1

AFR
HIGH COURT OF CHHATTISGARH, BILASPUR

Order reserved on 02.04.2024

Order delivered on 12.06.2024

MAC No. 59 of 2020

• The Oriental Insurance Company Ltd. Through The Branch Manager,

Laxman Avenue Hotel, Opposite Krishi Upaj Mandi, Jagdalpur,
District Bastar Chhattisgarh. Through The In Charge, T.P. Hub,
Divisional Oice, Opp. Rajeev Plaza, Rama Trade Centre 1st Floor,
Near Old Bus Stand, Bilaspur Chhattisgarh. Pin 495001., District :
Bilaspur, Chhattisgarh

----Appellant

Versus

1. Smt. Jasita Poonam Ekka Wd/o Late Deepak Vinod Xess Aged About
43 Years Caste - Uraon, R/o Vinoba Bhave Marg, Shanti Nagar, Ekka
House, Jagdalpur, District Bastar Chhattisgarh., District :
Bastar(Jagdalpur), Chhattisgarh

2. Angelo Denis Xess S/o Late Deepak Vinod Xess Aged About 9 Years
Minor Represented Through Mother And Natural Guardian Smt.
Jasita Poonam Ekka, Wife Of Late Deepak Vinod Xess, Caste -
Uraon, R/o Vinoba Bhave Marg, Shanti Nagar, Ekka House,
Jagdalpur, District Bastar Chhattisgarh. (Claimants), District :
Bastar(Jagdalpur), Chhattisgarh

3. Santosh Kumar Dhruv S/o Late Shri Ramadhin Dhruv Aged About 40
Years R/o Butrali, Khalepara, Tahsil And Police Station Keshkal,
District Kondagaon Chhattisgarh. (Driver), District : Kondagaon,
Chhattisgarh

4. Mohammed Ibrahim S/o Shri Tar Mohammed Bhai Aged About 40

Years R/o Main Road, Keshkal, Tahsil And Police Station Keshkal,
District Kondagaon Chhattisgarh. (Owner), District : Kondagaon,
Chhattisgarh

---- Respondents
 2

For Appellant : Mr. Ratan Pusty , Advocate

For Respondent No.1&2 : Mr. Keshav Dewangan ,Advocate

Hon'ble Shri Justice Arvind Kumar Verma

CAV Order

12.06.2024

1. Insurance Company/ appellant in the present appeal who was

Respondent no. 3 in Tribunal has iled this appeal under Section

173 of the Motor Vehicles Act, 1988 (for short 'Act of 1988') being

aggrieved of the award dated 30.07.2019 in Claim Case No.

151/2018 passed by the learned Second Additional Motor Accident

Claims Tribunal, Jagdalpur District- Bastar (C.G.) , whereby

Tribunal allowed application iled under Section 166 of the Act of

1988 in part, calculated total compensation of Rs.1,84,43,100/- on

account of death of Deepak Vinod Xess/deceased.

2. Facts relevant for disposal of this appeal are that on 01.01.2018 at

about 8’o clock in the night deceased/ Deepak Vinod Xess was

going from Raipur to Jagdalpur in his own car bearing registration

no. CG 10 FA 1913 from the right side at a very nominal speed. At

the same time one Santosh Kumar Dhruv/ Respondent no. 3 in

present appeal allegedly driving a New Sold 407 Tata vehicle in a

very rash and negligent manner bearing Registration no. CG 19 BG

5467 dashed the car of the deceased from the front side, due to
 3

which the deceased sustained multiple injuries in his various body

parts. Soon after the accident the deceased was taken to the

hospital but he was succumbed to death before reaching to the

hospital. Report was lodged about the accident in Police Station

Keshkal, Distict Kondagaon against Santosh Kumar.

3. Appellant No. 1 in tribunal/ respondent no. 1 in present petition is

the wife of the deceased and Appellant No. 2 in tribunal/respondent

no. 2 in present petition is the minor son of the deceased have iled

an application under Section 166 of the Act of 1988 seeking total

compensation of Rs.2,49,91,948/- pleading therein that on the date

of accident, deceased was 44 years of age,and was working in

N.M.D.C. Iron and Steel Plant Jagdalpur, District Bastar from which

he was earning Rs.1,59,795.50/- per month . Both wife and son

were dependent upon the income of the deceased.

4. Santosh Kumar Dhruv who was Respondent No. 1 in Tribunal and

Mohd. Ibrahim who was Respondent no. 2 in Tribunal have

submitted their joint written reply in which they have denied all the

contentions raised by the appellants in Tribunal in the

compensation claim and have speciically expressed their

statement by stating that respondent no. 1 in Tribunal was having a

valid and efective driving license at the time of incident. In the

above accident, there was no negligence on the part of the Santosh

Kumar Dhruv/ respondent no. 1in Tribunal in fact the deceased was
 4

driving his car in a very careless and negligent manner. The

accident was a result of head on collision of both the vehicles. The

wife of the deceased who was appellant no. 1 in the tribunal is

posted as an Assistant Professor in Central University and

deceased at the time of incident was not having a valid driving

license. The car which was being driven by Santosh Kumar Dhruv

/respondent no. 1in Tribunal was insured with respondent no. 3/

insurance company in Tribunal. On the aforementioned grounds

Santosh Kumar Dhruv /respondent no. 1 and Mohd.

Ibrahim/Respondent no. 2 in the Tribunal pleads to reject the said

compensation claim application.

5. Whereas Respondent No. 3/ Insurance Company in the Tribunal

has also iled its written statement and has denied all the

contentions of the claim petition by clearly stating that the wife of

the deceased was working as an Assistant Professor in Central

University and is earning more than Rs. 1,50,000/- per month. Wife

of the deceased is upbringing their child and all his educational and

other expenses are borne by the wife of the deceased only.

Insurance company in its written statement has also mentioned that

the deceased was himself driving his car in a very negligent and

rash manner due to which the accident occurred and Santosh

Kumar Dhruv respondent no. 1 in Tribunal was not in fault.

Therefore, the accident took place due to the negligence of the

deceased himself. Further insurance company contented that

 5

Santosh Kumar Dhruv respondent no. 1in Tribunal was not having

an efective and valid driving license at the time of accident which is

a clear violation of the terms and conditions of the policy of the

insurance company/respondent no. 3 in Tribunal. Hence, on the

above mentioned grounds the insurance company pleads to reject

this claim petition which has been raised by the appellants in the

Tribunal/respondent no. 1 and 2 in present petition.

6. Upon appreciation of pleadings and evidence placed on record by

respective parties, Tribunal held that deceased died on account of

rash and negligent driving of respondent no. 1 in Tribunal/Santosh

Kumar Dhruv due to which he sufered grievous injuries and as a

consequence died. Accordingly, Tribunal allowed application in

part, awarded Rs.1,84,43,100/- with interest @ 9% per annum,

fastened liability upon Repondent No. 3/Insurance Company in the

Tribunal to pay the amount of compensation.

7. Learned counsel appearing for the appellant in present appeal/

Insurance Company submits that the Tribunal has committed

illegality in fastening the liability to pay the compensation on the

appellant/Insurance Company in the present petition. That the

Tribunal has committed grave illegality by not taking into

consideration that the accident took place due to head on collision.

Therefore, he is liable to pay only 50% of the total compensation.

And to substantiate his fact he relied upon the judgment of

 6

Municipal Corporation of Greater Bombay Versus Laxman

Iyer And Another reported in (2003) 8 SCC 731 in which it is

held as under:-

A plea which was stressed strenuously related to alleged

contributory negligence. Though there is no statutory
deinition, in common parlance 'negligence' is categorised
as either composite or contributory. It is irst necessary to
ind out what is a negligent act. Negligence is omission of
duty caused either by an omission to do something which a
reasonable man guided upon those considerations who
ordinarily by reason of conduct of human afairs would do or
obligated to, or by doing something which a prudent or
reasonable man would not do. Negligence does not always
mean absolute carelessness, but want of such a degree of
care as is required in particular circumstances. Negligence
is failure to observe, for the protection of the interests of
another person, the degree of care, precaution and vigilance
which the circumstances justly demand, whereby such other
person sufers injury. The idea of negligence and duty are
strictly correlative. Negligence means either subjectively a
careless state of mind, or objectively careless conduct.
Negligence is not an absolute term, but is a relative one; it is
rather a comparative term. No absolute standard can be
ixed and no mathematically exact formula can be laid down
by which negligence or lack of it can be infallibly measured
in a given case. What constitutes negligence varies under
diferent conditions and in determining whether negligence
exists in a particular case, or whether a mere act or course
of conduct amounts to negligence, all the attending and
surrounding facts and circumstances have to be taken into
account. It is absence of care according to circumstances.
To determine whether an act would be or would not be
negligent, it is relevant to determine if any reasonable man
 7

would foresee that the act would cause damage or not. The
omission to do what the law obligates or even the failure to
do anything in a manner, mode or method envisaged by law
would equally and per se constitute negligence on the part
of such person. If the answer is in the airmative, it is a
negligent act. Where an accident is due to negligence of
both parties, substantially there would be contributory
negligence and both would be blamed. In a case of
contributory negligence, the crucial question on which
liability depends would be whether either party could, by
exercise of reasonable care, have avoided the consequence
of other's negligence. Whichever party could have avoided
the consequence of other's negligence would be liable for
the accident. If a person's negligent act or omission was the
proximate and immediate cause of death, the fact that the
person sufering injury was himself negligent and also
contributed to the accident or other circumstances by which
the injury was caused would not aford a defence to the
other. Contributory negligence is applicable solely to the
conduct of a plaintif. It means that there has been an act or
omission on the part of the plaintif which has materially
contributed to the damage, the act or omission being of
such a nature that it may properly be described as
negligence, although negligence is not given its usual
meaning. (See Charlesworth on Negligence, 3rd Edn. Para
328). It is now well settled that in the case of contributory
negligence, courts have power to apportion the loss
between the parties as seems just and equitable.
Apportionment in that context means that damage are
reduced to such an extent as the court thinks just and
equitable having regard to the claim shared in the
responsibility for the damage. But in a case where there has
been no contributory negligence on the part of the victim,
the question of apportionment does not arise. Where a
 8

person is injured without any negligence on his part but as a

result of combined efect of the negligence of two other
persons, it is not a case of contributory negligence in that
sense. It is a case of what has been styled by Pollock as
injury by composite negligence. (See Pollock on Torts, 15th
Edn. P.361).

8.At this juncture, it is necessary to refer to the 'doctrine of

last opportunity'. The said doctrine is said to have emanated
from the principle enunciated in Devies v. Mann (1842 (10)
M&W 546) which has often been explained as amounting to
a rule that when both parties are careless the party which
has the last opportunity of avoiding the results of the other's
carelessness is alone liable. However, according to Lord
Denning it is not a principle of law, but test of causation.
(See Davies v. Swan Motor Co. (Swansea) Ltd. (1949 (2)
KB 291). Though in some decisions, the doctrine has been
applied by courts, after the decisions of the House of Lords
in The Volute (1922 (1) AC 129) and Swadling v. Cooper
(1931 AC 1), it is no longer to be applied. The sample test is
what was the cause or what were the causes of the
damage. The act or omission amounting to want of ordinary
care or in deiance of duty or obligation on the part of the
complaining party which conjointly with the other party's
negligence was the proximate cause of the accident renders
it one to be the result of contributory negligence.

Learned counsel for the appellant further contended that the

learned Claims Tribunal has very conveniently disregarded the fact

that the wife of the deceased was employed in Bilaspur Central

University as an Assistant Professor and she was admittedly

drawing salary of Rs. 60,000/- per month. That the Tribunal has

erred in assessing the loss of dependency. And the last thing which
 9

the learned counsel for the appellant contended in his argument

very vehemently that the Tribunal has committed illegality in taking

into account the gross salary of the deceased without deduction

conveyance allowance and washing allowance. That the Tribunal

ought to have seen that leave assistance which was payable to the

deceased was in the nature of an incentive and not a regular

payment. And for this he relied upon the matter of National

Insurance Co. Ltd. Vs. Indira Srivastava reported in 2008 AIR SCW

143 where it is held in para 17 as under:-

The amounts, therefore, which were required to be paid

to the deceased by his employer by way of perks,
should be included for computation of his monthly
income as that would have been added to his monthly
income by way of contribution to the family as
contradistinguished to the ones which were for his
beneit. We may, however, hasten to add that from the
said amount of income, the statutory amount of tax
payable thereupon must be deducted.

In order to briely substantiate his indings he also relied upon

the judgment of Jashbhai Bhailalbhai Patel Vs. Balmurbha K.

Munipate Devre reported in 2015 SCC Online Guj 2208 : (2015) 56

(3) GLR 2047 : (2016) 1 GLH 644: 2016 ACJ 1930 : (2015) 2 GCD

962 (DB) : (2015) 4 TAC 797 where in para 10 it is held as under:

10. From the impugned judgment and award it appears

that while awarding the future economic loss the learned
 10

Tribunal has considered the income of the deceased at the

time of accident at Rs. 6,500/- p.m and after making double
of the same and thereafter deducting by half, the learned
Tribunal has considered the prospective income at Rs.
9,500/- p.m and thereafter deducting 1/3rd towards
personal expenses of the deceased, the learned Tribunal
has considered the dependency at Rs. 6,500/- p.m and
applying multiplier of 15, has awarded Rs. 11,70,000/-
under the head of future economic loss. However, it is
required to be noted that while considering the income of
the deceased the learned Tribunal has not considered at all
with respect to the perks/allowances received by the.
deceased. From the documentary evidences produced on
record i.e salary slip, it is not in dispute that the deceased
was also getting other allowances such as stipend, HRA,
city allowance, washing allowance, shift allowance,
overtime allowance, compensatory allowance, education
allowance, conveyance allowance, LIC, pension
contribution, PF contribution etc. As observed by the
Hon'ble Supreme Court in the case of Indira Srivastava
(Supra), the amounts which were required to be paid to the
deceased by his employer by way of perks, should be
included for computation for his monthly income. It is
observed and held by the Hon'ble Supreme Court in the
aforesaid decision that while considering the accident
compensation and considering the income of the victim, not
only pay package but perks which are beneicial to his
family, also must be considered. However, at the same
time, all the perks/allowances which were received by the
deceased employee are not required to be included in the
income for the purpose of awarding future economic loss.
There are certain allowances which go with the person and
 11

which are paid for the personal use and for the concerned
employee and they are paid by virtue of his profession.
Thus, while considering the income of the victim/deceased
employee the allowances like washing allowance,
conveyance allowance are not required to be included while
determining the income for the purpose of awarding future
economic loss. It is required to be noted that in the present
case as such even the conveyance allowance was
reimbursed on producing the vouchers and conveyance
allowances are paid to an employee for the purpose of his
conveyance/traveling expenses from his residence to oice
and oice to residence. Under the circumstances, the said
conveyance allowance is not required to be included in the
income of the victim for the purpose of awarding future
economic loss. Similarly, the overtime allowances also is
not required to be included in the income of the victim for
the purpose of awarding future economic loss, as the
overtime allowance changes is paid for the period the
employee has worked overtime. Overtime allowance is
never steady and/or never claimed as a matter of right. On
the death of the employee naturally there will not be any
overtime work and therefore, the same was not required to
be paid and therefore, the overtime allowance is also not
required to be included in the income of the victim for the
purpose of awarding future economic loss. It also cannot be
disputed and it is not disputed that while awarding the
future economic loss and determining/considering the
income of the deceased employee the statutory deductions
such as income tax and professional tax is also required to
be deducted. From the evidence on record, it appears that
Rs. 6,993/- p.a was being deducted towards the income tax
and Rs. 700/- p.m was deducted towards professional tax
 12

in the entire year and if the same is divided by 12, it would

come to Rs. 641/- p.m Therefore, while determining the
income of the deceased, amount of Rs. 641/- is also
required to be deducted. Under the circumstances and
including other allowances which were being paid to the
deceased such as stipend, HRA, city allowance, LIC
premium, pension contribution, PF contribution and
deducting Rs. 641/- towards income tax and professional
tax, the income of the deceased at the relevant time was
required to be considered at Rs. 9,306/- p.m The deceased
at the relevant time was aged 41 years and therefore, 30%
of the aforesaid is required to be added towards future rise
in income and therefore, the prospective income would
come to Rs. 12,098/- p.m and thereafter deducting 1/4th
towards personal expenses of the deceased (considering
the number of dependents), the loss of dependency would
come to Rs. 9,073/- p.m and as the deceased was aged
about 41 years, applying multiplier of 14, claimants shall be
entitled to Rs. 15,24,264/- under the head of future
economic loss instead of Rs. 11,95,000/- as awarded by
the learned Tribunal. Thus, to the aforesaid extent, the
impugned judgment and award passed by the learned
Tribunal is required to be modiied.

9. Learned counsel appearing for the respondents No.2 in present

petition/claimant no. 2 in Tribunal and respondent no.3 in present

petition/claimant no. 1 in Tribunal opposes the prayer made by the

learned counsel for the appellant in present petition/insurance

company and as per perusal of the entire evidence available on

record the owner and driver of the ofending vehicle and the
 13

insurance company has failed to produce any document or

evidence with regards to contributory negligence. That the

insurance company also failed to examine any eyewitness including

driver of the ofending vehicle before the Learned Claims Tribunal

regarding the negligence of deceased as the driver of the ofending

vehicle would have clearly said on the part of negligence. The

concerned police after investigating the matter registered the FIR

only against Respondent no. 3 in Tribunal under the ofenses of

negligence and had not registered any case against the deceased

which clearly shows that on the date of incident, due to negligence

on the part of Respondent no. 1in the tribunal the incident was

occurred. To substantiate this he relied upon the judgment of

Hon’ble Apex Court in the matter of Meera Devi and Anr. Vs.

Himachal Pradesh Road Transport Corporation and Ors.

2014 (4) SCC 511 which held in para 10 as under:-

“to prove the contributory negligence, there

must be cogent evidence. In the instant case, there is no

speciic evidence to prove that the incident has taken

place due to rash and negligent driving of the deceased

scooterist. In absence of any cogent evidence to prove

the plea of contributory negligence, the said doctrine of

the common law cannot be applied in the present case.

We are, thus of the view that the reasoning given by the

High Court has no basis and the compensation awarded

 14

by the tribunal was just and reasonable in the facts and

circumstances of the case.”

Further he stated that so far as the Nazri Naksha exhibited

before the learned Claims Tribunal is concerned, the Nazri Naksha

was prepared after the incident which does not depict the state of

afairs when the accident was actually happened. With regard to the

income of the deceased was concerned salary certiicate Exb. P-14

was proved by Shahid Ashrad (PW-3) who is the manager of

NMDC. It was stated by the insurance company that the income of

the deceased was wrongly assessed but for this he relied upon the

judgment of the Hon’ble Apex Court in the case of National

Insurance Company Ltd. Vs Birender and Ors. (2020) 11 SCC

356 which in para 19 stated that except income tax any deduction

from the gross salary cannot be reckoned. Whereas the working of

the wife of the deceased in the post of Assistant Professor in

Central University Bilaspur is concerned he argued that the wife

does not fall under the category of dependent. In this regard the

Hon’ble Bombay High Court relied upon the settled law in the case

of Bajaj Alliance General Insurance Company Ltd Vs Smt.

Pushpa Narayan Khurde (First Appeal No. 1379/2018), that,

the widow wh was working since beginning and she was earning

separately and as she is not dependent on the income of her

deceased husband is also entitled to receive the beneit of

compensation as she falls under the category of dependent. That,

 15

due to aforesaid submissions there is no scope to entertain the

instant appeal iled by the insurance company and no interference

of this Court is required to modify the award passed by the Learned

Claims Tribunal.

10.I have heard learned counsel for the parties at length, considered

their rival submissions and perused the records with utmost

circumspection.

11. It has been observed that there were only three main grounds which

need to be kept in mind while assessing the inal outcome of the present

case. The irst question was that whether there was a contributory

negligence on the part of the deceased. Looking to the facts and

circumstances of the case and particularly looking to the deposition

made by the son of the deceased who was the sole eye witness of the

whole accident and who stated that during the accident he was seated

with his father/deceased and due to rash and negligent driving of the

ofending vehicle the accident took place and out of which his father

received injuries on various parts of his body and consequently died. It is

also pertinent to mention here that the case was registered against the

driver of the ofending vehicle and the investigation was conducted

against him. After completion of the investigation, charge sheet was

presented against him in the subordinate court. And the most important

point that need to be kept in mind was that the driver of the ofending

vehicle was not examined. Therefore, keeping in mind the above stated
 16

indings of the Tribunal as well as the evidence available on record this

Court is of the considered opinion that the Tribunal has rightly held that

there is no contributory negligence on the part of the deceased.

12. The next most important question that arises out of the said

argument of both the learned counsel for the respective parties was

that the assessment of the income of the deceased. As per the

learned counsel for the respondent the income of the deceased has

been excessively assessed by committing a grave illegality in taking

into account the gross salary of the deceased at Rs. 1,59,795/- as

the monthly income without deducting therefrom such components

viz. Conveyance Allowance of Rs. 4,782/- and Washing Allowance

of Rs. 2,391/- which were liable to be deducted from the income of

the deceased while assessing his monthly income. For which he

relied upon the judgment of Hon’ble Supreme Court in the matter of

Jasbhai Bhailal Bhai Patel Vs. Bal Murbha K. Munipet Devre,

reported in 2015 SCC online Gujarat 2208(supra) as well as on

the Hon. Division Bench of High Court of Gujarat had, relying upon

the judgment in the matter of National Insurance Co. Ltd. Of

Srivastava reported in AIR 2008 SC 851(supra) and various

other citations of the Hon’ble Supreme Court, held in para 10 of the

order that there are certain allowances which go with the person

and which are paid for the personal use and for the concerned

employee and they are paid by virtue of his profession. Thus, while

considering the income of the victim/deceased employee, the

 17

allowances like washing allowance and conveyance allowance are

not required to be included while determining the income for the

purpose of awarding future economic loss. Therefore, in the

considered opinion of this Court and also looking to the judgment

mentioned above, the washing and conveyance allowances should

be deducted from the income of the deceased.

13. The last question that arises out of the said case is that whether

the wife of the deceased would be regarded as the dependent or

not and thereafter is she liable to get the compensation or not?

Learned counsel for the respondent relying upon the judgment of

Bajaj Allianz General Insurance Co. Ltd Vs. Smt. Pushpa

Narayan Khurde and others stated that the Tribunal at Nagpur

has not rejected the claim of the wife on account of remarriage, but

while apportioning the amount, has allotted less share to her. The

insurance company is aggrieved by the said decision dated

17/06/2017 and they had come in appeal. Their main contentions

were that the widow was working since beginning and she was

earning separately and as such she is not depending on the income

of her deceased husband and she lost her right to compensation on

account of remarriage during pendency of the petition. But the

Tribunal has rejected both their contentions as she is one of the

legal representative of the deceased and as such she is entitled.

Right to claim compensation has accrued to her on the date of

accident and she cannot be divested of such right on account of

 18

remarriage. On her own, she had not given evidence of her

separate earning. Insurance company brought it on record by

examining necessary witness. In the considered opinion of this

Court and specially looking to the judgment passed in the Hon’ble

Supreme Court in the matter of Bajaj Allianz General Insurance

Co. Ltd Vs. Smt. Pushpa Narayan Khurde and others(supra)

and as well as in the matter of National Insurance Company

Ltd. Vs. Birender and Others reported in 2020(11) SCC 356,

where the Hon’ble Apex Court has held that the legal

representatives of the deceased have a right to apply for

compensation. Having said that, it must necessarily follow that even

the major married and earning sons of the deceased being legal

representatives have a right to apply for compensation and it would

be the bounden duty of the Tribunal to consider the application

irrespective of the fact whether the legal representative concerned

was fully dependent on the deceased and not to limit the claim

towards conventional heads only. Therefore, looking to the facts

and circumstances of the case, it is pertinent to mention here that

although it is clear that the wife of the deceased was working as an

Assistant Professor and was earning but she was the wife of the

deceased and the wife is always considered as the legal

representative of the deceased. Moreover she was earning from the

beginning hence her own salary could not put into under

consideration. Although she must be earning from the beginning but

 19

this have to be seen that after the demise of the deceased the

standard of their family has gone down, they are not as inancially

independent as they were before when the deceased used to

earn .Hence, she cannot be regarded as not being dependent upon

the deceased.

14. As regard the amount awarded under the head of loss of estate

, funeral expenses and loss of marital happiness is concerned this

Court is of the opinion that the Tribunal has rightly awarded the

amount and needs no interference.

15. The learned Claims Tribunal has awarded 30% future prospect

to the income of the deceased looking to his age that is between 40

to 50 years and being a salaried person and in the considered

opinion of this Court and also looking into the matter of National

Insurance Co. Ltd. Vs. Pranay Sethi reported in (2017) 16

SCC 680 the awarded future prospect is just and proper.

16. So far as the doctrine of ‘pay than recover’ is concerned

Tribunal has held that the vehicle bearing registration no. CG 19 BG

5467 was having an efective and valid driving license at the time of

incident but the vehicle was under the category of Light Goods

Vehicle . The permanent license of the vehicle was issued by the

Regional Transport Oice dated and it was issued for a period from

26.01.2018 to 25.01.2023. According to the statement of Shiv

Subramaniam Iyer (PW-3) the vehicle was insure from the period of
 20

27.11.2017 till 27.11.2018 which was commercial. The category

was a package policy for goods transport vehicle. It is absolutely

necessary to have a valid and efective license to operate the

vehicle insure under the above issued insurance policy. The license

of the insured vehicle was valid for the period from 26.01.2018 till

25.01.2023 whereas the accident in the concerned case occurred

on 01.01.2018. According to Section 66(1) of the Motor Vehicles

Act, those goods vehicles whose gross vehicle weight is more than

3000kg are required to have a permit. In the present case, the

gross vehicle weight of the accident causing vehicle is 5950kg. In

the above situation, on the basis of documentary evidence, the

vehicle at the time of the accident was not having a permit which is

violation of the rules of the Insurance Policy. Looking to the indings

of the Tribunal and also looking to the evidence placed on record

this court is of the considered opinion that the doctrine of Pay than

Recover will be followed.

17. This Court is recomputing the compensation as below:-

S.NO. Particulars Amount

1. Monthly income Rs.1,59,795/-

2. Monthly income after deducting washing allowance Rs. 1,59,795/- - Rs. 2,391 –
and conveyance allowance Rs. 4782 = Rs. 1,52,622/-

3. Future prospect @ 30% Rs. 45786/-

4. Total Rs. 1,98,408/-

 21

5. Personal Expenditure (1/3) Rs. 66136/-

6. After deducting personal expenditure Rs. 132272/-

8. Total yearly income Rs.15,87,264

Income tax deduction (Rs. 4,03,273) Rs.11,83,991

9. Multiplier of 14 Rs.16575874

10. Loss of Estate Rs.15000

11. Funeral Expenses Rs.15000

12. Loss of marital happiness Rs.40000

13. Total compensation Rs.1,66,45,874/-

18. For the forgoing reasons, the appeal is allowed in part. The amount of

compensation of Rs.1,84,43,100/- awarded by the tribunal is dehanced

to Rs.17,97,226/-.

19. The impugned award stands modified to the above extent. The

insurance company shall pay the compensation awarded to the

appellants first and thereafter as per the doctrine of pay and recover.

Rest of the condition of the award and interest shall remain intact. In

the result, appeal is allowed in part and the impugned award modified

to the extent as indicated herein-above.

Sd/- Sd/-
(Arvind Kumar Verma)
Judge

Aliza
 22

HIGH COURT OF CHHATTISGARH, BILASPUR

MAC 59 OF 2020

Appellant : The Oriental Insurance Company Ltd.

Versus

Respondent : Smt. Jasita Poonam Ekka

&

Others

Head Note

1. Firstly, to prove the contributory negligence, there must be cogent

evidence and in the absence of cogent evidence, the doctrine of common
law cannot be applied.
2. Secondly, though the wife of the deceased was earning separately she
has a right to apply for compensation, hence her income should not be
taken into consideration while determining the future income loss of the
deceased husband.
3. Lastly, the allowances which go with the person and which are paid for
the personal use and for the concerned employee and they are paid by
the virtue by his profession these allowances like washing allowance and
conveyance allowance are not required to be included by determining the
income for the purpose of awarding future economic loss.