1 2025:CGHC:32661 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR MAC No. 628 of 2019 1. Budhram S/o Raimat Pandey Aged About 23 Years R/o Bhairamgarh Temurbhata P.S. Bhairamgarh District- Bijapur, Chhattisgarh. 2. Jagannath S/o Raimat Pandey Aged About 35 Years R/o Bhairamgarh Temurbhata P.S. Bhairamgarh District- Bijapur, Chhattisgarh. 3. Gujra S/o Raimat Pandey Aged About 42 Years R/o Bhairamgarh Temurbhata P.S. Bhairamgarh District- Bijapur, Chhattisgarh. 4. Nadagu S/o Raimat Pandey aged about 46 years R/o Bhairamgarh Temurbhata P.S. Bhairamgarh Dist. Bijapur (CG) ... Appellants-claimants versus 1. Gajendra Singh S/o Jagannath Singh Aged About 45 Years R/o Village Bhairamgarh P.S. Bhairamgarh District- Bijapur, Chhattisgarh............(Driver Of The Vehicle), 2. Jageshwar Dewangan S/o Late Trinath Dewangan Aged About 48 Years R/o Village Bhairamgarh, P.S. Bhairamgarh District- Bijapur, Chhattisgarh............(Owner Of The Vehicle), 3. Branch Manager The New India Insurance Company Ltd. Aakashwani Road, Nayapara, Jagdalpur, District- Bastar, Chhattisgarh...........(Insurer of Vehicle) ... Respondents 2 For Appellants : Mr. Vikas Shrivastava, Advocate For Respondent No.3 : Mr. Anil Gulati, Advocate Hon'ble Shri Justice Parth Prateem Sahu Order on Board 14/7/2025 1. Appellants-claimants have filed this appeal seeking enhancement of compensation awarded by learned 1st Additional Motor Accident Claims Tribunal, Dantewada, District South Bastar (for short ‘the Claims Tribunal’) vide award dated 30.10.2018 in Claim Case No.46/2015. 2. Facts of the case, in brief, are that claimants filed an application under Section 166 of the Motor Vehicles Act, 1988 (for short ‘the Act of 1988’) for the death of Bhimsen Pandey in accident dated 27.3.2015 which allegedly occurred on account of rash and negligent act on the part of non-applicant No.1 in driving pick-up vehicle bearing registration mark CG18-H-1035 (for short ‘the offending vehicle’). It is averred that Bhimsen Pandey was travelling as Hammal in the offending vehicle, which overturned near a square in village Samloor due to rash and negligent driving by its driver, as a result Bhimsen sustained grievous injuries and died on spot. At the time of accident, Bhimsen was 25 years old bachelor, working as Hammal/labourer, earning Rs.6,000/- per month and due to her untimely death, the claimants have suffered loss of income. 3 3. Non-applicant No.1 and 2, driver and owner of offending vehicle, have jointly filed reply to claim application admitting the factum of accident from their vehicle. It was also pleaded that at the time of accident, non-applicant No.1-driver, was possessing valid and effective driving license, the offending vehicle was insured with non-applicant No.3 and since the offending vehicle was plied on road as per terms of insurance policy, non-applicant No.3 is liable to indemnify the insured. 4. Non-applicant No.3- Insurance Company filed its reply pleading that at the time of accident, driver of offending vehicle was not having valid driving license; the passengers were travelling in offending vehicle without there being valid permit or payment of premium in this regard to the insurance company. Thus, there was violation of essential conditions of insurance policy and therefore, insurance company is not liable to indemnify the insured. 5. The Claims Tribunal upon analyzing the materials brought on record by the parties, came to the conclusion that accident occurred due to rash and negligent driving of offending vehicle by its driver; the claimants, who are major brothers of deceased, failed to prove that they were dependant upon the deceased and accordingly, allowed application in part, awarded lump sum compensation of Rs.90,000/- under the head of funeral expenses, loss of estate and loss of love and 4 affection . The Claims Tribunal found that on the date of accident, there was no fitness certificate in favour of offending vehicle, it was being used for carrying passengers where it was insured with non-applicant No.3 as goods vehicle and thus the offending vehicle was plied on road in violation of conditions of insurance policy, and therefore, the insurance company was exonerated from liability to indemnify the insured; the driver and owner of offending vehicle was made liable, jointly and severally, to pay the amount of compensation to claimants. 6. Learned counsel for claimants/appellants submits that the Claims Tribunal erred in holding that claimants could not be said to be dependent on his deceased brother and refused to award a single penny under the head of loss of dependency. He submits that the claimants and deceased were living in a joint family having a common house, the deceased was helping financially in meeting the household expenses and as such, they were dependent on the income of the deceased. He next contended that the Claims Tribunal erred in not awarded any compensation towards loss of consortium. He further submits that the Claims Tribunal erred in not issuing direction to respondent No.3 to first satisfy the amount of compensation and then to recover the same from the driver and owner of offending vehicle. 5 7. Per contra, learned counsel appearing on behalf of respondent No.3 has supported the award passed by the Claims Tribunal. 8. I have heard learned counsel for the respective parties and perused the record of claim case including impugned award. 9. So far as first submission of learned counsel for appellants that the Claims Tribunal erred in not awarding compensation under the head of loss of dependency is concerned, the Claims Tribunal observed that deceased Bhimsen Pandey was the brother of claimants-appellants and they were independently earning equivalent to the deceased, as pleaded in claim application. Thus, in view of peculiar facts and circumstances of the present case, it cannot be said that appellants/ claimants were dependant on the income of deceased Bhimsen nor can it be said that they have faced inconvenience in the household chores as appellants herein have independent source of income. The claimants have not brought on record any reliable piece of evidence based on which it can be believed that deceased was living in a joint family and helping them financially in maintaining household expenses. Therefore, in considered view of this court, the learned Tribunal has rightly not awarded any compensation under the head of loss of dependency on account of death of deceased Bhimsen Pandey, brother of appellants herein. 6 10. So far as non-grant of compensation under the head of ‘loss of consortium’ to appellants-claimants is concerned, in Magma General Insurance Co. Ltd. vs. Nanu Ram alias Chuhru Ram and Others, reported in (2018) 18 SCC 130, Hon’ble Supreme Court after referring to the decision of Constitution Bench in case of National Insurance Company Ltd. vs. Pranay Sethi, reported in (2016) 17 SCC 680 has explained about granting the compensation under the head of loss of consortium and also categorized the loss of consortium as 'spousal consortium', 'parental consortium' and 'filial consortium'. Relevant para of said decision reads thus:- "21.A Constitution Bench of this Court in Pranay Sethi (supra) dealt with the various heads under which compensation is to be awarded in a death case. One of these heads is Loss of Consortium. In legal parlance, "consortium" is a compendious term which encompasses "spousal consortium", "parental consortium", and "filial consortium". The right to consortium would include the company care help comfort, guidance, solace and affection of the deceased, which is a loss to his family. With respect to a spouse, it would include sexual relations with the deceased spouse. 21.1.Spousal consortium is generally defined as rights pertaining to the relationship of a husband wife which allows compensation to the surviving spouse for loss of "company, society, co- operation,affection, and aid of the other in every 7 conjugal relation." 21.2. Parental consortium is granted to the child upon the premature death of a parent, for loss of"parental aid, protection, affection, society, discipline, guidance and training." 21.3. Filial consortium is the right of the parents to compensation in the case of an accidental death of a child. An accident leading to the death of a child causes great shock and agony to the parents and family of the deceased. The greatest agony for a parent is to lose their child during their lifetime. Children are valued for their love, affection, companionship and their role in the family unit.” 11. Thus, as per decision in Nanu Ram’s case (supra), the consortium is limited to spousal consortium, parental consortium and filial consortium. In case at hand, there is no dispute that appellants-claimants in this appeal are brother of the deceased and therefore, as per decision in Pranay Sethi’s case (supra) and Nanu Ram’s case (supra), they are not entitled for any compensation under the head of loss of consortium. Hence, in the opinion of this Court, the Claims Tribunal has not committed any error in not awarding any compensation towards loss of consortium to the appellants herein. The said finding is confirmed. 12. So far as liability part is concerned, the Claims Tribunal exonerated the insurance company on the ground that there 8 was no fitness certificate in favour of offending vehicle and passengers were travelling in offending vehicle, which was not allowed in terms of insurance policy. A glance of registration certificate of offending vehicle, which is exhibited as Ex.D-7, would show that it is registered as light goods vehicle, seating capacity is ‘2’ including driver. Insurance policy (Ex.D-3) issued by non-applicant No.3 would show that it was a commercial vehicle package policy, seating capacity of insured vehicle was ‘3’ including driver. Lakhpati Borkar (NAW3-3), Branch Manager of New India Insurance Co. Ltd., Jagdalpur, has stated in cross-examination that in insurance policy (Ex.D-3) the seating capacity is mentioned as ‘three’ including driver, meaning thereby risk premium of three persons was received by insurance company. From the aforementioned oral and documentary evidence it is apparent that the person other than driver is allowed to travel in offending vehicle and the insurance policy, which is a package policy, also covers risk of three persons including driver. This being the position, the finding recorded by the Claims Tribunal that on the date of accident, the offending vehicle was not used in accordance with the purpose for which it was registered and insured is not sustainable and it is set aside. 13. Non-applicant No.1-driver of offending vehicle was examined 9 as DW-1 and he has admitted that at the time of accident, deceased was sitting along with him in the cabin and Lachhinder, Ramprasad and Jagbandhu were travelling in trolley attached to it. As per contents of FIR also, the afore named persons were travelling in offending vehicle at the time of accident. Thus, it is clear that by carrying passengers on the platform where there was no seating space, the owner of offending vehicle committed breach of condition of the insurance policy. It is ordered accordingly. 14. The issue that offending vehicle was not having fitness certificate on the date of accident has been dealt elaborately by the Claims Tribunal in Para-18 and 19 of its award and found that there was no fitness certificate in favour of the offending vehicle on the date of accident. In arriving at this conclusion, the Claims Tribunal has relied upon letter dated 5.5.2016 (Ex.D-6) issued under the Right to Information Act, 2005 by the office of District Transport Officer, South Bastar, Dantewada in which it is mentioned that fitness certificate initially issued in favour of offending vehicle was valid upto 4.2.2013 and thereafter the owner of offending vehicle never applied for renewal of the same. The owner or driver of offending vehicle though contested the claim case by filing their reply but did not furnish any document relating to fitness of offending vehicle. Thus, the Claims Tribunal has rightly 10 concluded that at the time of accident, the offending vehicle was being plied without there being fitness certificate, which amount to breach of policy condition, and it is affirmed. 15. Now the question arises for consideration is whether carrying excess persons than permitted limit and absence of fitness certificate entitles insurance company for complete exoneration from its liability to indemnify the insured? 16. Absence of fitness certificate is a fundamental breach. In case of Pareed Pillai vs Oriental Insurance Co. Ltd. reported in 2019 ACJ 16, the five Judges Bench of Kerala High Court while dealing with breach relating to non-availability of fitness certificate has observed thus:- “17. The stipulations under the above provisions clearly substantiate the importance and necessity to have a valid Fitness Certificate to the transport vehicle at all times. The above prescription converges on the point that Certificate of Registration, existence of valid Permit and availability of Fitness Certificate, all throughout, are closely interlinked in the case of a transport vehicle and one requirement cannot be segregated from the other. The transport vehicle should be completely fit and road worthy, to be plied on the road, which otherwise may cause threat to the lives and limbs of passengers and the general public, apart from damage to property. Only if the transport vehicle is having valid Fitness Certificate, would the necessary Permit be issued in terms of Section 66 of the Act and by virtue of the 11 mandate under Section 56 of the Act, no transport vehicle without Fitness Certificate will be deemed as a validly registered vehicle for the purpose of Section 39 of the Act, which stipulates that nobody shall drive or cause the motor vehicle to be driven without valid registration in public place or such other place, as the case may be. These requirements are quite 'fundamental' in nature; unlike a case where a transport vehicle carrying more passengers than the permitted capacity or a goods carriage carrying excess quantity of goods than the permitted extent or a case where a transport vehicle was plying through a deviated route than the one shown in the route permit which instances could rather be branded as 'technical violations'. In other words, when a transport vehicle is not having a Fitness Certificate, it will be deemed as having no Certificate of Registration and when such vehicle is not having Permit or Fitness Certificate, nobody can drive such vehicle and no owner can permit the use of any such vehicle compromising with the lives, limbs, properties of the passengers/general public. Obviously, since the safety of passengers and general public was of serious concern and consideration for the law makers, appropriate and adequate measures were taken by incorporating relevant provisions in the Statute, also pointing out the circumstances which would constitute offence; providing adequate penalty. This being the position, such lapse, if any, can only be regarded as a fundamental breach and not a technical breach and any interpretation to the contrary, will only negate the intention of the law makers.” A bare reading of above quoted decision of Hon’ble Supreme 12 Court makes it clear that absence of permit or fitness certificate of the vehicle involved in road traffic accident is a fundamental breach of the terms and conditions of the insurance policy and it would not help the Insurance Company to secure complete exoneration. 17. In the matter of Amrit Paul Singh and another v. Tata AIG General Insurance Company Limited and others reported in (2018) 7 SCC 558 Hon'ble Supreme Court has held thus:- “We are disposed to think so in view of the series of exceptions carved out in Section 66. The said situations cannot be equated with absence of licence or a fake licence or a licence for different kind of vehicle, or, for that matter, violation of a condition of carrying more number of passengers. Therefore, the principles laid down in Swaran Singh (supra) and Lakhmi Chand (supra) in that regard would not be applicable to the case at hand. That apart, the insurer had taken the plea that the vehicle in question had no permit. It does not require the wisdom of the "Tripitaka", that the existence of a permit of any nature is a matter of documentary evidence. Nothing has been brought on record by the insured to prove that he had a permit of the vehicle. In such a situation, the onus cannot be cast on the insurer. Therefore, the tribunal as well as the High Court had directed the insurer was required to pay the compensation amount to the claimants with interest with the stipulation that the insurer shall be entitled to recover the same from the owner and the driver. The said directions are in consonance with the principles stated in Swaran Singh (supra) and other cases pertaining to pay and recover principle.” 18. In cases of Shivaraj vs. Rajendra, reportedin (2018) 10 13 SCC 432 and Shamanna and another Vs. Divisional Manager Vs. the Oriental Insurance Co. Ltd. and others, [(2018) 9 SCC 650, the Hon’ble Supreme Court has observed that in the case of breach of policy, directions against the Insurance Company to pay the awarded sum to the claimants and then to recover the said sum from the insured be given by applying the principle of "pay and recover". 19. Even, once, the Insurance Company had agreed to indemnify the insured than it would be a dispute between the insured and the insurer as to whether the vehicle was being used contrary to the conditions of Insurance Policy or not? On account of such inter se3 dispute between the insured and the insurer, the claimants, who are completely stranger to the contract between them, cannot be made to suffer. In case at hand, it is not in dispute that on the date of accident, the insurance policy was effective, the accident occurred during validity of the policy and the deceased was sitting in cabin of offending vehicle and not on the platform. 20. Therefore, in the light of above decisions of Hon’ble Supreme Court, peculiar facts of the case and also considering the beneficial object of the Act of 1988, while maintaining the impugned award granting compensation of Rs.90,000/- to the appellants-claimants and exonerating the respondent No.3- Insurance Company from its liability to indemnify insured, 14 respondent No.3- New India Insurance Company Limited, being insurer of the offending vehicle, is directed to satisfy the impugned award at first instance and then to recover the same from respondent Nos.1 & 2 driver and owner of offending vehicle, jointly and severally, in accordance with law. For recovery of the compensation so paid, respondent No.3 Insurance Company is not required to file separate proceeding as held in case of Oriental Insurance Company Limited v. Nanjappan reported in AIR 2004 SC 1631. 21. In the result, appeal is allowed in part and the award impugned stands modified to the extent indicated above. Sd/- (Parth Prateem Sahu) Judge roshan/- SYED ROSHAN ZAMIR ALI Digitally signed by SYED ROSHAN ZAMIR ALI