1 / 9 2025:CGHC:42440 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR MAC No. 400 of 2021 1. Smt. Saraswati W/o Late Devgan Vishwakarma Aged About 35 Years 2. Ku. Manisha D/o Late Devgan Vishwakarma Aged About 14 Years Appellant No. 2 Are Minor Through Natural Guardian Mother Appellant No. 1 3. Manish Kumar S/o Late Devgan Vishwakarma Aged About 12 Years Appellant No. 3 Are Minor Through Natural Guardian Mother Appellant No. 1 4. Ku. Suman D/o Late Devgan Vishwakarma Aged About 10 Years Appellant No. 4 Are Minor Through Natural Guardian Mother Appellant No. 1 All are R/o Village Koretitola, Karregaon, Post Dangarh, P.S.- Mangchuwa, Tahsil- Daundilohara, District- Balod, Chhattisgarh --- Appellants/ Applicants-Claimants versus 1. Narendra Kumar Korram S/o Ramchanran Korram Aged About 17 Years R/o Village Narsutola, P.S.- Mangchuwa, Tahsil Doundilohara, District- Balod, Chhattisgarh, Through Its Natural Guardian Father Ramcharan Korram, S/o Indar Sai Korram, R/o Village Narsutola, P.S. Manchuwa, Tahsil- Doundilohara, District- Balod, Chhattisgarh (Driver of Offending Vehicle) 2. Ramcharan Korram S/o Indar Sai Korram R/o Village- Narsutola, P.S. Mangchuwa, Tahsil Doundilohara, District- Balod, Chhattisgarh (Registered Owner of Offending Vehicle) 3. The Oriental Insurance Company Ltd. Through Division Manager, Division Office Rajendra Park Chowk, Durg, Tahsil- Durg, District- Durg, Chhattisgarh, (Insurer of Offending Vehicle) ---Respondents/ Non-applicants ____________________________________________________________ For Appellants : Mr. Rakesh Kumar, Advocate on behalf of Mr. Pushpendra Kumar Patel, Advocate For Respondent No. 3 : Ms. Prerna Agrawal, Advocate on behalf fo Mr. Sudhir Kumar Agrawal, Advocate Hon'ble Shri Justice Parth Prateem Sahu Judgment On Board 21/08/2025 PAWAN KUMAR JHA Digitally signed by PAWAN KUMAR JHA 2 / 9 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 13.01.2021 passed by Learned Motor Accident Claims Tribunal, Balod, Chhattisgarh (for short “Claims Tribunal”) in Claim Case No. 68/2019, whereby learned Claims Tribunal allowed the application filed under Section 166 of the Act, 1988 in part, awarded total sum of ₹ 7,90,720/- as compensation in motor accidental death case. 2. This appeal filed by the claimants seeking enhancement of amount of compensation as awarded by the Claims Tribunal. Motor accidental death of Late Devgan Vishwakarma, aged about 42 years, in an accident occurred on 02.09.2018, involvement of another vehicle motorcycle bearing number CG08-AD-5687 (hereinafter referred to as “offending motorcycle”) owned by non-applicant No. 2, driven by non-applicant No. 1, as well as non-applicant No. 3 being insurer and the liability to satisfy the amount of compensation upon non-applicant No. 2-owner is not in dispute. 3. In the above facts of the case, this Court is not entering into factual aspect of the case in detail, pleadings made by the claimants in their claim application, reply filed by non-applicants therein and discussed by the Claims Tribunal in the impugned award, however, only considering the submission of learned counsel for the respective parties on enhancement of compensation. 4. Learned counsel for appellants-claimants would submit that the Claims Tribunal erred in assessing notional income of deceased as ₹ 5,720 per month only overlooking the date of accident, occupation and income, as pleaded in the claim application. He next contended that the Claims Tribunal has not awarded compensation under the head of loss of consortium to all the claimants excepts claimant No. 1. In support of his contention, he places reliance upon the decision of Hon’ble Supreme Court in the case of Magma 3 / 9 General Insurance Company vs. Nanu Ram alias Chuhuru Ram and others reported in (2018) 18 SCC 130. It is also contended that as the insurance company has been exonerated on the ground that there was breach of policy conditions, non-applicant No. 1 driver of the offending motorcycle was minor on the date of accident and not possessed with valid and effective driving licence, 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-Insurance Company opposes the submission of learned counsel for appellants-claimants and would submit that the amount of compensation awarded by the Claims Tribunal in the facts of the case is just and proper and it does not call for any interference. He contended that on the date of accident, Respondent No. 3/ non-applicant No. 1- driver of the offending motorcycle was minor, not possessed with the valid and effective driving licence and therefore the insurance company has been exonerated from the liability to indemnify the insured. In the facts of the case, direction of pay and recover is not sustainable. 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 notional income of deceased as ₹ 5,720 per month on the date of accident is concerned, the occupation and income of deceased is pleaded to be working as labourer, earning ₹ 300 per day. Admittedly, there is no clinching and admissible piece of evidence available in record to prove 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 him to be working as unskilled labourer. However, Tribunal fell into error in taking into 4 / 9 consideration certain factors like age of deceased, date of accident, cost of living, price index, inflation etc. 8. As there is no material in the record to suggest the wages prevailing at the place of which 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 Dondilohara, Balod. As per the notification issued by the competent authority under the Minimum Wages Act, 1948, minimum wages fixed for the period from 01.03.2018 till 30.09.2018 for unskilled labourer for C-Zone area is ₹ 8,100/- per month. Therefore, the monthly income of deceased on the date of accident is assessed as ₹ 8,100. It is ordered accordingly. 9. So far as the other submission made by learned counsel for appellants- claimants with regard to award of loss of consortium is concerned, perusal of impugned award would show that the Claims Tribunal awarded ₹ 40,000 to claimant No. 1/ wife of deceased only, for loss of consortium. 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, explained types of consortium that is to be awarded to the claimants which are loss of spousal consortium to widow/ husband, loss of parental consortium to children and loss of filial consortium to parents of the deceased of ₹ 40,000/- each. In the case at hand, appellants-claimants are widow and children of deceased. Therefore, children of the deceased, ie., appellants No. 2 to 4 are also entitled for loss of parental consortium of ₹ 40,000/- each. It is ordered accordingly. 10. Apart from it, there shall be addition of 25% towards future prospects in view of decision of Hon’ble Supreme Court in case of National Insurance Company Limited vs. Pranay Sethi & ors, reported in (2017) 16 SCC 680, as the deceased was above 40 years of age. There shall be deduction 5 / 9 of 1/4 towards personal and living expenses, multiplier of 14, funeral expenses of ₹ 15,000 and loss of estate of ₹ 15,000, as awarded by the Claims Tribunal. 11. Further, in the case of Pranay Sethi (supra), Hon’ble Supreme Court observed that compensation under the head of other conventional heads is to be increased by 10% in every three years, and therefore amount of compensation under the heads of funeral expenses would be ₹ 16,500 from ₹ 15,000, loss of estate would be ₹ 16,500 from ₹ 15,000, and loss of consortium would be ₹ 44,000 each from ₹ 40,000. 12. 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 = ₹ 97,200/- (₹ 8100x12) • Addition towards loss of future prospects @ 25% (₹ 97,200 + 25% of ₹ 97,200 = ₹ 1,21,500) • Deduction of 1/4 towards personal and living expenses (₹ 1,21,500 x 1/4= ₹ 30,375; ₹ 1,21,500-₹ 30,375= ₹ 91,125 ) • Multiplier of 14 ₹ 91,125 x 14 = ₹ 12,75,750/- ₹ 12,75,750/- Loss of Spousal Consortium ₹ 44,000/- Loss of parental consortium to Appellants No. 2 to 4 (₹ 44,000 x 3) ₹ 1,32,000/- Loss of estate ₹ 16,500/- Funeral Expenses ₹ 16,500/- Total ₹ 14,84,750/- 13. Now the appellants/claimants shall be entitled for total sum of compensation of ₹ 14,84,750/- instead of ₹ 7,90,720/- as awarded by learned Claims Tribunal. The enhanced amount of compensation shall carry interest @ 8% p.a. from the date of filing of claim application till its realization. 6 / 9 • 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. 14. The next submission made by learned counsel for appellants-claimants is that learned Claims Tribunal has exonerated insurance company on the ground that driver was not possessed with valid and effective driving licence on the date of accident. Learned counsel for Respondent No. 3 submitted that there is categorical finding in the impugned award that the offending motorcycle was driven by minor. 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 7 / 9 the driver, as contained in sub-section (2)(a)(ii) 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 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 8 / 9 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.” 15. Similar view has further been followed in two of the recent decisions in the case of Parminder Singh v. New India Assurance Company Limited reported in (2019) 7 SCC 217, whereby the Supreme Court has approved the principle of "Pay and Recovery" in such cases. Again in the case of Kurvan Ansari Alias Kurvan Ali v. Shyam Kishore Mummu reported in (2022) 1 SSC 317, in paragraph 17 applying the principle of pay and recovery, Hon’ble Supreme Court has held as under:- 9 / 9 “17. Accordingly, the appellants are entitled for a sum of ₹ 4,70,000 (Rupees four lakhs seventy thousand only) towards total compensation with interest @ 6% p.a. from the date of claim petition till the date of realisation. The enhanced compensation shall be apportioned between the appellants as ordered by the Tribunal. The entire compensation shall be paid to the appellants by Respondent 2 insurance company, and we keep it open to the insurance company to recover the same from Respondent 1 owner of the motorcycle by initiating appropriate proceedings as the motorcycle was driven by the driver who was not possessing valid driving licence on the date of the accident.” 16. In the aforementioned facts of the case, taking note of the abovementioned decisions of Hon’ble Supreme Court, I find it appropriate to accept the submission of learned counsel for appellants-claimants of issuance of direction to insurance company of pay and recover. Therefore, Respondent No. 3- insurance company is directed to first pay entire amount of compensation as computed by this Court in preceding paragraphs and thereafter to recover the same from owner of the offending motorcycle in accordance with law. 17. For recovery of amount of compensation so deposited by the Insurance Company, it will not be required to file separate proceeding but can recover in the same proceeding as held by Hon’ble Supreme Court in the case of Oriental Insurance Company Limited v. Nanjappan reported in (2004) 13 SCC 224. 18. Consequently, the appeal is allowed in part and the impugned award is modified to the extent as indicated herein-above. Sd/- (Parth Prateem Sahu) Judge pwn