Punimati Chouhan v. Pramod Kumar Patel

: Mr. Ishwar Jaiswal, Advocate For Respondent No.1 : Mr. Kishan Kumar Sonkar, Advocate For Respondent No.3 : Mr. P.R. Patankar, Advocate Hon'ble Shri Justice Parth Prateem Sahu Order on Board 21/8/2025 2

#1. This appeal is filed by claimants seeking enhancement of compensation awarded by learned 7th Additional Motor Accident Claims Tribunal Raigarh vide award dated 27.1.2020 in Claim Case No.78/2017.

#2. Since the death of deceased in a road traffic accident dated

14.10.2015, involvement of offending vehicle Honda CB Triger bearing registration No.CG11-SC-9499, which was driven by non-applicant No.1, owned by non-applicant No.2 and insured with non-applicant No.3, is not in dispute, therefore, this Court is not adverting to the facts of case and only considering submissions of learned counsel for respective parties on the question of enhancement of quantum of compensation.

#3. Learned counsel for appellants would submit that learned Claims Tribunal erred in not awarding any compensation towards loss of consortium to claimants. He further submits that the insurance policy was valid on the date of accident, exoneration of insurance company is on the ground of driver not having effective driving license, therefore, in such circumstance, the Claims Tribunal while exonerating the insurance company should have issued direction of ‘pay and recover’.

#4. Learned counsel appearing on behalf of respective 3 respondents would submit that the Claims Tribunal minutely analyzed the evidence available on record and arrived at a conclusion that claimants failed to prove income of deceased as Rs.7,000/- per month, which cannot be said to be erroneous finding. They next contended that compensation computed and awarded is just and proper.

#5. Heard learned counsel for the parties and perused record.

#6. Perusal of impugned award would show that the Claims Tribunal has not awarded compensation towards loss of consortium. The amount of compensation to be awarded as consortium is governed by the principles of awarding compensation under "loss of consortium" as laid down in the matter of Magma General Insurance Co. Ltd. vs. Nanu Ram alias Chuhru Ram and Others, reported in (2018) 18 SCC 130, according to which each claimant is entitled to consortium at the rate of Rs.40,000/- each under spousal, filial and parental respectively in case claimants are wife/husband, parents and children. In the instant case, appellant No.1 is mother of deceased and therefore, she is entitled for compensation towards loss of filial consortium. Since, the amount of compensation under the aforesaid head i.e. loss of consortium, is to be increased by 10% after every three years, in light of decision of Hon’ble Supreme Court in case of National Insurance Company Ltd. vs. Pranay Sethi, 4 reported in (2017) 16 SCC 680, therefore, appellant No.1 will be entitled to get Rs.44,000/- for loss of filial consortium. Hence, I deem it appropriate to award an amount of Rs 44,000/- to appellant No.1 for loss of filial consortium. Appellant No.2, being sister of deceased, is not entitled for compensation under the head of loss of consortium. It is ordered accordingly.

#7. Learned Claims Tribunal awarded a sum of Rs.15,000/- each towards loss of estate and funeral expenses. As per decision of Hon’ble Supreme Court in case of Pranay Sethi (supra), amount of compensation under the head of loss of estate and funeral expenses is also to be increased at the rate of 10% in every three years. Accordingly, it is directed that appellants will be entitled for a sum of Rs.16,500/- (15000 +10% of 15000) each towards loss of estate and funeral expenses respectively.

#8. Accordingly, it is directed that appellant No.1 will be entitled for a sum of Rs.44,000/- towards loss of filial consortium and Rs.16,500/- each towards loss of estate and funeral expenses. Now the amount of compensation payable to appellants- claimants will be Rs.9,84,200/- in place of Rs.9,37,200/-, 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. Rest of the 5 conditions mentioned in impugned award shall remain intact.

#9. Coming to submission of learned counsel for appellants that since the breach of insurance policy was on account of driver of offending vehicle not having driving license, therefore, a direction for pay and recover ought to have been issued against Insurance Company.

#10. Hon'ble Supreme Court in the case of National Insurance Co. Ltd. vs Swaran Singh, reported in (2004) 3 SCC 297 while laying down Parameters/guidelines while deciding the claim application by the Tribunal in clause (iii), (iv) & (vi) of paragraph 110, has held as under: “iii. The breach of policy condition e.g. disqualification of the driver or invalid driving licence of the driver, as contained in sub-section (2)(a)(ii) of Section 149, has 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 the 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 a duly licensed driver or one who was not disqualified to drive at the relevant time. iv. Insurance companies, however, with a view to avoid their liability must not only establish the available defence(s) raised in the said proceedings but must also establish “breach” on the part of the owner of the vehicle; the burden of proof wherefor would be on them. 6 v. Even where the insurer is able to prove breach on the part of the insured concerning the policy condition regarding holding of a valid licence by the driver or his qualification to drive during the relevant period, the insurer would not be allowed to avoid its liability towards the insured unless the said breach or breaches on the condition of driving licence is/are so fundamental as are found to have contributed to the cause of the accident. The Tribunals in interpreting the policy conditions would apply “the rule of main purpose” and the concept of “fundamental breach” to allow defences available to the insurer under Section 149(2) of the Act.”

#11. Reiterating the said principle, the Hon'ble Supreme Court again in the case of Jawahar Singh v. Bala Jain reported in (2011) 6 SCC 425, in Paragraph 10, 11, 12, has held as under: “10. On behalf of Respondent 6, National Insurance Company Ltd., it was sought to be urged that at the time of the accident, the motorcycle was being driven in breach of the terms and conditions of the insurance policy and, accordingly, the Insurance Company could not be held liable for making payment of the compensation awarded by the Motor Accidents Claims Tribunal. Apart from the fact that Jatin, who was riding the motorcycle, did not have a valid driving licence, it had also been established that he was a minor at the time of the accident and consequently the Insurance Company had been rightly relieved of the liability of payment of compensation to the claimants and such liability had been correctly fixed on the owner of the motorcycle, Jawahar Singh.

#11. It has been well settled that if it is not possible for an awardee to recover the compensation awarded against the driver of the vehicle, the liability to make payment of the compensation awarded fell on the owner of the vehicle. It was submitted that in this case since the person riding the motorcycle at the time of accident was a minor, the responsibility for paying the compensation awarded fell on the owner of the 7 motorcycle. In fact, in Ishwar Chandra v. Oriental Insurance Co. Ltd., (2007) 10 SCC 650, it was held by this Court that in case the driver of the vehicle did not have a licence at all, the liability to make payment of compensation fell on the owner since it was his obligation to take adequate care to see that the driver had an appropriate licence to drive the vehicle.

#12. Before the Tribunal reliance was also placed on the decision in National Insurance Co. Ltd. v. Gh. Mohd. Wani, 2004 ACJ 1424 (J&K) and National Insurance Co. Ltd. v. Gadigewwa, 2005 ACJ 40 (Kant), wherein it was held that if the driver of the offending vehicle did not have a valid driving licence, then the Insurance Company after paying the compensation amount would be entitled to recover the same from the owner of the vehicle. It was submitted that no interference was called for with the judgment and order of the High Court impugned in the special leave petition.”

#12. The same view has further being reiterated in the case of Shamanna v. Divisional Manager, Oriental Insurance Company Limited), reported in (2018) 9 SCC 650, wherein again the Hon'ble Supreme Court in Paragraph 6 has held as under:- “6. As per the decision in National Insurance Co. Ltd. v. Swaran Singh, (2004) 3 SCC 297, 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 fulfill the requirements of law or not will have to be 8 determined in each case”.

#13. 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 license. 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 2004 SC

#14. In the result, the appeal is allowed in part and the impugned award stands modified to the extent indicated above. Sd/- (Parth Prateem Sahu) Judge roshan/-