Madhya Pradesh High Court
Smt.Renu Chauhan vs Ajmer Singh on 4 July, 2025
NEUTRAL CITATION NO. 2025:MPHC-GWL:13778
1 MA-1050-2007
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE RAJENDRA KUMAR VANI
ON THE 4 th OF JULY, 2025
MISC. APPEAL No. 1050 of 2007
SMT.RENU CHAUHAN AND OTHERS
Versus
AJMER SINGH AND OTHERS
Appearance:
Shri Awdhesh Singh Bhadauria - Advocate for the appellants.
Shri R.V.Sharma - Advocate for the respondent No.3/Insurance
Company.
ORDER
This Miscellaneous Appeal has been preferred by the appellants for
enhancement of compensation awarded by Second Additional MACT,
Gwalior, vide award dated 21.08.2007 in Claim Case No.37/2006 whereby
MACT has awarded compensation amount of Rs.2,20,750/- along with
interest @ 6% per annum to the claimants on account of death of deceased
Sanju @ Sanjeev.
2. The necessary facts for disposal of this appeal are that on
01.09.2006 when the deceased Sanju @ Sanjeev along with his friend
Rajendra Singh Chouhan went by motorcycle via Gola Ka Mandir, as soon
as they reached Purushottam Vihar Colony, at that time, Ajmer Singh, driver
of the truck bearing registration No.MP 09/KB 0650 driving the truck rashly
and negligently dashed the motorcycle of deceased Sanju @ Sanjeev. Due to
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which, he sustained grievous injuries. He was admitted in the hospital for
treatment. During treatment, he died.
3. It is submitted by the learned counsel for the appellants that the
learned Tribunal has erroneously found that it is a case of contributory
negligence on the basis of absence of licence with the deceased. He relied
upon a judgment of a co-ordinate Bench of this Court in case of Smt. Anita
Bai and Others Vs. Shiv Singh Maravi and Others in Misc. Apppeal No.6373
of 2023 and also the judgment of Hon'ble Apex Court in the case of Sudhir
Kumar Rana Vs. Surinder Singh (2008)12 SCC 436 and submitted that in
absence of licence per se it is not indicative of the fact that it is a case of
contributory negligence. It is also submitted that the learned Tribunal has
assumed the salary of the deceased as Rs.100/- per day and Rs.3000/- per
month, whereas by adducing the evidence on behalf of appellants, it is got
established by the appellants that the deceased was having the income of
Rs.10000-11000/- per month by operating disc business. It is also submitted
that on both counts, the conclusion of the learned tribunal be set aside and
prays for enhancement of compensation.
4. The learned counsel appearing on behalf of the Insurance Company
opposed the prayer on the ground that the learned Tribunal in paragraphs 8 to
11 has discussed in detail the income of the deceased and found that the
appellants failed to prove the income of the deceased and therefore on the
basis of minimum wage, the learned tribunal has rightly assumed the income
of deceased Rs.100/- per day which is even higher than the minimum wage
of unskilled labour on the date of accident as declared by the Labour
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department. It is also submitted that in paragraphs 16 and 21 of the
impugned award, learned Tribunal had in detail discussed the evidence on
the record, and it is proved that it is a case of contributory negligence. The
conclusion of the learned tribunal in this regard does not warrant any
interference.
5. Heard the learned counsel for the parties and perused the record.
6. In paragraphs 16 and 18 of the impugned award, the learned
tribunal has assumed it is the case of contributory negligence on the anvil
that the driver of the offending vehicle was not having valid and effective
driving licence but only on the basis of the absence of valid and effective
driving licence with the deceased, it would be lawful to assume his
contributory negligence in the accident. Hon'ble Apex in the case Sudhir
Kumar Rana (supra) has held that person driving without licence, same by
itself may not lead to a finding of negligence with regard to the accident.
There is no finding of fact arrived at that claimant was driving two-wheelers
rashly and negligently and met with the accident with mini truck. Thus, only
because of he was not having a licence, he could not be held to be guilty of
contributory negligence. Paragraphs 6 to 8 are relevant in this behalf and
reproduced as under.
"6. A contributory negligence may be defined as negligence in not avoiding the
consequences arising from the negligence of some other person, when means
and opportunity are afforded to do so. The question of contributory negligence
would arise only when both parties are found to be negligent.
7. The question is, negligence for what? If the complainant must be guilty of an
act or omission which materially contributed to the accident and resulted in
injury and damage, the concept of contributory negligence would apply.
(See New India Assurance Co. Ltd. v. Avinash [1988 ACJ 322 (Raj)] .)
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In T.O. Anthony v. Karvarnan [(2008) 3 SCC 748] it was held : (SCC pp. 750-
51, paras 6-7)
" 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 t. o
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.
7. Therefore, when two vehicles are involved in an accident, and one of the
drivers claims compensation from the other driver alleging negligence, and the
other driver denies negligence or claims that the injured claimant himself was
negligent, then it becomes necessary to consider whether the injured claimant
was negligent and if so, whether he was solely or partly responsible for the
accident and the extent of his responsibility, that is, his contributory
negligence. Therefore where the injured is himself partly liable, the principle
of 'composite negligence' will not apply nor can there be an automatic
inference that the negligence was 50 : 50 as has been assumed in this case. The
Tribunal ought to have examined the extent of contributory negligence of the
appellant and thereby avoided confusion between composite negligence and
contributory negligence. The High Court has failed to correct the said error."
8. If a person drives a vehicle without a licence, he commits an offence. The
same, by itself, in our opinion, may not lead to a finding of negligence as
regards the accident. It has been held by the courts below that it was the driver
of the mini truck who was driving rashly and negligently. It is one thing to say
that the appellant was not possessing any licence but no finding of fact has
been arrived at that he was driving the two-wheeler rashly and negligently. If
he was not driving rashly and negligently which contributed to the accident, we
fail to see as to how, only because he was not having a licence, he would be
held to be guilty of contributory negligence."
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7. Keeping in view the law laid down in aforesaid case, only on the
basis of absence of valid and effective driving licence with the deceased,
driver of two-wheelers, cannot be held to be liable for contributory
negligence. It is pertinent to mention here that to prove the contributory
negligence, the non-applicants have not adduced any evidence and nothing
was revealed in the applicants' evidence to assume that deceased himself was
negligent in the accident. Therefore, the conclusion in paragraphs 16 to 18
of the award as regards contributory negligence is not tenable.
8. As regards the income of the deceased, it is tried that the income of
the deceased ought to be proved by cogent and reliable evidence. Bare
assertion in this respect is not sufficient to prove income as held in the case
o f Syed Basheer Ahamed and others Vs. Mohammed Jameel and another,
(2009)2 SCC 225.
9. Though, it is deposed by Renu (AW-1), the widow of the deceased
that the deceased was earning Rs.10000-11000/- monthly by operating disc
business, but she admitted in the cross-examination that in relation to the
disc business, no document has been filed. No documents as regards the
income of the deceased have been filed and proved. Pankaj (AW-3) had
deposed that he along with deceased, was doing disc business and they
earned Rs.20000-22000/- per month and each of them were earning
Rs.10000-11000/- per month but here again, he categorically admitted in the
cross examination that it is obligatory from persons operating disc business
to deposit the Excise Duty in the concerned department. No registration or
certificate for operating such business has been filed by him. No partnership
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deed, receipts, or other documents have been filed in this respect. He also
admitted that no registration is there in his and deceased's names for this
business. He neither filed any document in respect of the earning nor
document regarding deposition of the income or other taxes in the form of
returns thereof.
10. Keeping in view the statement of this witness, it cannot be said that
the appellants/claimants have succeeded in establishing the income of the
deceased as Rs.10000-11000/- by cogent and reliable evidence. In absence
of such evidence, minimum wage for labour declared by the Labour
Department may be resorted to. Since there is no documents showing the
academic qualification of the deceased, therefore, the minimum wage of
unskilled labour at the time and date of accident may be assumed as the
income of the deceased, which is less than Rs.3000/-. Hence, the tribunal
has assumed Rs.3,000/- as income of the deceased. Therefore, it cannot be
said that the learned tribunal has assumed the income of the deceased on
lower side.
11. The learned Tribunal has awarded compensation of Rs.4,32,000/-
applying the dependency of 1/3rd. Claimants are total 5 in number, but
appellant Ravina Chauhan, sister of the deceased cannot be assumed to be
the dependent of the deceased as father Ram Kirshna Chauhan and
mother Kusum Devi of the deceased are alive. Keeping in view the number
of dependents as 4 in number, the dependency ought to be considered as 3/4
and keeping in view the age of the deceased 27 years (as revealed from the
postmortem report), the claimants are entitled to get 40% towards future
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prospects. A multiplier of 17 will be applicable, keeping in view the age of
the deceased. On other conventional heads, Rs.30,000 + (40000 x4)
=1,90,000/- may be granted. The calculation of compensation amount is as
follows, which 100% without deducting 50% on account of contributory
negligence are entitled to receive by the claimants/appellants.
Amount of
compensation
Sr. Head awarded by Amount of Compensation assessed by this Court
Claims
Tribunal
Income of
1 Rs. 3,000/- Rs.3,000/-
deceased
deduction
expenses
3 Future Prospects 40% 40%
(3,0005x12=36000)x3/4=Rs.37800+40%=37800x17=
5. Loss of income 4,32,000/-
Rs.6,42,600/-
Loss of
6. 5000/-
consortium Other conventional heads Rs.1,90,000/-
Funeral
7. 2,000/-
Expenses
8. Loss of Estate 2,500/-
4,41,500/-
Out of which
50%
Total
10 deducted for Rs.8,32,600/-
compensation
contributory
negligence
Rs.2,20,750/-
Additional
11. Rs.6,11,850
enhancement
12. Although the appellants have valued this appeal at Rs.4,50,000/-
and have paid court fees on the said amount, however, in view of the
decision of the Apex Court in Kavita Balthiya and Others vs. Santosh Kumar
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and Another in Civil Appeal No. 8053/2024 (@ SLP (C) No. 16558/2024) , it
is directed that the appellants shall pay the court fees on the remaining
amount of Rs1,61,850/- (i.e., Rs. 6,11,850- Rs. 4,50,000) within a period of
one month from the date of receipt of the certified copy of this order. Failing
which, the present order shall not be given effect to.
13. Accordingly, this appeal is allowed in above terms. The enhanced
amount of compensation shall carry interest at the rate of 6% per annum.
14. The other terms and conditions of the award shall remain intact.
15. With the aforesaid, this miscellaneous appeal is disposed off.
(RAJENDRA KUMAR VANI)
JUDGE
mani
