[Cites 5, Cited by 0]

Punjab-Haryana High Court

Sajida & Ors vs Mamsed Khan & Ors on 20 February, 2026

Author: Alka Sarin

Bench: Alka Sarin

                       101
                               IN THE HIGH COURT OF PUNJAB AND HARYANA AT
                                              CHANDIGARH

                                                                      FAO-780-2016 (O&M)
                                                                      Date of Decision: 20.02.2026

                       SAJIDA & ORS                                                      .... Appellants

                                                           VERSUS

                       MAMSED KHAN & ORS                                               .... Respondents

                       CORAM : HON'BLE MRS. JUSTICE ALKA SARIN

                       Present :      Ms. Komal Rana, Advocate for
                                      Mr. Abhimanyu Singh, Advocate for the appellants.

                                      Ms. Vandana Malhotra, Advocate (through hybrid mode) and
                                      Ms. Manvi Verma, Advocate for respondent No.3.

                       ALKA SARIN, J. (ORAL)

1. As per the report of the Mediator, mediation remained

unsuccessful.

CM-10711-CII-2025

2. This is an application for fixing an actual date of hearing in the

main appeal.

3. Learned counsel for respondent No.3 state that they have no

objection if the present application is allowed.

4. In view thereof, the present application is allowed. With the

consent of the learned counsel for the parties, the main appeal is taken on

Board today itself.

                                     FAO-780-2016 (O&M)                                            -2-


                       FAO-780-2016

5. The present appeal has been preferred by the claimant-appellants

aggrieved by the quantum of compensation awarded by the Motor Accident

Claims Tribunal, Mewat (hereinafter referred to as 'the Tribunal') vide award

dated 09.09.2015. The parties are being referred to as the claimants, the owner

and the driver and the insurance company for the sake of clarity.

6. Brief facts relevant to the present lis are that a claim petition had

been filed by the claimants on account of death of Rashid under Section 166

of the Motor Vehicles Act, 1988. The accident in the present case took place

on 08.05.2014 at about 4/5:00 pm. Maqsood, who is the complainant in the

criminal case, stated that when he reached near Village Malab near hotel on

Nuh-Nagina Road for taking food out of his car, at that time Rashid son of

Daud and Sahid son of Abdul Rahim were going towards Nuh side on their

motorcycle bearing registration No.HR-27D-3896, which was ahead of the car

of the complainant. Just ahead of Pooja Hotel the vehicle bearing registration

No.HR-74A-2926 (hereinafter referred to as 'the offending vehicle') was

parked in the middle of the road without any indication. When Rashid reached

near the offending vehicle, a Dumper came towards Malab side and in order

to save the motorcycle from the Dumper, Rashid struck against the parked

offending vehicle. It was the case set up that the accident took place due to the

sole negligence of the driver of the offending vehicle as he had parked the

same in the middle of the road without giving any indication. It was claimed

that Rashid was 24 years of age and was earning ₹20,000 per month while

working as a driver.

FAO-780-2016 (O&M) -3-

7. On notice, the owner and the driver filed their joint written

statement. The insurance company also filed its separate written statement.

The owner and the driver denied the accident and claimed false implication.

It was the stand taken by the owner and the driver that the offending vehicle

was insured with the insurance company. The insurance company in its

written statement raised various preliminary objections qua maintainability,

the petition being bad for mis-joinder and non-joinder of parties. The accident

was denied and even the manner in which the accident is alleged to have taken

place was denied. It was further the case that the accident had taken place due

to the rash and negligent driving of the deceased.

8. On the basis of the pleadings of the parties the following issues

were framed :

1) Whether the accident in question was caused by the

respondent No.1 while driving the vehicle No.HR-74A-

2926 rashly and negligently and caused death of Rashid,

the son of petitioners ? OPP

2) If issue No.1 is proved, whether petitioners are

entitled for compensation. If so, to what effect and from

whom ? OPP

3) Whether respondent No.1 was not having valid and

effective driving licence at the time of accident ? OPR

4) Whether respondents No.1 and 2 violated the terms

and condition of the insurance policy ? OPR

5) Relief.

FAO-780-2016 (O&M) -4-

9. The Tribunal in the present case had awarded the following

compensation :

                           Sr. No.               Heads                   Compensation Awarded
                               1.    Monthly income                  ₹5,547
                               2.    Annual income                   [₹5,547 x 12] = ₹66,564
                               3.    Deduction 1/4th                 [₹66,564 - ₹16,641] = ₹49,923
                               4.    Future prospects @ 50%          [₹49,923 + ₹24,961.5] = ₹74,884.5
                               5.    Multiplier of 17                [₹74,884.5 x 17] = ₹12,73,036.5
                                                                     (rounded off to ₹12,73,036)
                               6.    Transportation and last rites   ₹25,000
                               7.    Loss of consortium              ₹1,00,000
                               8.    Total Compensation              ₹13,98,036
                               9.    Less 50% on account of          ₹6,99,018
                                     contributory negligence
                                     Compensation awarded to         ₹6,99,018
                                     the claimants                   (rounded off to ₹6,99,000)
                                     Interest                        @ 9% per annum

10. Learned counsel for the claimants would contend that it is

wrongly been held to be a case of contributory negligence as no evidence was

led by the insurance company to show that it was a case of contributory

negligence. Learned counsel, while relying upon the judgment passed by the

Hon'ble Supreme Court in the case of M. Nithya & Ors. vs. SBI General

Insurance Company Limited [SLP (Civil) Nos.833-834 of 2023 decided on

03.01.2025], has contended that no issue was framed in this regard by the

Tribunal. It is further the contention of the learned counsel that the income of

the deceased has wrongly been assessed as ₹5,547 per month whereas the

deceased was a driver and was earning ₹20,000 per month. Learned counsel

would further contend that though the claimants do not challenge the

deduction made towards personal expenses, the addition made towards future

FAO-780-2016 (O&M) -5-

prospects and the multiplier as applied by the Tribunal, however, the amounts

awarded under the conventional heads i.e. loss of estate and funeral expenses

and under the head loss of consortium are on the lower side. In support of her

contentions the learned counsel for the claimants has relied upon the

judgments of the Hon'ble Supreme Court in the cases of National Insurance

Company Ltd. vs. Pranay Sethi & Ors. [(2017) 16 SCC 680], Magma

General Insurance Company Limited vs. Nanu Ram alias Chuhru Ram

& Ors. [(2018) 18 SCC 130] and N. Jayasree & Ors. vs. Cholamandalam

M.S General Insurance Company Ltd. [2021(4) RCR (Civil) 642].

11. Per contra, learned counsel for the insurance company would

contend that it was a clear case of contributory negligence as the offending

vehicle was hit from behind by the motorcycle and that too during broad day

light and that the issue of contributory negligence is covered in issue No.1. It

is further the contention of the learned counsel that an addition of 50% made

toward future prospects is excessive.

12. Heard.

13. In the present case, admittedly, there is no appeal filed by the

insurance company. The argument of the learned counsel for the claimants

that in the absence of any issue having been framed it could not have been

held to be a case of contributory negligence deserves to be accepted. The

Hon'ble Supreme Court in the case of M. Nithya & Ors. (supra) has held as

under :

"7. It is pertinent to observe that the Tribunal noted that the

Insurance Company in their Counter contend that

FAO-780-2016 (O&M) -6-

contributary negligence of the part of the deceased has to

be fixed. However, the Tribunal did not frame any specific

issue in that regard for determination. The Tribunal

clearly finds negligence only on part of the driver of the

lorry and therefore, the owner of the lorry and the

Insurance Company which insured the said lorry are

jointly and severally found liable to pay compensation.

Therefore, when the Tribunal did not even frame an issue

on contributary negligence, the High Court ought not to

have considered that argument in order to reduce the

compensation awarded. Even otherwise the Insurance

Company did not lead any evidence on this aspect nor

insisted for framing an issue. Merely making a bald

assertion in their Counter Affidavit cannot derive any

advantage. Hence, we are in agreement with the findings

of the Tribunal that the accident took place only due to the

negligence of the driver of the lorry and therefore, the

contributary negligence awarded on part of the deceased

by the High Court suffers from an error and cannot be

sustained."

A specific plea of contributory negligence was raised by the insurance

company and as such it was incumbent on the insurance company to have

claimed an issue qua the contributory negligence. Issue No.1 as framed was

'Whether the accident in question was caused by the respondent No.1 while

FAO-780-2016 (O&M) -7-

driving the vehicle No.HR-74A-2926 rashly and negligently and caused death

of Rashid, the son of petitioners ? OPP' which cannot be said to have covered

the issue of contributory negligence. The issue of contributory negligence, if

framed, the onus of the same would have had to be cast upon the insurance

company. Learned counsel for the insurance company has candidly admitted

that no evidence was led by the insurance company to even remotely suggest

that it was a case of contributory negligence. She has, however, relied upon

the statement of eyewitness to show that it was a case of contributory

negligence. In the absence of any issue having been framed and in view of the

law laid down by the Hon'ble Supreme Court in the case of M. Nithya & Ors.

(supra), the finding of the Tribunal qua contributory negligence cannot be

sustained and the same is accordingly set aside.

14. The argument of the learned counsel for the claimants that the

income of the deceased has wrongly been assessed cannot be accepted in the

absence of any evidence to show that the deceased was working as a driver.

Accordingly, the income of the deceased is maintained at ₹5,547 per month.

Since there is no challenge to the deduction made towards personal expenses

and the multiplier as applied by the Tribunal, the same are maintained. The

argument of the learned counsel for the insurance company that an addition

of 40% ought to have been made towards future prospects cannot be accepted

in the absence of any appeal having been filed by the insurance company. The

present appeal was filed in the year 2016. Had the insurance company been

aggrieved by the impugned award, it could have either filed cross-objections

or the cross-appeal, however, the insurance company chose to file neither. In

FAO-780-2016 (O&M) -8-

the absence of any appeal having been filed by the insurance company, the

argument of the learned counsel for the insurance company qua future

prospects cannot be accepted. Accordingly, the addition @ 50% made by the

Tribunal towards future prospects is also maintained.

15. Further the amounts awarded under the conventional heads i.e.

loss of estate and funeral expenses and under the head loss of consortium are

on the lower side. As per the law laid down by the Hon'ble Supreme Court in

the cases of Pranay Sethi (supra), Magma General Insurance Company

Limited (supra) and N. Jayasree (supra), the claimants would be entitled to

₹18,000/- (₹15,000 + 20% increase) towards loss of estate and ₹18,000/-

(₹15,000 + 20% increase) towards funeral expenses. The claimants, being the

widow, the children and the parents of the deceased, would also be entitled to

₹48,000/- each (₹40,000 + 20% increase) towards loss of consortium.

16. Accordingly, the reworked compensation to which the claimants

are entitled to is as under :

                           Sr. No.              Heads                  Compensation Awarded
                               1.    Monthly income               ₹5,547
                               2.    Annual income                [₹5,547 x 12] = ₹66,564
                               3.    Deduction 1/4th              [₹66,564 - ₹16,641] = ₹49,923
                               4.    Future prospects @ 50%       [₹49,923 + ₹24,962] = ₹74,885
                               5.    Multiplier of 17             [₹74,885 x 17] = ₹12,73,045
                               6.    Funeral expenses             ₹18,000
                               7.    Loss of estate               ₹18,000
                               8.    Loss of consortium
                                       (i)    Spousal             ₹48,000
                                       (ii) Parental              [₹48,000 x 3] = ₹1,44,000
                                       (iii) Filial               [₹48,000 x 2] = ₹96,000
                                                                  Total = ₹2,88,000
                                     Total Compensation           ₹15,97,045





                                FAO-780-2016 (O&M)                                          -9-

17. The amount in excess of and over and above the amount awarded

by the Tribunal shall also attract interest @ 7.5% per annum from the date of

filing of the claim petition till the realization of the entire amount. The amount

shall be apportioned between the claimants as directed by the Tribunal.

18. In view of the decision by the Hon'ble Supreme Court in

Parminder Singh vs. Honey Goyal & Ors. [AIR 2025 (SC) 1713], after

calculation of the enhanced amount, the same be transferred by the insurance

company in the bank accounts of the claimants within a period of six weeks

from today. The share of the minor claimants shall be kept in an FDR with a

nationalized bank fetching maximum rate of interest. The particulars of the

bank accounts along with the requisite documents in support thereof shall be

furnished by the claimants to the insurance company within a period of two