Tata a. I. G. General Insurance Company Limited Vs Smt. Saroj Agrawal

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2025:CGHC:27155

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NAFR

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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MAC No. 885 of 2019

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1 - Tata A. I. G. General Insurance Company Limited Through Its Legal Manager, Office No. 403 4th Floor, DB, City Corporate Park, Flat No.1, Block No.9, Rajbandha, Maidan, Raipur, Chhattisgarh.

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--- Appellant

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versus

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1 - Smt. Saroj Agrawal W/o Late Omprakash Agrawal Aged About 58 Years

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2 - Pankaj Agrawal S/o Late Omprakash Agrawal Aged About 36 Years Both are R/o House No. 30, Sector 1, Geetanjali, Nagar, Raipur, Chhattisgarh.,

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3 - Smt. Rajni Jain W/o Amit Jain Aged About 38 Years R/o House No. E- 2/33, Arera Colony, Bhopal, Madhya Pradesh.

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4 - Mamta Bai Sinha W/o Likhendra Sinha R/o Thana Road Abhanpur, District- Raipur, Chhattisgarh.

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5 - Bajaj Alliance General Insurance Co. Ltd. Through Its Manager, Branch Office, Shri Mohan Bhawan, Vidhan Sabha Road, Pandri, Disrict- Raipur, Chhattisgarh.

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6 - Bagdiya Brothers Private Limited Through Its Director, Jawahar Nagar, Raipur, Chhattisgarh.

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--- Respondent(s)

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MAC No. 2298 of 2019

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1 - Smt. Saroj Agrawal W/o Late Om Prakash Agrawal Aged About 58 Years

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2 - Pankaj Agrawal S/o Late Om Prakash Agrawal Aged About 36 Years Both are R/o House No.30, Sector-1, Gitanjali Nagar, Raipur, District Raipur, Chhattisgarh.

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3 - Smt. Rajni Jain W/o Amit Jain Aged About 38 Years R/o House No. E- 2/33, Arera Colony, Bhopal, District Bhopal Madhya Pradesh.

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---Appellants

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Versus

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BALRAM PRASAD DEWANGAN

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Digitally signed by BALRAM PRASAD DEWANGAN

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1 - Smt. Mamta Bai Sinha W/o Likhendra Sinha R/o Thana Road, Abhanpur, District Raipur, Chhattisgarh. (Registered Owner Of Vehicle Tata Di Bearing Registration No. CG-04-JB-6349)

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2 - The Bajaj Alliance General Insurance Company Limited Through Branch Manager, Branch Office Shri Mohan Bhawan, Vidhan Sabha Road, Pandri Raipur, District Raipur, Chhattisgarh. (Insurer Of Tata Di Bearing Registration No. CG-04-JB-6349)

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3 - Bagadiya Brothers Pvt. Ltd. Through Director, Jawahar Nagar, Raipur, District Raipur, Chhattisgarh. (Registered Owner Of Offending Vehicle Toyota Bearing Registration No. CG-04-H-0156)

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4 - The Tata A.I.G. General Insurance Company Limited Through Branch Manager, Branch Office Vanijya Bhawan, Devendra Nagar Road, Raipur, District Raipur, Chhattisgarh. (Insurer Of Offending Vehicle Toyota Bearing Registration No. CG-04-H-0156)

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--- Respondent(s)

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For Appellant (in MAC No.885 of 2019) and respondent No.4 in MAC No.2298 of 2019)	: Mr. Sourabh Sharma, Advocate with Mr. Sourabh Gupta, Advocate
For Appellant (in MAC No.2298 of 2019) and Respondent No.1 to 3 (in MAC No.885 of 2019	: Mr. Shivendu Pandya, Advocate
For Respondent No.2 (in MAC	: Mr. Prashant Sahu, Advocate on
No. 2298 OF 2019) and	behalf of Mr. Sangeet Kumar
Respondent No.5 (in MAC No. 885 of 2019)	Kushwaha, Advocate

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Hon'ble Shri Justice Parth Prateem Sahu

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Order On Board

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24/06/2025

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MAC No.885 of 2019 is filed by the appellant/Insurance Company challenging the amount awarded, whereas MAC No.2298 of 2019 is filed by the claimants seeking enhancement of compensation awarded by the learned Additional Motor Accidents Claims Tribunal, Raipur in Claims Tribunal in Case No.263/2015. As both the appeals are arising out of the same award, they are heard together and disposed of by this common order.

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Facts relevant for disposal of this appeal are that a claim application U/s. 166 of the Act, 1988 was filed by the claimants claiming total compensation of Rs.80,00,000/- under different heads on account of the death of Om Prakash Agrawal, who died in the road accident alleging that on 31/05/14 at about 1.00 pm Om Prakash Agarwal while returning from Abhanpur to Raipur in a vehicle Toyota CG-04-H-0156, met with an accident with an oncoming vehicle Tata DI No.CG-04-JB 6349. As a result of the accident Om Prakash Agarwal and Jayarajan, who were sitting in the vehicle Toyota CG-04-H-0156 and the driver of the said car Akshat Bagadia died and Jaidev one of the occupant of car sustained severe injuries. In the said accident, driver of vehicle Tata DI No.CG-04-JB 6349 also died. It was further pleaded in claim application that deceased Om Prakash Agrawal was doing business and was earning Rs.15,00,000/- per annum.

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Non-applicant Nos.1 submitted reply, while resisting the claim it was pleaded that accident occurred due to rash and negligent driving of the toyota vehicle No.C.G.-04H-0156 by its driver. The claim application was filed exaggerating the amount of compensation on false and frivolous grounds. The vehicle CG-04-JB 6349 was insured with Bajaj Allianz/non-applicant No.2, and its driver had a valid licence.

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Non-applicant No.2 also filed its reply and pleaded that the driver of Tata DI No.CG04-JB-6349 was not having valid and effective driving license to drive the vehicle and the vehicle was being driven in breach of conditions of the insurance policy. The accident occurred due to the negligence of the driver of the Toyota vehicle No.C.G.04H-0156.

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Non-applicant No.4 also filed its reply denying the averment made in the claim application and pleaded that the application filed by the claimants against non-applicant No.4 is not maintainable. It was pleaded that in the accident, the vehicle Toyota No.C.G.04-H-0156 is not implicated as offending vehicle. It was pleaded that at the time of accident driver of the said vehicle bearing No.C.G.-04-H-0156 was not having valid and effective driving license and the vehicle was being driven in breach of the conditions of the insurance policy.

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Learned Claims Tribunal upon appreciation of pleadings and evidence placed on record by respective parties, allowed the claim application in part and awarded total compensation of Rs.42,38,155/- fastening the liability upon the non-applicant No.4/Insurance Company.

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Learned counsel for the appellant/Insurance Company submits that as per the criminal case and the evidence available on record, it is not in dispute that the accident is between two four wheelers one Toyota Car bearing registration No.C.G.-04H-0156 and another Tata DI CG.04-JB6349. He contended that in the said accident, driver of both the vehicles died however, learned Claims Tribunal erred in not holding that there was contributory negligence on the part of the driver of both the vehicle. Learned Claims Tribunal ought to have awarded compensation to the claimants after deducting 50% towards contributory negligence on the part of the driver of Toyota car bearing No.C.G.-04H-0156.

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Leaned counsel for respondents No.1 to 3/claimants would submit that Om Prakash Agrawal was not the driver of the Toyota Corolla car, but one of the occupant in the said car. Hence, the contributory

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negligence for the occupants will not be attracted, therefore, the submission of learned counsel for the appellant/Insurance Company is not correct that the deceased Om Prakash Agrawal also contributed to the accident in the facts of the case.

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Learned counsel for respondent No.5/Insurer of Tata DI CG-04-JB6349 supports the award passed by the learned Claims Tribunal.

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

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Perusal of the pleadings made in the application filed under Section 166 of the Act, 1988 would show that the claimants in the claim application has pleaded that the claimant No.1 is the widow and claimant No.2 and 3 are son and daughter of late Om Prakash Agrawal. It is also pleaded that on 31.05.2014 at about 1.00 PM Om Prakash Agrawal was returning back to Raipur while sitting in Toyota Car No.CG-04H-0156. In the accident, two of the occupants Om Prakash Agrawal and Jay Rajan died and driver of the car, Akashat Bagadiya also died. From the aforementioned pleading it is apparent that the car was driven by Akshat Bagadiya at the time of accident. Appellant/Insurance Company had submitted reply to the claim application. In para -3 of the reply, Insurance Company in fact has denied the death of Om Prakash Agrawal in the motor accident and further pleaded that car bearing CG.04H 0156 was never involved in the alleged accident.

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From perusal of the aforementioned facts of the case, manner in which the accident is pleaded in the claim application, accident is reported to

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the concerned police station and after conclusion of the investigation, police has submitted final report stating that the vehicle bearing No.C.G.-04H-0156 (Car) was driven by Akshat Bagadiya and Om Prakash Agrawal was sitting in the car. Final report is filed as Ex.P-1 and FIR is filed as Ex.P-3, evidence available on record I am of the considered opinion that contributory negligence would not be attracted in the facts of the case. Contributory negligence can be attracted only against the driver of the two vehicles. For the occupants of the vehicle, it will be a composite negligence.

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The Hon'ble Supreme Court in case of T.O. Anthony Vs. Karvaran & Ors. (2008) 3 SCC 748 , has observed 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

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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 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 appellantclaimants, i.e. the dependents of passengers and the injured as well as the dependents of the driverSaiprasad 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

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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 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

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proved, the Railways — can all be joint tortfeasors.”

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(emphasis supplied)

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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 Courts below: committed gross error in law while reducing the compensation awarded to the appellantclaimants, being the dependents of the deceasedpassengers 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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In view of the facts of the case as also the evidence available on record and the decision of Hon'ble Supreme Court I do not find any merit in the submission of learned counsel for the appellant/Insurance Company that the learned Claims Tribunal fell into error in not deducting the amount from the compensation towards contributory negligence of the deceased Om Prakash Agrawal. Accordingly, MAC No.885 of 2019 filed by the appellant/Insurance Company being sans merit and it is accordingly dismissed.

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So far as the appeal filed by the claimants bearing MAC No. 2298 of 2019 for enhancement of the amount of compensation is concerned, learned counsel for the appellants/claimants submits that the learned Claims Tribunal erred in awarding less amount of compensation on

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other conventional head and not awarding proper amount of compensation on the head of loss of consortium to the claimants.

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Mr. Sourabh Sharma, Advocate appearing on behalf of Tata AIG, General Insurance Company, the appellant in MAC No.885 of 2019 submits that he has not filed Vakalatnama on behalf of respondent No.4/Insurance Company in MAC No.2298 of 2019 as no notice has been issued to respondent No.4.

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Perusal of the order-sheet would show that notices were issued to the respondents including the respondent No.4 on I.A. No.1, which is application for condonation of delay in filing the appeal. Notice sent to the respondent No.4 is returned unserved mentioning that (not known). As the respondent No.4/Insurance Company has filed the appeal bearing MAC No. 888/2019 challenging the impugned award, therefore, it is apparent that respondent No.4/Insurance Company is well aware of the facts of the case and the evidence available therein. In the appeal filed by the claimants, they are only challenging the award of compensation under the other heads, which is already quantified by the Hon'ble Supreme Court in case of National Insurance Company Limited. Vs. Pranay Sethi & Ors, reported in (2017) 16 SCC 680 , and in case of Magma General Insurance Company Limited vs. Nanu Ram alias Chuhru Ram & ors reported in (2018) 18 SCC 130 , therefore, Shri Sourabh Sharma, Advocate who is representing in MAC No.888/2019 on behalf of appellant/Insurance Company is directed to accept notice of this appeal also on behalf of respondent No.4.

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Heard on I.A. No.1, which is an application for condonation of delay of 187 days in filing the appeal.

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Considering the submission of learned counsel for the respective parties as also the pleadings made in the application for condonation of delay, it is allowed. The delay of 187 days in filing of the appeal is condoned.

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Considering the nature of grounds raised with regard to enhancement of compensation on other head, with the consent of the parties, the appeal is heard finally.

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Learned counsel for the appellants/claimants submits that the learned Claims Tribunal erred in awarding less amount of compensation on other conventional head and not awarding proper amount of compensation on the head of loss of consortium to the claimants.

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Learned counsel for respondent No.4/Insurance company submits that the compensation awarded by the learned Claims Tribunal is just and proper in the facts of the case, which does not call for any interference.

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Perusal of the impugned award would show that the learned Claims Tribunal has awarded Rs.20,000/- towards loss of consortium to appellant No.1 and Rs.10,000/- each to appellant No.2 and 3 towards loss of love and affection, Rs.10,000/- towards funeral expenses only. No amount is awarded under the head of loss of estate.

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Hon'ble Supreme Court in case of Pranay Sethi (supra) , has quantified the amount of compensation as Rs.15,000/- towards funeral expenses, Rs.15,000/- towards loss of estate and Rs.40,000/- towards

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loss of consortium. Further Hon'ble Supreme Court in case of Nanu Ram alias Chuhru Ram (supra) has explained types of consortium as loss of spousal consortium to the appellant/wife of the deceased, loss of parental consortium to the children and loss of filial consortium to the parents of the deceased.

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In view of the aforementioned decision of Hon'ble Supreme Court, award of compensation by the learned Claims Tribunal under the aforementioned head is on lower side and therefore, it is not sustainable. Accordingly, the amount of compensation under the head of loss of spousal consortium to appellant No.1/wife is enhanced to Rs.40,000/-. The appellant No.2 and 3 being the children of deceased are also entitled to get parental consortium of Rs.40,000/-. It is ordered accordingly. The claimants will be further entitled for Rs.15,000/- each towards funeral expenses and for loss of estate. It is ordered accordingly. The claimants/appellants will not be entitled for any amount of compensation under the head of loss of love and affection as this Court has already awarded compensation under the head of consortium. The learned Claims Tribunal has awarded Rs.41,88,155/towards loss of dependency which is affirmed.

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The Hon’ble Supreme Court in case of Pranay Sethi (supra) has also held that the amounts under other conventional heads should be revisited on percentage basis in every three years and enhancement should be at the rate of 10% in a span of every three years. In case at hand, accident is of the year 2014. Hence, the appellants are entitled for 10% enhancement on the amount under other conventional heads. So, by enhancing the amount awarded under other conventional

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heads at the rate of 10%, the appellants are now entitled for a sum of Rs. 16,500/- each (15000+10% increase after 3 years) towards loss of estate and funeral expenses i.e. total Rs.33,000/- under both the heads. Likewise, appellants No.1 to 3 are entitled for Rs.44,000/each (40000 + 10% increase after 3 years) i.e. Rs.1,32,000/- for loss of consortium (spousal and parental).

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

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SN	Head		Amount(in Rs.).
1.	Loss of income/dependency	:	41,88,155.00
3.	For loss of parental and spousal consortium to the appellants No.1 to 3 Rs.44,000/- each(44,000 x 3)	:	1,32,000.00
6.	For funeral expenses	:	16,500.00
7.	For loss of estate	:	16,500.00
	Grand Total	:	43,53,155.00

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Now the appellants shall be entitled for total compensation of Rs.43,53,155.00. Any amount paid to the appellants as compensation as per 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.

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Accordingly, MAC No.2298 of 2019 appeal is allowed in part and MAC No.885 of 2019 is dismissed.

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Sd/(Parth Prateem Sahu) Judge

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Balram

Tata a. I. G. General Insurance Company Limited v. Smt. Saroj Agrawal

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Tata a. I. G. General Insurance Company Limited v. Smt. Saroj Agrawal

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