Bombay High Court
Hussainabee Wd/O Aslamkhan And 8 Ors vs Mohd Salim S/O Sk. Nabulla And 2 Ors on 18 November, 2025
2025:BHC-NAG:12857
fa 769-2010.doc 1/14
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
FIRST APPEAL NO. 769/2010
1. Husainabee Wd/o Aslamkhan,
aged about 35 years,
Occ. Household work,
2. Javed S/o Aslamkhan,
aged 16 years, Occ. Education,
3. Abidkhan S/o Aslamkhan,
aged 14 years, Occ. Education,
4. Juberkhan S/o Aslamkhan, a
ged 12 years, Occ. Education,
5. Afsanabee D/o Aslamkhan,
aged 10 years, Occ. Education,
6. Shaminabee D/o Aslamkhan,
aged 8 years,
7. Shaharoqkha S/o Aslamkhan,
aged 8 years,
No.2 to 7 are minor through their
Natural guardian Appellant No.1.
8. Haidarkhan Namadarkhan,
aged about 68 years, Occ. Nil, Khatumbi
9. Khatunbi Haidarkhan,
aged about 65 years, Occ. Nil,
All R/o Alasana, Tq. Shegaon,
Dist. Buldhana.
... APPELLANTS
...VERSUS...
fa 769-2010.doc 2/14
1. Mohd. Salim S/o Sk. Nabiulla,
aged about 34 years,
Occ. Business R/o Khatibpura,
At & Tq. Akot, Dist. Akola.
2. Isamoddin S/o Ajamoddin,
aged about 45 years, Driver,
R/o Gazi Pura, Akot, Tq. Akot,
District Akola.
3. The New India Assurance Co.
Ltd. Old Cotton Market,
Tilak Road, Akola, Dist. Akola.
...RESPONDENTS
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Shri Keshav Agrawal Advocate a/w Shri J.B. Gandhi, Shri Suraj Ghatol,
Ms Preeti Gwalani, Advocate for appellants
Ms Anvita A. Pande, Advocate for the respondent No.3
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CORAM : PRAVIN S. PATIL, J.
DATED : 18.11.2025
ORAL JUDGMENT
. Heard.
2. The original claimants/appellants filed the present
appeal against the judgment and order dated 25.02.2009 passed by
learned Motor Accident Claims Tribunal, Khamgaon, in M.A.C.P.
No.12/2002.
3. It is submission of the claimants that the deceased
Aslamkha was working as a Coolie and used to earn Rs.3000/- per
month from his work. On the fateful day of incident, which was
taken place on 10.01.2002, due to rash and negligent driving of the
offending truck bearing registration No.30/A-9014, the deceased
Aslamkha succumbed to the injuries. At the time of death, he was of
the age of 30 years, leaving behind the present appellants as his
legal representatives. As such, the appellants had filed the claim
petition before the Tribunal, thereby claiming the compensation of
Rs.4 lakhs under provisions of the Motor Vehicle Act.
4. The said petition was highly contested by the
respondent- Insurance Company. It was specific case of the
Insurance Company that on the day of accident, the driver of the
offending vehicle was not possessing a valid and effective driving
licence. According to the Insurance Company, the licence was
expired on 11.01.1999, and the same was under renewal. The
application for renewal was pending and same was renewed on
14.01.2002. Hence, according to the Insurance Company, on day of
incident when accident took place, the driver of the offending
vehicle was not holding the effective driving licence to drive the
vehicle. Hence, according to the Insurance Company, the Company
is not responsible to pay the compensation amount.
5. In light of the above said factual position, the learned
Tribunal by considering the notional income of deceased as
Rs.15,000/- per annum assesses the compensation in the matter.
6. In the present appeal, the appellants challenged the
present appeal on two grounds. Firstly, the learned Tribunal did
not properly consider the assessment of compensation as per the
law laid down by the Hon'ble Supreme Court and secondly, the
Insurance Company is wrongly exonerated from the payment of
compensation.
7. It is submission of the present appellants that the
deceased was not at all responsible for the accident. It was rash and
negligent driving of the offending vehicle and, therefore, the bread
earner of the family caused untimely death in the matter.
Therefore, considering this fact, the appellants are entitled for just
and fair compensation in the matter.
8. According to the appellants, as per the law laid down
by the Hon'ble Supreme Court of India in catena of cases, it is time
and again held that if the driver of the vehicle was found to be not
in possession of a valid driving licence, then in that case, the
Insurance Company is liable to pay the compensation amount to the
claimants and same can be recovered from the owner of the vehicle.
9. To substantiate the above submission, the appellants
have relied upon the judgment of the Hon'ble Supreme Court of
India, in case of Shamanna Vs. Divisional Manager Oriental
Insurance Co Ltd, reported in AIR 2018 SC 3726; Sadhana Tomar
and others Vs. Ashok Kushwaha and others and others reported in
2025 SCC OnLine SC 554 and Special Leave to Appeal arising out
of SLP No.19830-19832/2022, The Division Manager, New India
Assurance Company Ltd. Vs Shaanbasappa and others.
10. Per contra, learned Counsel for the Insurance Company
has vehemently opposed the present appeal. According to her, once
it is found that the driver was not possessing a valid and effective
licence to drive the vehicle at the time of accident, same amounts to
a fundamental breach of the policy and, therefore, the learned
Tribunal was justified in holding that the Insurance Company
cannot be held responsible to pay compensation in the matter. In
support of this submission, respondent has relied upon National
Insurance Company Ltd. Vs. Vidyadhar Mahariwala and others,
(2008) 12 SCC 701.
11. In respect of the assessment of monthly income, it is
submission of the appellants that, they were specifically adduced
the evidence of Husainabee Aslamkha, who is the widow of
deceased and one Jiaullakhan, who was a co-employee and was
working as a Coolie with deceased. From their evidence, it was
established that a daily income of the deceased was Rs.200/- per
day. Therefore, learned Tribunal ought to have considered monthly
income of deceased Rs.6000/- per month.
12. In the present appeal, no one appears on behalf of
owner of the vehicle, though served.
13. In the background of rival submission of both the
parties, I am of the opinion that though driver of the offending
vehicle was not possessing effective licence on the day of accident,
it is not the case that driver was not eligible to hold valid licence.
On the contrary, same was under renewal. No evidence is made
available on record that owner of the offending vehicle was aware
of this factual position and even then he authorised diver to ply the
vehicle. In such circumstances, claimants of the deceased cannot be
put on hold from receiving the compensation amount for which
they are legally entitled.
Furthermore, the Hon'ble Supreme Court consistently of the
opinion that in such cases, the principle of 'Pay and Recover' is to be
followed. In this regard, the judgment of National Insurance Co.
Ltd. Vs. Swaran Singh (2004) 3 SCC 297 and National Insurance
Co. Ltd. Vs. Baljit Kaur and ors. (2004) ACJ 428 are landmark
judgment, which according to me is necessary to follow in the
present matter.
14. In addition to this, it is pertinent to note that recently
the Hon'ble Supreme Court of India in case of Akula Narayana Vs.
The Oriental Insurance Company Limited and Ors.
MANU/SC/1507/2025 on 10.11.2025 in Civil Appeal No. 13509 of
2025, has again held that principle of pay and recover is a
recognized principle and consistently followed by the Hon'ble
Supreme Court in catena of the cases. Hence, applying the said
principle, the Hon'ble Supreme Court has observed in paragraph 12
of the judgment as under:
"12. Where the contract of insurance is not disputed,
even on breach of insurance conditions, this Court had
allowed recovery of compensation from the insurer by
giving right to the insurer to recover the same from the
vehicle owner3. The pay and recover principle has been
consistently followed even though it was doubted in a
reference which remained unanswered. Taking a
conspectus of various pronouncements, this Court
recently in Rama Bai v. Amit Minerals
MANU/SC/1331/2025 again applied the said principle
and while allowing the appeal of the claimant directed
that the insurance company shall satisfy the award and
may recover from the insured."
15. In view of this consistent view of the Hon'ble Supreme
Court, I am of the opinion that though on the day of accident, the
driver of the offending vehicle was not holding the effective licence,
the Insurance Company cannot be exonerated from payment of
compensation to the claimants.
16. In respect of assessment of income of the deceased,
admittedly, the appellant No.1 and one Jiaullakhan were examined
before the Tribunal. Both these witnesses categorically stated that at
the time of accident, the deceased was earning Rs.6000/- per
month. This evidence is not shaken during cross-examination, at the
incident of respondent. So also, no contrary evidence is placed on
record by the Tribunal.
17. In light of this factual position, the learned Counsel for
the appellants have relied upon the judgment of Hon'ble Supreme
Court of India in case of Chandra and Ors. Vs. Mukesh Kumar
Yadav and Ors. decided on 01.10.2021, in Civil Appeal No. 6152 of
2021. In para 10 as under:
"10. It is the specific case of the claimants that the
deceased was possessing heavy vehicle driving licence
and was earning Rs. 15000/- per month. Possessing such
licence and driving of heavy vehicle on the date of
accident is proved from the evidence on record. Though
the wife of the deceased has categorically deposed as
AW-1 that her husband Shivpal was earning Rs. 15000/-
per month, same was not considered only on the ground
that salary certificate was not filed. The Tribunal has
fixed the monthly income of the deceased by adopting
minimum wage notified for the skilled labour in the year
2016. In absence of salary certificate the minimum wage
notification can be a yardstick but at the same time
cannot be an absolute one to fix the income of the
deceased. In absence of documentary evidence on record
some amount of guesswork is required to be done. But
at the same time the guesswork for assessing the income
of the deceased should not be totally detached from
reality. Merely because claimants were unable to
produce documentary evidence to show the monthly
income of Shivpal, same does not justify adoption of
lowest tier of minimum wage while computing the
income. There is no reason to discard the oral evidence
of the wife of the deceased who has deposed that late
Shivpal was earning around Rs. 15000/- per month. In
the case of Minu Rout and Anr. v. Satya Pradyumna
Mohapatra and Ors. MANU/SC/0912/2013 : (2013) 10
SCC 695 this Court while dealing with the claim relating
to an accident which occurred on 08.11.2004 has taken
the salary of the driver of light motor vehicle at
Rs.6000/- per month. In this case the accident was on
27.02.2016 and it is clearly proved that the deceased
was in possession of heavy vehicle driving licence and
was driving such vehicle on the day of accident. Keeping
in mind the enormous growth of vehicle population and
demand for good drivers and by considering oral
evidence on record we may take the income of the
deceased at Rs. 8000/- per month for the purpose of loss
of dependency. Deceased was aged about 32 years on
the date of the accident and as he was on fixed salary,
40% enhancement is to be made towards loss of future
prospects. At the same time deduction of 1/3rd is to be
made from the income of the deceased towards his
personal expenses. Accordingly the income of the
deceased can be arrived 19-11-2025 (Page 3 of 4)
www.manupatra.com Hon'ble Judge High Court of
Bombay at Rs. 7467/- per month. By applying the
multiplier of '16' the claimants are entitled for
compensation of Rs. 14,33,664/-. As an amount of Rs.
10,99,700/- is already paid towards the loss of
dependency the Appellant-parents are entitled for
differential compensation of Rs. 3,33,964/-. Further in
view of the judgment of this Court in the case of Magma
General Insurance Co. Limited v. Nanu Ram @ Chuhru
Ram and Ors. MANU/SC/1012/2018 : (2018) 18 SCC
130 the Appellants are also entitled for parental
consortium of Rs. 40,000/- each. The finding of the
Tribunal that parents cannot be treated as dependents
runs contrary to the judgment of this Court in the case of
Sarla Verma (Smt.). and Ors. v. Delhi Transport
Corporation and Anr. MANU/SC/0606/2009 : (2009) 6
SCC 121. The judgment in the case of Kirti and Anr. v.
Oriental Insurance Co. Limited MANU/SC/0004/2021 :
(2021) 2 SCC 166 relied on by the counsel for the
Respondent would not render any assistance in support
of his case having regard to facts of the case and the
evidence on record."
18. Considering the law laid down by the Hon'ble
Supreme Court, wherein it is categorically held that in a case that,
the oral evidence is available on record, which established monthly
income of the deceased than without justified reason, adoption of
lowest tire of minimum wages while computing the income is not
permissible. Hence, according to me, when the evidence was made
available before the Tribunal, to assess the income of deceased, the
same needs to accept in the matter. For the aforesaid reasons, the
indulgence of this Court is necessary in the matter.
19. In view of the judgment of Sarla Verma Vs. Delhi
Transport Corporation and another (2009) 6 SCC 121 and National
Insurance Company Limited Vs. Pranay Sethi and others reported in
(2017) 16 SCC 680, according to me, the appellants/claimants are
entitled for the compensation by considering his monthly income of
Rs.6000/- as under:
Calculation of Compensation
Compensation Heads Amount Awarded Monthly Income
Amount Awarded
Monthly Income Rs.6000/- (200 x 30
days)
Yearly Income Rs.72,000/- (6000 x
12M)
Future prospectus (72,000 + 28,800) =
National Insurance Co.
(40%) (Age being 30 RS 1,00,800/-
Ltd. Vs Pranay Sethi
years)
Deduction (1/5) Rs.1,00,800/- (-)
(2017) 16 SCC 680
20,160 = Rs.
Para 37, 39, 41, 42 and
80,640/-
59.4
Multiplier (17) Rs.80,640/- X 17
years = Rs
13,70,880/-
Loss of Income of the Rs 13,70,880/-
Deceased.
Loss of Estate Rs. 15,000/- National Insurance Co.
Ltd. Vs. Pranay Sethi.
Loss of Funeral Rs.15,000/- (2017) 16 SCC 680
Expenses Para no. 59.8
Loss of Consortium Rs. 40,000 x 5 =
Rs 2,00,000/-
Total 16,00,880/-
Hence, I proceed to pass the following order:
ORDER
i) The First Appeal is partly allowed.
ii) The judgment and order passed by learned Motor Accident
Claims Tribunal, Khamgaon dated 25.02.2009 in M.A.C.P.
No.12/2002 is hereby modified to the extent that the appellants are
entitled for compensation of Rs.16,00,880/- together with interest
at the rate of 7.5% per annum from the date of petition, till the
amount is fully realized.
iii) The order of the Tribunal rejecting in the claim petition
against the Insurance Company is hereby quashed and set aside.
iv) Needless to mention that amount already paid or deposited
shall deduct from enhanced compensation amount.
v) The respondent- Insurance Company is hereby directed to
deposit the compensation amount to the Registry of this Court
within a period of four months.
vi) The Insurance Company is at liberty to recover the said
amount by filing the execution proceeding against the owner of the
offending vehicle.
vii) After depositing the amount before the Registry of this Court,
the present appellants are entitled to withdraw the compensation
amount, subject to the satisfaction of the Registrar (Judicial).
viii) Decree be drawn up accordingly.
20. The First Appeal stands disposed of in above terms. No
order as to the costs.
(PRAVIN S. PATIL, J.)
R.S. Sahare
Signed by: Mrs. Ranjana Sahare
Designation: PA To Honourable Judge
Date: 25/11/2025 15:00:22
