Gyanmani Toppo vs Santosh Kumar Yadav

Sanjay K. Agrawal, J

The appellants/claimants have preferred this appeal under Section 173 of the Motor Vehicles Act, 1988 calling in question the legality, validity and correctness of the impugned award dated 20.04.2023 passed by the learned Motor Accident Claims Tribunal, Ambikapur, Surguja in Motor Accident Claim Case No. 216/2021 by which while granting compensation to the claimants, 50% awarded amount has been deducted towards contributory negligence of the deceased.

Mr. Shubham Tiwari, learned counsel for the appellants, would submit that there was no contributory negligence on the part of the deceased, as proved by Sanjay Kumar Singh (AW-2), as according to his statement, the vehicle was parked in the night at middle of the road without parking light & indicators on, therefore, the vehicle of deceased dashed against the standing truck. As such, the insurance company would be held liable and the insurance company has not led any evidence in this regard.

Mr. Pavash Sharma, learned counsel for Respondents No.1 & 2 (Owner & Driver) and Mr. Deepak Gupta, learned counsel for the Respondent No.3 (Insurance Company) would support the impugned award and submit that the appeal of the appellants/ claimants is liable to be dismissed.

I have heard learned counsel for the parties, considered their rival submissions made herein-above and gone through the records meticulously.

Sanjay Kumar Singh (AW-2), witness to the accident, has clearly stated in para 2 that the offending vehicle (Truck) driven by Santosh Kumar Yadav was parked at night in the middle of the road without switching on parking light & indicators, therefore, the vehicle driven by deceased collided with the back side of the Truck and the accident occurred. He was subjected to cross-examination but nothing has been extracted to hold otherwise. The fact remains that the offending vehicle was parked in the middle of the road at night by respondent driver without switching on parking light & indicators, therefore, the deceased while driving the vehicle Swaraj Mazda collided with the standing Truck. As such, there was no contributory negligence on the part of the deceased driver. The above-stated fact has been clearly proved by Sanjay Kumar Singh (AW-2) and there is no other evidence led by the insurance company. In that view of the matter, the appellants/claimants are entitled for full compensation as awarded by the learned Claims Tribunal without any deduction for contributory negligence. (See: Archit Saini & Another v. Oriental Insurance Company Limited & Others(2018) 3 SCC 365).

Learned Claims Tribunal has awarded only Rs. 40,000/- for loss of consortium to wife of deceased, which should ought to have been awarded Rs. 44,000/- and the children of deceased were not awarded parental consortium, therefore, they were also entitled for the same. As such, Rs. 44,000 x 4 claimants = Rs. 1,76,000/- ought to have been awarded by the Claims Tribunal under the head of loss of consortium. Thus, the appellants are entitled for Rs. 1,36,000/- {Rs. 1,76,000 – 40,000 (already awarded)} in addition to the amount of compensation already awarded by the learned Claims Tribunal.

The concerned respondent is directed to deposit the remaining amount of compensation and the amount of compensation of Rs. 1,36,000/- as enhanced by this Court within a period of 30 days. The additional amount of compensation shall also carry interest @6% per annum from the date of filing of claim application till its realization. Rest of the conditions of the impugned award shall remain intact.

Accordingly, this appeal is partly allowed and the impugned award is modified to the extent as indicated herein-above.