Chattisgarh High Court
Tata A. I. G. General Insurance Company ... vs Smt. Saroj Agrawal on 24 June, 2025
Author: Parth Prateem Sahu
Bench: Parth Prateem Sahu
1
2025:CGHC:27155
NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
MAC No. 885 of 2019
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.
--- Appellant
versus
1 - Smt. Saroj Agrawal W/o Late Omprakash Agrawal Aged About 58 Years
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.,
3 - Smt. Rajni Jain W/o Amit Jain Aged About 38 Years R/o House No. E-
2/33, Arera Colony, Bhopal, Madhya Pradesh.
4 - Mamta Bai Sinha W/o Likhendra Sinha R/o Thana Road Abhanpur,
District- Raipur, Chhattisgarh.
5 - Bajaj Alliance General Insurance Co. Ltd. Through Its Manager, Branch
Office, Shri Mohan Bhawan, Vidhan Sabha Road, Pandri, Disrict- Raipur,
Chhattisgarh.
6 - Bagdiya Brothers Private Limited Through Its Director, Jawahar Nagar,
Raipur, Chhattisgarh.
--- Respondent(s)
1 - Smt. Saroj Agrawal W/o Late Om Prakash Agrawal Aged About 58 Years
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.
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.
---Appellants
BALRAM
Versus
PRASAD 1 - Smt. Mamta Bai Sinha W/o Likhendra Sinha R/o Thana Road, Abhanpur,
DEWANGAN
District Raipur, Chhattisgarh. (Registered Owner Of Vehicle Tata Di Bearing
Registration No. CG-04-JB-6349)
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)
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)
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)
--- Respondent(s)
For Appellant (in MAC No.885 of : Mr. Sourabh Sharma, Advocate with
2019) and respondent No.4 in Mr. Sourabh Gupta, Advocate
MAC No.2298 of 2019)
For Appellant (in MAC No.2298 : Mr. Shivendu Pandya, Advocate
of 2019) and Respondent No.1
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. Kushwaha, Advocate
885 of 2019)
Hon'ble Shri Justice Parth Prateem Sahu
Order On Board
24/06/2025
1. 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.
2. 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.
3. 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.
4. 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.
5. 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.
6. 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.
7. 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-JB-
6349. 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.
8. 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
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.
9. Learned counsel for respondent No.5/Insurer of Tata DI CG-04-JB-
6349 supports the award passed by the learned Claims Tribunal.
10. I have heard the learned counsel for the parties and perused the
record of claim case.
11. 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.
12. From perusal of the aforementioned facts of the case, manner in which
the accident is pleaded in the claim application, accident is reported to
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.
13. The Hon'ble Supreme Court in case of T.O. Anthony Vs. Karvaran &
Ors. (2008) 3 SCC 748, has observed as under:-
"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
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."
14. 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:-
"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 appellant-
claimants, i.e. the dependents of passengers and the
injured as well as the dependents of the driver-
Saiprasad 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.
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:--
"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
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
proved, the Railways -- can all be joint
tortfeasors."
(emphasis supplied)
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.
20. Thus, we have no hesitation in holding that the
Courts below: committed gross error in law while
reducing the compensation awarded to the appellant-
claimants, being the dependents of the deceased-
passengers 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."
15. 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.
16. 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
other conventional head and not awarding proper amount of
compensation on the head of loss of consortium to the claimants.
17. 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.
18. 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.
19. Heard on I.A. No.1, which is an application for condonation of delay of
187 days in filing the appeal.
20. 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.
21. 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.
22. 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.
23. 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.
24. 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.
25. 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
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.
26. 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.
27. 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
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).
28. On the basis of above, the compensation calculated by the Tribunal is
recomputed as under :-
SN Head Amount (in Rs.).
1. Loss of income/dependency : 41,88,155.00
3. For loss of parental and spousal : 1,32,000.00
consortium to the appellants No.1 to
3 Rs.44,000/- each (44,000 x 3)
6. For funeral expenses : 16,500.00
7. For loss of estate : 16,500.00
Grand Total : 43,53,155.00
29. 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.
30. Accordingly, MAC No.2298 of 2019 appeal is allowed in part and MAC
No.885 of 2019 is dismissed.
Sd/-
(Parth Prateem Sahu)
Judge
Balram
