Brijmohan Jhanwar vs Sanat Choudhary
2025 Latest Caselaw 3547 Chatt

Chattisgarh High Court

Brijmohan Jhanwar vs Sanat Choudhary on 8 April, 2025

                                              1

                           Digitally signed
                           by BHOLA
                           NATH KHATAI
                           Date:
                           2025.04.11
                           10:25:43 +0530




                                                       2025:CGHC:16486


                                                                         NAFR

      HIGH COURT OF CHHATTISGARH AT BILASPUR


                      MAC No. 566 of 2018

1. Brijmohan Jhanwar S/o Shri Deepchand Ji Jhanwar Aged About
  52 Years R/o A/4, Ashoka Towers, Shankar Nagar, Raipur,
  Chhattisgarh
2. Smt. Sarita Jhanwar W/o Brijmohan Jhanwar Aged About 48
  Years R/o A/4, Ashoka Towers,                    Shankar      Nagar,    Raipur,
  Chhattisgarh
3. Anurag Jhanwar S/o Brijmohan Jhanwar Aged About 20 Years R/o
  A/4, Ashoka Towers, Shankar Nagar, Raipur, Chhattisgarh
  (Claimants), District : Raipur, Chhattisgarh
                                                             ... Appellants
                                      versus

1. Sanat Choudhary S/o Shri Manoranjan Choudhary Aged About 28
  Years R/o Village Satvandkuda, Thana Garhbeta, District
  Midnapur (W.B.) (Driver And Owner Of Truck No. W.B.33/7679)
2. National Insurance Company Limited Through Divisional Office,
  First Floor, Mobin Mahal, Above Central Bank Main Branch,
  G.E.Road,      Raipur,       Chhattisgarh       (Insurer     Of   Truck     No.
  W.B.33/7679)
3. M/s B. K. Infrastructure Through Shri Jagdish Jhanwar, Civil Road
  And Water Distribution Contractor, 69, Mahalaxmi Cloth Market,
  Pandri, Raipur, Chhattisgarh (Owner Of Indica Car No. C.G.04/B-
  4079)
                                      2

  4. The Oriental Insurance Company Limited Through Branch
     Manager, Mahabir Gaushala Complex, Moudha Para, Raipur,
     Chhattisgarh (Insurer Of Indica Car No. C.G.04/B-4079)
                                                    ... Respondent(s)

For Appellants : Mr. Sangeet Mumar Kushwaha, Advocate, along with Ms. Priya Kaiwart, Advocate For Respondent No.2 : Mr. Qamrul Aziz, Advocate For Respondent No.4 : Mr. Akash Shrivastava, Advocate, on behalf of Mr. R. N. Pusty, Advocate

Hon'ble Shri Justice Sanjay Kumar Jaiswal

Order On Board

08.04.2025

1. This appeal under Section 173 of the Motor Vehicles Act has been

preferred by the claimants challenging the award dated 12.12.2017 passed by 1st Additional Motor Accident Claims Tribunal, Raipur (C.G.), in Claim Case No.54/2005.

2. The facts, in brief, necessary for disposal of this appeal are that on

22.07.2004 when deceased Vikas Jhanwar was coming from Raigarh to Raipur driving Indica car No. CG 04 B 4079, near village Jogidipa on National Highway No.6, the offending Truck bearing registration No. WB 33/7679 coming from the opposite direction collided with the car, as a result of which, Vikas Jhanwar suffered grievous injuries and died on the spot.

3. The claimants who are the parents and brother of deceased Vikas

Jhanwar, filed a claim application before the Tribunal under Section 163A of the MV Act. Learned Tribunal, on a close scrutiny of the evidence brought on record, vide order dated 21.12.2005 in Claim Case No. 54/2005, awarded a total compensation of Rs.4,90,000/- with interest @ 6% per annum, from the date of application till its realization, in favour of the claimants.

4. While passing the award dated 21.12.2005, learned Tribunal held

that the accident occurred due to the contributory negligence of both the drivers to the extent of 50-50% and thereby saddled the liability of 50% of the compensation i.e. Rs.2,45,000/- upon the Insurance Company of the Truck i.e. respondent no.2.

5. Being dissatisfied with the said order, the claimants preferred an

appeal before this Court registered as MA No.560 of 2006 and the Insurance Company of the Truck preferred an appeal registered as MA No.834/2006. Both the appeals were clubbed and heard together and vide order dated 30.08.2017 this Court held that since the accident arose in the course of use of two vehicles and that there is a finding of contributory negligence, the claim of the claimants ought to have been one under Section 166 of the MV Act and not one under Section 163A of the MV Act. Accordingly, the matter was remitted back to the Tribunal for deciding it afresh.

6. The claimants filed a claim application under Section 166 of the MV

Act claiming total compensation of Rs.58,00,000. Learned Tribunal, after considering the evidence brought on record, re-computed the compensation and vide order dated 12.12.2017 awarded a total compensation of Rs.5,41,700/- with interest @ 7% per annum, from the date of application till its realization, in favour of the claimants, against which the present appeal has been preferred by the claimants for enhancement of compensation.

7. However, the Tribunal, while passing the impugned award afresh,

re-assessed the contributory negligence between the driver of the Indica car and the driver of the truck in the ratio of 75:25% instead of 50:50%.

8. Learned counsel appearing for the claimants submitted that the

average annual income taken by the Tribunal is less than the income tax return (Ex. P-13, 14 & 15) and therefore, it needs to be enhanced suitably. He submits that the Tribunal has awarded less

compensation under other heads which also needs to be enhanced suitably. He also argues that the negligence on the part of the offending Truck should be increased from 25% to 75%.

9. On the contrary, learned counsel for the Insurance Company

submits that in the facts and circumstances of case, the compensation awarded by the Tribunal is just and proper and requires no further enhancement.

10. Heard learned counsel for the parties and perused the record.

11. Considering the evidence brought on record, learned Tribunal in its

earlier judgment dated 21.12.2005 held the drivers of both the vehicles involved in the accident to be 50-50% responsible for the accident. It is clear from the evidence that both the vehicles were moving on the road at the time of the accident. No spot-witness has been examined. Therefore, the negligence of the drivers of both the vehicles is determined to be 50-50%.

12. As regards quantum, Saral Forms Exhibits P-15, 14 & 13 regarding

income tax return filed by deceased for assessment years 2002-03, 2003-04 & 2004-05 show his annual income as Rs.1,66,000, 1,79,000 & 1,78,000 respectively. The maximum amount among the said annual incomes is Rs.1,79,000. Hence, the income of the deceased is taken as Rs.1,79,000 per annum. As per National Insurance Company Ltd., Vs. Pranay Sethi and Others, (2017) 16 SCC 680, the future prospects would be 40% of the income. After adding 40% towards future prospects i.e. Rs.71,600, the amount comes to Rs.2,50,600/-.

13. There are total 3 claimants who are the parents and brother of the

deceased. However, the Tribunal has not considered the brother of the deceased, Anurag Jhanwar, to be dependent upon the deceased as he was major at the time of accident and the parents are alive. So deduction towards personal expenses would be half

of the income as rightly held by the Tribunal and after deduction, the amount comes to Rs.1,25,300. In view of judgment of the Hon'ble Supreme Court in the case of Sarla Verma (Smt.) and others vs. Delhi Transport Corporation and another reported in (2009) 6 SCC 121 and National Insurance Company Ltd., Vs. Pranay Sethi and Others, (2017) 16 SCC 680 and also considering the age of the deceased to be 26-30 years, the multiplier of 17 applied by the Tribunal is proper and after applying the said multiplier, the total loss of dependency works out to Rs.21,30,100 (125300 x 17). The claimants are entitled for Rs. 15,000/- towards loss of estate and Rs.15,000/- for funeral expenses. As per 'Magma General Insurance Co. Ltd. Vs. Nanu, reported in AIR Online 2018 SC 189, the 3 claimants are also entitled for Rs.40,000/- each towards love and affection totaling Rs.1,20,000/-. Accordingly, the compensation is re-computed in the following manner:-

                            Heads                     Calculation

       Compensation towards dependency                   21,30,100

       For loss of estate                                    15,000
       For love and affection to 3 claimants @             1,20,000
       Rs.40,000/- each
       For funeral Expenses                                  15,000
                                    Total             Rs.22,80,100

14. Thus, the total compensation is recomputed as Rs.22,80,100/-.

However, considering 50% contributory negligence on the part of the deceased, the appellant/claimants will be entitled for total compensation of Rs.11,40,050/- (22,80,100 x 50% = 11,40,050), from which after deduction of Rs.5,41,700/- as awarded by the Tribunal, the enhanced compensation would be Rs.598350/-.

15. Accordingly, the appeal is partly allowed. The claimants shall be

entitled for the enhanced compensation of Rs.5,98,350/- in addition

to what is already awarded by the claims Tribunal. The enhanced amount will carry interest @ 6% per annum from the date of enhancement of the award till its realization. The impugned award stands modified to the above extent and rest of the conditions shall remain intact.

16. The Registry is directed to communicate the claimants in writing "the

enhanced amount" in this appeal as against the award made by the Claims Tribunal. The said communication be made in Hindi (Deonagri) language and the help of paralegal workers may be availed with a co-ordination of Secretary, Legal Aid of the concerned area wherein the claimants reside.

Sd/-

(Sanjay Kumar Jaiswal) Judge Khatai