1 2025:CGHC:38739 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR MAC No. 775 of 2020 1 - United India Insurance Company Limited By Branch Manager, Branch Office, In Front Of Christian Hospital, Raipur Road, Dhamtari, Tehsil And District Dhamtari, Chhattisgarh, Through Authorized Signatory Manager, T.P. Hub, First Floor, Lic Building, Magarpara Road, Bilaspur, Chhattisgarh ... Appellant Versus 1 - Minor Kumari Khimita Sahu D/o Rameshwar Sahu Aged About 14 Years Minors Through Next Friend Grand Father Namely Kripa Ram S/o Rambharosa Sahu, R/o Village Kachna, Post Kachna, Police Station Birejhar, Tehsil Kurud, District Dhamtari, Chhattisgarh 2 - Minor Khilendra Sahu S/o Rameshwar Sahu Aged About 14 Years Minors Through Next Friend Grand Father Namely Kripa Ram S/o Rambharosa Sahu, R/o Village Kachna, Post Kachna, Police Station Birejhar, Tehsil Kurud, District Dhamtari, Chhattisgarh 3 - Minor Manish Kumar S/o Rameshwar Sahu Minors Through Next Friend Grand Father Namely Kripa Ram S/o Rambharosa Sahu, R/o Village Kachna, Post Kachna, Police Station Birejhar, Tehsil Kurud, District Dhamtari, Chhattisgarh 4 - Rameshwar S/o Kripa Ram Sahu Aged About 38 Years R/o Village And Post Ward Kachna, Police Station Birejhar, Tehsil Kurud, District Dhamtari, Chhattisgarh, (Driver) 5 - Devndra Kumar S/o Badri Ram Sahu Aged About 40 Years R/o Village Kanwar, Police Station Kanwar, Tehsil And District Balod, Chhattisgarh ... Respondents For Appellant : Mr. Abhishek Mishra, Advocate SHUBHAM DEY Digitally signed by SHUBHAM DEY 2 For Respondents : Mr. Praveen Dhurandhar, Advocate For Respondent No. 4 : Ms. Yamini, Advocate on behalf of Mr. H.A.P.S. Bhatia, Advocate S.B.: Hon'ble Shri Parth Prateem Sahu, Judge Order On Board 05/08/2025 1. Appellant/Insurance Company has filed this appeal challenging the liability to pay the amount of compensation of Rs. 10,46,387/- fastened upon it by the learned Additional Motor Accident Claims Tribunal, Dhamtari (for short ‘the Claims Tribunal’) vide award dated 05.12.2019 in Claim Case No. 46/2019. 2. Facts of the case in brief are that, on 29.12.2016 at 04:00 P.M., when Hileshwari (since deceased) along with the Non-Applicant No. 1/Rameshwar was traveling towards Village Kharenga from Village Amladih on his motor cycle bearing registration no. CG 05 V 5140 (hereinafter referred to as the offending vehicle) and when they reached near Village Amethi, due to rash and negligent driving of Non- Applicant No. 1/Rameshwar, the motorcycle jumped on a speed breaker due to which, Hileshwari fell from the motorcycle and sustained grievous injuries on her head. She was taken to Christian Hospital for treatment and thereafter to Mekahara Hospital, Raipur where during course of treatment, she succumbed to her injuries. Subsequent to the accident, an F.I.R. was registered against the Non-applicant No. 1 in concerned police station. Claimants have filed claim application before the learned Claims Tribunal pleading therein that on the date of accident, deceased was aged about 31 years doing the work of Mason and earning Rs. 200/- per day, claimed compensation of Rs. 40,00,000/- from the non-applicants. 3 3. The Non-Applicants No. 1 & 2 submitted their reply opposing the pleadings made in the claim application and pleaded that on the date of accident, the Non-Applicant No. 1/Driver was driving the motorcycle slowly, it was the deceased who was sitting inappropriately and negligently on the motorcycle. Due to her own negligence, she fell from the motorcycle and sustained injuries. The Non-Applicant No. 1 is well acquainted with the skills to drive the motorcycle and was possessing valid and effective driving license. The offending vehicle was insured with the Non-Applicant No. 3, therefore, if any compensation is awarded, then same is payable by the Non-Applicant No. 3. 4. The Non-Applicant No. 3/Insurance Company also filed separate reply and took a stand that the Non-Applicant No. 1 on the date of accident, was not possessing valid and effective driving license and he was also not employed by the Non-applicant No. 2. The Non-applicant No. 2 has not informed the Non-applicant No. 3/Insurance Company about the occurrence of the accident, therefore, there was breach of conditions fo insurance policy. Risk of pillion rider was not covered under insurance policy and therefore, the Insurance Company is not liable to pay the amount of compensation. 5. Learned Claims Tribunal upon appreciation of the facts and evidences brought on record fastened liability to satisfy the amount of compensation upon the Non-applicant No. 3/Insurance Company and awarded a sum of Rs. 10,46,387/- as compensation to the claimants. 6. Learned counsel for the Appellant/Insurance Company submits that the learned Claims Tribunal even after accepting evidence of the driver of offending vehicle that, he was possessed with Learner’s License on his name on the date of accident, along with the driver of the vehicle, his 4 wife was traveling as pillion, held the insurance company liable to pay amount of compensation as awarded by the learned Claims Tribunal. He contended that in the facts of case, Claims Tribunal ought to have recorded a finding that there was breach of policy conditions because driver of the offending vehicle had not complied the provisions under Rule 3 of the Central Motor Vehicle Rules, 1989 (hereinafter referred to as the Rules, 1989). He submits that in the facts of the case, Insurance Company ought to have been exonerated from the liability to satisfy the amount of compensation. Finding of the learned Claims Tribunal fastening liability upon the insurance company is erroneous. 7. Learned counsel for the Respondents No. 4 & 5 would oppose submission made by learned counsel for the appellant and would submit that the Claims Tribunal justified in fastening liability upon insurance company to satisfy the amount of compensation by recording a categorical finding that on the date of accident, respondent no. 4 was possessed with valid and effective learner’s license and subsequently, respondent no. 4 was also issued regular license by the competent authority. She submits that the award passed by the learned Claims Tribunal is just and proper and does not call for any interference. 8. Learned counsel for the Respondents No. 1 to 3/Claimants would support the impugned award to the extent of fastening liability upon the Appellant/Insurance Company, however, he submits that the respondents no. 1 to 3/claimants have filed cross-appeal seeking enhancement of the amount of compensation on the ground that the Claims Tribunal erred in assessing income of the deceased as Rs. 4,500/- per month only overlooking the date of accident, nature of occupation pleaded and stated by the claimants. He also contended 5 that the learned Claims Tribunal erred in awarding Rs. 10,000/- as loss of consortium and not awarding compensation towards loss of estate. 9. I have heard learned counsel for the parties and perused record of the claim case. 10.So far as submission of counsel for the appellant with regard to fastening of liability upon the insurance company by the claims tribunal to be erroneous is concerned, undisputedly, the respondent no.4/non- applicant no. 1 (driver of the motorcycle) was possessing learner’s license which was issued on 02.12.2016 and was effective till 01.05.2017 vide ex. D/3. Copy of particulars of the license is also filed as Ex. D/34. Accident occurred on 25.12.2016 i.e. during currency period of the learner’s license. 11.There cannot be any argument that the learner’s license issued by the competent authority is a valid learner’s license and from the dates as mentioned therein, (i.e. Ex. D/4), learner’s license issued in favour of non-applicant No. 1 was effective on the date of accident. Under Section 10 (2) of the Rules, 1989, person holding learner’s license of a particular class of vehicle is also authorized to drive, said class of vehicle of which, he was issued the learner’s license and is effective, however, it will be subject to compliance of Rule 3 of the rules, 1989. Rule 3 of the Rules, 1989 provides that person holding effective learner’s license in his name can drive the vehicle subject to such person is accompanied by an instructor holding effective driving license to drive the vehicle, such instructor needs to be in such a position to control or stop the vehicle and further, that the letter of “L” written in ‘Red’ on a white background is to be affixed in front and rear side of the vehicle. 6 12.From the pleadings of the non-applicant no. 1/Driver of the offending vehicle and his evidence (NAW – 1), it is apparent that the time of accident when he was riding the vehicle, an instructor holding and effective driving license was not accompanying him, but in fact, he was accompanied with his wife (deceased). Copy of the insurance policy is also filed as Ex. D/1 which bears clause, ‘persons or classes of persons entitled to drive’ wherein, it is clearly mentioned that a person holding effective learner’s license may also drive the vehicle, such a person satisfies the requirements of Rule 3 of the Rules, 1989. Insurance policy which was issued by the Appellant/Insurance Company bears specific clause that the vehicle insured by it should be driven by a person who is holding valid and effective driving license and if learner’s license, there should be compliance of Rule 3 of the Rules, 1989 which provides that the persons holding learner’s license should be accompanied by a person having a valid and effective license which in this case is missing. In the aforementioned facts of case, there was breach of conditions of insurance policy, hence, the finding recorded by the Claims Tribunal that on the date of accident, offending vehicle was being driven by a person holding the valid and effective driving license in the facts of the case is not sustainable and accordingly, it is set-aside. For the foregoing discussion, it is held that the vehicle was being driven in breach of conditions of insurance policy and therefore, the insurance company is exonerated from its liability to satisfy the amount of compensation. Non-applicant No. 1 & 2 are held liable to satisfy the award. It is ordered accordingly. 13.However, taking support from the decision of Hon’ble Supreme Court in the case of National Insurance Company Limited Vs. Swaran Singh 7 & Ors. reported in AIR (2004) SC 1531 and Shamanna & Anr. Vs. Divisional Manager, Oriental Insurance Company Ltd. reported in (2018) 9 SCC 650, I find it appropriate to direct the the Appellant/Insurance Company to first satisfy the amount of compensation and thereafter, to recover the same from driver and owner of the offending vehicles i.e. the non-applicants No. 1 & 2. This Court further directs that for recovery of the amount, insurer will not be required to file separate suit, but can recover the compensation so paid, as per directives given by Hon’ble Supreme Court in case of Oriental Insurance Company Ltd. Vs. Nanjappan & Ors. reported in (2004) 13 SCC 224. 14.So far as the cross-objection/cross-appeal filed by the Claimants/Respondents No. 1 to 3 seeking enhancement of the amount of compensation is concerned, accident is dated 29.12.2016, Claims Tribunal assessed income of the deceased as Rs. 4,500/- per month. Claimants in the claim application has pleaded occupation of the deceased as Labourer and earning Rs. 200/- per day, however, earning of the deceased could not be proved by the claimants in accordance with law and in the above facts of the case, learned Claims Tribunal justified in assessing income of the deceased notionally. However, erred in not assigning any reason to assess his income as Rs. 4,500/- per month. If for any reason, claimants failed to prove income of the deceased by placing admissible evidence, it is for the Tribunal to assess income of the deceased keeping in mind factors like price index, cost of living, wage structure and could have also taken the help of minimum-wages fixed by the competent authority under the Minimum Wages Act, 1948. As there is no suggestive evidence with 8 regard to the wages prevailing on the date of accident in the place of resident of the deceased, I find it appropriate to assess income of the deceased keeping in mind, the minimum-wages fixed by the competent authority under the Minimum Wages Act, 1948 prevailing on the date of accident i.e. 29.12.2016. 15.Perusal of the minimum-wages as fixed by the authority for the period from 01.10.2016 to 31.03.2017 would show that the minimum-wages on the date of accident was Rs. 6,206/- per month. Claimants pleaded and stated income of deceased as Rs. 200/- per day (Rs. 6000 p.m.) and therefore, income of the deceased is assessed as Rs. 6,000/- per month. It is ordered accordingly. 16. Learned Claims Tribunal correctly added 40% of the assessed income towards future prospects, deducted 1/3rd towards personal and living expenses, applied multiplier of 16 which is in consonance with the decision of the Hon’ble Supreme Court in the case of National Insurance Company Ltd. vs. Pranay Sethi, reported in (2017) 16 SCC 680, and Sarla Verma & Ors. Vs. Delhi Transport Corporation & Anr. reported in 2009 (6) SCC 121. 17.Claims Tribunal further awarded Rs. 15,000/- each towards loss of estate and funeral expenses and have awarded Rs. 10,000/- each to the Claimants No. 1 & 2 towards love and affection. Learned Claims Tribunal has not awarded compensation towards loss of consortium as held by the Hon’ble Supreme Court in the case of Magma General Insurance Co. Ltd. vs. Nanu Ram @ Chuharu Ram, reported in (2018) 8 SCC. In above case, Hon’ble Supreme Court has explained the types of consortium as spousal consortium to widow/widower, parental consortium to children and filial consortium to parents of Rs. 9 40,000/- each. In case at hand, respondents/claimants no. 1 to 3 are children and therefore, they are entitled for Rs. 40,000/- each towards loss of parental consortium (total Rs. 1,20,000/-) respectively. As this Court has awarded compensation towards loss of consortium, respondents no. 1 to 3 will not be entitled for compensation under the head of loss of love and affection as it subsumes the compensation awarded towards loss of consortium as held by Hon’ble Supreme Court in case of United India Insurance Co. Ltd. Vs. Satinder Kaur @ Satwinder Kaur reported in AIR 2020 SC 3076. Claimants will be further entitled for Rs. 1,79,487/- awarded by the learned Claims Tribunal towards medical expenses. It is ordered accordingly. 18.Hon’ble Supreme Court in the case Pranay Sethi (Supra) has observed that there shall be increase of 10% on the amount of compensation awarded under other conventional heads and therefore, the amount of compensation awarded under head of loss of consortium, funeral expenses and loss of estate is to be increased by 10%. It is ordered accordingly. 19. For the foregoing reason, this Court proposes to recalculate the amount of compensation payable to the appellants:- S. No. Heads Compensation 1. (A) Loss of Income/Dependency 6000 X 12 = 72,000/- (B)Addition towards future prospects @ 25% (72,000 X 40% = 28,800) (72,000 + 28,800 = 1,00,800) (C) Deduction of 1/3rd towards personal and living expenses (1,00,800 X 1/3 = 33,600) : Rs. 10,75,200/- 10 (1,00,800 – 33,600 = 67,200/-) (D) Multiplier of 16 (67,200 X 16 = 10,75,200/-) 2. Funeral Expenses : (+) Rs. 16,500/- 3. Loss of Estate : (+) Rs. 16,500/- 4. Loss of parental consortium to Claimant/Appellants @ Rs. 44,000/- each (44,000 X 3) : (+) Rs. 1,32,000/- Total Compensation : Rs. 12,40,200/- 20. Now, the Appellants/Claimants are awarded total compensation of Rs. 12,40,200/-. The enhanced amount of compensation shall carry interest @ 8% from the date of filing of claim application till its realization. Rest of the conditions mentioned in the impugned award shall remain intact. 21. In the result, appeal filed by the insurance company is allowed in part and cross-appeal filed by claimants is also allowed in part. Impugned award is modified to the extent as mentioned above. 22. Certified copy as per rules. Sd/--/-/--------/--/- (Parth Prateem Sahu) Judge Dey