Smt. Tameshwari Kashyap Vs Vinod Kumar Banjare

All R/o Village - Pali ( Sivni ), District - Janjgir - Champa Chhattisgarh, At Present R/o Pankha Dafai, Bhairotal, Surakachhar, Tahsil - Katghora, District - Korba Chhattisgarh

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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 Chakarbhata, District - Bilaspur Chhattisgarh, Through - Rakesh Kumar Agrawal S/o Shri Balram Agrawal, R/o Through Mangat Ram - Banwari Lal Agrawal, Agroha Mang, Korba, Police Station, Tahsil And District - Korba Chhattisgarh, (Driver Of Offending Vehicle)

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2 - Rakesh Kumar Agrawal S/o Shri Balram Agrawal R/o Through Mangat Ram - Banwari Lal Agrawal, Agroha Mang, Korba, Police Station, Tahsil And District - Korba Chhattisgarh, (Owner Of Offending Vehicle)

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3 - New India Insurance Co. Ltd. Through - Divisional Manager, New India Insurance Company Limited, Divisional Office, T. P. Nagar, Korba, Tahsil And District - Korba Chhattisgarh, ( Insurer Of Offending Vehicle),

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... Respondent(s)

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Digitally signed by PRAVEEN KUMAR SINHA Date: 2025.06.23 10:23:36 +0530

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__________________________________________________________ For Appellant (s) : Ms. Dhaneshwari Patel, Advocate on behalf of Mr. P.K. Patel, Advocate

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For Respondents No. 1 & 2 :

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None appears

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For Respondent No.3 :

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Mr. Azad Siddiqui, 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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10/06/2025

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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 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 Additional Motor Accidents Claims Tribunal Katghora, District - Korba (CG) vide award dated 01.10.2019 passed in Claim Case No.157 of 2016.

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Facts relevant for disposal of this appeal are that appellants/claimants filed an application under Section 166 of the Act of 1988 before the learned Additional Motor Accident Claims Tribunal, Katghora, DistrictKorba 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, 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 turning on backlight or blowing the horn and hit the motorcycle due to which, husband of claimant Tameshwari i.e. Mohan Lal and her daughter

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Ananya received severe injuries. In the said accident, Mohan Lal Kashyap and Kumari Ananya died on the spot. Claimant/appellant No.1 is the wife and claimants/appellants No. 2 & 3 are parents of deceased. It was pleaded in the claim application that deceased Mohan Lal Kashyap was aged about 34 years on the date of accident and was working as a Constable in C.A.F., Bango, Korba. The claimants/appellants have prayed for a total compensation of Rs. 1,20,00,000/- due to death of deceased Mohan Lal Kashyap 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. 02 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- Mohan Lal 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

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Mohan Lal Kashyap sustained grievous injuries and died. Fact of contributory negligence is also found to be proved by the Tribunal. Learned Claims Tribunal recorded a finding that breach of the conditions of insurance policy was not found proved and held nonapplicants liable to pay amount of compensation to claimants and upon calculating the loss suffered by the claimant under different heads, awarded total amount of compensation of Rs.30,12,648/ -.

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Learned counsel for the appellants/claimants submits that the finding recorded by the learned Claims Tribunal with respect to contributory negligence to the extent of 50% is incorrect as it is based only on number of persons sitting 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. Insurer has not brought any evidence to prove that the deceased driver of motorcycle, in any manner, contributed to accident. She further submits that deceased was a Govt. employee and posted as Constable in the C.A.F. Bango, Korba. Learned Tribunal has not awarded sufficient amount of compensation under other conventional heads. She submits that amount of compensation under the head ‘loss of consortium’ is not awarded to appellants No. 2 & 3 who are parents of deceased.

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On the other hand, learned counsel for the respondent/Insurance Company submits that learned Tribunal has awarded sufficient amount of compensation on other conventional heads also. Learned Tribunal has also awarded Rs.20,000/- towards pain and suffering. Hence, impugned award does not call for any interference.

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The issue of contributory negligence has been dealt with by the Hon’ble Supreme Court in the matter of Jiju Kuruvila v. Kunjujamma Mohan, (2013) 9 SCC 166 where the Supreme Court has held thus:-

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“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. ”

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In another judgment of Hon’ble Supreme Court while dealing with the issue of contributory negligence in the matter of Minu Rout v. Satya Pradyumna Mohapatra (2013) 10 SCC 695 , it was held thus:-

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“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

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

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In the case at hand, as the insurance company has not led any evidence in this regard, finding recorded by the Tribunal that at the time of accident, more than two persons were sitting on the motorcycle, itself, would not be a ground to hold that driver of motorcycle contributory negligent in the accident, more so when it is a case that at the time of accident, motorcycle was not running but it was stopped on road side to talk with Aman Kashyap standing on road side. In the

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accident, Aman Kahsyap also suffered injures and in his claim application, Tribunal has not recorded contributory negligence. To prove fact of contributory negligence, it is required to prove the act of other person attracting contributory negligence, or the person has in any manner contributed in happening of accident. In the case at hand, there is no such evidence to suggest that deceased Mohan Lal driver of offending vehicle, by his act, contributed in happening of accident. Learned Claims Tribunal had recorded a finding taking note of the fact that at the time of accident, three persons were sitting on motorcycle who are Mohan Lal, his wife- Tameshwari and minor child Ananya aged aged about 9 years.

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In the aforementioned facts of the case, finding recorded by learned Claims Tribunal that more persons were sitting than the prescribed sitting capacity of the said motorcycle and thereby recording a finding of contributory negligence is erroneous and not sustainable in the facts of the case and, therefore, it is set aside.

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Now I will consider the ground of quantum of compensation to be awarded to claimants.

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Perusal of the impugned award would show that learned Tribunal has assessed the income of deceased based on salary slip as Rs.30,913/per month, computed and awarded compensation under the head loss of dependency as Rs.59,35,296/-, Rs.15,000/- towards funeral expenses, Rs.20,000/- towards loss of love and affection and pain and suffering, Rs.15,000/- towards loss of estate and Rs.40,000/- towards loss of spousal consortium to appellant No. 1/wife. However, while considering the award of compensation against death of a person,

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there is no head of awarding compensation towards “pain and suffering and loss of love and affection”, instead, learned Tribunal ought to have considered award of compensation under the head “loss of consortium”. As held by Hon’ble Supreme Court in case of Magma General Insurance Co. Ltd. Vs. Nanu Ram alias Chuhru Ram & Ors. (2018) 18 SCC 130, appellants No. 2 & 3 will be entitled for compensation under the head ‘loss of filial consortium’ of Rs.40,000/each. It is ordered accordingly.

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In the aforementioned facts of the case, I find it appropriate to re-

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compute the amount of compensation as under:-

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S. N.	Heads	Compensation
1.	(A)Loss of Income/dependency 30913 x 12 =3,70,956 (B)Addition towards future prospects @ 50%(370956 x 50% =185478) 370956+185478= 5,56,434 (C)Deduction of 1/3 towards personal and living expenses (5,56,434 x1/3 =185478) 5,56,434-185478= 370956 (D)Multiplier of 16 370956x16=59,35,296	Rs. 59,35,296
2.	Funeral Expenses :	(+) Rs. 15,000
3.	Loss of Estate :	(+) Rs. 15,000
4.	Loss of spousal consortium to appellant/claimant No.1/wife :	(+) Rs. 40,000
5.	Loss of Filial Consortium of Rs.40,000/- each to appellants/ claimants No. 2 & 3 :	(+) Rs. 80,000
	Total compensation :	Rs. 60,85,296

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Now the appellants/claimants are awarded total compensation of Rs.60,85,296/- instead of Rs.30,12,648/- as awarded by the Claims Tribunal.

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Aforementioned total amount of compensation shall carry interest @7.5% 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. Other conditions of impugned award shall remain intact.

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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/-

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(Parth Prateem Sahu)

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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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