Iffco Tokiyo General Insurance Company Limited Vs Omprakash Sahu

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2025:CGHC:33745

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Digitally signed by YOGESH YOGESH TIWARI TIWARI Date: 2025.07.29 18:49:33 +0530

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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AFR

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MAC No. 986 of 2018

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IFFCO Tokiyo General Insurance Company Limited 205, 2nd Floor, M.M. Silver Plaza, In Front Of Udyog Bhawan, Near Mining Office, Ring Road No. 1, Raipur, District Raipur Chhattisgarh. (Insurer)

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--- Appellant

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Versus

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1 - Peel Singh Yadav S/o Late Shri Tetkuram Yadav, Aged About 38 Years R/o Q. No. 137, Village Rajkatti, Post - Jamgaon, Tahsil - Rajim, District Gariyaband Chhattisgarh.

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2 - Smt. Chandrika Bai Yadav, W/o Shri Peel Singh Yadav, Aged About 35 Years R/o Q. No. 137, Village Rajkatti, Post - Jamgaon, Tahsil - Rajim, District Gariyaband Chhattisgarh. (Claimants)

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3 - Vedram Sahu, S/o Late Rameshwar Sahu, Aged About 25 Years R/o Village Rajkatti, Post - Jamgaon, Tahsil Rajim District Gariyaband Chhattisgarh (Owner And Driver)

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--- Respondents

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MAC No. 982 of 2018

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IFFCO Tokiyo General Insurance Company Limited, 205, 2nd Floor, M M Silver Plaza , In Front Of Udyog Bhawan Near Mining Office, Ring Road No. 1, Raipur District Raipur Chhattisgarh.

--- Appellant

Versus

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1 - Kushram Netam S/o Shri Shankarlal Netam Aged About 39 Years R/o Qr. No. 132, Village Rajkatti Post Jamgaon Tahsil Rajim, District Gariyaband Chhattisgarh

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2 - Smt. Budhhi Netam W/o Shri Kushram Netam Aged About 36 Years R/o Qr. No. 132, Village Rajkatti Post Jamgaon Tahsil Rajim, District Gariyaband Chhattisgarh

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3 - Vedram Sahu S/o Late Rameshwar Sahu Aged About 25 Years R/o Village Rajkatti Post Jamgaon Tahsil Rajim District, Gariyaband Chhattisgarh

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--- Respondents

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MAC No. 987 of 2018

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IFFCO Tokiyo General Insurance Company Limited 205, 2nd Floor, M.M. Silver Plaza, In Front Of Udyog Bhawan, Near Mining Office, Ring Road No. 1, Raipur, District Raipur Chhattisgarh.

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--- Appellant

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Versus

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1 - Rameshwar Dhruw S/o Shri Samaru Dhruv, Aged About 41 Years R/o Qr. No. 151, Village Rajkatti, Post Jamgaon, Tahsil Rajim, District Gariyaband Chhattisgarh.

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2 - Smt. Rambai S/o Shri Rameshwar Dhruv, Aged About 38 Years R/o Qr. No. 151, Village Rajkatti, Post Jamgaon, Tahsil Rajim, District Gariyaband Chhattisgarh.

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3 - Vedram Sahu, S/o Late Rameshwar Sahu, Aged About 25 Years R/o Village Rajkatti, Post Jamgaon, Tahsil Rajim, District Gariyaband Chhattisgarh.

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--- Respondents

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MAC No. 988 of 2018

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IFFCO Tokiyo General Insurance Company Limited 205, 2nd Floor, M.M. Silver Plaza, In Front Of Udyog Bhawan, Near Mining Office, Ring Road No. 1, Raipur, District Raipur Chhattisgarh.

--- Appellant

Versus

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1 - Omprakash Sahu S/o Shri Samelal Sahu, Aged About 37 Years R/o Qr. No. 47, Village Rajkatti, Post Jamgaon, Tahsil Rajim, District Gariyaband Chhattisgarh.

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2 - Smt. Kamlabai W/o Shri Omprakash Sahu, Aged About 35 Years R/o Qr. No. 47, Village Rajkatti, Post Jamgaon, Tahsil Rajim, District Gariyaband Chhattisgarh.

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3 - Vedram Sahu S/o Late Rameshwar Sahu, Aged About 25 Years R/o Village Rajkatti, Post Jamgaon, Tahsil Rajim, District Gariyaband Chhattisgarh.

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--- Respondents

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MAC No. 990 of 2018

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IFFCO Tokiyo General Insurance Company Limited 205, 2nd Floor, M. M. Silver Plaza, In Front Of Udyog Bhawan, Near Mining Office, Ring Road, No. 1, Raipur, District Raipur, Chhattisgarh.

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--- Appellant

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Versus

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1 - Harishankar Sahu S/o S/o Shri Pannalal Sahu, Aged About 30 Years R/o Qr. No. 88, Village Rajkatti, Post Jamgaon, Tahsil Rajim, District Gariyaband, Chhattisgarh.

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2 - Smt. Ominbai W/o W/o Shri Harishankar Sahu, Aged About 29 Years R/o Qr. No. 88, Village Rajkatti, Post Jamgaon, Tahsil Rajim, District Gariyaband, Chhattisgarh.

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3 - Vedram Sahu D/o S/o Late Rameshwar Sahu, Aged About 25 Years R/o Village Rajkatti, Post Jamgaon, Tahsil Rajim, District Gariyaband, Chhattisgarh.

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--- Respondents

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(Cause-title taken from Case Information System)

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For Insurance Company	: Mr. P. R. Patankar, Advocate
For Claimants	: Ms. Vidhi Matlani, Advocate on behalf of Mr. Sanjay Agrawal, Advocate
For Owner and Driver	None

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Hon’ble Shri Amitendra Kishore Prasad, Judge

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Judgment on Board

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17.07.2025

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1. As all the five appeals arise out of same accident and common question is involved in it, therefore, they have been clubbed together, heard together and being disposed of by this common judgment.

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2. Challenge in all these appeals is to the award dated 13.12.2017 passed by the learned Additional Motor Accident Claims Tribunal, Raipur, District Raipur (C.G.) (hereinafter referred to as 'Claims Tribunal') in Claim Case Nos.193/2016, 190/2016, 189/2016, 192/2016 and 191/2016, respectively whereby learned Claims Tribunal allowed claim application of the claimants in part, awarded Rs.2,55,000/- as total compensation in each claim applications and fastened the liability for payment of compensation to the non-applicants therein jointly and severally.

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3. It is an admitted fact that after issuance of notice, the claimants have preferred five cross-appeals for enhancement of amount of compensation awarded by learned Claims Tribunal.

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4. Brief facts of these appeals, in a nutshell, are that, on 17.10.2015 at about 12.30 PM, Fageshwar Yadav, Ku. Bharti, Ku. Punni Dhruw, Girjashankar Sahu and Ku. Khushi Sahu along with other students of the School were going to Sonai-Rupai Temple in Tractor bearing registration No.CG-04/HK/5789 and Trolley

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bearing registration No.CG-04/HX/5157 (hereinafter referred to as ‘offending vehicle’). When they reached Village Gunderdehi, the offending vehicle turned turtle in slope on account of rash and negligent driving of non-applicant No.1, due to which 5 children, namely Fageshwar Yadav, Ku. Bharti, Ku. Punni Dhruw, Girjashankar Sahu and Ku. Khushi Sahu fell down and sustained injuries and later, succumbed to the injuries suffered by them.

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5. The parents of the deceased children filed claim applications on account of untimely death of their children namely Fageshwar Yadav, Ku. Bharti, Ku. Punni Dhruw, Girjashankar Sahu and Ku. Khushi Sahu being Claim Case Nos.193/2016, 190/2016, 189/2016, 192/2016 and 191/2016, respectively seeking compensation of Rs.26,50,000/- in each claim cases under different heads.

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6. Non-applicant No.1/driver-cum-owner of the offending vehicle filed his written statement and denied the averments made in the claim petition and pleaded that on the date of accident, the offending vehicle was being insured with the Insurance Company, as such, the liability, if any would be fastened upon the Insurance Company.

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7. The Insurance Company has filed its separate written statement denying the fact of accident and pleaded that on the date of the alleged accident, the offending vehicle was not insured with the Insurance Company, as such, the insurance Company is not

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liable for any amount of compensation. It is further pleaded that the trolley bearing registration No.CG-04/HK/5157 was not permitted to carry any passengers, and no insurance premium was paid for covering the risk of any such passenger. Hence, Insurance Company cannot be held liable for any compensation arising from the death of persons travelling on the said trolley. It is also pleaded that the owner of the trolley did not possess a valid permit or fitness certificate for carrying passengers, nor was he authorized to operate the said offending vehicle as a transport vehicle for passengers. It has been lastly pleaded the Insurance Company and the owner of the said tractor have not been impleaded as parties respondents, therefore, for non-joinder of necessary parties, the claim applications are liable to be dismissed. Furthermore, it is pleaded that since the driver had driven the offending vehicle in violation of terms of the insurance policy, as such Insurance Company cannot be held liable to pay any amount of compensation.

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8. On appreciation the pleadings made by the parties as well as after considering the material on record, the learned Claims Tribunal has assessed the income of deceased children to be Rs.15,000/- per annum and by applying the multiplier of 15, loss of income has been reckoned as Rs.2,25,000/-. Learned Claims Tribunal further awarded Rs.15,000/- towards funeral expenses and Rs.15,000/- towards loss of estate, as such awarded total compensation Rs.2,55,000/- to the claimants in each claim

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applications filed by the parents of the deceased children along with interest @ 9% per annum from the date of claim applications till realization and fastened the liability to satisfy the amount of compensation upon the non-applicants therein.

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9. Though the notice was issued to driver-cum-owner of the offending vehicle, but despite service of notice, no one appeared on behalf of driver-cum-owner of the offending vehicle.

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10. Learned counsel for the Insurance Company submits that the offending vehicle was being run in violation of terms and conditions of the insurance policy, as such, Insurance Company be exonerated to satisfy its liability and the liability would be fastened upon the driver-cum-owner of the offending vehicle. He further submits that learned Claims Tribunal has assessed appropriate amount of compensation. He further submits that on the date of accident, the deceased children were students and they have no source of income, therefore, it would not be appropriate to add any amount in the amount of compensation. Reliance has been placed upon sub-rule (7)(ii) of Rule 97 of the Chhattisgarh Motor Vehicles Rules, 1994 (for short, ‘Rules of 1994’) to contend that if the said Rule has taken into consideration, then also there was breach of policy conditions because at the time of accident, 72 children were travelling on the offending vehicle and according to sub-rule 7(ii) of Rule 97, only 20 persons are allowed to travel in the Light Motor Vehicle i.e.

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less than 7300 Kgs. for the purpose of Mela, Markets, Religious Functions, Marriages and other Ceremonial Occasions.

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11. On the other hand, learned counsel for the claimants submits that the compensation awarded by the Claims Tribunal is on the lower side and needs to be enhanced suitably. Reliance has been placed in the judgment rendered by Hon’ble Supreme Court in the matters of Kishan Gopal and Another v. Lala and Others reported in (2014) 1 SCC 244 and Meena Devi v. Nunu Chand Mahto alias Nemchand Mahto and Others reported in (2023) 1 SCC 204 to buttress her submissions.

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12. I have heard learned counsel appearing for the parties and perused the record of the claim cases.

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13. In a motor accident claim case, what is important is that, the compensation to be awarded by the Courts/Tribunals should be just and proper compensation in the facts and circumstances of the case. It should neither be a meager amount of compensation, nor a Bonanza.

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14. Now this Court examine as to whether the compensation of Rs.2,55,000/- awarded by the Claims Tribunal in all the five claim applications, is just and proper compensation in the given facts and circumstances of the case.

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15. Perusal of the record of the claim case, it goes to show that deceased children were the students and aged about 12 years

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and 13 years, respectively (Fageshwar Yadav, 12 years; Ku. Bharti, 13 years, Ku. Punni Dhruw, 13 years; Girjashankar Sahu, 13 years and Ku. Khushi Sahu, 12 years) and they had no source of income has been found by learned Claims Tribunal and on the basis of loss of income, their income has been reckoned at Rs 15,000/- per annum.

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16. In case of Meena Devi (supra) while dealing with the issue of awarding compensation in respect of death of minor child, Hon’ble Supreme Court has relied upon the judgment in Kishan Gopal (supra) observed as follows :

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“16. Thus applying the ratio of the said judgments, looking to the age of the child in the present case i.e. 12 years, the principles laid down in Kishan Gopal (supra) are aptly applicable to the facts of the present case. As per the ocular statement of the mother of the deceased, it is clear that deceased was a brilliant student and studying in a private school. Therefore, accepting the notional earning Rs. 30,000/- including future prospect and applying the multiplier of 15 in view of the decision of this Court in Sarla Verma (Smt.) and others v. Delhi Transport Corporation and another [(2009) 6 SCC 121, the loss of dependency comes to Rs. 4,50,000/- and if we add Rs. 50,000/- in conventional heads, then the total sum of compensation comes to Rs. 5,00,000/-. As per the judgment of MACT, lump sum compensation of Rs. 1,50,000/- has been awarded, while the High Court enhanced it to Rs.2,00,000/- up to the value of the

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Claim Petition. In our view, the said amount of compensation is not just and reasonable looking to the computation made hereinabove. Hence, we determine the total compensation as Rs. 5,00,000/and on reducing the amount as awarded by the High Court i.e. Rs. 2,00,000/-, the enhanced amount comes to Rs.3,00,000/-.”

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17. Reverting back to the facts of the present cases, it is quite clear that deceased children, namely Fageshwar Yadav was aged about 12 years; Ku. Bharti was aged about 13 years, Ku. Punni Dhruw was aged about 13 years; Girjashankar Sahu was aged about 13 years and Ku. Khushi Sahu was aged about 12 years, respectively, on the date of accident and were students and learned Claims Tribunal has awarded the total compensation as Rs.2,55,000/-, which needs to be enhanced in view of the judgment rendered by Hon’ble Supreme Court in cases of Meena Devi (supra) and Kishan Gopal (supra) to the tune of Rs.30,000/- per annum.

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18. For the foregoing reasons and looking to the age of the child in the present case i.e. Fageshwar Yadav was aged about 12 years; Ku. Bharti was aged about 13 years, Ku. Punni Dhruw was aged about 13 years; Girjashankar Sahu was aged about 13 years and Ku. Khushi Sahu was aged about 12 years, respectively, and accepting the notional earning of Rs.30,000/- per annum including future prospects and applying the multiplier of 15 in view of the decision in Sarla Verma (supra), the loss of

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dependency comes to Rs.4,50,000/-. The claimants in all five claim petitions are further entitled to Rs.50,000/- towards other conventional heads. Therefore, they would become entitled for total compensation of Rs.5,00,000/- in the death of minor students.

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19. Thus, the total compensation is recomputed as Rs.5,00,000/-. After deducting Rs.2,55,000/- as awarded by the Claims Tribunal, enhancement would be Rs.2,45,000/- in all the five claim petitions.

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20. The submission made by learned counsel for Insurance Company is that there was violation of insurance policy only to the extent that offending vehicle at the time of accident carrying more than 20 passengers, as such there was breach of terms of the policy conditions in view of sub-rule (7)(ii) of Rule 97 of the Rules of 1994, therefore, it may be directed that the Insurance Company to first pay the amount of award and thereafter to recover the same from owner of offending vehicle.

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21. At this stage, it would be relevant to quote sub-rule (7)(ii) of Rule 97 of the Rules of 1994 for easy reference :-

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“ 97. Carriage of person in Goods

Carriage.-

* * * * * * * * *

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(7) Notwithstanding anything contained in sub-rules (1) and (2) but subject to the provisions of sub-rule (5) such tractor-trailer other than those registered in the name of industrial organisation, Municipal Institutions, water supply institution and non-agricultural cooperative societies, and the unladen weight of which does not exceed 7300 Kgs. may be used for the following purposes-

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(i) for carrying labourers and the member of the family of agriculturist for the purpose of agriculture or any purpose connected with agriculture including sale and purchase of articles or agriculture.

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(ii) for carrying persons at the time of Mela, Markets, Religious Functions, Marriages and at other ceremonial occasions provided that the number of persons so carried shall not exceed 20 at a time. ”

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22. Clause (ii) of sub-Rule (7) permits the use of tractor-trailers, which are registered in the name of industrial organizations, municipal institutions, water supply institutions, and nonagricultural cooperative societies, and whose unladen weight does not exceed 7300 kilograms, for a specific and limited purpose. This provision allows such vehicles to carry persons on particular social and cultural occasions. These occasions expressly include Mela, markets, religious functions, marriages, and other ceremonial events. However, this permission is not

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unrestricted. A clear and mandatory condition is imposed that the number of persons so carried shall not exceed 20 at any given time. This limitation is evidently aimed at ensuring the safety of the passengers and to avoid misuse of such vehicles, which are otherwise not designed for mass transportation of people. The inclusion of "other ceremonial occasions" after listing specific examples indicates that this clause is meant to cover a wide variety of customary, social, and religious gatherings which are generally attended by a limited number of people and are temporary or occasional in nature. The intent behind the said provision is evidently to facilitate the practical needs of rural and semi-urban communities where such vehicles are often utilized for multipurpose activities, but within the bounds of safety and public order. Importantly, this clause cannot be interpreted so as to allow regular passenger transport or commercial exploitation of such vehicles for carrying persons beyond the stipulated limit or outside the specified occasions.

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23. In that view of the matter, this Court finds force in the submission advanced by the learned counsel for the Insurance Company. Accordingly, this Court directs that the Insurance Company shall satisfy the award at the first instance and shall be entitled to recover the same from the owner of the offending vehicle in accordance with law.

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24. The doctrine of pay and recover has been considered by the

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Hon'ble Supreme Court in the matter of National Insurance Co. Ltd. v. Challa Bharathamma and others reported in (2004) 8 SCC 517 . Relevant portion of the said judgment reads as under:-

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“13. The residual question is what would be the appropriate direction. Considering the beneficial object of the Act, it would be proper for the insurer to satisfy the award, though in law it has no liability. In some cases the insurer has been given the option and liberty to recover the amount from the insured. For the purpose of recovering the amount paid from the owner, the insurer shall not be required to file a suit. It may initiate a proceeding before the concerned Executing Court 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. Before release of the amount to the claimants, owner of the offending vehicle shall furnish security for the entire amount which the insurer will pay to the claimants. The offending vehicle shall be attached, as a part of the security. If necessity arises the Executing Court shall take assistance of the concerned Regional Transport Authority. The Executing Court shall pass appropriate orders in accordance with law as to the manner in which the owner of the vehicle shall make payment to the insurer. In case there is any default it shall be open to the Executing Court to direct

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realization by disposal of the securities to be furnished or from any other property or properties of the owner of the vehicle i.e. the insured. In the instant case considering the quantum involved we leave it to the discretion of the insurer to decide whether it would take steps for recovery of the amount from the insured.”

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25. In another judgment of Hon'ble Supreme Court in the matter of Manuara Khatun and others v. Rajesh Kumar Singh and others and Mamoni Saikia Mohanty and others v. Rajesh Kumar Singh and others reported in (2017) 4 SCC 796 , held thus:-

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“19. We find no merit in any of the submissions. Firstly, as mentioned above, we find marked similarity in the facts of this case and the one involved in National Insurance Co. Ltd. v. Saju P. Paul, (2013) 2 SCC 41. Secondly, merely because the compensation has not yet been paid to the claimants though the case is quite old (16 years) like the one in Saju P. Paul’s Case (supra), it cannot be a ground to deny the claimants the relief claimed in these appeals. Thirdly, this Court has already considered and rejected the argument regarding not granting of the relief of the nature claimed herein due to pendency of the reference to a larger Bench as would be clear from Para 26 of the judgment in Saju P. Paul’s Case (supra). That apart, learned counsel for the

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appellants stated at the bar that the reference made to the larger Bench has since been disposed of by keeping the issue undecided. It is for this reason also, the argument does not survive any more.

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21. In view of the foregoing discussion, we are of the view that the direction to United India Insurance Co. Ltd. (respondent No. 3) - they being the insurer of the offending vehicle which was found involved in causing accident due to negligence of its driver needs to be issued directing them (United India Insurance Co. Ltd. respondent No.3) to first pay the awarded sum to the appellants (claimants) and then to recover the paid awarded sum from the owner of the offending vehicle (Tata Sumo)-respondent No.1 in execution proceedings arising in this very case as per the law laid down in Para 26 of Saju P. Paul’s case quoted supra.

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22. Accordingly, the appeals succeed and are allowed. Impugned order is modified to the extent that respondent No. 3-United India Insurance Company Ltd. is accordingly directed to pay the awarded sum to the appellants (claimants). Thereafter respondent No. 3 - United India Insurance Company Ltd. would be entitled to recover the entire paid awarded sum from the owner (insured) of the offending Vehicle (Tata Sumo)-respondent No.1 in these very

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proceedings by filing execution application against the insured.”

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26. Recently, in the matter of Amrit Paul Singh and another v. Tata AIG General Insurance Company Limited and others reported in (2018) 7 SCC 558 , Hon'ble Supreme Court while dealing with the similar issue has held thus:-

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“We are disposed to think so in view of the series of exceptions carved out in Section 66. The said situations cannot be equated with absence of licence or a fake licence or a licence for different kind of vehicle, or, for that matter, violation of a condition of carrying more number of passengers. Therefore, the principles laid down in Swaran Singh (supra) and Lakhmi Chand (supra) in that regard would not be applicable to the case at hand. That apart, the insurer had taken the plea that the vehicle in question had no permit. It does not require the wisdom of the "Tripitaka", that the existence of a permit of any nature is a matter of documentary evidence. Nothing has been brought on record by the insured to prove that he had a permit of the vehicle. In such a situation, the onus cannot be cast on the insurer. Therefore, the tribunal as well as the High Court had directed the insurer was required to pay the compensation amount to the claimants with interest with the stipulation that the insurer shall be entitled to recover the same from the owner and the driver. The said directions are in consonance with the

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principles stated in Swaran Singh (supra) and other cases pertaining to pay and recover principle.”

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27. Considering the ratio laid down in above decisions of the Hon'ble Supreme Court as also considering the beneficial object of M.V. Act as well, this Court is of the view that it will be in larger interest of justice to direct the insurer to first pay the amount of compensation to claimants and then to recover it from insured i.e. owner of offending vehicle in accordance with law, though in law it has no liability to pay amount of compensation.

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28. In the result :-

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(i) The cross-appeals filed by the claimants are allowed in part. The claimants in all the five claim cases are entitled to Rs.2,45,000/- in addition to what are already awarded by the Claims Tribunal. The enhanced amount will carry interest @ 9% per annum from the date of award till its realization. However, rest of the conditions as imposed by the learned Claims Tribunal in the impugned award shall remain intact.

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(ii) The appeals filed by the Insurance Company being MAC Nos.986/2018, 987/2018, 988/2018, 990/2018 and 982/2018, are allowed in part. Insurance Company is though exonerated from its liability to pay the compensation to the claimants, but keeping in mind the

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beneficial object of M.V. Act as also the dictum of Hon'ble Supreme Court in the above referred cases, this Court directs insurer of offending vehicle viz, appellant herein, to first compensate the claimants and have the said sum recovered from non-applicant No.1/respondent No.3 in all the appeals, driver-cum-owner of offending vehicle in the manner as provided in the matter of Oriental Insurance Company Limited v. Shri Nanjappan and Others reported in AIR 2004 SC 1631 .

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29. As this Court is of the opinion that the Insurance Company shall first satisfy the amount of compensation, the Insurance Company is directed to pay the entire amount of compensation to the claimants as modified by this Court within a period of 60 days from the date of production of certified copy of this judgment and then have the said sum recovered from the driver-cum-owner of offending vehicle in accordance with law.

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30. Record of the concerned Motor Accident Claims Tribunal be sent.

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Yogesh

Iffco Tokiyo General Insurance Company Limited v. Omprakash Sahu

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Iffco Tokiyo General Insurance Company Limited v. Omprakash Sahu

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