1 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR MAC No. 802 of 2019 1 - Smt. Jyoti Gupta W/o Narmada Prasad Gupta, Aged About 35 Years (Mother Of Deceased ) R/o Melapara Sarkanda, Police Station, Sarkanda, District Bilaspur Chhattisgarh., District : Bilaspur, Chhattisgarh 2 - Ku. Anchal Gupta D/o Narmada Prasad Gupta, Aged About 15 Years (Sister Of Deceased ) Minor, Through Natural Guardian Mother Appellant No. 1 Smt. Jyoti Gupta, R/o Melapara Sarkanda, Police Station, Sarkanda, District Bilaspur Chhattisgarh., District : Bilaspur, Chhattisgarh 3 - Saksham Gupta S/o Narmada Prasad Gupta Aged About 9 Years (Brother Of Deceased ) Minor, Through Natural Guardian Mother Appellant No. 1 Smt. Jyoti Gupta, R/o Melapara Sarkanda, Police Station, Sarkanda, District Bilaspur Chhattisgarh., District : Bilaspur, Chhattisgarh 4 - Arsha Gupta S/o Narmada Prasad Gupta, Aged About 04 Months , (Brother Of Deceased ) Minor, Through Natural Guardian Mother Appellant No. 1 Smt. Jyoti Gupta, R/o Melapara Sarkanda, Police Station, Sarkanda, District Bilaspur Chhattisgarh., District : Bilaspur, Chhattisgarh ...Appellants versus 1 - Ravi Sahu S/o Kunwaru Sahu Aged About 20 Years R/o Village Gidha, Police Station City Kotwali, Mungeli, District Mungeli Chhattisgarh. (Driver - Cum - Owner Of Motorcycle Bearing No. C.G. - 28 - E - 2312), District : Mungeli, Chhattisgarh 2 - National Insurance Company Limited, Through Divisional Manger, Division Office, Taha Complex, Priyadarshni Nagar, Vyapara Vihar Road, Bilaspur Chhattisgarh., District : Bilaspur, Chhattisgarh 3 - Narmada @ Vishal S/o Motilal Gupta, Aged About 42 Years R/o Melapara Chantidih, Police Station Sarkanda, District Bilaspur Chhattisgarh., District : Bilaspur, Chhattisgarh ... Respondent(s) For Appellants : Ms. Shrestha Gupta, Advocate For Respondent No. 1 : Mr. A. N. Pandey, Advocate For Respondent No. 2 : Mr. B. N. Nande, Advocate For Respondent No. 3 : None, though served. Hon'ble Shri Justice Sachin Singh Rajput, Order on Board HIFZURRAHMAN ANSARI Digitally signed by HIFZURRAHMAN ANSARI Date: 2025.09.10 16:56:22 +0530 2 04.09.2025 1) Respondent No. 1 has filed a cross-objection under Order 41 Rule 22 of the CPC. The Registry has pointed out a defect that the said cross-objection was not accompanied by the mandatory deposit of Rs. 25,000/-, as envisaged under Section 173 of the Motor Vehicles Act, 1988 (for short, “MV Act”). The cross- objection was filed in the year 2019, and it appears that till date the mandatory deposit, required to sustain the cross-objection, has not been made. 2) In view of the above, the cross-objection stands dismissed. 3) With the consent of the parties, the appeal is heard finally. 4) The present appeal under Section 173 of the MV Act has been preferred by the appellants/claimants, being aggrieved by the award dated 17.12.2018 passed by the learned First Additional Motor Accident Claims Tribunal, Bilaspur, District Bilaspur (C.G.) (for short, “the learned Tribunal”) in Claim Case No. 180/2017. 5) A claim petition under Section 166 of the MV Act was filed by the appellants/claimants, who are the mother and siblings of the deceased Akash Gupta. Respondent No. 3, father of the deceased, was also arrayed as a party to the claim petition. 6) According to the pleadings in the claim petition, the deceased Akash Gupta died in a motor accident caused by rash and negligent driving of the offending vehicle bearing registration No. CG-28-E-2312, driven and owned by respondent No. 1, and insured with respondent No. 2 – the insurance company. 7) It was further pleaded that the deceased, aged about 19 years, was engaged in the business of balloon decoration, earning a monthly income of Rs. 15,000/-. The appellants/claimants were dependent upon his income, and therefore 3 sought compensation of Rs. 40,00,000/- from respondent No. 1/driver-cum- owner and respondent No. 2/insurer of the offending vehicle. 8) Respondent No. 1 remained ex parte before the learned Tribunal and failed to file any written statement. Respondent No. 2/insurance company filed its written statement, denying the averments of the claim petition and specifically pleading that the offending vehicle was being driven without a valid and effective driving licence. Hence, it was contended that the insurance company is not liable to pay compensation. Respondent No. 3 (father of the deceased) also claimed compensation along with the appellants/claimants. 9) On the basis of the pleadings, the learned Tribunal framed five issues. The issue regarding rash and negligent driving of the offending vehicle was decided in the affirmative. The issue regarding the monthly income of the deceased was decided in favour of the appellants, assessing the monthly income of the deceased at Rs. 6,206/-. Issue No. 3, relating to violation of the terms and conditions of the insurance policy, was decided in favour of respondent No. 2. Ultimately, on Issues No. 4 and 5, the learned Tribunal awarded compensation of Rs. 7,00,248/- in favour of appellant No. 1, fastening liability on respondent No. 1 and exonerating respondent No. 2/insurance company. 10) Despite service of notice, none appeared on behalf of respondent No. 3 11) Learned counsel for the appellants submits that the deceased was aged about 19 years and was engaged in the business of balloon decoration, earning Rs. 15,000/- per month. It is contended that the learned Tribunal committed an error in assessing the income of the deceased at Rs. 6,206/- by taking the minimum wages of an unskilled labourer. He further submits that the Tribunal has erred in not adding future prospects and in not granting consortium. It is 4 further urged that the finding of the learned Tribunal that appellants No. 2 to 4 were receiving Rs. 5,000/- as maintenance from respondent No. 3, and therefore were not dependent on the income of the deceased, is erroneous and liable to be set aside. Accordingly, it is prayed that the appellants be awarded just and proper compensation. He also submits that the doctrine of “pay and recover” may be applied in the present case. 12) Per contra, learned counsel for respondent No. 1 submits that although respondent No. 1 intended to challenge the finding fastening liability upon the owner, due to poverty he could not deposit the mandatory amount as required under law. He, however, submits that this Court may examine the finding recorded by the learned Tribunal regarding violation of the terms and conditions of the insurance policy and exoneration of the insurance company. Therefore, he prays that doctrine of “pay and recover” may be applied in the present case. 13) Learned counsel for respondent No. 2 supports the award and submits that the insurance company, by cogent and reliable evidence, has proved breach of policy conditions on the part of respondent No. 1. Therefore, the finding of exoneration of the insurance company recorded by the learned Tribunal is justified and calls for no interference. It is further contended that the doctrine of “pay and recover” has no application in the facts of the present case. In support of his submissions, he has placed reliance upon the judgment of the Hon’ble High Court of Madhya Pradesh in Misc. Appeal No. 125/2015, ICICI Lombard General Insurance Co. Ltd. v. Nanki and Others, and connected matters, pronounced on 20.08.2024, wherein it has been observed in paragraph 22 as under: 5 “Issue No.(ii):- Whether principle of pay and recover can be applied in the present case? 22. Evidently, in the instant case, owner and driver of the offending vehicle is one and the same person and they are not different persons. In the instant case, it is established that on the date of accident, driver of offending vehicle was not having valid and effective driving license/driver was not duly licensed. Therefore, in view of law laid down in the case of Malla Prakasarao (supra) and Direndra Singh Sengar (supra), insurance company is not liable to pay the compensation. Further, in the facts and circumstances of the case, driver and owner of the offending vehicle being one and the same person, principle of pay and recover can also not be applied in the present case. In Darshana Devi (supra), owner and driver were different persons and not one and the same person. Therefore, principle laid down in Darshana Devi (supra) does not help the claimants in any manner whatsoever. Hence, findings of the Tribunal with respect to application of principle of pay and recover, being erroneous and contrary to law, are hereby set aside and appellant insurance company is exonerated from liability to pay the compensation and it is held that appellant Shyam Sundar, owner cum driver, is solely liable to pay the compensation. It is also held that in the instant case, principle of pay and recover cannot be applied.” 14) Heard learned counsel for the parties and perused the record. 15) The first question that arises for consideration before this Court is whether the Tribunal has awarded just compensation. The date of the accident is 24.11.2016. As no documentary evidence regarding the income of the deceased was produced on record, the learned Tribunal assessed the monthly income of the deceased on the basis of the minimum wages prevailing on the said date. Such assessment appears to be correct and is, therefore, maintained. However, the learned Tribunal failed to award any addition towards future 6 prospects. In view of the law laid down by the Hon’ble Supreme Court in National Insurance Company Ltd. v. Pranay Sethi and Others, (2017) 16 SCC 680, this Court is inclined to add 40% towards future prospects to the income of the deceased. 16) In light of the above and taking guidance from the judgment of Hon’ble Supreme Court in the matter of Pranay Sethi (supra) , Sarla Verma & Ors. Vs. Delhi Transport Corporation & Ors; (2009) 6 SCC 121 and Magma General Insurance Co. Ltd. v. Nanu Ram @ Chuhru Ram & Ors; (2018) 18 SCC 130, this Court is recomputing the compensation as below:- S.N Particular Awarded by this Court 1. Monthly Income of the deceased 6206/- 2. Future Prospect 40% 6206 X40%=2482/- 3. Net Income 6206+2482=8688/- 4. Yearly income 8688 X12=1,04,256/- 5. Personal expenditure 1/2 1,04,256/2= 52,128/- 6. Yearly dependency 1,04,256-52,128=52,128/- 7. Multiplier of 18 applied to assess loss of dependency 52,128 X18= 9,38,304/- 8. Funeral Expenses 15,000/- 9. Loss of estate 15,000/- 10. Filial consortium 2,00,000/- (40,000/- each to A-1 to A-4) Total compensation Rs. 11,68,304/- 17) The amount of compensation of Rs.7,00,248/- awarded by the Tribunal is enhanced to Rs. 11,68,304/-. Hence, after deducting the amount of Rs. 7,00,248/-, the appellants/claimants are held entitled for an additional amount of Rs. 4,68,056/-. The impugned award stands modified to the above extent. 18) The exoneration of the insurance company by the learned Tribunal appears to be based on proper appreciation of evidence, as no valid driving licence was produced before it. 7 19) This Court is also unable to agree with the finding of the learned Tribunal that the siblings of the deceased, appellants No. 2 to 4, could not be treated as dependents merely because they were receiving maintenance of Rs. 5,000/- from respondent No. 3. Such a finding is erroneous and is liable to be set aside. Further, the learned Tribunal has not awarded any compensation to respondent No. 3, who admittedly is the father of the deceased and had also laid a claim on account of his son’s death. This Court finds that respondent No. 3 is also entitled to compensation. 20) This now brings me to the second submission, whether the doctrine of “pay and recover” can be invoked. Learned counsel for respondent No. 2 has laid much emphasis on the fact that the driver and owner of the offending vehicle are the same person, and therefore, there is a fundamental breach of the terms of the insurance policy. In support of this contention, reliance has been placed upon the judgment in Nanki (supra). 21) It is true that in the present case, the driver and owner of the vehicle are the same person, and the Hon’ble Madhya Pradesh High Court in Nanki (supra) has taken a particular view. However, the fact remains that the deceased was a third party. In light of the judgment of the Hon’ble Supreme Court in National Insurance Co. Ltd. v. Swaran Singh & Others, AIR 2004 SC 1531, and the subsequent line of authorities following the said decision, the doctrine of “pay and recover” is squarely applicable. 22) Considering that the Motor Vehicles Act is a piece of benevolent legislation, this Court is inclined to apply the doctrine of “pay and recover.” Accordingly, the entire amount of compensation shall be paid by the insurance company, with liberty to recover the same from the respondent No. 1/driver-cum-owner of the offending vehicle. 8 23) The insurance company is granted 60 days’ time to deposit the entire amount before the learned Tribunal. Upon such deposit being made, the learned Tribunal shall pass appropriate orders regarding apportionment, investment, and disbursement of the enhanced compensation in favour of the appellants/claimants as well as respondent No. 3. 24) Consequently, the appeal stands partly allowed. Sd/- (Sachin Singh Rajput) Judge H.Ansari