Now the appellants shall be entitled for total compensation of Rs.16,37,510.00. Any amount already paid to the appellants as compensation pursuant to the impugned award, shall be adjusted. Enhanced amount of compensation shall carry interest @ 9% per annum from the date of filing of application till its realization. Rest of the conditions mentioned in the impugned award shall remain intact.

¶52

10

¶53

In the result, appeal is allowed in part and the award impugned stands

¶54

modified to the extent indicated above.

¶55

Sd/(Parth Prateem Sahu) Judge

¶56

Balram

Smt. Gulawati Sahu v. Sunil Dwivedi

Case brief

What is this about?

What did the court decide?

Smt. Gulawati Sahu v. Sunil Dwivedi

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

National Insurance Company Limited Vs Smt. Rameshwari Khairwar

Ramnarayan Sahu Vs Anil Ram Rawani

S.Ram Dhurv Vs Hembai

Bhajan Singh Painkara Vs State of Chhattisgarh

Jalil Khan Vs State of Chhattisgarh

Smt. Mogra Bai Vs Chaturbhushan Kesharvani