1 2025:CGHC:36088 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR MAC No. 1913 of 2019 1. Smt. Ranu Verma W/o Late Narendra Verma Aged About 28 Years R/o Harshit Vihar Colony, Urkura, Thana Khamtarai, District Raipur (CG) 2. Himanshu Verma S/o Late Narendra Verma Aged About 2 Years Minor Through Legal Guardian Mother Smt. Runu Verma Appellant No. 1. R/o Harshit Vihar Colony, Urkura, Thana Khamtarai, District Raipur, Chhattisgarh., 3. Lavyansh Verma S/o Narendra Verma Aged About 8 Years Minor Through Legal Guardian Mother Smt. Runu Verma Appellant No. 1. R/o Harshit Vihar Colony, Urkura, Thana Khamtarai, District Raipur, Chhattisgarh. ... Appellants-claimants versus 1. Rohit Mishra S/o Ramnand Mishra Aged About 35 Years R/o Village Mohbhatha, Thana Bemetara, District Bemetara, Chhattisgarh. Hall Mukam Rajdhani Travels, Modhapara Raipur, District Raipur, Chhattisgarh. (Driver Of The Offending Vehicle Bus No. CG04/EA/0203). 2. Smt. Shamima Bano W/o Moh. Vashim Raja, R/o Rajdhani Travels, Behind Of Video Wald, Bombay Market Modhapara Raipur, District Raipur, Chhattisgarh. (Owner Of The Offending Vehicle Bus No. CG04/EA/0203). 3. The New India Insurance Company Limited Through Branch Manager, Divisional Office No. 2, Neevan Bima Marg SYED ROSHAN ZAMIR ALI Digitally signed by SYED ROSHAN ZAMIR ALI 2 Commercial Campus Pandri Raipur, District Raipur (CG). (Insurer of offending vehicle Bus No. CG04/EA/0203). 4. Smt. Rameshwari Verma W/o Late Mattulal Verma Aged About 50 Years R/o Harshit Vihar Colony, Urkura, Thana Khamtarai, District Raipur, Chhattisgarh. 5. Dinesh Verma S/o Late Mattulal Verma Aged About 18 Years R/o Harshit Vihar Colony, Urkura, Thana Khamtarai, District Raipur, Chhattisgarh., District : Raipur, Chhattisgarh ... Respondent(s) For Appellants : Mr. A.L. Singraul and Ms. Shalini Jangde, Advocates For Respondent No.1 & 2 : None. For Respondent No.3 : Ms. Prerna Agrawal, Advocate on behalf of Mr. Sudhir Agrawal, Advocate For Respondents No.4 & 5 : Ms. Prachi Singh, Advocate on behalf of Mr. R. Pradhan, Advocate Hon'ble Shri Justice Parth Prateem Sahu Judgment On Board 25/7/2025 1. Today the matter is listed for orders on default of not affixing requisite fixed court fee of Rs.15/- in cross-appeal filed on behalf of respondent No.4 and 5. 2. Learned counsel appearing on behalf of respondent Nos.4 and 5 submits that she may be permitted to affix requisite court fee during the course of the day and appeal may be heard finally at the motion stage itself. 3. Learned counsel for appellants as also respondent No.3 do not oppose the above submission of learned counsel for respondent No.4 and 5. 3 4. Consequently, the oral prayer of learned counsel for respondent No.4 and 5 is allowed. She is permitted to affix requisite court fee in cross-appeal in the Court itself during the course of the day. 5. Matter is also listed for consideration on I.A. No.1/2024, application filed by respondent No.4 and 5 for condoning the delay in preferring cross-appeal. 6. On due consideration of pleadings in I.A. No.1/2024 and submission of learned counsel for respondents No.4 and 5, which is not opposed by learned counsel for respective respondents, I.A. No.1/2024 is allowed and delay is condoned. 7. With the consent of the parties, the appeal and cross-appeal are heard finally at motion stage. 8. This appeal is filed by claimants seeking enhancement of compensation awarded by learned 2nd Additional Motor Accident Claims Tribunal to the Court of learned 1st Additional Motor Accident Claims Tribunal, Riapur (for short ‘the Claims Tribunal’) vide award dated 9.9.2019 in Claim Case No.424/2018. Respondent No.4 and 5 have also filed cross- appeal seeking enhancement in quantum of compensation. 9. Briefly stated facts of the case are that claimants filed an application under Section 166 of the Motor Vehicles Act, 1988 4 (for short ‘the Act of 1988’) seeking compensation of Rs.70,50,000/- against the death of Narendra Verma in a road traffic accident dated 10.6.2018 caused by bus bearing registration mark CG04-EA-0203, driven rashly and negligently by its driver (non-applicant No.1), near village Dondekala Housing Board Colony, Raipur. Non-applicant No.1 and 2, driver and owner of offending vehicle did not appear before the Claims Tribunal and as such they were proceeded ex-parte. The claim application was resisted by the non-applicant No.3 inter alia on the ground of breach of policy conditions i.e. at the time of accident, there was valid permit and fitness in favour of offending vehicle and even it was driven by non-applicant No.1, who was not having effective driving license. 10. The Claims Tribunal upon appreciation of evidence, oral and documentary, brought on record by respective parties, allowed claim application in part, awarded a sum of Rs.17,83,600/- as compensation, exonerated the insurance company from its liability to indemnify the owner on the ground of breach of condition of insurance policy i.e. non- availability of valid permit, and held the driver and owner of offending vehicle liable to pay the compensation with interest to claimants. 11.Learned counsel for appellants would submit that the Claims 5 Tribunal erred in assessing income of deceased at Rs.8,000/- per month. Deceased was driver by profession and used to earn Rs.36,000/- per month, which is evident from taxi agreement Ex.P-8. In this circumstance, the income of deceased as assessed by the Claims Tribunal is on lower side. He next contended that lump sum compensation awarded under other heads like funeral expenses etc. is not in accordance with the law settled in this regard. Hence he prays that the amount of compensation awarded be enhanced suitably. He further submits that the insurance policy was valid on the date of accident, exoneration of insurance company is on the ground of not having valid permit, therefore, in such circumstance, the Claims Tribunal while exonerating the insurance company should have issued ‘pay and recover’ direction. 12. Learned counsel for respondent No.4 and 5 adopted the submissions advanced on behalf of the appellants for enhancement of quantum of compensation and submitted that the Claims Tribunal erred in not considering respondent No.5, brother of deceased, as dependent on the deceased. She submits that respondent No.5, at the time of accident, was student, his father was not alive and deceased was taking care of him. 13. Learned counsel appearing on behalf of respondent No.3- 6 Insurance Company would submit that as the offending vehicle was plied without valid permit, the Claims Tribunal held that there is clear violation of the policy conditions and accordingly exonerated the insurance company from paying compensation and fastened the liability on the driver and owner of the vehicle. This finding of Claims Tribunal is based on proper appreciation of evidence on record and does not call for any interference. She further submits that when insurance company has no liability, it cannot be directed to first pay and then recover the same from the owner of offending vehicle. 14. Heard learned counsel for the parties and perused record. 15. As regards the income of deceased, as per pleadings and evidence of claimants, deceased was owner-cum-driver of Tata Ace vehicle, he entered into ‘taxi agreement’ with Dainik Bhaskar, Raipur for transportation of newspapers bundles from Raipur to Balodabazar and it was agreed under said agreement that deceased will be paid Rs.36,000/- per month for the said work. The Claims Tribunal though considered said agreement but recorded that payment of amount as mentioned in agreement is inclusive of permanent charges and flexible charges. The Claims Tribunal also held that vehicle used for transporting daily newspapers was though registered in the name of deceased but it was financed and he was also paying 7 installments of loan against said vehicle. Despite all this, the Claims Tribunal erroneously determined income of deceased as Rs.8,000/- per month. For assessing income of deceased, the Courts/Tribunals are required to consider the nature of occupation in which deceased was engaged. Indisputably, in case at hand, the deceased was driver of four wheeler, which comes within the category of skilled worker, and engaged in transportation of bundles of daily newspapers Dainik Bhaskar from Raipur to Balodabazar everyday. Even if the vehicle was got financed by deceased and he was paying monthly installments, he was owner of vehicle and after some time vehicle would be freed from loan. Even otherwise, considering that deceased was working as driver, his income ought to have been assessed accordingly, keeping in mind that deceased was not only owner but also driver of a four wheeler owned by him, which falls within the category of skilled worker. Accident occurred on 10.6.2018 and during that period, minimum wage fixed by the Competent Authority for skilled worker was Rs.10,090/- per month. However, keeping in mind that the deceased also owned the four wheeler, though financed, I find it appropriate to fix monthly income of the deceased at Rs.12,000/-, which is one-third of the amount agreed under the agreement dated 27.3.2018. It is ordered accordingly. 16. Considering the age of deceased and number of dependent 8 members, addition of 40% towards future prospects, deduction of one-fourth towards personal expenses of deceased and multiplier of 17 applied by Claims Tribunal is correct and the same does not call for any interference. 17. Perusal of impugned award reveals that the Claims Tribunal awarded lump sum compensation of Rs.70,000/- under other heads i.e. funeral expenses etc. There has been a thumb rule in this aspect. The Constitution Bench of Hon’ble Supreme Court in Pra-52 of National Insurance Company Ltd. vs. Pranay Sethi, reported in (2017) 16 SCC 680 has opined that reasonable figures on conventional head namely ‘loss of estate‟, ‘loss of consortium‟ and ‘funeral expenses‟ should be Rs.15,000/-, Rs.40,000/- and Rs.15,000/- respectively (Rs.70,000/-). Further, in Magma General Insurance Co. Ltd. vs. Nanu Ram alias Chuhru Ram and Others, reported in (2018) 18 SCC 130, Hon'ble Apex Court has explained the concept of consortium and held that claimants being widow/husband is entitled to spousal consortium, children to parental consortium and parents to filial consortium at the rate of Rs.40,000/- each. Under these circumstances, award of lump sum compensation of Rs.70,000/- under other conventional head i.e. funeral expenses etc., is erroneous and requires to be reassessed as per the law settled by Hon’ble Supreme Court in case of Pranay Sethi (supra) and Nanu Ram 9 (supra). 18. So far as submission of learned counsel for respondent No.4 and 5 that Claims Tribunal erred in not treating respondent No.5-brother of deceased, to be dependent of deceased is concerned, though it is claimed that respondent No.5 was 18 years of age on the date of accident and was a student. However, no documentary evidence regarding education of respondent No.5 has been placed on record for consideration. As respondent No.5 was major at the time of accident, he cannot be considered as dependent upon the deceased to become eligible for grant of compensation, more so when the deceased was survived by a widow aged about 28 years,one son aged about 02 years and a daughter aged about 02 months. Hence, there is no infirmity in the finding of Claims Tribunal refusing to consider respondent No.5 as dependent of deceased and it is maintained. 19. For the foregoing, this Court proposes to recalculate amount of compensation payable. 20.Accordingly, income of deceased is taken as Rs.12,000/- per month and after adding 40% towards future prospects, total income comes to Rs.16,800/-. Thus, annual income of deceased for the purpose of calculating compensation comes to Rs.2,01,600/-. Out of this amount, one-fourth is to be deducted towards personal and living expenses of deceased 10 and after deducting one-fourth, annual loss of dependency would come to Rs.1,51,200/-. By applying multiplier of 17, as applied by Claims Tribunal, to annual loss of dependency, total loss of dependency would come to Rs.25,70,400/-. Besides this, appellant No.1 is entitled for a sum of Rs.40,000/- towards spousal consortium; appellant No.2 & 3 are entitled for Rs.40,000/- each for loss of parental consortium and respondent No.4 is entitled for Rs.40,000/- for filial consortium. They are also entitled for a sum of Rs.15,000/- each for loss of estate and funeral expenses. However, as per decision of Hon’ble Supreme Court in case of Pranay Sethi (supra), the amount of compensation under the aforesaid heads i.e. loss of consortium, funeral expenses and loss of estate, is to be increased by 10% after every three years, which will make the compensation payable to claimants under the head of loss of consortium as Rs.44,000/- (10% of 40000 + 40000); loss of estate as Rs.16,500/- (10% of 15000 + 15000) and funeral expenses as Rs.16,500/- (10% of 15000 + 15000). Thus, total amount of compensation comes to Rs.27,79,400/- The enhanced amount of compensation shall carry interest @ 8% p.a. from the date of filing of claim application till its realization. Out of the enhanced amount of compensation, respondent No.4 will be entitled for a sum of Rs.4,00,000/- together with interest. 11 Rest of the conditions mentioned in the impugned award shall remain intact. Any amount already paid to claimants/ appellants as compensation shall be adjusted from total amount of compensation as calculated above. 21. Coming to submission of learned counsel for appellants that since the breach of insurance policy was on account of not having valid permit, therefore, a direction for pay and recover ought to have been issued against Insurance Company. 22. The doctrine of pay and recover in cases of no valid permit has been considered by the Hon'ble Supreme Court in the matter of National Insurance Co. Ltd. vs. Challa Bharathamma and others, reported in (2004) 8 SCC 517 and it was observed thus:- "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, 12 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." 23. 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 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 not be applicable to the case at hand. That apart, the insurer 13 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.” 24. In the light of above rulings, if facts of the case at hand are considered, the insurance policy was not disputed. Exoneration of Insurance Company was ordered only on the ground that there was no valid permit. In these circumstances, I find it appropriate to issue direction of pay and recover to Insurance Company. Consequently, respondent No.3-Insurance Company being insurer of offending vehicle is directed to first pay the entire amount of compensation to claimants and thereafter, will be at liberty to recover the amount of compensation so deposited, from respondents No.1 and 2 in same execution proceeding as per direction of Hon’ble Supreme Court in case of Oriental Insurance Company Limited v. Nanjappan reported in AIR 14 2004 SC 1631. 25. At this stage, learned counsel for respondent No.3 Insurance Company would submit that respondent No.3 is not aware as to what amount of compensation has already been deposited before the Claims Tribunal by owner of offending vehicle and as such, it is not crystal clear as on date that how much amount of compensation is to be deposited. Respondent No.3 Insurance Company will be at liberty to ascertain aforesaid fact from the Claims Tribunal and thereafter deposit the entire balance amount with interest before the Claims Tribunal within a period of three months. 26.In the result, appeal as also cross-appeal are allowed in part and the impugned award stands modified to the extent indicated above. Sd/- (Parth Prateem Sahu) Judge roshan/-