Chattisgarh High Court
Smt. Reeta Devi vs Rajendra Kumar on 11 April, 2025
Author: Parth Prateem Sahu
Bench: Parth Prateem Sahu
2025:CGHC:16888
AFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
MAC No. 2131 of 2019
1. Branch Manager, United India Insurance Company Limited.
Brahmroad, Near Kumkum Hotel, Ambikapur, P. S. And Tehsil
Ambikapur District Surguja Chhattisgarh, Divisional Office, 2nd
Floor Guru Kripa Towers, Vyapar Vihar In Front Of Ambar Auto
Bilaspur District Bilaspur Chhattisgarh Through Authorised
Signatory, Deputy Manager, T. P. Hub Office, United India
Insurance Company Limited, 2nd Floor Guru Kripa Towers,
Vyapar Vihar Road Bilaspur P. S. Civil Line Tahsil And District
Bilaspur Chhattisgarh, District : Bilaspur, Chhattisgarh
... Appellant
versus
1. Smt. Rita Devi W/o Ajay Paswan Aged About 42 Years R/o
Village Sagma, Ward No. 4, Post Kathar, P. S. Dhurki, District
Gadwa Jharkhand, District : Garhwa *, Jharkhand
2. Shri Ajay Paswan S/o Late Bhikhari Paswan Aged About 45
Years R/o Village Sagma, Ward No. 4, Post Kathar, P. S.
Dhurki, District Gadwa Jharkhand, District : Garhwa, Jharkhand
3. Rajendra Kumar S/o Jawahir Oraon Aged About 32 Years R/o
Navapara, Jagima Post Ghugharikhurd, P. S. And Tahsil
Shankargarh District Balrampur Chhattisgarh, District :
Balrampur, Chhattisgarh
4. Giriwar Prasadyadav S/o Laxman Prasad Yadav Aged About
45 Years R/o Village Lahsun Path Kothli, P. S. Samri Presently
Residing At Village Bachwar P. S. And Tehsil Shankargarh,
District Balrampur Chhattisgarh.
... Respondent(s)
& MAC No. 345 of 2020
1. Smt. Reeta Devi W/o Ajay Paswan Aged About 42 Years R/o Village Sagma Post Kathar Police Station Dhuraki District Garhwa Jharkhand., District : Garhwa *, Jharkhand
2. Ajay Paswan S/o Late Bhikhari Paswan Aged About 45 Years R/o Village Sagma Post Kathar Police Station Dhuraki , District Garhwa Jharkhand., District : Garhwa *, Jharkhand ... Petitioner(s) versus
1. Rajendra Kumar S/o Jawahir Uraon Aged About 32 Years R/o Village Nawapara, Jagima Post Ghughari Khurd Police Station And Tahsil Shankargarh District Balrampur Chhattisgarh... (Driver), District : Balrampur, Chhattisgarh
2. Girwar Prasad Yadav S/o Luxman Prasad Yadav Aged About 45 Years R/o Lahsun Path Kothali Police Station Samari Present Address Village Bachwar Police Station And Tahsil Shankargarh District Balrampur Chhattisgarh., District :
Balrampur, Chhattisgarh
3. The Branch Manager United India Insurance Company Ltd. Near Kumkum Hotal Brahm Road Ambikapur Police Station And Tahsil Ambikapur District Surguja Chhattisgarh Division Office 3rd Floor Gurukripa Tower Vyapar Vihar In Front Of Amber Auto Bilaspur District Bilaspur Chhattisgarh ..(Insurer), District : Bilaspur, Chhattisgarh ... Respondent(s) MAC NO.2131/2019 For Appellants : Mr. B.N. Nande, Advocate For Respondent No.1 & 2 : Ms. Aakancha Vishwakarma, Advocate on behalf of Mr. A.N. Pandey, Advocate For Respondent No.3 & 4 : Mr. Gautam Khetrapal & Mr. A.K. Yadav, Advocates & MAC NO.345/2020 For Appellants : Ms. Aakancha Vishwakarma, Advocate on behalf of Mr. A.N. Pandey, Advocate For Respondent No.1 & 2 : Mr. Gautam Khetrapal & Mr. A.K. Yadav, Advocates For Respondent No.3 & 4 : Mr. B.N. Nande, Advocate s Hon'ble Shri Justice Parth Prateem Sahu Order On Board 11/4/2025
1. As the above two miscellaneous appeals arise out of the award dated 1.8.2019 passed in Claim Case No.214/2018 by which learned Motor Accident Claim Tribunal, Ambikapur, District Surguja (for short 'the Claims Tribunal') has allowed the application in part, awarded total compensation of Rs.7,12,600/- to claimants and fastened liability upon the Insurance Company to satisfy the impugned award, they are being disposed of by this common order.
2. Appellants in MAC No.345/2020 has prayed for enhancement of compensation on the grounds mentioned therein, whereas appellant in MAC No.2131/2020 has challenged the liability fastened upon it.
3. Facts of the case, in brief, are that Vivek Paswan (since deceased) was working as Cleaner in a truck and on 24.6.2018 at about 12:30 p.m. he was returning Shankargarh in said truck after unloading plywood in village Patna. On the way near Upka Jhariya Nala, on being asked by driver of truck, when he was putting stone beneath tyre, the driver negligently reversed vehicle as a result he came under wheel of truck and died on the spot. Report of accident was lodged in Police Station Shankargarh, District Balrampur-Ramanujganj based on which offence against non-applicant No.1 was registered. Claimants filed an application before the Claims Tribunal seeking total compensation of Rs.11,78,000/- inter alia on the grounds that on the date of accident, deceased was 22 years old, working as Cleaner and earning Rs.6000/- per month. They were dependent on the earning of deceased and due to his untimely death, they have suffered loss of dependency.
4. Non-applicant No.1 neither appeared before the Claims Tribunal nor filed reply to application and therefore he was proceeded ex-parte.
5. Non-applicant No.2, owner of offending vehicle, filed reply to application denying the contents except the admitted facts. It was pleaded that on the date of accident, the offending vehicle was insured with non-applicant No.3, driver of offending vehicle was possessing valid and effective driving license and therefore, the insurance company is liable to indemnify the insured. During pendency of proceeding before Claims Tribunal, non-applicant No.2 was also proceeded ex-parte
6. Non-applicant No.3 Insurance Company filed its reply denying the averments pleaded in application except the admitted facts. It was pleaded that application is filed on false and frivolous grounds. On the date of accident, the offending vehicle was plied on road in violation of condition of insurance policy because the driver of offending vehicle was not having valid and effective driving license. Deceased was not engaged as Cleaner in insured vehicle and the insurance policy was not issued covering risk of Cleaner. At the time of accident, persons more than seating capacity were travelling as passengers in the offending vehicle. Deceased died on account of his own negligence. Since there was violation of essential conditions of insurance policy, non-applicant No.3 has sought to exonerate the insurance company from indemnifying the insured.
7. The Claims Tribunal after appreciating the pleadings and evidence placed on record (oral and documentary both) by the respective parties has arrived at the conclusion that the accident occurred due to rash and negligent driving of offending vehicle by its driver; there was no violation of any of the conditions of insurance policy and consequently, allowed claim application in part; awarded compensation of Rs.7,12,000/- along with interest @ 7% p.a. and fastened liability upon non-applicants, jointly and severally, to satisfy the impugned award.
8. Learned counsel for claimants-appellants in MAC No.345/2020 would argue that the appellants have specifically pleaded that on the date of accident, deceased was working as Cleaner and earning Rs.6,000/- per month. The Claims Tribunal though held that deceased was working as Cleaner but erroneously assessed his income as Rs.4,500/- per month instead of Rs.6,000/-, as pleaded by appellants. She further submits that the Claims Tribunal as awarded only Rs.40,000/- towards loss of consortium, whereas it is well settled that each legal representative of deceased is entitled for Rs.40,000/- for loss of consortium. Under these circumstances, learned counsel prays that the amount of compensation be enhanced suitably.
9. Learned counsel for appellant Insurance Company in MAC No.2131/2019 would argue that the learned Claims Tribunal grossly erred in fastening liability upon Insurance Company to satisfy the impugned award. He submits that Driving license (Ex.D-1) of non-applicant No.1 shows that he is authorized to drive light motor vehicles only. There is no endorsement on license authorizing him to drive a vehicle other than light motor vehicle. The expression "light motor vehicle' has been defined in Section 2 (21) as "a transport vehicle or omnibus the gross vehicle weight of either of which or a motor car or tractor or road-roller the unladen weight of any of which, does not exceed 7500 kilogram. As per registration certificate (Ex.D-2C), unladen weight of offending vehicle is 2900 kilogram and laden weight is mentioned as 9600 kilogram. Hence, the offending vehicle does not fall within the definition of 'light motor vehicle' as defined in Section 2 (21) of the Act of 1988 rather it falls within the definition of Section 2 (23) of the Act of 1988 i.e. a medium goods vehicle. Thus, it cannot be said that on the date of accident, the driver of offending vehicle was competent to drive a light motor vehicle and not the offending vehicle, a medium goods vehicle and since there was no valid license, the insurance company could not be held liable. Thus, the finding of the Claims Tribunal that on the date of accident, the driver of offending vehicle was having valid and effective driving license to drive is erroneous and is liable to be setting aside. He further submits that seating capacity of offending vehicle is only two, but at the time of accident, four persons were traveling as passenger in the offending vehicle, thus there was violation of relevant condition of insurance policy entitling insurance company exoneration from any liability. This aspect has not been correctly appreciated by the Claims Tribunal. Hence he prays that appellant Insurance Company be exonerated from the liability of payment of compensation to the claimants.
10. Learned counsel appearing for respondent- driver and owner of offending vehicle opposing the submissions made by learned counsel for claimants as also learned counsel for insurance company, would argue that the impugned award passed by the Claims Tribunal awarding compensation to the claimants and fastening liability upon the insurance company is based on proper appreciation of evidence brought on record by respective parties and needs no interference. He further submits that as per Section 2 (21) of the Act of 1988, if the unladen weight of a transport vehicle does not exceed 7500 kilogram, then it will be called as a light motor vehicle. Thus, it is clear that unladen weight of a vehicle is to be considered while coming to the conclusion with regard to a light motor vehicle. As per registration certificate (Ex.D-2C) of offending vehicle, it is evident that its unladen weight is 2900 kilogram, which is less than 7500 kgs and being so, it would come within the the category of light motor vehicle/light goods vehicle. It is well settled that a driver holding driving license to drive light motor vehicle can drive light goods vehicle without there being any specific endorsement on it, provided its unladen weight is less than 7500 kilogram. Since unladen weight of the offending vehicle is only 2900 kilogram, it comes within the category of light motor vehicle and therefore, the non-applicant No.1 who was possessing LMV license was competent to drive offending vehicle. The finding recorded by the Claims Tribunal fastening liability upon the insurance company is correct and does not call for any interference. In support of his contention, he placed reliance upon the decision of Hon'ble Supreme Court in case of Mukund Dewangan vs Oriental Insurance Co. Ltd., reported in (2017) 14 SCC 663 and Bajaj Allianz General Insurance Company Limited vs. Rambha Devi & ors, reported in (2025) 3 SCC 95.
11.He further contended that submission of learned counsel for insurance company that the persons more than seating capacity were travelling in the offending vehicle at the time of accident, thus, there was violation of condition of insurance policy and therefore, insurance company is not liable to indemnify the insured, is not correct. As per terms of the contract of the insurance entered between the insured and the insurer, the insurance company is liable to indemnify the owner of the insured vehicle against any award of compensation.
12. Heard learned counsel for the respective parties and perused the record of the Claims Tribunal.
13. In the FIR, charge sheet and police papers, it is mentioned that deceased, who was traveling as Cleaner in the offending vehicle, met with accident and died on spot. Thus, it is clear that deceased was travelling in the offending vehicle as a Cleaner under the employment of owner. Registration certificate of offending vehicle is Ex.D-2C in which it is mentioned that the offending vehicle is a goods carrier having seating capacity of two persons including driver. Since the nature of offending vehicle is mentioned as a goods carrier in the registration certificate, the seating capacity mentioned as two (including driver) definitely means that one is for driver and another one is for the employee. Owner of offending vehicle has paid additional sum of Rs.150/- towards legal liability of paid driver or conductor or cleaner employed in connection with the operation of insured vehicle. Perusal of IMT 28 of the insurance policy would show that on payment of additional amount of Rs.150/-, the insurer shall indemnify the insured's liability in respect of conductor and/or cleaner. Thus, it is evident that insurance policy issued covers risk of the Cleaner.
14. Indisputably, four persons were traveling in the offending vehicle, which is more than permissible seating capacity. In case of Hon'ble Supreme Court in case of National Insurance Co. Ltd. vs. Anjana Shyam & ors, reported in (2007) 7 SCC 445, Hon'ble Supreme Court has observed thus:-
"19.It is true that the provisions in Chapter XI of the Act are intended for the benefit of third parties with a view to ensure that they receive the fruits of the awards obtained by them straightaway with an element of certainty and not to make them wait for a prolonged recovery proceeding as against the owner of the vehicle. But from that, it would not be possible to take the next step and find that the insurance company is bound to cover liabilities not covered by the contract of insurance itself. The Act only imposes an obligation to take out insurance to cover third party risks and in the case of stage carriages, the passengers to be carried in the vehicle and the passengers to be carried in the vehicle can be understood only as passengers authorized or permitted to be carried in the vehicle.
20. In spite of the relevant provisions of the statute, insurance still remains a contract between the owner and the insurer and the parties are governed by the terms of their contract. The statute has made insurance obligatory in public interest and by way of social security and it has also provided that the insurer would be obliged to fulfill his obligations as imposed by the contract and as overseen by the statute notwithstanding any claim he may have against the other contracting party, the owner, and meet the claims of third parties subject to the exceptions provided in section 149 (2) of the Act. But that does not mean that an insurer is bound to pay amounts outside the contract of insurance itself or in respect of persons not covered by the contract at all. In other words, the insured is covered only to the extent of the passengers permitted to be insured or directed to be insured by the statute and actually covered by the contract.
21. The High Court has considered only the aspect whether by overloading the vehicle, the owner had put the vehicle to a use not allowed by the permit under which the vehicle is used. This aspect is different from the aspect of determining the extent of the liability of the insurance company in respect of the passengers of a stage carriage insured in terms of Section 147 (1) (b)
(ii) of the Act. We are of the view that the insurance company can be made liable only in respect of the number of passengers for whom insurance can be taken under the Act and for whom insurance has been taken as a fact and not in respect of the other passengers involved in the accident in a case of overloading."
15. In the case at hand, the material on record would show that there was only one claim petition filed by present appellants despite persons in excess of seating capacity being seated in the offending vehicle. Merely because the persons in excess of seating capacity were being carried in the vehicle, it could not be said that the insurance company would stand exonerated from its liability because the vehicle was insured covering risk of employee and the insurance company would still be liable since the vehicle was legally insured. Under these circumstances, this Court does not find any force in the submission of learned counsel for appellant Insurance Company that insurance company is not liable to pay the compensation on the ground that number of passengers in offending vehicle exceeded its capacity and it is hereby repelled.
16. Coming to next ground raised by learned counsel for appellant Insurance Company that on the date of accident, driver of offending vehicle was not having valid driving license. Admittedly, in the details (Ex.D-II) of offending vehicle, it's body type is mentioned as 'tipper', vehicle type is mentioned as 'transport', vehicle class is mentioned as 'goods carrier' and category is shown to be 'medium goods vehicle (MGV)'. Unladen weight of vehicle is mentioned as 2900 kilogram and laden weight is 9600 kilogram.
17. To appreciate the submission of learned counsel for appellant Insurance Company, I find it appropriate to extract relevant provisions of the Act of 1988 herein below. Section 2 (15) of the Act of 1988 defines 'gross vehicle weight', which reads thus:-
"2.Definitions.--In this Act, unless the context otherwise requires;-
(1) to (14) omitted.
(15) "gross vehicle weight" means in respect of any vehicle the total weight of the vehicle and load certified and registered by the registering authority as permissible for that vehicle;
18.Section 2 (21) of the Act of 1988 defines 'light motor vehicle' and the same is quoted below:-
(21) "light motor vehicle" means a transport vehicle or omnibus the gross vehicle weight of either of which or a motor car or tractor or road-roller the unladen weight of any of which, does not exceed 7500 kilograms;
19.Section 3 (1) of the Act of 1988 deals with driving license requirement and the same is extracted below for ready reference:
"3.Necessity for driving licence.--(1) No person shall drive a motor vehicle in any public place unless he holds an effective driving licence issued to him authorizing him to drive the vehicle; and no person shall so drive a transport vehicle [other than 3[a motor cab or motor cycle] hired for his own use or rented under any scheme made under sub-section (2) of section 75] unless his driving licence specifically entitles him so to do. (2) The conditions subject to which sub-section (1) shall not apply to a person receiving instructions in driving a motor vehicle shall be such as may be prescribed by the Central Government.
20.Section 10 deals with form and contents of license to drive, which is reproduced below for ready reference:-
"10. Form and contents of licences to drive.--(1) Every learner's licence and driving licence, except a driving licence issued under section 18, shall be in such form and shall contain such information as may be prescribed by the Central Government.
(2) A learner's licence or, as the case may be, driving licence shall also be expressed as entitling the holder to drive a motor vehicle of one or more of the following classes, namely:--
(a) motor cycle without gear;
(b) motor cycle with gear;
(c) invalid carriage;
(d) light motor vehicle;
2[(e) transport vehicle;]
(i) road-roller;
(j) motor vehicle of a specified description."
21.Prior to amendment in Section 10 (2) (e) of the Act of 1988, the vehicles as mentioned in Section 10 (2) (a) to (b) were mentioned in the Statute. Vehicles mentioned under Section 10 (2) (e) have been included in transport vehicle by virtue of amendment under Section 10 (2) (e). A bare perusal of the definition as provided under sub-section (21) of Section 2 of the Act of 1988 would show that light motor vehicles include transport vehicle or omnibus, the gross vehicle weight of either of which or a motor car or tractor or road-roller the unladen weight of any of which, does not exceed 7500 kilograms. Vehicle involved in instant case does not fall within the category of motor car or tractor or road-roller and therefore, submission of learned counsel for respondent, owner of offending vehicle, that for the purpose of considering whether driver possessing license to drive light motor vehicles is authorized to drive offending vehicle, the unladen weight of the vehicle is to be considered, which is 2900 kilogram, is not correct. In the definition of 'light motor vehicles', two categories of vehicles have clearly been mentioned, one is transport vehicle or omnibus for which their gross vehicle weight is to be considered to be less than 7500 kilogram and not only unladen weight is to be considered. As per Section 2 (15) of the Act of 1988, for the purpose of gross vehicle weight, the total weight of any vehicle and load certified and registered by the registering authority as permissible for that vehicle is to be taken into consideration. Indisputably, as per vehicle particulars (Ex.D-2C) issued by the Registering Authority, Govt. of Chhattisgarh, unladen weight of offending vehicle is 2900 kilogram and laden weight is 9600 kilogram. Thus, considering the specific definition of gross vehicle weight provided under Section 2 (15) of the Act of 1988, total weight of offending vehicle, load certified and registered by the registering authority, it is clear that gross vehicle weight of the offending vehicle exceeds 7500 kilogram.
22.In case of Rambha Devi (supra), Hon'ble Supreme Court has taken note of its decision in case of Mukund Dewangan (supra), which is relied upon by learned counsel for respondent- registered owner of offending vehicle, and observed thus:-
"164. The court analysed those key provisions of the Act and Rules and reached a conclusion which is aligned with the discussion and opinion in this judgment. It rightly concluded as under:
"60...60.1 "(i) 'Light motor vehicle' as defined in Section 2 (21) of the Act would include a transport vehicle as per the weight prescribed in Section 2 (21) read with Section 2 (15) and 2 (48). Such transport vehicles are not excluded from the definition of the light motor vehicle by virtue of Amendment Act No.54 of 1994.
60.2. A transport vehicle and omnibus, the gross vehicle weight of either of which does not exceed 7500 kg. would be a light motor vehicle and also motor car or tractor or a road roller, 'unladen weight' of which does not exceed 7500 kg. and holder of a driving licence to drive class of "light motor vehicle" as provided in Section 10 (2) (d) is competent to drive a transport vehicle or omnibus, the gross vehicle weight of which does not exceed 7500 kg. or a motor car or tractor or road-roller, the "unladen weight" of which does not exceed 7500 kg. That is to say, no separate endorsement on the licence is required to drive a transport vehicle of light motor vehicle class as enumerated above. A licence issued under Section 10 (2) (d) continues to be valid after Amendment Act 54 of1994 and 28.3.2001 in the form.
60.3. The effect of the amendment made by virtue of Act No.54/1994 w.e.f. 14.11.1994 while substituting clauses (e) to (h) of Section 10 (2) which contained "medium goods vehicle" in section 10 (2) (e), medium passenger motor vehicle in Section 10 (2) (f) heavy goods vehicle in Section 10 (2) (g) and "heavy passenger motor vehicle" in Section 10 (2) (h) with expression 'transport vehicle' as substituted in Section 10 (2) (e) related only to the aforesaid substituted classes only. It does not exclude transport vehicle, from the purview of Section Section 10 (2) (d) and Section 2 (41) of the Act i.e. light motor vehicle.
60.4. The effect of amendment of Form 4 by insertion of "transport vehicle" is related only to the categories which were substituted in the year 1994 and the procedure to obtain driving licence for transport vehicle of class of "light motor vehicle"
continues to be the same as it was and has not been changed and there is no requirement to obtain separate endorsement to drive transport vehicle, and if a driver is holding licence to drive light motor vehicle, he can drive transport vehicle of such class without any endorsement to that effect.
165.It is true that Mukund Dewangan (2017) did not analyse the provisions that distinguish transport and non- transport vehicles, as noted in the reference orders. The statutory scheme of MV is more nuanced than the simple weight-based distinction made in the said judgment. Moreover, the Court failed to notice Section31 (2) and 31 (3) which specify 'Transport' and 'Non-Transport' vehicles.
However, the judgment gave due consideration to the important statutory provisions. We have carefully looked at the relevant and the wide ranging provisions in our analysis in this decision. A harmonious interpretation, as we have explained earlier, would lead us to the same conclusion but fortified with some additional reasoning based on the consideration of all the relevant provisions. The overlooked provisions would not, in our considered opinion, alter the eventual pronouncement. Importantly, we do not notice any glaring error or omission that would alter the outcome of the case. Therefore, the ratio in Mukund Dewangan (2017) should not be disturbed by applying the principles of per incuriam."
23.Perusal of above quoted paragraphs of decision in case of Rambha Devi (supra), would show that in case of Mukund Dewangan (supra), Hon'ble Supreme Court has considered that transport vehicle and omnibus, gross vehicle weight of either of which does not exceed 7500 kilogram or a motor car or tractor or road-roller, the unladen weight of which does not excess 7500 kilogram, would be a 'light motor vehicle'. That is to say, no separate endorsement on the driving license is required to drive a transport vehicle of light motor vehicle class as enumerated above.
24.In case of Mukund Dewangan (supra), Hon'ble Supreme Court has also observed in Para 60.4 that even after amendment the definition of light motor vehicle continues to be same as it was and it has not been changed and there is no requirement of obtaining separate endorsement to drive transport vehicle of such category as mentioned above. In case of Rambha Devi (supra) also, Hon'ble Supreme Court based on discussion made therein, has concluded as under:
"181. Our conclusions following the above discussion are as under:-
181.1. A driver holding a license for Light Motor Vehicle (LMV) class, under Section 10 (2 (d) for vehicles with a gross vehicle weight under 7,500 kg, is permitted to operate a 'Transport Vehicle' without needing additional authorization under Section 10 (2) (e) of the MV Act specifically for the 'Transport Vehicle' class. For licensing purposes, LMVs and Transport Vehicles are not entirely separate classes. An overlap exists between the two. The special eligibility requirements will however continue to apply for, inter alia, e-carts, e-
rickshaws, and vehicles carrying hazardous goods. 181.2 The second part of Section 3 (1), which emphasizes the necessity of a specific requirement to drive a 'Transport Vehicle,' does not supersede the definition of LMV provided in Section 2 (21) of the MV Act.
181.3. The additional eligibility criteria specified in theMV Act and MV Rules generally for driving 'transport vehicles' would apply only to those intending to operate vehicles with gross vehicle weight exceeding 7,500 kg i.e. 'medium goods vehicle', 'medium passenger vehicle', 'heavy goods vehicle' and 'heavy passenger vehicle'.
181.4 The decision in Mukund Dewangan (2017) is upheld but for reasons as explained by us in this judgment. In the absence of any obtrusive omission, the decision is not per incuriam, even if certain provisions of the MV Act and MV Rules were not considered in the said judgment."
25.In case of Rambha Devi (supra), the Constitutional Bench of Hon'ble Supreme Court has formulated the issue for consideration in Para-1, relevant portion of which reads as under:-
"1.......In this context, the pivotal legal issue that this Constitution bench of five judges has to decide is whether under the existing legal framework of the Motor Vehicle Act, 1988 (for short "MV Act") and the Central Motor Vehicles Rules, 1989 (for short, "MV Rules"), a person holding a license for a 'Light Motor Vehicle' class, can drive a 'Transport Vehicle' without a specific endorsement, provided the 'Gross Vehicle Weight' of the vehicle does not exceed 7,500 kgs?....."
26.In case of Mukund Dewangan (supra) and Rambha Devi (supra), the consideration was whether a transport vehicle driven by the driver holding license to drive light motor vehicles without specific endorsement is authorized to drive transport vehicle provided gross vehicle weight of vehicle does not exceed 7500 kilogram. The gross vehicle weight of a vehicle and load certified by the registering authority is the consideration for the purpose of gross vehicle weight. In case at hand, load certified in the registration certificate of Ex.D-2C is 9600 kilogram, thus the gross vehicle weight of offending vehicle exceeds 7500 kilogram and therefore, respondent No.3 herein, who was possessing driving license to drive light motor vehicle without any specific endorsement, was not authorized to drive the offending vehicle whose gross vehicle weight is more than 7500 kilogram, as per Section 2 (21) of the Act of 1988.
27.For the foregoing discussion and reasons, the finding of the Claims Tribunal that driver of offending vehicle was authorized to drive offending vehicle is not sustainable and it is hereby set aside. It is held that on the date of accident, respondent No.3 was not competent to drive the offending vehicle.
28.As regards the quantum of compensation, the claimants have not produced any documentary evidence to establish the income of deceased as Rs.6,000/- per month and in absence therefore, the Claims Tribunal taking into consideration the nature of work of deceased pleaded and stated by claimants and in view of provisions of Minimum Wages Act has assessed income of deceased as Rs.4,500/- on notional basis. The approach adopted by the Claims Tribunal for assessing monthly income of the deceased cannot be faulted with. However, looking to the wage rate fixed by the competent authority under the Minimum Wages Act and prevalent on the date of accident, fixation of Rs.4,500/- as monthly income of deceased appears to be on lower side. Accident occurred on 24.6.2018 and wage rate of an unskilled labourer of District Balrampur, which is a 'C' Grade city, prescribed by the Competent Authority under the Minimum Wages Act, 1948 was Rs.8100/- per month. Thus, the monthly income of the deceased is assessed at Rs.8,100/- in place of Rs.4,500/- as assessed by the Claims Tribunal.
29.The Claims Tribunal has rightly made addition towards loss of future prospects; deduction towards personal and living expenses of deceased and multiplier. But, the Claims Tribunal has awarded only Rs.40,000/- for loss of consortium, which in the opinion of this Court is on lower side. As per decision of Hon'ble Supreme Court in case of National Insurance Company Ltd. vs. Pranay Sethi, reported in (2017) 16 SCC 680, the parents of the victim of a road accident are entitled for Rs.40,000/- each towards filial consortium. Hence, it is ordered that appellants are entitled for Rs.80,000/- in place of Rs.40,000/- for loss of consortium as awarded by Claims Tribunal.
30.In view of the above, the compensation payable to claimants requires to be recalculated. Accordingly, the income of deceased is taken as Rs.8,100/- and after adding 40% towards future prospects, monthly income comes to Rs.11,340/- (8100+3240) and annual income comes to Rs.1,36,080/- Out of this, one-half is to be deducted towards personal expenses of deceased and after deducting one-half, annual dependency would come to Rs.68,040/-. Applying multiplier of 17, as applied by Claims Tribunal, the loss of dependency would be Rs.11,56,680/- (68040x17). Besides this, appellants being parents of the deceased, who was bachelor, are entitled for a sum of Rs.40,000/- each towards filial consortium as held by Hon'ble Supreme Court in the matters of Pranay Sethi (supra) and Nanu Ram @ Chuharu Ram (supra). In addition to aforesaid amount, appellants are also entitled to get a sum of Rs.15,000/- for funeral expenses and Rs.15,000/- for loss of estate. Thus, total amount of compensation comes to Rs.12,66,680/- (11,56,680 + 40,000 + 40000 + 15000+ 15000).
31.At this stage, learned counsel for claimants-appellants would submit that as this Court has recorded the finding that driver was not authorized to drive offending vehicle, which amounts to violation of condition of insurance policy, and thus exonerating the insurance company to pay compensation and shifting the liability upon registered owner and driver of offending vehicle, therefore, considering that driver was having valid and effective driving license issued by the Licensing Authority, although not of the category which authorizes him to drive offending vehicle, a direction be issued to Insurance Company to first pay the amount of compensation to the claimants-appellants and then recover the same from the driver and owner of the offending vehicle.
32.The doctrine of "pay and recover" has been recognized by the Supreme Court in its several decisions. In case of New India Assurance Company v. Kamla and others, reported in 2001 (4) SCC 342, it was held thus:-
"21. A reading of the Proviso to sub-section (4) as well as the language employed in sub-section (5) would indicate that they are intended to safeguard the interest of an Insurer who otherwise has no liability to pay any amount to the insured but for the provisions contained in Chapter XI of the Act. This means, the insurer has to pay to the third parties only on account of the fact that a Policy of Insurance has been issued in respect of the vehicle, but the Insurer is entitled to recover any such sum from the insured if the Insurer were not otherwise liable to pay such sum to the insured by virtue of the conditions of the contract of insurance indicated by the policy.
33.In the case of National Insurance Co. Ltd. vs. Swaran Singh & ors reported in (2004) 3 SCC 297 Hon'ble Supreme Court has considered the doctrine of 'pay and recover' to be applied by the Claims Tribunal. It was held that even if insurance company proves that there was breach of policy condition on the part of insured regarding holding of valid driving license by the driver, still the insurance company cannot avoid its liability towards the insured unless such breach or breaches of the condition of driving license is / are found to be so fundamental or contributed to the cause of accident.
34.In case of Shamanna & ors vs. The Divisional Manager, The Oriental Insurance Co. Ltd. & Ors., reported in (2018) 9 SCC 650 Hon'ble Supreme Court has held that if the driver of offending vehicle does not possess a valid driving license, the principle of 'pay and recover' can be ordered to direct the insurance company to the pay the victim, and then recover the amount from the owner of the offending vehicle."
35. In the matter of Pappu and Ors v. Vinod Kumar Lamba and others reported in (2018) 3 SCC 208 Hon'ble Supreme Court has held thus:-
"19. In the present case, the owner of the vehicle (Respondent 1) had produced the insurance certificate indicating that Vehicle No. DIL 5955 was comprehensively insured by Respondent 2 (insurance company) for unlimited liability. Applying the dictum in National Insurance Co. Ltd. [National Insurance Co. Ltd. v. Swaran Singh, (2004) 3 SCC 297 : 2004 SCC (Cri) 733] , to subserve the ends of justice, the insurer (Respondent 2) shall pay the claim amount awarded by the Tribunal to the appellants in the first instance, with liberty to recover the same from the owner of the vehicle (Respondent 1) in accordance with law.
20. Accordingly, the appeal is allowed to the extent that the compensation amount awarded by the Tribunal and confirmed [Dhrupati v. Vinod Kumar, 2014 SCC OnLine All 16493] by the High Court shall be paid and satisfied by the insurer (Respondent 2) in the first instance, with liberty to recover the same from the owner of the vehicle (Respondent 1) in accordance with law.
19. In the present case, the owner of the vehicle (Respondent No.1) had produced the insurance certificate indicating that Vehicle No.DIL 5955 was comprehensively insured by Respondent No.2 (insurance company) for unlimited liability. Applying the dictum of National Insurance Company Ltd. vs. Swaran Singh, (2004) 3 SCC 297, to subserve the ends of justice, the insurer (Respondent 2) shall pay the claim amount awarded by the Tribunal to the appellants in the first instance , with liberty to recover the same from the owner of the vehicle (Respondent 1) in accordance with law."
36. In view of above settled proposition of law laid down by Hon'ble Apex Court, there is no quarrel over the issue that where there is violation of the policy condition or driving license and insurance policy is not in dispute, the Insurance company could be directed to pay and recover the same from the owner. Though there is violation of not holding effective driving license to drive offending vehicle, but the fact remains that the insurance policy was in force at the time of accident, which is even not disputed by learned counsel for insurance company. Therefore, in view of the above decisions of Hon'ble Supreme Court, I am of the opinion that insurance Company can be directed to pay the amount of compensation to claimants/ appellants herein at the first instance and then to recover the same from respondent No.1, owner of offending vehicle.
37. In the result;
• MAC No.345/2020 preferred by claimants/appellants is allowed in part. Appellants are entitled for a sum of Rs.12,66,680/-, as computed above. This amount shall carry interest @ 7.5% per annum from the date of application till its realization. Rest of the conditions mentioned in the impugned award shall remain intact. Any amount disbursed to appellants pursuant to impugned award will be adjusted.
• MAC No.2131/2019 preferred by Insurance Company is allowed. Appellant Insurance Company is exonerated from its liability to pay compensation to the claimants and now liability to pay amount of compensation is upon respondent No.3 and 4 herein. But keeping in mind the beneficial object of the Act of 1988 as also dictum of Hon'ble Supreme Court in above referred cases, this Court directs appellant Insurance Company to first pay the awarded amount of compensation to the claimants and have the said sum recovered from respondent No.3 and 4 i.e. driver SYED ROSHAN and owner of offending vehicle in accordance with law. ZAMIR ALI • Other conditions imposed by the Claims Tribunal shall Digitally signed by SYED remain intact.
ROSHAN ZAMIR ALI Sd/-
(Parth Prateem Sahu) Judge roshan/-