1 2025:CGHC:55088 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR MAC No. 688 of 2018 1 - Smt. Nira Sahu Wd/o Parmanand Sahu Aged About 33 Years R/o Fulwari Chowk, Rawabhata, P.S. Khamtarai, Raipur, District Raipur, Chhattisgarh, District : Raipur, Chhattisgarh 2 - Dhanraj Sahu S/o Parmanand Sahu Aged About 15 Years Minor Through Natural Guardian Mother Smt. Nira Sahu Wd/o Parmanand Sahu, Aged About 33 Years, R/o Fulwari Chowk, Rawabhata, P.S. Khamtarai, Raipur, District Raipur, Chhattisgarh, District : Raipur, Chhattisgarh 3 - Ku. Payal Sahu D/o Parmanand Sahu Aged About 13 Years Minor Through Natural Guardian Mother Smt. Nira Sahu Wd/o Parmanand Sahu, Aged About 33 Years, R/o Fulwari Chowk, Rawabhata, P.S. Khamtarai, Raipur, District Raipur, Chhattisgarh, District : Raipur, Chhattisgarh 4 - Manish Sahu S/o Parmanand Sahu Aged About 10 Years Minor Through Natural Guardian Mother Smt. Nira Sahu Wd/o Parmanand Sahu, Aged About 33 Years, R/o Fulwari Chowk, Rawabhata, P.S. Khamtarai, Raipur, District Raipur, Chhattisgarh, District : Raipur, Chhattisgarh 5 - Maniram Sahu S/o Late Kartik Ram Sahu Aged About 55 Years R/o Fulwari Chowk, Rawabhata, P.S. Khamtarai, Raipur, District Raipur, Chhattisgarh, District : Raipur, Chhattisgarh 6 - Mantora Bai W/o Maniram Sahu Aged About 54 Years R/o Fulwari Chowk, Rawabhata, P.S. Khamtarai, Raipur, District Raipur, Chhattisgarh (Claimants), District : Raipur, Chhattisgarh ... Petitioner(s) versus NIRMALA RAO 2 1 - Avinash Sahu S/o Premlal Sahu R/o Village Rawabhata, P.S. Khamtarai, Tahsil And District Raipur, Chhattisgarh (Driver Of Vehicle No. C.G.04 Hs 1491), District : Raipur, Chhattisgarh 2 - Premlal Sahu S/o Late Tiwari Ram Sahu R/o Ward No. 13, Rawanbhata, Khamtarai, P.S. Khamtarai, Raipur, District Raipur, Chhattisgarh (Owner Of Vehicle No. C.G.04 Hs 1491), District : Raipur, Chhattisgarh 3 - Magma H.D.I. General Insurance Co. Ltd. Through Incharge Officer/competent Officer, Magma H.D.I. General Insurance Co. Ltd. Office At 3/new Ground Floor, Chirhooldih Ward, Near Rajkumar College, G.E.Road, Raipur, District Raipur, Chhattisgarh (Insurer Of Vehicle No. C.G.04 Hs 1491), District : Raipur, Chhattisgarh ... Respondent(s) ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- For Appellants : Shri Amiyakant Tiwari, Advocate. For Respondents No.1 & 2 : Ms. Pooja Yadav, Advocate holding the brief of Shri Shivendu Pandya, Advocate. For Respondent No.3 : Shri Ghanshyam Patel, Advocate. Hon'ble Shri Justice Rakesh Mohan Pandey Order on Board 10.11.2025 1. The appellants/ claimants have filed this appeal under Section 173 of the Motor Vehicles Act against the award dated 12.1.2018, passed in Claim Case No.178 of 2016 by the learned First Additional Presiding Officer to learned First Additional Motor Accident Claims Tribunal, Raipur, District Raipur whereby the learned Tribunal has dismissed the claim petition filed by the claimants. 2. Learned counsel for the appellants would argue that an application under Section 166 of the Motor Vehicles Act was filed for grant of compensation on account of death of late Parmanand Sahu. He would contend that on 4.10.2015, deceased Parmanand Sahu was travelling 3 in offending vehicle a Tata Ace bearing registration No.C.G. 04 HS 1491, which was being driven by respondent No.1 rashly and negligently. Near Rahadih barrier, police station Pali, District Korba driver of the offending vehicle dashed it against a roadside tree. Consequently, the deceased sustained injuries and succumbed to death. He would submit that the claimants, who are widow, children and parents of the deceased pleaded the age of the deceased 35 years, occupation cleaner in the offending vehicle, earning Rs.5,000/- per month and thus, claimed a total sum of Rs.24,40,000/-. He would further argue that the driver and owner of the vehicle filed their reply and pleaded that the vehicle was insured with the Insurance Company and the driver did have valid and effective driving license; however, they failed to appear in the witness box. It is also contended that the Insurance Company took the plea that the seating capacity of the offending vehicle was of two persons, who were driver and one other person whereas, three persons were travelling in the said vehicle on the fateful day and that was the reason for filing the present appeal. He would submit that the learned Tribunal framed issues and dismissed the claim petition on the ground that the seating capacity of the offending vehicle was of two, and since the deceased was a gratuitous passenger, neither the driver and owner nor the Insurance Company can be held liable to make payment of compensation. Learned Tribunal further dismissed the claim application on the ground that the claimants failed to prove negligence on the part of the driver of the offending vehicle and the deceased was a gratuitous passenger. He would further submit that the learned Tribunal placed reliance on the FIR where it is stated that an unknown trailer had dashed the Tata Ace, 4 consequently, the deceased sustained injuries and died and hence held that there was no negligence on the part of the driver of the offending vehicle. He would submit that the findings recorded by the learned Tribunal are erroneous. He would submit that even if the deceased was a gratuitous passenger, since the vehicle was covered under a package policy, the learned Tribunal ought to have fastened liability either on the Insurance Company or jointly with the driver and owner of the offending vehicle. Accordingly, he would pray to set aside the impugned award. 3. On the other hand, learned counsel for the respondents would oppose the submissions made by counsel for the appellants. Learned counsel for respondents No.1 & 2 would argue that the deceased was a gratuitous passenger and the said vehicle was dashed by an unknown trailer, therefore, there was no negligence on the part of the driver of the vehicle. She would submit that on this count the learned Tribunal dismissed the claim petition. She would submit that the claimants could not prove the negligence on the part of the driver of the offending vehicle. She would further contend that the learned Tribunal has passed just and proper award and the appeal deserves to be dismissed. 4. Learned counsel for respondent No.3 would submit that the deceased was a gratuitous passenger. The Insurance policy covered life of driver and one additional person including the risk of third party. He would further submit that there was no negligence on the part of driver of the offending vehicle and since the claimants failed to implead the driver, owner and insurer of the offending trailer, therefore, the learned Tribunal rightly dismissed the claim petition. 5 5. Heard learned counsel for the parties and perused the documents present on the record with utmost circumspection. 6. In the present case, the offending vehicle Tata Ace was insured under a package policy and the premium was paid to cover the life of driver and one additional person. The deceased was a third person travelling in that vehicle. The claimants could not prove the fact that the deceased was engaged as a helper or cleaner of the said vehicle. In reply to claim petition, the driver and owner categorically stated that the deceased was not employed in their vehicle. 7. According to the contents of the claim petition, the offending Tata Ace dashed against a tree resultantly, the deceased sustained injuries whereas, according to contents of FIR, an unknown Trailer hit the Tata Ace consequently, the deceased sustained injuries and died. In both the situations, it can be held that the offending vehicle was being driven by its driver/ respondent No.1; the owner of the vehicle was respondent No.2 and it was insured with respondent No.3. The Insurance Company has not taken plea that the driver of the offending vehicle did not have valid driving license. In the present case, learned Tribunal has dismissed the claim petition on the ground that the claimants could not prove negligence on the part of the driver of the vehicle. A perusal of the contents of FIR, evidence led by the claimants would show that there was negligence on the part of driver of the offending vehicle, which resulted in accident, in which the deceased lost his life. As no premium was paid by the owner of the offending vehicle for any gratuitous passenger travelling therein, the learned Tribunal ought to have fastened liability with the driver and owner of the offending 6 vehicle. Accordingly, the award passed by the learned Tribunal is not sustainable in the eyes of law and hereby set aside. 8. Now coming to the issue of liability. As no premium was paid by the owner of the offending vehicle to cover the risk of a gratuitous passenger and since the driver and owner failed to appear before the learned Tribunal to establish that the deceased was not travelling in their vehicle, it can be presumed that on the fateful day, the deceased was travelling alongwith the driver and one other person in the offending vehicle, which met with an accident. As no premium was paid, therefore, the driver and owner of the vehicle shall indemnify the compensation amount to the claimants/ appellants. 9. It is not in dispute that there was package policy and driver of offending vehilce did have valid driving license, therefore, the Insurance Company shall first pay the compensation to the claimants and thereafter, recover the same from the driver and owner of the offending vehicle according to the law laid down by the Hon’ble Supreme Court in the matter of Sunita and Others Vs. United India Insurance Co. Ltd. and Others reported in 2025 SCC OnLine SC 1464. In the said matter, the Hon’ble Supreme Court while dealing with the similar issue held in paragraphs 13 to 16, as under: “13. Adverting to the facts in hand, from a bare perusal of the record, it is borne that the vehicle in question was insured with "Liability Only Policy" and no premium was paid to cover the driver, owner, or a gratuitous passenger travelling therein. However, even then, in our view, the Courts below erred in holding that the Insurance Company is not liable to pay the compensation to the claimant-appellants, for the principle of "Pay and Recover" ought to have been invoked. As such, we 7 are inclined to interfere with the above findings of the Courts below. 14. We must advert to the exposition of this Court in National Insurance Co. Ltd. v. Baljit Kaur, (2004) 2 SCC 1. The deceased therein was travelling as a gratuitous passenger, and due to the rash and negligent driving of the offending vehicle, lost his life. The Insurance Company was directed to satisfy the amount awarded by the Courts below and recover the same from the owner of the vehicle, as the premium was not paid by the owner of the vehicle towards gratuitous passenger. 15. The above position has been followed by this Court in Anu Bhanvara v. IFFCO Tokio General Insurance Co. Ltd., (2020) 20 SCC 632 wherein the injured person was travelling as a gratuitous passenger and was not covered under the Insurance Policy, the driver and owner of the vehicle was held liable for payment of compensation amount. This Court applied the principle of "Pay and Recover" and directed the Insurance Company to pay the amount and, thereafter, recover the same from the owner of the vehicle. 16. The aforementioned principle was adopted by this Court in various judgments of this Court in Amrit Lal Sood v. Kaushalya Devi Thapar, (1998) 3 SCC 744; New India Assurance Co. Ltd. v. C.M. Jaya, (2002) 2 SCC 278; National Insurance Co. Ltd. v. Challa Upendra Rao, (2004) 8 SCC 517; New India Assurance Co. Ltd. v. Vimal Devi, 2010 SCC OnLine SC 49; National Insurance Co. Ltd. v. Saju P. Paul, (2013) 2 SCC 41; Manuara Khatun v. Rajesh Kumar Singh, (2017) 4 SCC 796; and Puttappa v. Rama Naik, 2018 SCC OnLine SC 3496.” 10. Taking into consideration the facts of the present case and the law laid down by the Hon’ble Supreme Court, it is concluded as under: 8 “(1) The liability is fastened with the driver and owner of the offending vehicle, Tata Ace, bearing registration No.C.G. 04 HS 1491. (2) The Insurance Company is directed to indemnify the compensation amount and thereafter, recover the same from the driver and owner of the offending vehicle in accordance with law.” 11. Now coming to the quantum of compensation, the age of the deceased was 35 years and he was working as a cleaner. In absence of specific evidence regarding income, as per the minimum wages matrix, he can be treated as an unskilled labourer. The wages admissible to an unskilled labourer in the month of October, 2015 was Rs.5,860/-. Looking to the age of the deceased, the claimants would be entitled to get an additional sum of 40% towards future prospects. The appropriate multiplier would be 16 and deduction 1/4th. 12. As per the law laid down by the Hon’ble Supreme Court in the matter of National Insurance Co. Ltd. v. Pranay Sethi and ors, reported in (2017) 16 SCC 680, the claimants shall be entitled for an additional amount of 30% on loss of consortium, loss of estate and funeral expenses. As the deceased was a gratuitous passenger, there is no need for the claimants to prove negligence of the driver of the offending vehicle and the principle of composite negligence would attract. 13. Taking into consideration the above-discussed facts, the compensation is being computed as under: Sr. No. Heads Compensation awarded by Tribunal Compensation awarded by this Court 1. Income Yearly --- Rs. 5,860 x 12 = 70,320/- 2. Future Prospects --- (40%) (28,128/-) 9 (70,320 + 28,128 = 98,448/-) 3. Deduction --- (-) 1/4th (24,612/-) (Rs.98,448-24,612) = Rs. 73,836/- 4. Multiplier --- 73,836 x 16 = 11,81,376/- 5. Loss of Estate --- Rs. 19,500/- 6. Funeral expenses --- Rs. 19,500/- 7. Loss of Consortium to widow, children & parents. --- Rs. 52,000/- x 6 = 3,12,000/- TOTAL Not awarded by the Tribunal (Claim dismissed) Rs. 15,32,376/- 14. In view of the aforesaid analysis, the appellants/claimants are entitled for a sum of Rs.15,32,376/-. The Insurance Company is directed to deposit the amount of compensation with the concerned Tribunal within a period of 3 months from the date of receipt of copy of this order. The amount of compensation shall carry interest @ 6% per annum from the date of this order till its realization. 15. Accordingly, this appeal is allowed. The claimants are entitled to get in following manner: Claimants Compensation Awarded by this Court Fixed Deposit Saving Account No.1 - Widow Rs.4,32,376/- 1,50,000/- (3 yrs) 2,82,376/- No.2 – Son Rs.3,00,000/- 2,00,000/- (3 yrs) 1,00,000/- No.3 - Daughter Rs.3,00,000/- 2,00,000/- (5 yrs) 1,00,000/- No.4 – Son Rs.3,00,000/- 2,00,000/- (8 yrs) 1,00,000/- No.5 – Father Rs.1,00,000/- - - No.6 – Mother Rs.1,00,000/- - - Sd/- (Rakesh Mohan Pandey) Judge Nimmi