Rajasthan High Court - Jodhpur
Shyam Lal vs National Insurance Company Ltd. And ... on 10 March, 2025
Author: Nupur Bhati
Bench: Nupur Bhati
[2025:RJ-JD:13428]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Misc. Appeal No. 2603/2016
Sanwarmal S/o Ladu Teli, age about 26 years R/o Teli Kheda Post
Sanganer Tehsil And Distt. Bhilwara
----Appellant
Versus
1. National Insurance Company Ltd., Down To Hotel Meera
Chittorgarh
..Insurer
2. Shivprakash S/o Mohan Lal Mundara, R/o Bus Stand Bassi
Tehsil And Distt. Chittorgarh
...Owner
3. Yogesh Kumar S/o Shivprakash Mundara, R/o Bus Stand
Bassi Tehsil And Distt. Chittorgarh
..Driver
----Respondents
Connected With
S.B. Civil Misc. Appeal No. 2459/2016
Shyam Lal S/o Madan Lal Teli, age about 26 years R/o Teli
Kheda, Post Sangar, Tehsil And District- Bhilwara
----Appellant
Versus
1. National Isurance Company Ltd. Through Its Branch
Manager, Down To Meera Hotel, Chittorgarh
..Insurer
2. Shivprakash S/o Mohan Lal Mundara, R/o Bus Stand,
Bassi, Tehsil And District- Chittorgarh
...Owner
3. Yogesh Kumar S/o Shivprakash Mundara, R/o Bus Stand,
Bassi, Tehsil And District- Chittorgarh
...Driver
----Respondents
S.B. Civil Misc. Appeal No. 2462/2016
Sukhdev S/o Kana Bairwa, age about 26 years R/o Teli Kheda,
Post Sangar, Tehsil And District- Bhilwara
----Appellant
Versus
(Downloaded on 17/03/2025 at 09:17:45 PM)
[2025:RJ-JD:13428] (2 of 11) [CMA-2603/2016]
1. National Insurance Company Ltd. Through Its Branch
Manager, Down To Meera Hotel, Chittorgarh
..Insurer
2. Shivprakash S/o Mohan Lal Mundara, R/o Bus Stand,
Bassi, Tehsil And District- Chittorgarh
..owner
3. Yogesh Kumar S/o Shivprakash Mundara, R/o Bus Stand,
Bassi, Tehsil And District- Chittorgarh
..Driver
----Respondents
For Appellant(s) : Mr. Manish Pitaliya
For Respondent(s) : Mr. Vipul Singhvi
HON'BLE DR. JUSTICE NUPUR BHATI
Order
10/03/2025
1. The instant civil misc. appeals have been preferred by the
respective appellant-claimant under Section 173 of the Motor
Vehicles Act, 1988 (hereinafter as 'the Act') challenging the
judgment and award dated 28.06.2016 (hereinafter as 'impugned
award') passed by learned Motor Accident Claims Tribunal
Chittorgarh (hereinafter as 'tribunal') whereby the learned tribunal
has partly allowed the respective claim petitions and awarded
compensation to the tune of Rs.7,021/- & 4,963/- & 59,835/-
along with interest @9% per annum in MAC Case Nos.144/2009,
145/2009 & 355/2009 respectively, while fastening the liability on
the respondents jointly and severally.
2. Since all the instant misc. appeals arise out of the same
impugned award dated 28.06.2016 passed by the learned Motor
[2025:RJ-JD:13428] (3 of 11) [CMA-2603/2016]
Accident Claims Tribunal Chittorgarh ('learned tribunal'). Hence,
the same are being decided by this common order.
3. Brief facts leading to the filing of instant misc. appeals are
that on 07.10.2008, the claimants - Sanwarmal, Shyamlal and
Sukhdev were traveling on a motorcycle bearing registration No.RJ
06-SA 2707 (hereinafter as 'motorcycle'), to Chittorgarh. When
they reached near Achhora, a Maruti Swift Car bearing registration
No.RJ-09-CA-1954 (hereinafter as 'the offending vehicle'), being
driven in a rash and negligent manner by respondent no.3-driver,
came from the opposite side at high speed and dashed into the
motorcycle. As a result of the accident, the claimants sustained
injuries. Subsequently, the claimants- Sanwarmal, Shyam Lal and
Sukhdev filed separate claim petitions - MAC Nos.144/2009,
355/2009 and 145/2009 respectively before the learned tribunal
seeking compensation for the injuries sustained by them. Ex-parte
proceedings were initiated against the Respondent Nos.2 and 3
(owner and driver) and they failed to file reply as well as
evidence. The respondent no.1-insurance company filed its reply
to the claim petitions while denying the averments made therein.
As all the claim petitions arose from the same accident, the
learned tribunal clubbed these claim petitions and on basis of
pleadings of the parties framed five issues.
3.1. The appellants-claimants examined four witnesses (AW1 to
AW4) and produced 94 documentary evidence (Ex.1 to Ex.94). On
the other hand the respondents failed to lead any evidence.
3.2. After hearing the parties and on basis of material available
on record the learned tribunal partly allowed the respective claim
petitions vide judgment and award dated 28.06.2016 (hereinafter
[2025:RJ-JD:13428] (4 of 11) [CMA-2603/2016]
as 'impugned award') and after deducting 25% on account of
contributory negligence awarded compensation to the tune of
Rs.7,021/- & 4,963/- & 59,835/- along with interest @ 9% per
annum in MAC Case Nos.144/2009, 145/2009 & 355/2009
respectively and fastened the liability on the respondent Nos.1, 2
and 3 jointly and severally. Aggrieved by the quantum of
compensation as awarded by the learned tribunal in the respective
claim petitions the respective claimants have preferred instant
misc. appeals.
4. Learned counsel for the appellants-claimants submits in all
the instant misc. appeals that the learned tribunal erred in holding
the appellants-claimants liable for contributory negligence merely
on the ground that there was violation of the provisions of the Act
as three persons were travelling on the motorcycle.
5. Learned counsel for the appellants-claimants in S.B.CMA
No.2603/2016 submits that the learned tribunal has erred in
discarding the permanent disability certificate (Ex.91) duly issued
by the medical board of a government hospital wherein the
medical board has assessed the permanent disability sustained by
Sanwamal to the extent of 15%. He also submits that learned
tribunal has erred in awarding meager amount in lump sum under
the heads of simple injury and pain and suffering.
6. Learned counsel for the appellants-claimants in S.B.CMA
No.2459/2016 submits that the learned tribunal has erred in
discarding the permanent disability certificate (Ex.11) duly issued
by the medical board of a government hospital wherein the
medical board has assessed the permanent disability sustained by
Shyam Lal to the extent of 14%. He also submits that learned
[2025:RJ-JD:13428] (5 of 11) [CMA-2603/2016]
tribunal has erred in awarding meager amount in lump sum under
the heads of simple injury, loss of amenities and pain and
suffering.
7. Learned counsel for the appellants-claimants in S.B.CMA
No.2462/2016 submits that the learned tribunal has erred in
awarding meager amount in lump sum under the heads of simple
injury, loss of amenities and pain and suffering. He also submits
that learned tribunal has failed to award any amount under the
head of hospitlization.
8. Per contra, learned counsel for the respondent submits that
the learned tribunal has rightly given the finding of contributory
negligence up to the extent of 25% as three persons were
travelling on the motorcycle and without any helmet which is a
clear violation of Section 128 of the Act. He also submits that the
quantum of compensation awarded by the learned tribunal is
adequate.
9. Heard the parties and perused the material available on
record.
10. As far as the finding with respect to the issue of contributory
negligence on account of more than one pillion riding on
motorcycle is concerned this court finds it appropriate to refer to
the judgment passed by the Hon'ble Supreme Court in Mohd.
Siddique v. National Insurance Co. Ltd., (2020) 3 SCC 57,
wherein the Hon'ble Supreme Court has held that the fact of more
than one pillion riding on a motorcycle may be a violation of the
law but such violation by itself, without anything more, cannot
lead to a finding of contributory negligence, unless there is a
causal connection between the violation and the accident or a
[2025:RJ-JD:13428] (6 of 11) [CMA-2603/2016]
causal connection between the violation and the impact of the
accident upon the victim. The relevant paragraph of the aforesaid
judgment is reproduced as under:
"12. But the above reason, in our view, is flawed. The fact that the
deceased was riding on a motorcycle along with the driver and
another, may not, by itself, without anything more, make him
guilty of contributory negligence. At the most, it would make him
guilty of being a party to the violation of the law. Section 128 of the
Motor Vehicles Act, 1988, imposes a restriction on the driver of a
two-wheeled motorcycle, not to carry more than one person on the
motorcycle. Section 194-C, inserted by Amendment Act 32 of 2019,
prescribes a penalty for violation of safety measures for motorcycle
drivers and pillion riders. Therefore, the fact that a person was a
pillion rider on a motorcycle along with the driver and one more
person on the pillion, may be a violation of the law. But such
violation by itself, without anything more, cannot lead to a finding
of contributory negligence, unless it is established that his very act
of riding along with two others, contributed either to the accident or
to the impact of the accident upon the victim. There must either be
a causal connection between the violation and the accident or a
causal connection between the violation and the impact of the
accident upon the victim. It may so happen at times, that the
accident could have been averted or the injuries sustained could
have been of a lesser degree, if there had been no violation of the
law by the victim. What could otherwise have resulted in a simple
injury, might have resulted in a grievous injury or even death due
to the violation of the law by the victim. It is in such cases, where,
but for the violation of the law, either the accident could have been
averted or the impact could have been minimised, that the principle
of contributory negligence could be invoked. It is not the case of
the insurer that the accident itself occurred as a result of three
persons riding on a motorcycle. It is not even the case of the
insurer that the accident would have been averted, if three persons
were not riding on the motorcycle. The fact that the motorcycle was
hit by the car from behind, is admitted. Interestingly, the finding
recorded by the Tribunal that the deceased was wearing a helmet
and that the deceased was knocked down after the car hit the
motorcycle from behind, are all not assailed. Therefore, the finding
of the High Court that 2 persons on the pillion of the motorcycle,
could have added to the imbalance, is nothing but presumptuous
and is not based either upon pleading or upon the evidence on
record. Nothing was extracted from PW 3 to the effect that 2
persons on the pillion added to the imbalance."
11. In the present case the learned tribunal has not given any
finding to the effect that there was any causal connection between
the violation of safety measures by the appellants-claimants and
[2025:RJ-JD:13428] (7 of 11) [CMA-2603/2016]
accident or impact of accident upon them. Moreover, no evidence
was adduced by the respondent so as to show that due to three
persons riding on a motorcycle the appellant-claimants have
contributed to the accident. Therefore, the learned tribunal has
erred in holding the appellants-claimants liable for contributory
negligence in absence of a direct link between the violation and
the accident or its impact upon them. Thus, the finding of the
tribunal with respect to the contributory negligence is set aside.
12. As far as the contention of the appellants/claimants
regarding award of future prospect is concerned, this court finds
that it is indeed settled position of law that future prospect can be
awarded in cases where serious injuries result in permanent
disablement, however, for claiming the same it should be shown
that the earning capacity of the claimant has been adversely
affected. However, the learned counsel for appellants-claimants
has not been able to demonstrate before this court that the
earning capacity of the appellants-claimants has been adversely
affected. Thus, this court, in view of the peculiar facts and
circumstances of the present case, finds that the present case
does not call for award of future prospect.
13. This court with respect to S.B.CMA No.2603/2016 finds that
the learned tribunal has erred in discarding the permanent
disability certificate (Ex.91) duly issued by Moharana Bhupal
Government Hospital, Udaipur wherein the medical board has
assessed the permanent disability sustained by Sanwarmal as
15% and the compensation for the same deserves to be awarded.
This court also finds that the learned tribunal has awarded meager
amount of Rs.5000/- as lump sum under the heads of simple
[2025:RJ-JD:13428] (8 of 11) [CMA-2603/2016]
injury, pain and suffering and loss of amenities. Thus, this court
deems it appropriate to award Rs.10,500/- (Rs.3500/- for each
simple injury) for the three simple injuries suffered by Sanwarmal
and Rs.27,000/- as lump sum under the head of pain and
suffering.
14. This court with respect to S.B.CMA No.2459/2016 finds that
the learned tribunal has erred in discarding the permanent
disability certificate (Ex.11) duly issued by the medical board of
Moharana Bhupal Government Hospital, Udaipur wherein
permanent disability sustained by Shyam Lal has been assessed
as 14% and the compensation for the same deserves to be
awarded. This court also finds that the learned tribunal has
awarded meager amount of Rs.45,000/- as lump sum under the
heads of simple injury, pain and suffering and loss of amenities.
Thus, this court deems it appropriate to award Rs.14,000/-
(Rs.3500/- for each simple injury) for four simple injuries suffered
by Sanwarmal, Rs.15000/- for one grievous injury and
Rs.30,000/- as lump sum under the head of pain and suffering.
15. This court with respect to S.B.CMA No.2462 finds that
Sukhdev has suffered four simple injuries and also suffered the
Hemorrhagic Contusion in left anterior parietal lobe as per CT
Scan Report (Ex.69). However, learned tribunal has awarded
meager amount of Rs.5,000/- as lump sum under the heads of
simple injury, pain and suffering and loss of amenities. Thus, this
court deems it appropriate to award Rs.14,000/- (Rs.3500/- for
each simple injury) for four simple injuries suffered by Sanwarmal
and Rs.15000/- for the hemorrhagic contusion (Ex.68 and Ex.69)
and Rs.7,000/- as lump sum under the head of pain and suffering.
[2025:RJ-JD:13428] (9 of 11) [CMA-2603/2016]
Also the discharge ticket (Ex.79) reflects that Sukhdev has to be
hospitalized for 7 days (from 07.10.2008 to 13.10.2008), thus,
this court deems it appropriate to award Rs.1600- for each day of
hospitalization.
16. Further, looking to the facts and circumstances of the case
the income of the appellant-claimant in both S.B.CMA
Nos.2603/2016 and 2459/2016 is assessed as Rs.3000/- per
month taking in to consideration the minimum wages prevalent at
that time, also multiplier of 18 would be applicable looking to the
age of the appellants-claimants (Sanwarmal and Shyam Lal) i.e.
19 years.
16. Thus, the amount of compensation awardable to the
respective appellant-claimant is as under:
In S.B. Civil Misc. Appeal No.2603/2016 arising out of
award passed in MAC Case No.144/2009:
Particulars Amount Amount
awarded by awarded and
the Tribunal enhanced by
this Court
Simple injuries (3500x3) [A] 10,500/-
Amount towards Permanent 97,200/-
Disability:- [(Permanent disability%)
x (Annual Income) x (Multiplier)]
(15%) x (3000x12) x (18)= 5000/-
97,200/-
[D]
Pain and suffering [E] 27,000/- (lump
sum)
Medical bills [F] 4361/- 4361/- (same
as awarded by
learned )
Deduction on account of 2340/- nil
Contributory Negligence [X] (@25%)
TOTAL Rs.7,021/- Rs.1,39,061/-
[A+B+C+D+E+F-X] [G] [H]
Enhanced Amount: [H] - [G] Rs.1,32,040/-
[2025:RJ-JD:13428] (10 of 11) [CMA-2603/2016]
In S.B. Civil Misc. Appeal No.2459/2016 arising out of
award passed in MAC Case No.355/2009:
Particulars Amount Amount
awarded by awarded and
the Tribunal enhanced by
this Court
Simple injuries (3500x4) [A] 14,000/-
Grievous injury [B] 15,000/-
Amount towards Permanent 90,720/-
Disability:- [(Permanent disability%)
x (Annual Income) x (Multiplier)] 45,000/-
(14%) x (3000x12) x (18)=
90,720/-
[D]
Pain and Suffering [F] 30,000/-
Medical bills [E] 34,780/- (same
as awarded by
34,780/-
the learned
tribunal)
Deduction on account of 19,945/- nil
Contributory Negligence [X] (@25%)
TOTAL Rs.59,835/- Rs.1,84,500/-
[A+B+C+D+E+F] [G] [H]
Enhanced Amount: [H] - [G] Rs.1,24,665/-
In S.B. Civil Misc. Appeal No.2462/2016 arising out of
award passed in MAC Case No.145/2009:
Particulars Amount Amount
awarded by awarded and
the Tribunal enhanced by
this Court
Simple injuries (3500x4) [A] 14,000/-
Hemorrhagic Contusion [B] 15,000/-
5,000/-
Pain and Suffering [C] 7,000/-
Medical bills [D] 1,617/- (same
as awarded by
1,617/-
the learned
tribunal)
Hospitalization (1,600 x 7) [E] nil 11,200/-
Deduction on account of
1654/- nil
Contributory Negligence [X]
TOTAL Rs.4,963/- Rs.48,817/-
[A+B+C+D+E-X] [G] [H]
[2025:RJ-JD:13428] (11 of 11) [CMA-2603/2016]
Enhanced Amount: [H] - [G] Rs.43,854/-
17. Thus, in view of the above, the instant misc. appeals-
S.B.CMA Nos.2603/2016, 2459/2016 & 2462/2016 as preferred by
the respective appellant-claimant are partly allowed and the
compensation awarded vide the impugned judgment and award
dated 28.06.2016 passed by the learned Tribunal in MAC Case
Nos.144/2009, 355/2009 & 145/2009 respectively, is enhanced
and modified accordingly.
18. The appellant-claimant in MAC Case No.144/2009 is held
entitled to get the enhanced compensation of Rs.1,39,061/-;
appellant-claimant in MAC Case No.355/2009 is held entitled to
get enhanced compensation of Rs.1,24,665/-; and appellant-
claimant in MAC Case No.145/2009 is held entitled to get
enhanced compensation of Rs.43,854/-. The aforesaid enhanced
amount shall be payable along with the interest @9% (same as
awarded by the learned tribunal) in the same manner as
determined by the learned tribunal.
19. The amount of compensation if any paid or disbursed shall
be adjusted.
20. No order as to costs. Record be sent back forthwith.
(DR. NUPUR BHATI),J
69-71-Devesh Thanvi/-
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