Rajasthan High Court - Jodhpur

Smt. Chanda Kanwar And Ors vs New India Assurance Co. Ltd. And Ors, ... on 14 October, 2025

Author: Manoj Kumar Garg

Bench: Manoj Kumar Garg

[2025:RJ-JD:45064]

      HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                       JODHPUR
                 S.B. Civil Misc. Appeal No. 2280/2015

1. Smt. Chanda Kanwar W/o Late Bharat Singh, Aged 26 years,
2. Smt. Santosh Kanwar W/o Late Bhanwar Singh, Aged 54
years,
3. Ratan Singh S/o Late Bhanwar Singh, Aged 33 years,
All B/c Rathore & R/o Falasiya Khalsa, Post Falisiya, Khalsa,
Tehsil Kapasan, District Chittorgarh.
                                                                    ----Appellants
                                    Versus
1. New India Assurance Co. Ltd. Through its Branch Manager,
Meera Hall, Meera Market, Chittorgarh. (Insurer)
2. Modi Lal S/o Meghram, B/c Dangi, R/o Holi, Tehsil Mavli,
District Udaipur. (Registered Owner).
3. Pankaj S/o Kamal Choudhary, B/c Choudhary, R/o Mallatalai,
Udaipur, District Udaipur. (Insured)
4. Madan Lal S/o Mangilal, B/c Gameti, R/o Jawan Ji Ka Kheda,
Tehsil Mavli, District Udaipur. (Driver)
                                                                  ----Respondents


For Appellant(s)          :     Mr. Manish Pitaliya, Adv.
For Respondent(s)         :     Mr. DS Nimla, Adv. for Insurance
                                Company



           HON'BLE MR. JUSTICE MANOJ KUMAR GARG

Judgment

14/10/2025

Instant misc. appeal has been filed by the appellants-

claimants under Section 173 of the Motor Vehicles Act, 1988,

assailing the impugned judgment & award dated 11.08.2015

passed by learned Judge, Motor Accident Claim Tribunal,

Chittorgarh (hereinafter referred to as "the learned

MACT/Tribunal") in MAC Case No.610/2009, whereby the learned

Tribunal partly allowed the claim petition filed by the

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appellants/claimants and awarded a meager compensation of

Rs.4,31,250/- after deducting 25% towards contributory

negligence.

Brief facts of the case are that the appellants-complainants

filed a claim petition under Section 166 of MV Act before the

learned Tribunal seeking compensation for the death of Bharat

Singh, who died in a motor vehicle accident, occurred on

09.03.2009. It was averred that the accident occurred due to rash

and negligent driving of respondent No.4, Truck driver.

In response, the respondent No.1/Insurance Company,

respondent No.2 & 4, registered owner and driver of the Truck,

filed their separate reply to the claim petition, denying the

averments of the claim petition. No one appeared on behalf of

respondent No.3, therefore, ex-parte proceeding was drawn

against him.

Thereafter, on the basis of the pleadings of the parties, the

learned Tribunal framed five issues including the relief.

In order to substantiate the averments made in the claim

petition, the claimants/appellants examined two witnesses and

exhibited some documents. In defence, no evidence was

produced.

After hearing the arguments of the parties, the learned

Tribunal partly allowed the claim petition and awarded a meager

compensation of Rs.4,31,250/- in favour of the

appellants/claimants after deducting 25% towards contributory

negligence. Hence this civil misc. appeal for enhancement of

compensation.

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While praying for enhancement, learned counsel for the

claimants/appellants submits that the learned Tribunal was not

justified in holding the driver of the motorcycle for contributory

negligence only on account of the fact that three persons were

riding the motorcycle. It is submitted that the Tribunal has not

discussed anything while coming to the conclusion regarding

contributory negligence. Thus, the award to the extent that

compensation has been reduced by 25% on account of

contributory negligence be set aside. Reliance has been made on

judgment of this Court in United India Ins. Co. Ltd. Jodhpur Vs.

Smt. Santosh Devi & Ors. : 2013 (2) ACTC (Raj.) 816 and Gopal

Kanwar (Smt.) & Ors. Vs. Shravan & Ors. : 2015 (1) ACTC (Raj.)

493.

Apart from above, it is further submitted that learned

Tribunal has further committed error in not awarding the future

prospects and loss of estate and in awarding less compensation

under other heads. It is settled law that the future prospects of

advancement in life and career should also be sounded in terms of

money to augment the multiplicand. It is therefore, prayed that

the amount of compensation awarded by the Tribunal may be

enhanced adequately.

Per contra, learned counsel for the respondent-Insurance

Company while vehemently opposing the prayer of the appellants

has submitted that the learned Tribunal has rightly reduced

compensation by 25% towards contributory negligence and thus,

the amount awarded by the Tribunal is fair and just. Therefore, no

interference is required in the impugned judgment and award.

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Heard learned counsel for the appellants as well as learned

counsel for the respondents and perused the award impugned.

On perusal of the award, it appears that the motorcycle was

hit by the truck from behind, resulting in the accident in question.

A perusal of the finding recorded by the Tribunal indicates that it

has assumed that if more than two persons are riding a two

wheeler the same would ipso facto result in contributory

negligence of driver of such vehicle. The said finding apparently is

contrary to the Division Bench judgment of this Court in National

Insurance Co. Ltd. & Ors. v. Kastoori Devi & Ors.: 1998 ACJ 8,

relying on which, this Court in the case of Smt. Santosh Devi

(supra) while distinguishing another judgment of this Court in the

case of Yuvraj v. Shri Prakash Chandra & Ors. :S.B. Civil Misc.

Appeal No. 804/1996, decided on 04.01.2008 at Jaipur Bench, laid

down as under:-

"21. It is thus clear from what has been held by the Hon'ble Supreme Court that negligence ordinarily means breach of a legal duty to take care, whereas contributory negligence means the failure by a person to use reasonable care for the safety of either of himself or his property so that he himself or his property, becomes blameworthy in part as author of his own wrong.

22. Provisions of Section 128 as noticed above are safety measures for the driver and pillion rider and breach of such safety measures which may amount to negligence on part of the driver of the motor cycle, but cannot be termed as contributory negligence, unless the immediate cause of the accident or damage suffered by the driver or pillion rider would be on account of violation of the said provision."

Similarly in the case of Smt. Gopal Kanwar (supra) in similar

circumstances, it was laid down as under:-

"21. Well it is true that Section 128 of the Act of 1988 postulates certain safety measures and ordains that

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two wheeled motorcycle is to be plied with only one pillion rider but prevailing Indian conditions are not unknown to all of us that at times an incumbent passenger has no option but to travel, on account of exigencies, emergencies, or paucity of transport, by accepting whatever transport is readily available. The scarcity of transport vehicles in rural areas has created a situation where often two wheeled motorbikes are plied with more than one pillion rider. It is really strange that how and in what manner the learned Tribunal has apportioned 30% responsibility to the deceased for occurrence of accident. On appreciation of facts, it is amply clear that it was head on collision between motorbike and the truck and therefore the truck, which was a heavy vehicle, ought to have been driven with greater care and responsibility.

22. Thus, on objective analysis of the findings and conclusions of the learned Tribunal on issue No. 1 & 3, I am not persuaded to concur with the said finding and am unable to hold that deceased has contributed for the occurrence of the accident in any manner. Accordingly, finding of the learned Tribunal in this behalf is reversed by holding that accident occurred due to rash and negligent driving of Truck."

In view thereof, the finding of the Tribunal regarding

contributory negligence of the driver of the motor cycle only on

account of the fact that three persons were riding the motor cycle,

without anything more indicating his negligence, cannot be

sustained.

Considering the minimum wages prevailing at the relevant

time, the Tribunal has rightly assessed the monthly income of the

appellant as Rs.3,750/-. While, considering the age of the

deceased as 21 years, the learned Tribunal has rightly applied

multiplier of 18 as per the law laid down by the Hon'ble Apex

Court in the case of Sarla Verma. However, the learned Tribunal

has committed error in not awarding any compensation under the

head of loss of Estate and an adequate compensation ought to

have been awarded under this head. The Tribunal has awarded

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Rs.30,000/- only under the heads of consortium and Rs.5,000/-

for funeral expenses, which are also liable to be enhanced in the

facts and circumstances of the case. Moreover, 40% future

prospect is also required to be added while calculating the amount

of compensation in the present case in view of the judgments of

the Hon'ble Supreme Court rendered in the case of National

Insurance Co. Ltd. Vs. Pranay Sethi & Ors. [(2017) 16 SCC 680].

Accordingly, the re-computation of the award shall be as under :-

Income               : Rs.3,750/- (per month)

Age                  : 21 years            Multiplier               :14

Deduction            : 1/3

Future Prospects : 40%

Calculation :

3,750 X 12 X 18 X 2/3 X 40%                = Rs.7,56,000/-

Consortium                                 = Rs.1,45,200/-

Loss of Estate                             = Rs.18,150/-

Funeral Expenses                           = Rs. 18,150/-

Total amount of compensation : Rs.9,37,500/-

Amount awarded by the Tribunal : Rs.4,31,250/-

Enhanced amount :

Rs.9,37,500 - Rs.4,31,250 = Rs.5,06,250/- along with

interest @ 7% p.a. from the date of filing of claim petition

i.e. 22.04.2009 till its realization.

In view of the above, the amount of compensation awarded

by learned Tribunal is enhanced by Rs.5,06,250/- along with

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interest @ 7% p.a. from the date of filing of claim petition i.e.

22.04.2009 till its realization.

Accordingly, the civil misc. appeal is partly allowed. The

amount of Rs.5,06,250/- (Five Lakhs Six Thousand Two Hundred

Fifty rupees only) shall be paid by the Insurance Company to the

appellants-claimants, in addition to the amount already awarded

by the Tribunal vide order dt. 11.08.2015, within a period of four

weeks from today along with interest @ 7% p.m. from the date of

filing of claim petition i.e. 22.04.2009 till its realization. If the

enhanced amount is not paid within the stipulated period, the

claimants-appellants shall be entitled to an interest @ 9% p.a on

the said amount. The amount so deposited by the Insurance

Company shall be deposited in the Saving Account of the

claimants, detail of which shall be furnished by the claimants