1 2025:CGHC:49573 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR MAC No. 422 of 2020 1. Smt. Ramkali W/o Late Chhotelal Aged About 44 Years Resident Of Camp- 2, Sant Ravidas Nagar Near Talaab, Sharda Para, Police Station- Chhawni Bhilai, District- Durg Chhattisgarh, District : Durg, Chhattisgarh 2. Pardeshi S/o Late Chhotelal Aged About 26 Years Resident Of Camp-2, Sant Ravidas Nagar Near Talaab, Sharda Para, Police Station- Chhawni Bhilai, District- Durg Chhattisgarh, District : Durg, Chhattisgarh 3. Videshi S/o Late Chhotelal Aged About 23 Years Resident Of Camp-2, Sant Ravidas Nagar Near Talaab, Sharda Para, Police Station- Chhawni Bhilai, District- Durg Chhattisgarh, District : Durg, Chhattisgarh 4. Sampatti S/o Late Chhotelal Aged About 20 Years Resident Of Camp-2, Sant Ravidas Nagar Near Talaab, Sharda Para, Police Station- Chhawni Bhilai, District- Durg Chhattisgarh, District : Durg, Chhattisgarh 5. Smt. Manrajwa W/o Bindra Aged About 65 Years Resident Of Camp-2, Sant Ravidas Nagar Near Talaab, Sharda Para, Police Station- Chhawni Bhilai, District- Durg Chhattisgarh, District : Durg, Chhattisgarh 6. Bindra S/o Late Modil Aged About 66 Years Resident Of Camp-2, Sant Ravidas Nagar Near Talaab, Sharda Para, Police Station- Chhawni Bhilai, District- Durg Chhattisgarh, District : Durg, Chhattisgarh ... Appellant(s) versus 1. Ajay Kumar Pardhi S/o Hemlal Pardhi Aged About 19 Years Resident Of Village Bhoomiya, Post- Sarora, Police Station- Tilda, District Raipur Chhattisgarh (Driver), District : Raipur, Chhattisgarh 2. Smt. Gulabi Bai Pardhi W/o Hemlal Pardhi Aged About 58 Years Resident Of Village Bhoomiya, Post- Sarora, Police Station- Tilda, District Raipur Chhattisgarh (Owner), District : Raipur, Chhattisgarh 3. I.C.I.C.I. Lombard General Ins. Co. Ltd. Branch Manager 414, Beer Sawarkar Marg, Near Siddhi Vinayak Mandir, Prabhadevi Mumbai Maharastra, Through- Branch Manager, Ground Floor, Commercial Building, Devendra Nagar Road, Raipur, Tahsil And District- Raipur Chhattisgarh (Insurer), District : Raipur, Chhattisgarh ... Respondent(s) For Appellants/Claimants : Mr. Pravesh Sahu, Advocate holding the brief of Mr. P.R. Patankar, Advocate For Respondents No. 1 & 2 : Mr. Amit Kumar Sahu, Advocate SIDDHANT TAMRAKAR Digitally signed by SIDDHANT TAMRAKAR Date: 2025.10.09 10:25:48 +0530 2 For Respondent No. 3 : Mr. Animesh Pathak, Advocate holding the brief of Mr. Amrito Das, Advocate Hon'ble Shri Justice Rakesh Mohan Pandey Order on Board 06.10 .2025 1. This appeal has been preferred by the claimants for enhancement of compensation against award passed by the learned 7th Additional Motor Accident Claims Tribunal, Durg in Claim Case No. 000208/2016 dated 07.01.2020, whereby the learned Tribunal has passed an award to the tune of Rs. 12,09,140/- with interest at the rate of 9% per anum. 2. Learned counsel appearing for the claimants would submit that the learned Tribunal has exonerated the Insurance company and fastened liability with driver and owner of Hero Honda Splender bearing registration No. C.G. 22 AC 1694 on the ground that the driver of the vehicle was not having valid and effective driving licence on the date of accident i.e. 11.01.2016. He would further submit that the learned Tribunal has committed an error of law while deducting 1/3rd for personal and living expenses of deceased, whereas the number of the dependents are 6. He would further submit that the learned Tribunal has awarded compensation for loss of consortium to the wife of the deceased only and denied such mandatory compensation to the other dependents, who are children and parents of the deceased. He would pray to enhance the compensation accordingly. 3. On the other hand, learned counsel appearing for driver and owner would oppose the submission made by Mr. Sahu. Mr. Amit Sahu, Advocate would argue that the offending vehicle was not involved in the accident and later on, it was implanted by the claimants. He would further submit that Insurance company failed to adduce evidence to establish the fact that the driver of the offending vehicle was not having valid and effective driving 3 licence. 4. Mr. Animesh Pathak, Advocate appearing for the Insurance company would submit that as the driver of the offending vehicle was not having valid and effective driving licence; therefore, the learned Tribunal rightly fastened liability with the driver and owner of the vehicle. He would further submit that the instant appeal deserves to be dismissed. 5. I have heard learned counsel for the parties and perused the records with utmost circumspection. 6. In the present case, number of the dependents are 6. The claimant No. 1 is wife, claimants No. 2 to 4 are children of the deceased, whereas, claimants No. 5 and 6 are parents. The learned Tribunal has considered notional income of the deceased to the tune of Rs. 7,000/- per month. The learned Tribunal deducted 1/3rd for personal and living expenses of the deceased, whereas, dependents are 6 in number. Therefore, according to law laid down by the Hon’ble Supreme Court in the matter of Sarla Verma & Ors Vs. Delhi Transport Corporation & Ors. reported in 2009(6) SCC 121, deduction should be 1/4th. 7. The learned Tribunal has awarded compensation for loss of consortium to only claimant No. 1/wife of the deceased. The Insurance company, driver and owner could not lead evidence to prove the fact that the children were not dependent on the income of the deceased; therefore, in my opinion, the children of the deceased are also entitled to receive appropriate compensation for loss of consortium. Further, the learned Tribunal has not awarded compensation for loss of consortium to the parents which appears to be erroneous. Thus, in opinion of this Court, the claimants No. 2 to 6 are entitled to receive compensation for loss of consortium. 8. With regard to liability part, the learned Tribunal has rightly fastened liability 4 with the driver and owner of the offending vehicle as driver of the vehicle was not having valid and effective driving licence, but the learned Tribunal ought to have directed the Insurance company to pay the amount of compensation to the claimant and recover the same from owner and driver of the vehicle. 9. In the matter of Shamanna and another v. Divisional Manager Oriental Insurance Co. Ltd. and others, reported in (2018) 9 SCC 650, the Hon’ble Supreme Court while dealing with the similar issue in para 6, 11, 13 and 14 held as under :- “6. As per the decision in Swaran Singh case, onus is always upon the insurance company to prove that the driver had no valid driving licence and that there was breach of policy conditions. Where the driver did not possess the valid driving licence and there are breach of policy conditions, “pay and recover” can be ordered in case of third-party risks. The Tribunal is required to consider “as to whether the owner has taken reasonable care to find out as to whether the driving licence produced by the driver … does not fulfil the requirements of law or not will have to be determined in each case”. 11. In the present case, to deny the benefit of "pay and recover", what seems to have substantially weighed with the High Court is the reference to larger Bench made by the two-Judge Bench in National Insurance Co. Ltd. v. Parvathnenis which doubted the correctness of the decisions which in exercise of jurisdiction under Article 142 of the Constitution of India directing insurance company to pay the compensation amount even though insurance company has no liability to pay. In Parvathneni cases, the Supreme Court pointed out that Article 142 of the Constitution of India does not cover such type of cases and that: (SCC p. 786, para 5) "5. If the insurance company has no liability to pay at all, then, it cannot be compelled by order of the court in exercise of its jurisdiction under Article 142 of the Constitution of India to pay the 5 compensation amount and later on recover it from the owner of the vehicle." 13. Since the reference to the larger Bench in Parvathneni cases 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 followed in Laxmi Narain Dhut 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 and Laxmi Narain Dhut 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 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. 14. So far as the recovery of the amount from the owner of the vehicle, the insurance company shall recover as held in the decision in Oriental Insurance Co. Ltd. v. Nanjappan wherein this Court held that: (SCC p. 226, para 8) "8. For the purpose of recovering the same from the insured, the insurer shall not be required to file a suit. It may initiate a proceeding before the executing court concerned 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." 10. Considering the facts and circumstance of the case and material available on record and the law laid down by the Hon’ble Supreme Court in the matters of National Insurance Company Ltd. V. Pranay Sethi, reported in 2017 (16) SCC 680, Sarla Verma & Ors Vs. Delhi Transport Corporation & Ors. reported in 2009(6) SCC 121 and Magma General Insurance Co. Ltd. V. Nanu Ram @ Chuhru Ram & Ors. reported in 6 2018 (18) SCC 130, this Court is recomputing the compensation as under:- Sr. No. Heads Compensation awarded by Tribunal Compensation awarded by this Court 1. Income Rs. 7,000 x12 = Rs. 84,000/- Rs. 7,000 x12 = Rs. 84,000/- 2. Future Prospect (25%) = Rs. 21,000 (25%) = Rs. 21,000/- 3. Deduction (-) 1/3 Rs. 35,000/- Rs. 70,000/- (-) 1/4 Rs. 26,250/- Rs. 78,750/- 4. Multiplier (x) 13 = Rs. 9,10,000/- (x) 13 = Rs. 10,23,750/- 5. Medical Expenses Rs. 2,29,140/- Rs. 2,29,140/- 6. Loss of Estate Rs. 15,000/- Rs. 15,000/- 7. Funeral expenses Rs. 15,000/- Rs. 15,000/- 8. Loss of consortium (for appellant No. 1) Rs. 40,000/- Rs. 40,000/- 9. Loss of consortium(for appellant No. 2) NIL Rs. 48,000/- 10. Loss of consortium(for appellant No. 3) NIL Rs. 48,000/- 11. Loss of consortium(for appellant No. 4) NIL Rs. 48,000/- 12. Loss of consortium(for appellant No. 5) NIL Rs. 48,000/- 13. Loss of consortium(for appellant No. 6) NIL Rs. 48,000/- TOTAL Rs. 12,09,140/- Rs. 15,62,890/- 11. For the forgoing reasons, the appeal is allowed in part. The amount of compensation of Rs. 12,09,140/- awarded by the tribunal is enhanced to Rs. 15,62,890/-. Hence, after deducting the amount of Rs. 7 12,09,140/-, the appellants/claimants are held entitled for an additional amount of Rs. 3,53,750/-. The respondents are directed to deposit the amount of compensation as enhanced by this Court within a period of 60 days from the date of receipt of copy of this order. Rest of the conditions of impugned award shall remain intact. 12. Now coming to the next issue, the Hon’ble Supreme Court in the matter of Shamanna (supra) has held that where the vehicle is insured and the driver of the offending vehicle was not having valid driving licence on the date of accident, the Tribunal should apply principle of pay and recover. 13. Considering the law laid down by the Hon’ble Supreme Court and facts of the present case, it is directed that the award shall be satisfied by the Insurance company first, and thereafter, the insurance company would be at liberty to recover it from driver and owner of the offending vehicle. 14. Accordingly, the instant appeal is hereby partly allowed. Sd/- (Rakesh Mohan Pandey) Judge $iddhant