IN THE HIGH Court OF PUNJAB AND HARYANA AT CHANDIGARH (i) CM-25618-CII-2016 in/and FAO No.7512 of 2016 (O&M) Iffco Tokio General Insurance Company Limited . . . Appellant vs. Poonam and others . . . . Respondents * * ** (ii) CM-26615-CII-2016 in/and FAO No.7874 of 2016 (O&M) Poonam and another . . . Appellants vs. Raj Singh and others . . . . Respondents * * ** Reserved on: September 09, 2026 Pronounced on: September 10, 2026 Pronounced fully/opera?ve part : Fully * * * * CORAM: HON’BLE MR. JUSTICE DEEPAK GUPTA Argued By:- Mr. Ankur Gupta, Advocate (Through VC) for the appellant in FAO-7512-2016 and for respondent No.2 in FAO-7874-2016. Mr. Bhaskar Sorout, Advocate for Mr. Keshav Pratap Singh, Advocate for the appellants in FAO-7874-2016 and for the respondents in FAO-7512-2016. DEEPAK GUPTA, J. These two appeals arise out of the award dated 02.05.2016 passed by the learned Motor Accident Claims Tribunal, Pa3ala, in MACP No.03 of 2015 and are, therefore, being disposed of by this common judg- ment. SARITA RANI 2026.09.10 18:02 I attest to the accuracy and integrity of this document FAO No.7512 of 2016 (O&M) 2026:PHHC:127627 FAO No.7874 of 2016 (O&M) 2. One appeal (FAO No.7874 of 2016) has been preferred by the claimants seeking enhancement of compensa3on principally on the ground that no amount has been awarded separately towards loss of consor3um to each of the three legal representa3ves of deceased Puran Chand. The connected appeal (FAO No.7512 of 2016) has been preferred by the Insurance Company assailing the direc3on requiring it to sa3sfy the award in the first instance with liberty to recover the amount from the owner of the offending vehicle. 3. The claim pe33on arose out of a motor vehicular accident, which took place on 10.08.2014 involving three-wheeler bearing registra3on No. PB-11BF-5469. Puran Chand sustained injuries in the accident and succumbed to them on the same day. The deceased le; behind his wife Poonam, son Sahil and mother Ram Kali, who filed claim pe33on seeking compensa3on from driver-cum-owner & Insurer of the offending vehicle. Claim was contested by respondents. 4. The Tribunal held that the accident had occurred on account of rash and negligent driving of the offending vehicle by respondent Raj Singh. The said finding has not been seriously ques3oned in the present appeals and, therefore, calls for no interference. 5. The Tribunal assessed the income of the deceased at ₹8,000/- per month, deducted 1/3rd towards his personal expenses, applied mul3plier of 11 and determined loss of dependency at ₹7,92,000/-. It further awarded ₹1,00,000/- to the children/family members other than the wife towards loss of love and affec3on, depriva3on of protec3on and social security; ₹50,000/- to the wife under a similar head; and ₹10,000/- towards funeral and ritual expenses, thereby determining total compensa3on at ₹9,52,000/-. The Tribunal appor3oned the compensa3on amongst the three legal representa3ves of the deceased in the sums of ₹4,00,000/- (wife) , ₹3,00,000/- (son) and ₹2,52,000/- (mother), respec3vely. Page 2 of 8 SARITA RANI 2026.09.10 18:02 I attest to the accuracy and integrity of this document FAO No.7512 of 2016 (O&M) 2026:PHHC:127627 FAO No.7874 of 2016 (O&M) Appeal filed by the claimants 6. Learned counsel for the claimants submits that all the three legal representa3ves have independently suffered loss of consor3um, and that no amount has been awarded to them under that head. 7. The law on consor3um is no longer res integra. In Magma General Insurance Co. Ltd. v. Nanu Ram alias Chuhru Ram, (2018) 18 SCC 130, the Hon’ble Supreme Court explained that consor3um is a compendious expression embracing spousal, parental and filial consor3um. The principle was reiterated by the three-Judge Bench in United India Insurance Co. Ltd. v. Sa)nder Kaur alias Satwinder Kaur, (2021) 11 SCC 780. Compensa3on is awardable towards consor3um, whereas a separate amount under the amorphous head of “loss of love and affec3on” is impermissible. 8. Hon’ble Supreme Court has reiterated that where an eligible family member has been omiHed from the award of consor3um, the omission can be corrected in appeal, consor3um being one of the recognised conven3onal heads of compensa3on. 9. However, the aforesaid principle cannot be applied mechanically so as to award compensa3on twice for substan3ally the same non-pecuniary loss. In the present case, although the Tribunal did not employ the expression “consor3um”, it awarded ₹1,00,000/- to the family members other than the wife and ₹50,000/- to the wife for loss of love and affec3on, depriva3on of protec3on and social security. The total sum awarded under these heads is ₹1,50,000/-. 10. Thus, each of the three legal representa3ves has already been compensated for the very species of non-pecuniary loss which, a;er Magma General Insurance (supra) and Sa)nder Kaur (supra), falls within the concept of consor3um. The defect in the award is essen3ally one of nomenclature rather than inadequacy. Grant of a further amount of consor3um, without adjus3ng the ₹1,50,000/- already awarded, would amount to duplica3on and would run contrary to the law declared in Sa)nder Kaur (supra), which does SARITA RANI 2026.09.10 18:02 I attest to the accuracy and integrity of this document FAO No.7512 of 2016 (O&M) 2026:PHHC:127627 FAO No.7874 of 2016 (O&M) not permit simultaneous compensa3on under the heads of loss of consor3um and loss of love and affec3on. 11. Learned counsel for the claimants submits that the three legal representa3ves of the deceased, namely, his wife, son and mother, are independently en3tled to compensa3on towards consor3um. The submission is correct in principle. However, the ques3on is whether any further amount is payable under the conven3onal heads, keeping in view the amount already awarded by the Tribunal. 12. Keeping in view the law expounded in “Na)onal Insurance Company Limited v. Pranay Sethi and others” 2017(4) RCR (Civil) 1009 to be read with Magma General Insurance Co. Ltd. v. Nanu Ram alias Chuhru Ram (supra), the three legal representa3ves would be en3tled to consor3um at the rate of ₹40,000/- each, amoun3ng to ₹1,20,000/-. They would further be en3tled to ₹15,000/- towards funeral expenses and ₹15,000/- towards loss of estate. Thus, the total amount admissible under the conven3onal heads would be ₹1,50,000/. The Tribunal, however, had already awarded ₹1,00,000/- to the family members other than the wife and ₹50,000/- to the wife towards loss of love and affec3on, depriva3on of protec3on and social security, besides ₹10,000/- towards funeral and ritual expenses, thereby awarding an aggregate sum of ₹1,60,000/- under these heads. 13. Since the amount of ₹1,60,000/- already awarded exceeds the amount of ₹1,50,000/- otherwise admissible towards consor3um, funeral expenses and loss of estate, no further enhancement is warranted. The nomenclature of the amounts awarded by the Tribunal shall, however, stand suitably modified. Out of the amount already awarded, ₹1,20,000/- shall be treated as consor3um payable to the wife, son and mother at ₹40,000/- each, ₹15,000/- towards funeral expenses and ₹15,000/- towards loss of estate. The remaining ₹10,000/- shall form part of the compensa3on already awarded and shall not be disturbed. Accordingly, the claimants are not en3tled to any further enhancement under the conven3onal heads. Page 4 of 8 SARITA RANI 2026.09.10 18:02 I attest to the accuracy and integrity of this document FAO No.7512 of 2016 (O&M) 2026:PHHC:127627 FAO No.7874 of 2016 (O&M) 14. The conten3on raised on behalf of the claimants is, therefore, rejected to the extent that an addi3onal amount is sought over and above the compensa3on already awarded. The award shall, however, stand modified in nomenclature in the manner indicated above. Appeal filed by the Insurance Company 15. The second issue concerns the liability of the Insurance Company. The Tribunal no3ced insurance policy Ex.R4 and proceeded on the premise that the offending vehicle was insured with the appellant-Insurance Company. It therea;er observed that there was overloading of the three- wheeler and, on that basis, directed the insurer to sa3sfy the award in the first instance with liberty to recover the amount from the owner. The ul3mate direc3on recorded by the Tribunal was that the Insurance Company would first sa3sfy the award and therea;er recover the amount from the owner. 16. A perusal of insurance policy Ex.R4, however, reveals a founda3onal error in the aforesaid conclusion. The policy was opera3ve only for the period 21.07.2012 to 20.07.2013, whereas the accident occurred on 10.08.2014. Thus, the policy had expired more than one year before the accident. There was consequently no policy of insurance subsis3ng in respect of the offending vehicle on the date of the accident. 17. There is a material dis3nc3on between a case, where an insurance policy was in force on the date of accident but the insured commiHed a breach of one of its condi3ons, and a case where there was no insurance cover whatsoever on the date of accident. In the former category, Sec3on 149 of the Motor Vehicles Act and the principles explained in Na)onal Insurance Co. Ltd. v. Swaran Singh and others, (2004) 3 SCC 297 may, in appropriate circumstances, jus3fy a direc3on to the insurer to first sa3sfy the third-party award and therea;er recover the amount from the insured. In the laHer category, however, there is no subsis3ng contractual rela3onship between the insurer and the owner in respect of the accident SARITA RANI 2026.09.10 18:02 I attest to the accuracy and integrity of this document FAO No.7512 of 2016 (O&M) 2026:PHHC:127627 FAO No.7874 of 2016 (O&M) and, ordinarily, there is no founda3on for fastening even an ini3al liability upon the insurer. 18. “Pay and recover” principle cannot be used to create an insurance cover, which did not exist on the relevant date. The principle is primarily a mechanism for protec3ng a third-party claimant in cases, where the insurer is otherwise connected with the offending vehicle through a subsis3ng policy but establishes a statutory defence or breach. Absence of a policy altogether stands on a different foo3ng. 19. The dis3nc3on is par3cularly noteworthy in the present case. The Tribunal did not hold that a valid policy covering the date of accident existed and that its terms had merely been violated by overloading. Its en3re direc3on proceeds from the erroneous premise that Ex.R4 insured the offending vehicle on the date of accident. Once Ex.R4 itself shows that the coverage had expired on 20.07.2013, the premise disappears. 20. The decision in Mangla Ram v. Oriental Insurance Co. Ltd., (2018) 5 SCC 656 does not assist the claimants in these peculiar facts. There, although a formal policy had not been issued, a cover note had been issued by the Development Officer of the insurer while ac3ng on behalf of the company, which furnished the factual basis for the Hon’ble Supreme Court, in the peculiar circumstances, to invoke “pay and recover”. There is no comparable subsis3ng cover note or representa3on of insurance covering 10.08.2014 in the present case. 21. The owner-cum-driver Raj Singh has chosen not to contest the proceedings and was proceeded against ex parte even before the Tribunal. The record of the award specifically shows that respondent No.1 did not appear, whereas the insurer alone contested the pe33on. His remaining ex parte in the present proceedings cannot, however, enlarge the contractual or statutory liability of an Insurance Company, whose policy did not cover the date of accident. Page 6 of 8 SARITA RANI 2026.09.10 18:02 I attest to the accuracy and integrity of this document FAO No.7512 of 2016 (O&M) 2026:PHHC:127627 FAO No.7874 of 2016 (O&M) 22. Consequently, the finding of the learned Tribunal fastening liability upon the appellant-Insurance Company in the first instance, albeit with recovery rights, cannot be sustained. The Insurance Company is exonerated from liability altogether. The en3re liability to sa3sfy the award, together with interest, shall rest upon respondent Raj Singh, the driver-cum- owner of the offending vehicle. 23. It is clarified that if any amount has already been deposited by the Insurance Company pursuant to the award or any interim order passed in these appeals, and the same has not been disbursed to the claimants, the Insurance Company shall be en3tled to refund thereof along with accrued interest, if any. In case any amount deposited by the insurer has already been released to the claimants under orders of the Court, it would not be equitable to require the claimants to refund the same. In such event, the Insurance Company shall be en3tled to recover the amount so released from the owner-cum-driver by taking recourse to execu3on proceedings, without being required to ins3tute a separate suit. This direc3on merely regulates res3tu3on of amounts paid under judicial orders and does not amount to fastening substan3ve insurance liability upon the appellant. 24. In view of the foregoing discussion, the appeal preferred by the Insurance Company is allowed. The award dated 02.05.2016 is modified by seLng aside the direc3on requiring the Insurance Company to sa3sfy the award and recover the amount from the owner. Respondent Raj Singh, being the driver-cum-owner of the offending vehicle, shall be liable to sa3sfy the award. 25. The appeal preferred by the claimants is disposed of with the clarifica3on that, out of the amount of ₹1,60,000/- already awarded by the Tribunal under the conven3onal heads, ₹1,20,000/- shall be treated as compensa3on towards consor3um payable to the wife, son and mother of the deceased at the rate of ₹40,000/- each, ₹15,000/- towards funeral expenses and ₹15,000/- towards loss of estate. The remaining ₹10,000/- SARITA RANI 2026.09.10 18:02 I attest to the accuracy and integrity of this document FAO No.7512 of 2016 (O&M) 2026:PHHC:127627 FAO No.7874 of 2016 (O&M) already awarded towards funeral and ritual expenses shall remain undisturbed. Consequently, no further enhancement is warranted under the conven3onal heads. 26. Save to the aforesaid extent, the quantum of compensa3on and the rate of interest awarded by the Tribunal shall remain undisturbed. 27. Both appeals stand disposed of accordingly. All pending applica- 3ons, if any, shall also stand disposed of. Photocopy of this order be placed on the connected case file. September 10, 2026 Sarita (DEEPAK GUPTA) JUDGE Whether speaking/reasoned? : Yes/No Whether reportable? : Yes/No Uploaded on: September 10, 2026 SARITA RANI 2026.09.10 18:02 I attest to the accuracy and integrity of this document