1 / 9 2025:CGHC:37249 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR MAC No. 1806 of 2019 1. Ramkumar Mangeshkar S/o Late Budhram Aged About 30 Years 2. Jagel Kumar Mangeshkar S/o Late Budhram Aged About 25 Years Both are R/o Village - Ameri Akbari, Police Station And Tahsil - Bilha, District (Revenue and Civil) - Bilaspur Chhattisgarh. --- Appellants/ Applicants-Claimants versus 1. Bharat @ Bharat Nishad S/o Kanhaiya Nishad R/o Village - Baijna, Police Station Pathriya, District - Mungeli Chhattisgarh (Driver of the Motor Cycle No. C.G. 28 /B 8413), 2. Pavitra Sahu W/o Sahuba Sahu R/o Ward No. - 16, Awaspara , Baijna, Police Station - Pathriya, District - Mungeli Chhattisgarh. (Owner of the Motor Cycle No. C.G. No. 28 / B 8413) 3. Branch Office Iffco Tokyo General Insurance Company Limited Branch Office - Galaxy Height 1st Floor, Near I.C.I.C.I. Bank, Vyapar Vihar Road, In Front Of Sanjay Apartment Bilaspur, Tahsil And District (Revenue And Civil) - Bilaspur Chhattisgarh.(Insurer of the Motor Cycle No. C.G. 28/ B/ 8413). ---Respondents/ Non-applicants ____________________________________________________________ For Appellants : Mr. Anand Kesharwani, Advocate For Respondents No. 1 & 2 : None appeared, though served. For Respondent No. 3 : Mr. P.R. Patankar, Advocate Hon'ble Shri Justice Parth Prateem Sahu Judgment On Board 30/07/2025 1. Appellants-claimants have filed this appeal under Section 173 of the Motor Vehicles Act, 1988 (for short “Act of 1988”), challenging the award dated 22.08.2019 passed by Learned Third Additional Motor Accident Claims Tribunal, Bilaspur, District Bilaspur, Chhattisgarh (for short “Claims PAWAN KUMAR JHA Digitally signed by PAWAN KUMAR JHA 2 / 9 Tribunal”) in Claim Case No. 23/2017, whereby learned Claims Tribunal allowed the application filed under Section 166 of the Act, 1988 in part and awarded total sum of ₹ 3,66,000/- as compensation in motor accidental death case, fastened liability to satisfy amount of compensation upon non- applicant No. 1 and 2/ driver and owner while exonerating the insurance company from its liability. 2. Motor accident occurred on 18.05.2016 near village Barchha by the motorcycle bearing number CG28 B 8413 by its driver non-applicant No. 1 while driving it rashly and negligently and death of Mani Bai (deceased) in motor accident is not in dispute. Appellants-claimants have filed this appeal seeking enhancement of amount of compensation awarded by the Claims Tribunal. 3. For the foregoing discussion, this Court is not dealing with the facts of accident as pleaded by the parties in their claim application, reply to the claim application and further adverted in the impugned award but only considering the ground raised by the appellants-claimants in this appeal as stated above. 4. Learned counsel for appellants-claimants would submit that Claims Tribunal erred in awarding less amount of compensation by assessing income of deceased aged about 45 years, as ₹ 3,000 per month only, overlooking the occupation of the deceased pleaded in application as Sweeper in the CHC, Pathariya. He next contended that the amount of compensation under the head of future prospects has not been awarded and the amount under other conventional head is also much on lower side. There are two claimants, however, Tribunal has not awarded loss of consortium to any of them. It is also contended that as the insurance company has been exonerated on the ground that non-applicant No. 1 driver of the offending motorcycle was not possessed with valid and effective driving licence on 3 / 9 the date of accident, therefore, direction of pay and recover ought to have been issued by the Claims Tribunal to non-applicant No. 3-Insurance company. 5. Learned counsel for Respondent No. 3 opposes the submission of learned counsel for appellants and would submit that the amount of compensation computed and awarded by the Claims Tribunal is just and proper, hence, it does not call for any interference. In absence of prove of income, Claims Tribunal justified in assessing the income on notional basis. 6. I have heard learned counsel for the parties and also perused the record of claim case. 7. Sofar as the submission made by learned counsel for appellants-claimants with regard to assessment of income of deceased on the date of accident is concerned, occupation and income of deceased is pleaded to be working as Sweeper and earning ₹ 8,000 per month, however, admittedly, there is no clinching and admissible evidence available in record to prove nature of occupation and income of deceased as pleaded in the claim application. In the aforementioned facts of the case, Claims Tribunal justified in taking recourse to assess income of deceased on notional basis treating her to be homemaker or labourer, however, fell into error in not taking into consideration factors like age of deceased, date of accident, cost of living, price index and wages prevailing on the date of accident ie.,of the year 2016, in the area of which deceased was resident and not considering minimum wages fixed by the competent authority for the unskilled, semi skilled and skilled labourer. 8. As there is no material to suggest the wages prevailing at the place where deceased was resident of, therefore, I find it appropriate to take help of minimum wages fixed by the competent authority and prevailing within the State of Chhattisgarh. Deceased was resident of village Ameri Akbari, 4 / 9 Bilaspur, and as per the notification issued by the competent authority under the Minimum Wages Act, 1948, minimum wages fixed for the period from 01.04.2016 till 30.09.2016 for unskilled labourer for C-Zone area is ₹ 6,107/- per month. Therefore, the monthly income of deceased on the date of accident is assessed as ₹ 6,107. It is ordered accordingly. 9. Further perusal of award would show that no amount of compensation is awarded towards future prospects and further that the amount awarded towards loss of estate and funeral expenses are not proper. Hon’ble Supreme Court in the case of National Insurance Company Limited vs. Pranay Sethi & ors, reported in (2017) 16 SCC 680 has held that an addition of 40% of the established income of the deceased should be made towards future prospects where the deceased / victim was self-employed and below 40 years. Addition of 25% should be made in case deceased was in between 40 to 50 years. In the present case, deceased was held to be 45 years and therefore, there shall be addition of 25% of the established income to the assessed income of deceased for computing the amount of compensation. In the said case of Pranay Sethi (supra), it is also held that the claimant(s) shall be entitled for ₹ 15,000 towards loss of estate and ₹ 15,000 for funeral expenses, therefore, I find it appropriate to award ₹ 15,000 on each head, towards loss of estate and funeral expenses. Tribunal has applied deduction of 1/3 and the multiplier of 14 which in the facts of the case are correctly applied and are in the tune of decision of Hon’ble Supreme Court in the case of Sarla Verma & others v. Delhi Transport Corp. & anr. reported in (2009) 6 SCC 121. However, Claims Tribunal fell into error in not awarding compensation towards loss of parental consortium to appellants, sons of deceased. Hon’ble Supreme Court in the case of Magma General Insurance Company vs. Nanu Ram alias Chuhuru Ram and others reported in (2018) 18 SCC 130, has held 5 / 9 that children and parents of the deceased will also be entitled for loss of consortium under the head of loss of parental consortium and loss of filial consortium respectively. In the case at hand, appellants are children, therefore, they are also entitled for loss of parental consortium of ₹ 40,000/- each. It is ordered accordingly. Hon’ble Supreme Court in the case of Pranay Sethi (supra) has further observed that compensation under the head of other conventional heads is to be enhanced by 10% in every three years and therefore amount of compensation under the heads of funeral expenses would be ₹ 16,500, loss of estate would be ₹ 16,500, and loss of consortium would be ₹ 44,000 each. 10. For the foregoing discussion, the amount of compensation to be awarded to appellants-claimants requires re-computation, which is as under. Particulars Compensation • Annual Loss of income/ dependency = ₹ 73,284/- (₹ 6107x12) • Addition towards loss of future prospects @ 25% (₹ 73,284 + 25% of ₹ 73,284 = ₹ 91,605) • Deduction of 1/3 towards personal and living expenses (₹ 91,605 x 1/3= ₹ 30,535); ₹ 91,605 - ₹ 30,535 = ₹ 61,070/- • Multiplier of 14 ₹ 61,070 x 14 = ₹ 8,54,980/- ₹ 8,54,980/- Loss of Parental consortium to Appellants (₹ 44,000 each) ₹ 88,000/- Loss of estate ₹ 16,500/- Funeral Expenses ₹ 16,500/- Total ₹ 9,75,980/- 11. Now the appellants/claimants shall be entitled for total sum of compensation of ₹ 9,75,980/- instead of ₹ 3,66,000/- as awarded by learned Claims Tribunal. The enhanced amount of compensation shall 6 / 9 carry interest @ 8% p.a. from the date of filing of claim application till its realization. • Any amount paid to the appellants-claimants pursuant to the impugned award shall be adjusted from the amount of compensation as calculated above. • Rest of the conditions as imposed by the Claims Tribunal in the impugned award shall remain intact. 12. So far as the other submission with regard to issuance of direction of pay and recover is concerned, Hon’ble Supreme Court in the cases of National Insurance Company vs. Swarn Singh reported in (2004) 3 SCC 297 and Shamanna and another vs. Divisional Manager, Oriental Insurance Company Ltd. reported in 2018 (9) SCC 650 has considered issuance of direction of pay and recover in the cases where driver was not having valid and effective licence to drive the offending vehicle which he was driving or it is found fake and observed thus: • in Swarn Singh’s case (supra): “110. The summary of our findings to the various issues as raised in these petitions are as follows: (i) Chapter XI of the Motor Vehicles Act, 1988 providing compulsory insurance of vehicles against third party risks is a social welfare legislation to extend relief by compensation to victims of accidents caused by use of motor vehicles. The provisions of compulsory insurance coverage of all vehicles are with this paramount object and the provisions of the Act have to be so interpreted as to effectuate the said object. (ii) Insurer is entitled to raise a defence in a claim petition filed under Section 163 A or Section 166 of the Motor Vehicles Act, 1988 inter alia in terms of Section 149(2)(a)(ii) of the said Act. (iii) The breach of policy condition e.g., disqualification of driver or invalid driving licence of the driver, as contained in sub-section (2)(a)(ii) 7 / 9 of section 149, have to be proved to have been committed by the insured for avoiding liability by the insurer. Mere absence, fake or invalid driving licence or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties. To avoid its liability towards insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by duly licensed driver or one who was not disqualified to drive at the relevant time. (iv) x x x x (v) x x x x (vi) x x x x (vii) x x x x (viii) x x x x (ix) x x x x (x) Where on adjudication of the claim under the Act the tribunal arrives at a conclusion that the insurer has satisfactorily proved its defence in accordance with the provisions of section 149(2) read with sub-section (7), as interpreted by this Court above, the Tribunal can direct that the insurer is liable to be reimbursed by the insured for the compensation and other amounts which it has been compelled to pay to the third party under the award of the tribunal. Such determination of claim by the Tribunal will be enforceable and the money found due to the insurer from the insured will be recoverable on a certificate issued by the tribunal to the Collector in the same manner under Section 174 of the Act as arrears of land revenue. The certificate will be issued for the recovery as arrears of land revenue only if, as required by sub-section (3) of Section 168 of the Act the insured fails to deposit the amount awarded in favour of the insurer within thirty days from the date of announcement of the award by the tribunal. (xi) The provisions contained in sub-section (4) with proviso thereunder and sub-section (5) which are intended to cover specified contingencies mentioned therein to enable the insurer to recover 8 / 9 amount paid under the contract of insurance on behalf of the insured can be taken recourse of by the Tribunal and be extended to claims and defences of insurer against insured by relegating them to the remedy before regular court in cases where on given facts and circumstances adjudication of their claims inter se might delay the adjudication of the claims of the victims.” • in Shamanna’s case (supra): “13. Since the reference to the larger Bench in Parvathneni case [National Insurance Co. Ltd. v. Parvathneni, (2009) 8 SCC 785 : (2009) 3 SCC (Civ) 568 : (2009) 3 SCC (Cri) 943] has been disposed of by keeping the questions of law open to be decided in an appropriate case, presently the decision in Swaran Singh case [National Insurance Co. Ltd. v. Swaran Singh, (2004) 3 SCC 297 : 2004 SCC (Cri) 733] followed in Laxmi Narain Dhut [National Insurance Co. Ltd. v. Laxmi Narain Dhut, (2007) 3 SCC 700 : (2007) 2 SCC (Cri) 142] and other cases hold the field. The award passed by the Tribunal directing the insurance company to pay the compensation amount awarded to the claimants and thereafter, recover the same from the owner of the vehicle in question, is in accordance with the judgment passed by this Court in Swaran Singh [National Insurance Co. Ltd. v. Swaran Singh, (2004) 3 SCC 297 : 2004 SCC (Cri) 733] and Laxmi Narain Dhut [National Insurance Co. Ltd. v. Laxmi Narain Dhut, (2007) 3 SCC 700 : (2007) 2 SCC (Cri) 142] cases. While so, in our view, the High Court ought not to have interfered with the award passed by the Tribunal directing the first respondent to pay and recover from the owner of the vehicle. The impugned judgment [Shamanna v. Laxman, 2016 SCC OnLine Kar 6928] of the High Court exonerating the insurance company from its liability and directing the claimants to recover the compensation from the owner of the vehicle is set aside and the award passed by the Tribunal is restored.” 13. Considering the facts of the case and decisions of Hon’ble Supreme Court, I find it appropriate to direct the Respondent No. 3-Insurance Company to first pay entire amount of compensation as computed by this Court and thereafter to recover the same from owner and driver of the offending 9 / 9 vehicle in accordance with law. For recovery of amount of compensation, so deposited by the Insurance Company, from owner and driver of the offending motorcycle it will not be required to file separate proceeding but can be recovered in the same proceeding by filing execution proceeding as held by Hon’ble Supreme Court in case of Oriental Insurance Company Limited v. Nanjappan reported in (2004) 13 SCC 224. 14. Consequently, appeal is allowed in part and the impugned award is modified to the extent as indicated herein-above. Sd/- (Parth Prateem Sahu) Judge pwn