1 2025:CGHC:13847 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR MAC No. 903 of 2020 1 - Durga Prasad Kanwar S/o Late Shri Itwari Ram Kanwar Aged About 57 Years R/o Village Ganeri, Police Station Dongargaon, District Rajnandgaon, Chhattisgarh., District : Rajnandgaon, Chhattisgarh 2 - Radhika Kanwar W/o Durga Prasad Kanwar Aged About 52 Years R/o Village Ganeri, Police Station Dongargaon, District Rajnandgaon, Chhattisgarh., District : Rajnandgaon, Chhattisgarh 3 - Taruna Kanwar W/o Late Shri Fattelal Kanwar Aged About 22 Years R/o Village Ganeri, Police Station Dongargaon, District Rajnandgaon, Chhattisgarh., District : Rajnandgaon, Chhattisgarh 4 - Aarti Kanwar D/o Shri Durga Prasad Kanwar Aged About 19 Years R/o Village Ganeri, Police Station Dongargaon, District Rajnandgaon, Chhattisgarh., District : Rajnandgaon, Chhattisgarh 5 - Divyashu Kanwar S/o Late Shri Fattelal Kanwar, Aged About One And Half Year, Through Guardian Taruna Kanwar, R/o Village Ganeri, Police Statiion Dongargaon, District Rajnandgaon, Chhattisgarh., District : Rajnandgaon, Chhattisgarh ... Appellants Versus 1 - Rakesh Kumar Yadav S/o Mannu Yadav Aged About 22 Years R/o Village Khuntapara, Ward No. 01, Tehsil - Dongargaon, District Rajnandgaon, Chhattisgarh. (Owner And Driver Of Vehicle Motorcycle No. C.G. 08 A D 2159), District : Rajnandgaon, Chhattisgarh 2 - National Insurance Company Limited Branch Manager, Kampthee Line, Rajnandgaon, Tehsil And District Rajnandgaon, Chhattisgarh. (Vehicle Motorcycle No. Cg 08 Ad 2159 Insurer), District : Rajnandgaon, Chhattisgarh SHUBHAM DEY Digitally signed by SHUBHAM DEY 2 ... Respondent(s) For Appellants : Mr. Gopal Swaroop Gupta, Advocate For Respondent No. 2 : Mr. Praveen Kumar Tulsiyan, Advocate S.B.: Hon'ble Shri Parth Prateem Sahu, Judge Order On Board 22/03/2025 1. There is no representation on behalf of the Respondent No. 1, though served. 2. This appeal is filed by the appellants seeking enhancement of the amount of compensation awarded by the learned Claims Tribunal in its award dated 23.01.2020 passed by the Additional Motor Accident Claim Tribunal (FTC), Rajnandgaon, District – Rajnandgaon (C.G.) in Claim Case No. 189/2017. 3. Facts relevant for disposal of the case in brief are that, on 24.10.2017, the deceased namely, Fattelal Kanwar was traveling along with the Respondent No. 1 in two-wheeler vehicle belong to the Respondent No. 1 bearing Registration No. CG 08 AD 2159 towards Kopedih from Alikhunta. Respondent No. 1 was driving the two-wheeler in a rash and negligent manner and while crossing the divider near Alikhunta, they were allegedly hit by an unknown vehicle which caused serious injuries to the Fattelal Kanwar and Respondent No. 1, Fattelal Kanwar (since deceased) succumbed to his injuries on the spot. Subsequent to the accident of the deceased, a criminal case was lodged in the concerned police station bearing Crime No. 407/2017 for the alleged offences punishable under Sections 279, 337, 304A of the Indian Penal Code, 1860. At the time of death of the deceased, he was aged about 24 years. 3 4. Learned counsel for appellant submits that the motor accidental death of late Fattehlal Kanwar (deceased) is not in dispute and issuance of insurance policy by respondent No.2 is not in dispute. Appellants-claimants, who are legal representatives of deceased, have filed this appeal seeking enhancement of compensation on the ground that the Claims Tribunal erred in assessing monthly income of deceased on notional basis and the Claims Tribunal ought to have assessed the income on the minimum wages prescribed under the Minimum Wages Act at the relevant point of time. He next contended that the learned Claims Tribunal fell into error in not awarding the amount towards loss of future prospects, as per 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 overlooking the age of deceased i.e. 24 years and therefore, the appellants are entitled for the amount of 40% towards the loss of future prospects also. 5. He further contended that the Claims Tribunal exonerated the respondent Insurance Company by holding that offending vehicle was plied on road in violation of conditions of insurance police because the driver of offending vehicle was not having valid driving license on the date of accident to drive offending vehicle. However, in view of the fact that there was a valid policy issued by respondent No. 2 and in order to protect interest of claimants and to ensure that the claimants enjoy the fruit of award, the Claims Tribunal ought to have directed the insurance company to first pay the amount of compensation to claimants and then to recover the same from respondent No.1-owner. 6. Learned counsel for the Respondent No.2 opposes the submission made by the counsel for appellants and would submit that once it is 4 proved that the offending vehicle was being plied in violation of essential conditions of insurance company, the insurance company cannot be directed to pay and recover. The impugned award passed by the Claims Tribunal is based on proper appreciation of evidence available on record and the same does not call for any interference. 7. I have heard learned counsel for the parties and perused documents filed along with appeal. 8. So far as the income of deceased is concerned, learned Claims Tribunal disbelieved the nature of employment and income of deceased, as pleaded and stated by claimants and assessed the income of deceased as Rs.6,000/- per month on notional basis considering him to be unskilled labourer. During the course of hearing, learned counsel for appellants placed a copy of Notification issued by the Labour Commissioner & Competent Authority, under Minimum Wages Act, 1948, Raipur for perusal of this Court which prescribes wage of daily-paid employees working in different capacity. In this Notification, the Commissioner has categorized the employees in three categories i.e. un-skilled, semi-skilled, skilled and high skilled and fixed the wages for the year 2017-18. The wage for unskilled labourers has been fixed at Rs. 8,060/- per month for ‘B’ category cities. Rajnandgaon is placed as ‘B’ category city. Thus, considering overall facts and circumstances of the case, nature of work of deceased and income therefrom, as pleaded in the application and stated by claimants, and also the wage rate prevailing on the date of accident in District - Rajnandgaon as per notification of the Competent Authority under the Minimum Wages Act, in the considered opinion of this Court, the income of deceased treating him to be an unskilled labourer can be 5 taken as Rs.8,060/- per month for the purpose of calculating amount of compensation. It is ordered accordingly. 9. Perusal of the impugned award would reveal that the Claims Tribunal while assessing income of the deceased has not added anything towards the future prospects. As per postmortem report (Ex.P-9), age of deceased was 24 years at the time of accident, which is not controverted by opposite side. The Hon’ble Supreme Court in case of Pranay Sethi (supra) has held that where the deceased died in motor accident was below the age of 40 years, there should be addition of 40% of the monthly income of deceased in his income towards future prospects. It is ordered accordingly. 10. There is no dispute with respect to deduction made towards personal and living expenses of deceased, application of multiplier and other conventional heads. 11.Now the question arises whether the direction of pay and recover to the Insurance Company can be issued in the facts and circumstances of the case? 12.In the matter of Pappu and Ors v. Vinod Kumar Lamba and others reported in (2018) 3 SCC 208 Hon'ble Supreme Court has held thus:- “19. In the present case, the owner of the vehicle (Respondent 1) had produced the insurance certificate indicating that Vehicle No. DIL 5955 was comprehensively insured by Respondent 2 (insurance company) for unlimited liability. Applying the dictum in National Insurance Co. Ltd. [National Insurance Co. Ltd. v. Swaran Singh, (2004) 3 SCC 297 : 2004 SCC (Cri) 733] , to subserve the ends of justice, the insurer (Respondent 2) shall pay the claim amount awarded by the Tribunal to the appellants in the first instance, with liberty to recover the same from the owner of the vehicle (Respondent 1) in accordance with law. 20. Accordingly, the appeal is allowed to the extent that the compensation amount awarded by the Tribunal and confirmed [Dhrupati v. Vinod Kumar, 2014 SCC OnLine All 16493] by the High Court shall be paid and satisfied 6 by the insurer (Respondent 2) in the first instance, with liberty to recover the same from the owner of the vehicle (Respondent 1) in accordance with law.” 13.The doctrine of pay & recover has been considered by the Hon'ble Supreme Court in the matter of National Insurance Co. Ltd. v. Challa Bharathamma and others reported in (2004) 8 SCC 517 . Relevant portion of the said judgment reads as under:- “13. The residual question is what would be the appropriate direction. Considering the beneficial object of the Act, it would be proper for the insurer to satisfy the award, though in law it has no liability. In some cases the insurer has been given the option and liberty to recover the amount from the insured. For the purpose of recovering the amount paid from the owner, the insurer shall not be required to file a suit. It may initiate a proceeding before the concerned Executing Court as if the dispute between the insurer and the owner was the subject matter of determination before the Tribunal and the issue is decided against the owner and in favour of the insurer. Before release of the amount to the claimants, owner of the offending vehicle shall furnish security for the entire amount which the insurer will pay to the claimants. The offending vehicle shall be attached, as a part of the security. If necessity arises the Executing Court shall take assistance of the concerned Regional Transport Authority. The Executing Court shall pass appropriate orders in accordance with law as to the manner in which the owner of the vehicle shall make payment to the insurer. In case there is any default it shall be open to the Executing Court to direct realization by disposal of the securities to be furnished or from any other property or properties of the owner of the vehicle i.e. the insured. In the instant case considering the quantum involved we leave it to the discretion of the insurer to decide whether it would take steps for recovery of the amount from the insured.” 14. In Manuara Khatun and others v. Rajesh Kumar Singh and others and Mamoni Saikia Mohanty and others v. Rajesh Kumar Singh and others reported in (2017) 4 SCC 796, the Hon'ble Supreme Court held thus:- “19. We find no merit in any of the submissions. Firstly, as mentioned above, we find marked similarity in the facts of 7 this case and the one involved in National Insurance Co. Ltd. v. Saju P. Paul, (2013) 2 SCC 41. Secondly, merely because the compensation has not yet been paid to the claimants though the case is quite old (16 years) like the one in Saju P. Paul’s Case (supra), it cannot be a ground to deny the claimants the relief claimed in these appeals. Thirdly, this Court has already considered and rejected the argument regarding not granting of the relief of the nature claimed herein due to pendency of the reference to a larger Bench as would be clear from Para 26 of the judgment in Saju P. Paul’s Case (supra). That apart, learned counsel for the appellants stated at the bar that the reference made to the larger Bench has since been disposed of by keeping the issue undecided. It is for this reason also, the argument does not survive any more. 21. In view of the foregoing discussion, we are of the view that the direction to United India Insurance Co. Ltd. (respondent No. 3) - they being the insurer of the offending vehicle which was found involved in causing accident due to negligence of its driver needs to be issued directing them (United India Insurance Co. Ltd. respondent No.3) to first pay the awarded sum to the appellants (claimants) and then to recover the paid awarded sum from the owner of the offending vehicle (Tata Sumo)-respondent No.1 in execution proceedings arising in this very case as per the law laid down in Para 26 of Saju P. Paul’s case quoted supra. 22. Accordingly, the appeals succeed and are allowed. Impugned order is modified to the extent that respondent No. 3-United India Insurance Company Ltd. is accordingly directed to pay the awarded sum to the appellants (claimants). Thereafter respondent No. 3 - United India Insurance Company Ltd. would be entitled to recover the entire paid awarded sum from the owner (insured) of the offending Vehicle (Tata Sumo)-respondent No.1 in these very proceedings by filing execution application against the insured.” 15. Recently, 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 while dealing with similar issue 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 8 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.” 16. Admittedly, the accident in question pertains to year 2017, claimants/appellants belong to poor family and till date they have not received entire amount of compensation as awarded by learned Claims Tribunal. There is no dispute that offending vehicle was insured with respondent No.2-Insurance Company. Thus, considering the ratio laid down in above decisions of Hon'ble Supreme Court wherein keeping in mind the beneficial object of the Act of 1988 , the insurer was directed to first satisfy the award and then recover such amount from the insured and further considering the facts and circumstances of present case, this Court is also of the view that it will be in larger interest of justice to direct the insurer to first pay amount of compensation to claimants and then to recover it from insured i.e. owner of offending vehicle. It is ordered accordingly. 17. For the foregoing reason, this Court proposes to recalculate the amount of compensation payable to the appellants. 18. Accordingly, the monthly income of deceased is taken as Rs.8,060/- and since at the time of death, the deceased was 24 years old, therefore, in view of decision of Hon’ble Supreme Court in case of Pranay Sethi (supra), the income of deceased is required to be 9 enhanced by 40% towards future prospects, which comes to Rs.11,284/- (8,060+3,224). Thus annual income of the deceased for the purpose of calculating the compensation comes to Rs.1,35,408/- (11,284 x 12). Out of this amount, one-fourth is to be deducted towards personal and living expenses of the deceased and after deducting one- fourth, annual loss of income of deceased would come to Rs.1,01,556/- (1,35,408 - 33,852). By applying multiplier of 17, as applied by the Claims Tribunal, to annual income, the total loss of dependency would come to Rs.17,26,452/- (1,01,556 x 17). Besides this, appellants are entitled for a sum of Rs.40,000/- each towards filial, spousal, parental consortium respectively; Rs.15,000/- for funeral expenses and Rs.15,000/- for loss of estate, as awarded by the Claims Tribunal. Thus, total amount of compensation for which claimants are entitled comes to Rs.19,56,452/- (17,26,452 + 40,000 + 40,000 + 40,000 + 40,000 + 40,000 + 15,000 + 15,000). This amount of compensation shall carry interest @ 7.5% from the date of filing of claim application till its realization. 19. In the result; • appeal preferred by appellants is allowed in part and impugned award of the Claims Tribunal is modified to the extent indicated in Para - 18 of this order. • Insurance Company is though exonerated from its liability to pay compensation to the claimants, but keeping in mind the beneficial object of the Act of 1988 as also dictum of Hon'ble Supreme Court in above referred cases, this Court directs insurer of offending vehicle viz, Respondent No.2 herein, to first satisfy the award, compensate the claimants and have 10 the said sum recovered from Respondent No.1, owner of offending vehicle as per law. • Rest of the conditions mentioned in the impugned award shall remain intact. 20. Any amount already paid to Claimants/Appellants as compensation shall be adjusted from the total amount of compensation as calculated above. 21. Certified copy as per rules. Sd/- ----/--/- (Parth Prateem Sahu) Judge Dey