[2025:RJ-JP:23246] HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S.B. Civil Miscellaneous Appeal No. 1521/2013 1. Smt. Lalita Devi W/o Ram Ratan Pareta, aged about 58 years, Resident of Near Nehru Children School, Indra Gandhi Nagar, Kota (Raj.) 2. Mukesh Pareta S/o Ram Ratan Pareta, aged about 35 years, Resident of Near Nehru Children School, Indra Gandhi Nagar, Kota (Raj.) 3. Rakesh Pareta S/o Ram Ratan Pareta, aged about 30 years, Resident of Near Nehru Children School, Indra Gandhi Nagar, Kota Raj. ----Claimants-Appellants Versus 1. Mahendra Kumar Prajapati S/o Madan Lal, R/o Papa Ji Ki Bhatti, Near Ryans Colony, Prem Nagar-III, Kota (Raj.) (Driver Of Motor Cycle Bajaj Platina No. RJ-20-SD-3019) 2. Madan Lal Prajapati S/o Phundi Lal, R/o Papa Ji Ki Bhatti, Near Ryans Colony, Prem Nagar-III, Kota Raj. (Registered Owner Of Motor Cycle Bajaj Platina No. RJ-20-SD-3019) 3. Bajaj Allianz General Insurance Company Ltd., Jhalawar Road, Kota (Raj.) (Insurance Company Of Owner Of Motor Cycle Bajaj Platina No. RJ-20-SD-3019) ----Respondents Connected With S.B. Civil Miscellaneous Appeal No. 2158/2013 1. Mahendra Kumar Prajapati S/o Madan Lal, R/o Papa Ji Ki Bhatti, Near Ryans Colony, Prem Nagar-Third, Kota (Raj.) (Driver Of Motor Cycle Bajaj Platina No. RJ-20-SD-3019) 2. Madan Lal Prajapati S/o Phundi Lal, R/o Papa Ji Ki Bhatti, Near Ryans Colony, Prem Nagar-III, Kota Raj. (Registered Owner Of Motor Cycle Bajaj Platina No. RJ-20-SD-3019) ----Appellant Versus 1. Smt. Lalita Devi W/o Ram Ratan Pareta, aged about 54 years, 2. Mukesh Pareta S/o Ram Ratan Pareta, aged about 31 years 3. Rakesh Pareta S/o Ram Ratan Pareta, aged about 26 years, [2025:RJ-JP:23246] (2 of 9) [CMA-1521/2013] All Residents of Near Nehru Children School, Indra Gandhi Nagar, Kota (Raj.) ---Claimant/Respondents 4. Bajaj Allianz General Insurance Company Ltd., Jhalawar Road, Kota (Raj.) (Insurance Company Of Owner Of Motor Cycle Bajaj Platina No. RJ-20-SD-3019) ----Non-Claimant/Respondents For Appellant(s) : Mr. Shailesh Prakash Sharma with Mr. Avi Sharma Mr. Surendra Sharma For Respondent(s) : Mr. Ram Singh Bhati HON'BLE MR. JUSTICE ASHOK KUMAR JAIN Judgment 26/05/2025 1. These two appeals were preferred aggrieved and dissatisfied from award dated 15.03.2013 in MAC Case No.518/2008 passed by the Motor Accident Claims Tribunal, Kota (hereinafter referred to ‘the Tribunal’) in a petition under Sections 166, 140 of Motor Vehicles Act, 1988 (hereinafter referred as ‘the Act of 1988’). 2. Learned counsel for the appellants-claimants while relying upon judgment of Hon’ble Supreme Court in case of Amrit Paul Singh & Anr. Vs. Tata AIG General Insurance Company Ltd. and Ors. : Civil Appeal No. 2253/2018 has submitted that learned Tribunal has exonerated Insurance Company as non- claimant No.1 Mahendra Kumar Prajapati was not having a valid and effected driving licence on the date of accident. He further submitted that in an eventuality like present one, the Tribunal was under an obligation to adopt the principle of pay and recover but it had failed in its duty to adopt such practice. He further submitted [2025:RJ-JP:23246] (3 of 9) [CMA-1521/2013] that the Insurance Company be directed to satisfy the award and recovered later the amount so paid from owner and driver of offending vehicle. Learned counsel has further referred order dated 11.10.2023 in S.B. Civil Misc. Appeal No.1765/2014 titled as Hazari Lal and Another Vs. Chotu and Ors. and S.B. CMA No.245/2005 tilted as National Insurance Company Ltd. Vs. Sajjan Kanwar and Anr. and submitted that the Tribunal has awarded compensation on lower side as it has not determined correct income of deceased and also not awarded expenses on other grounds. He submitted that the appellants-claimants are entitled for enhancement in award. 3. Aforesaid contentions were opposed by learned counsel for the Insurance Company and he submitted that this is not a case of violation of terms of driving licence rather it is a case of no driving licence and Insurance Company is not liable to pay first and recover later. He also submitted that it is a case where the owner of vehicle has claimed that the motorcycle was driven by Uma Shankar and not by Mahendra Kumar. He also submitted that when there is a case like present one then the Insurance Company is not liable to make any payment. He also submitted that on basis of evidence of parties, the Tribunal has rightly decided the compensation and there is no perversity in the order passed by the Tribunal. 4. Learned counsel for the respondent-Owner and Driver has opposed the submission of learned counsel for Insurance Company and submitted that the vehicle was insured with Insurance Company and it was driven by Uma Shankar. He further submitted [2025:RJ-JP:23246] (4 of 9) [CMA-1521/2013] that Uma Shankar has a valid driving licence and on basis of driving licence of Uma Shankar, the Insurance Company is liable to make payment but he opposed direction to recover from non- claimants/owner and driver. He also referred the material on record and submitted that the Tribunal has already awarded excessive compensation and same may be reduced in case the Insurance Company is exonerated. 5. Heard learned counsel for the parties and perused the record also considered the judgment as referred by learned counsel for the appellant-claimants. 6. In an accident on 30.03.2008 around 8:10 PM, driver of vehicle motorcycle No.RJ20SD3019 has hit Ram Ratan Pareta, who later succumbed to death. A claim petition is filed by his dependants claimants. Non-applicant No.1 and 2 opposed the petition on the ground that Uma Shankar was driver at the time of accident whereas non-claimant No.3-Insurance Company has raised an objection that driver of vehicle was not having any valid driving licence. After framing the issues, 3 witnesses were examined by the claimants with 17 documents whereas 3 witnesses were examined by non-claimants and 8 documents were exhibited by them. S.B. Civil Misc. Appeal No.2158/2013 (filed by Mahendra Kumar and Madan Lal):- 7. This appeal is filed primarily on one ground that the vehicle in question was ensured and it was driven by Uma Shankar. There is no defence on any other ground. The facts about accident and [2025:RJ-JP:23246] (5 of 9) [CMA-1521/2013] involvement of vehicle were admitted by appellants (vehicle owner) in their reply filed before the Tribunal. 8. It is an admitted fact that non-applicant-Mahendra Kumar was not having any driving licence as he was minor on date of accident. The only defence of vehicle owner is that vehicle was handed over to Uma Shankar and he was driving the vehicle. The alleged driver Uma Shankar was examined as NAW-2 but Mahendra Kumar was not examined before learned Tribunal. Learned counsel for the claimants have supported the case of vehicle owner. 9. NAW No.1-Madan Lal who is registered owner has admitted that he is not aware, if Mahendra Kumar is driving the motorcycle but he maintains that he has given motorcycle to his elder son Uma Shankar. His admission also indicate that he replied to notice Ex.P-12 to police. As per notice Ex.12, the vehicle was driven by Mahendra Kumar. Even in report Ex.3, the motorcycle driver was named as Mahendra. The admission of NAW-1 clearly shows that Mahendra was minor on date of accident and police has filed chargesheet against Mahendra and also against NAW-1 as registered owner. NAW-2 Uma Shankar who is son of NAW-1 has admitted that Ex.12 was replied by his father in his presence. The Admission also shows that a criminal case is pending against Mahendra Kumar before the trial Court. A perusal of record clearly reflect that at the time of accident, Mahendra who was minor at time of accident, was driving the vehicle and he was not having any driving licence to drive motorcycle No.RJ20SD3019. The defence of vehicle owner and driver is not proved from any of the [2025:RJ-JP:23246] (6 of 9) [CMA-1521/2013] material available on record rather it is established that at the time of accident Mahendra Kumar was driver of motorcycle and he does not possess any driving licence. 10. Learned Tribunal after considering judgment of this Court in case of Union India Insurance Company Ltd. Vs. Vinod Kumar and Ors. : 2013 (3) DNJ (Raj.) 1457 has held that principle of pay and recover is not applicable in case where there is no driving licence. 11. Learned counsel for the claimants has submitted judgment in case of Amrit Paul Singh & Anr. Vs. Tata AIG General Insurance Company Ltd. and Ors. (Supra) to buttress the argument that the principle of law laid down by a three Judge Bench in case of National Insurance Company Ltd. Vs. Swaran Singh and Ors. : (2004) 3 SCC 297 is applicable and Insurance Company is liable to first satisfy the award and then recover from owner and driver. The law over the point is well settled and time and again laid down that when driver does not possess any driving licence, then Insurance Company is not liable even to first satisfy the award and then recover. The judgment in case of National Insurance Company Ltd. Vs. Swaran Singh and Ors. (supra) is also very much clear on the point as in the instant case, driver was minor and he is not eligible to possess driving licence on the date of accident. This is not a case where a driver of vehicle possesses any category of vehicle rather it is a case where the driver is unqualified to have a driving licence. Thus, this is a clear contravention of Sections 3 and 4 of the Act of 1988 and it is an offence punishable under Section 5 of the Act of [2025:RJ-JP:23246] (7 of 9) [CMA-1521/2013] 1988. A charge-sheet has already been filed against vehicle owner and same is admitted. In the instant case, the judgment in case of Amrit Paul Singh & Anr. Vs. Tata AIG General Insurance Company Ltd. and Ors. (supra) is not applicable which pertains to violation of permit. This is not a case of violation of condition of driving licence rather it is a case of no driving licence and driving by a minor person. 12. In view of discussion made hereinabove, the Tribunal has rightly decided issue No.5 in favour of Insurance Company and it has rightly exonerated Insurance Company. Therefore, this appeal sans merits and the same is liable to be dismissed. S.B. Civil Miscellaneous Appeal No.1521/2013:- 13. The instant appeal is preferred for enhancement in claim amount awarded by learned Tribunal in its award. The issue of pay and recover has already considered in connected appeal. There is no ground to order Insurance Company firstly to satisfy award and then to recover. 14. The facts narrated in award and the findings of the Tribunal indicate that as per evidence, the age of deceased was 56 years and falls in the category of 55-60 years. The multiplier which can be used is 9. After considering the material on record we are of opinion that the trial Court has not committed any error in calculation of age and also application of multiplier. 15. A very recently in case of Maya Singh and Ors. Vs. The Oriental Insurance Company Ltd. and Ors. : 2025 INSC 161, Hon’ble Supreme Court while considering a death claim case of a [2025:RJ-JP:23246] (8 of 9) [CMA-1521/2013] 58 years old person likely to be retired in next 2-3 years had determined compensation in following heads:- (i) Loss of dependency, (ii) Loss of consortium, (iii) Future expense, and (iv) Loss of estate. 16. Hon’ble Suprme Court considering the judgment of Sarla Verma & Ors vs Delhi Transport Corporation & Anr : (2009) 6 SCC 121, Sumathi and Ors. Vs. M/s. National Insurance Company Ltd. & Anr. : 2022 ACJ 1315 (SC) and Insurance Company and National Insurance Company Ltd. Vs. Pranay Sethi and Ors.: (2017) 16 SCC 680 has held that looking to age, the claimants are entitled for 15% of his income on account of future prospects and also other compensation in other heads. 17. We have considered judgment of Co-ordinate Bench in case of Hazari Lal and Anr. Vs. Chhotu and Ors. and also National Insurance Co. Ltd. and Sajjan Kunwar and Ors. (supra) but looking to recent judgment of Hon’ble Supreme Court, it is appropriate to apply the principle of law as pronounced by Hon’ble Supreme Court. 18. In the instant case, the income of deceased was determined on basis of income certificate Ex.16-17 submitted and proved by AW-3 Jitendra Vyas. As per this statement, the monthly income was calculated at ₹13,440/- and annual income at ₹1,61,280/-. There is no perversity or illegality in determination of income on basis of evidence on record. Admittedly, the deceased has left behind his wife and two adult sons and in such eventuality, the deduction of 1/3rd income is also in accordance with law. [2025:RJ-JP:23246] (9 of 9) [CMA-1521/2013] 19. The Tribunal has determined loss of income after using multiplier of 9 but it has awarded lessor amount under the heads of funeral expenses and loss of estate. Therefore, the compensation is re-determined in following manner :- Heads Compensation (₹) Loss of Dependency (₹1,07,520 x 9 x 115/100) 11,12,832 Loss of Consortium (40,000 x 3) 1,20,000 Funeral Expenses 15000 Loss of Estate 15000 Total 12,62,832 20. For the reasons stated hereinabove, the claimants are entitled to get enhanced compensation in terms as determined hereinabove. The difference of compensation ₹2,77,152/- may be deposited by non-claimants driver and owner within a period of 3 months before the learned Tribunal and in case the non-claimants fail to deposit the same then the claimants are also entitled for interest @ 7% per annum for the period of delay in deposition of amount. 21. In view of the discussion made hereinabove, S.B. Civil Miscellaneous Appeal No.2158/2013 is hereby dismissed. 22. S.B. Civil Miscellaneous Appeal No.1521/2013 is partly allowed and the claimants are entitled for enhancement compensation as determined hereinabove from non-claimant Nos.1 and 2 jointly and severally. The exoneration of Insurance Company is upheld. 23. Misc. application, if any, also stands disposed of. (ASHOK KUMAR JAIN),J MR/117-118