1 2025:CGHC:16578 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR MAC No. 1478 of 2019 1 - Malik Ram S/o Shri Ramnath Aged About 45 Years, Caste Yadav, Village- Mohanda, P.S. Hirri, Tahsil Bilha, District- Bilaspur, Chhattisgarh. 2 - Amarika Yadav Malik Ram Aged About 40 Years Caste Yadav, Village- Mohanda, P.S. Hirri, Tahsil Bilha, District- Bilaspur, Chhattisgarh. ... Appellants versus 1 - Pramod Gupta S/o Mahendra Gupta Aged About 28 Years R/o Village Bhutkachhar, P.S.- Lormi Chowki Khudiya, District Mungeli, Chhattisgarh, ( Driver Of Offending Vehicle Loader Dumper Vehicle Bearing Registration C.G.-12-O-001). 2 - Aaditya Construction Amit Dalniya S/o Shri Sumerchand R/o Balco, P.S. Balco, District- Korba, Chhattisgarh ( Owner Of Offending Vehicle Loader Dumper Vehicle Bearing Registration C.G.-12-O-001), District : Korba, Chhattisgarh. A ANNAJEE RAO Digitally signed by A ANNAJEE RAO 2 3 - United Insurance Company Ltd. Plot No. 183, Behind DRVMF Floor, Near Balaji Petrol Pump, Korba, District-Korba, Chhattisgarh (Insurer of Offending Vehicle Loader Dumper Vehicle Bearing Registration C.G.-12-O-001 ). ... Respondents For the appellants : Mr. Kaushal Yadav, Advocate For respondents 1 & 2: None For respondent no.3 Ms. Swati Agrawal, Advocate on behalf of Mr. Pankaj Agrawal, Advocate. (Hon’ble Shri Justice Sanjay Kumar Jaiswal) Judgment on Board 08/04/2025 1. This appeal under Section 173 of Motor Vehicles Act, 1988 (for short “MV Act”) has been filed challenging the award dated 19th February, 2019 passed by the learned III Additional Motor Accident Claims Tribunal, Bilaspur, Chhattisgarh, in Claim Case No.166/2016. By the impugned award, the learned tribunal has awarded Rs. 9,77,200/- as compensation to the claimants due to death of deceased Ku. Karuna Yadav in an unfortunate accident which took place on 30.12.2015 by rash and negligent driving of respondent no. 1 driver. The said vehicle was owned by respondent no.2 owner and insured with respondent no. 3/Insurance company. 2. As per the pleadings of the claim application filed under Section 166 of the MV Act, the claimants are the parents of deceased Ku. Karuna Yadav. On 30.12.2015 in the evening at 4.00 p.m, deceased 3 was working as Contractor at the site of road construction near village Etulkapa. At 5.00 p.m., Respondent no1 who driving the Road Roller bearing Regn.No.12-O/0001 at the work site in rash and negligent manner hit the deceased, due to which, she sustained grievous injuries and when she was being brought to the Hospital for medical treatment, she died on the way. The claimants being legal heirs of deceased filed claim application u/s 166 of MVA seeking a total compensation of Rs.13,00,000/- on various heads. 3. The learned claims Tribunal on a close scrutiny of the evidence brought on record and the pleadings made in application, assessed the monthly income of deceased to Rs.6000/- granted 40% future prospectus , deducted one-half towards personal expenses and applied multiplier of 18 and thus awarded Rs.9,07,200/-. Further more, Rs.70,000/- has been awarded on other heads. Thus a total compensation of Rs.9,77,200/- has been awarded in favour of the appellants with interest @ 6% per annum from the date of application till its realisation. 4. While passing the impugned award, the Tribunal has found that at the time of accident the offending vehicle was driven in violation the terms of the insurance policy, therefore, the Tribunal has exonerated the Insurance company and fastened the liability on respondents 1 & 2 i.e., driver and owner of the offending vehicle. Hence the appeal has been filed by the appellants/claimants for enhancement of compensation and for an order of pay and recover. 5. The submission of learned counsel for the appellants is that the 4 compensation awarded by the Tribunal is on the lower side and needs enhancement. He further submits that even if the Insurance Company has been absolved from the liability to compensate, the Tribunal ought to have passed an order of “pay and recover” so that the claimants/appellants could have received the compensation. 6. Learned counsel for respondent no.3 supports the award and submits that at the time of accident the vehicle in question was driven in clear breach of insurance policy condition, therefore, the tribunal has rightly fastened the liability on respondents 1 & 2 i.e, driver and owner. 7. Heard learned counsel for the parties, considered their rival submissions and perused the record with utmost circumspection. 8. Now this Court shall examine as to whether the compensation of Rs.9,77,200/-- awarded by the tribunal is just and proper compensation in the given facts and circumstances of the case ? 9. As regards the income of deceased, the claimants have pleaded that the deceased was earning Rs.6000/- (Rs.200 per day) which the learned Tribunal has considered and accordingly held the income of deceased as Rs.6000/- per month and the learned counsel for the appellants does not dispute this fact. So far as future prospects is concerned, as per the National Insurance Company Ltd., Vs. Pranay Sethi (2017) 16 SCC 680 after adding 40% towards future prospects i.e., 28,800/- the annual income would become Rs.1,00,800/- which the Tribunal has rightly assessed. 10. The deceased was an unmarried girl of 19 years of age and the claimants are parents of the deceased so the deduction towards 5 personal expenses would be one-half, therefore, after deducting one half, the tribunal has rightly calculated the net income as Rs.50,400/-. In view of judgment of the Hon’ble Suprme Court in Sarla Verma (Smt) Vs. Delhi Transport Corporation (2009) 6 SCC l2l and National Insurance Company Ltd., Vs. Pranay Sethi (2017) 16 SCC 680 considering the age of deceased, after applying the multiplier of 18, the total loss of dependency has been correctly worked out to Rs.9,07,200/-. Therefore, it cannot be said that the compensation awarded by the Tribunal is meagre. Under the other heads, the Tribunal has granted Rs. 15000/- for funeral expenses and Rs.15,000/- for loss of estate which are found sufficient. However, so far as the loss of love and affection is concerned, there are two dependents/claimants in this case and the Tribunal has granted only Rs.40,000/-. As per Magma General Insurance Co. Ltd. Vs. Nanu, AIR Online 2018 SC, each dependent/claimant is entitled to get Rs.40,000/- on this head. Therefore, the claimants are entitled to Rs.80,000/- on loss of love and affection. In view of the above discussion, the claimants are entitled for a total compensation of Rs.10,17,200/- in the following manner : 1. Total loss of dependency Rs. 9,07,200/- 2. Loss of estate Rs. 15,000/- 3. Love and affection (Rs.40000 x 2) Rs. 80,000/- 4. Funeral expenses Rs. 15,000/- Total Rs.10,17,200/- 11. Thus the total compensation is recomputed to Rs10,17,200/- from which after deduction of Rs. 9,77,200/- as awarded by the Tribunal, the 6 enhancement would be Rs.40,000/- in addition to what is already awarded by the Claims Tribunal. The enhanced amount shall carry interest @ 6% per annum from the date of enhancement of the award till its realization. 12. As far as the question of pay and recover is concerned, in this case, the vehicle was found to be insured but the Insurance Company was exonerated from its liability due to violation of terms of insurance policy conditions. The appellants/claimants requested for an order of pay and recover which was opposed by the Insurance Company. 13. In National Insurance Co. Ltd. Vs. Swaran Singh (2004) 3 SCC 297, Hon’ble Supreme Court laid down that the claimants should not be allowed to suffer and run about to release the compensation awarded and that, it is in the fitness of things that the Insurance Company in such cases should first pay and then recover the amount. Further considering the principles laid down by the Hon’ble Supreme Court in case of Amrit Paul Singh & another Vs. Tata AIG General Insurance Company Ltd (2018) 7 SCC 558, ordering the insurance company to pay first and then recover and also taking note of the facts and circumstances of the present case, particularly the fact that at the time of accident the vehicle was insured with Insurance Company, it is directed that the Insurance Company shall first pay the amount of compensation awarded to the appellant/claimant and then recover the same from the owner/driver of the offending vehicle. 14. In the result, the appeal is partly allowed. The impugned award 7 stands modified to the above extent and rest of the conditions shall remain intact. 15. The registry is further directed to communicate the claimants in writing “the enhanced amount” in this appeal as against the amount awarded by the Tribunal. The said communication be made in Hindi Deonagri language and the help of paralegal workers may be availed with a co-ordination of Secretary, Legal Aid of the concerned area where the claimants reside. Sd/- Sanjay Kumar Jaiswal Judge Rao