Madhya Pradesh High Court
Smt. Asha Chouhan vs Amjad Hanif Khatik on 17 November, 2025
NEUTRAL CITATION NO. 2025:MPHC-IND:33325
1 MA-1951-2015
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE PAVAN KUMAR DWIVEDI
ON THE 17th OF NOVEMBER, 2025
MISC. APPEAL No. 1951 of 2015
SMT. ASHA CHOUHAN AND OTHERS
Versus
AMJAD HANIF KHATIK AND OTHERS
Appearance:
Shri Himanshu Paliwal - Advocate for the appellants.
Shri Monesh Jindal, learned counsel for the respondent No.3.
None for the respondents No.1 and 2.
ORDER
This Court on 29.10.2025, adjourned the case with an expectation that
respondents No.1 and 2 shall be represented by their counsel, specifically
observing that the case is being adjourned, to enable respondents No.1 and 2
to appear before this Court. However, today also even in the second round,
none has appeared on their behalf.
2. This appeal was filed in the year 2015. Considering the fact that even
after giving opportunity, respondents No.1 and 2 are not serious about
attending the proceedings of this appeal. The same is being heard in their
absence.
3. The present appeal has been preferred by the appellants/claimants
under Section 173(1) of Motor Vehicles Act, 1988 being aggrieved by the
common award dated 01.08.2015 passed by the Member, Motor Accident
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Claims Tribunal, Indore (M.P.) in Claim Case No.300/2011 thereby
challenging quantum of compensation as well as the complete exoneration of
the Insurance Co., from the liability to pay compensation on the ground that
on the date when the accident occurred, the driver of the offending vehicle
was not having a valid and effective driving license although he possessed
the same before and after the date of accident.
4. The short facts of the case are that Kailash Chouhan ('the deceased') on
14.11.2011 was going from his side slowly to Ganesh Nagar. No sooner than
he reached near State Bank of India, english wine shop, Khandwa road, the
offending truck bearing registration No.M.H. 28 / B-6352 driven by the
respondent No.2 (owned by respondent No.1 and insured with respondent
No.3) came rashly and negligently and dashed the same in to Kailash
Chouhan, as a result of which he died in the said accident.
5. The claims tribunal after recording evidence concluded that it was fault
on the part of the driver of the insured vehicle that the accident occurred
hence a compensation of Rs.7,29,000/- was awarded to the
claimants/appellants for the death of Kailash. The tribunal however,
exonerated the Insurance Co. by holding that in absence of a valid and
effective driving license, the Insurance Co. cannot be saddled with liability
to pay compensation and it cannot issue a direction for pay and recover as
this kind of direction can only be issued by the Hon'ble Apex Court (in terms
of Para No. 21)
6. Learned counsel for the appellants/claimants refers to the statement of
RTO Officer Mantu Mangal (DW.2) who has stated before the tribunal that
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the person who was driving the vehicle was having a valid license before the
date of accident and the same was renewed w.e.f. 11.3.2013. The date of
expiry of the license was 12.12.2010 and the date of accident is 14.11.2011.
Thus in view of the statement, as given by the Officer of the RTO, it is clear
that before and after the date of accident, the person who was driving the
vehicle at the time of accident was having a valid license for driving the
vehicle in question. However, it is undisputedly come on record that on the
date of accident, he was not having a valid driving license.
7. In view of the above, learned counsel for the appellants submits that
the tribunal should have issued a direction for pay and recovery. As regards
the quantum of compensation, he argued that the claims tribunal has
considered the income of the deceased at Rs.4000/- per month on notional
basis. However, the appellants have claimed that the deceased was earning
Rs.8000/- per month through his electrician work. It was also stated by the
learned counsel for the appellants that considering the age of the deceased at
45 years, 25% addition in the income should have been made under the head
of future prospects which has not been done. As regards other heads, he
submits that the compensation for loss of consortium has not been awarded,
although the five claimants are the wife and four children of the deceased. He
also points out that nothing has been awarded for loss of estate. It is hence
submitted that the amount awarded to the appellants be enhanced suitably.
8. Per contra, learned counsel for respondent No.3 / Insurance Co.,
submits that in view of the statement of the Officer from the RTO, it is clear
that on the date of accident, the driver of the vehicle was not having a valid
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driving license. Thus it becomes a case of no license and thus the exoneration
of the Insurance Co. from the liability to pay compensation is correct and
does not require any interference. As regards enhancement of compensation,
he points out that although income was claimed at Rs.8000/- per month,
however, there was complete absence of any material to show the same. It
was also not proved that the appellant was working as an electrician, no
diploma or any document showing that he was an electrician was brought on
record. He also submits that in cross examination, the wife of the deceased,
ie., Asha admitted that there was no material to show that her husband was
earning Rs.8000/- per month. In this view of the fact, he submits that no
interference is warranted in the award and the appeal deserves to be
dismissed.
9. Heard the learned counsel for the parties and perused the record.
10. From the findings recorded by the claims tribunal as well as the
statement of Mantu Mangal Mangley (DW.2), it is clear that Exhibit D/4
license was issued by RTO, Jalgaon (Maharashtra). However, it was valid
from 18.7.1995 for a period upto 10.3.2006 and then it was renewed from
time to time upto 12.12.2010. After which it was only renewed on 11.3.2013
for a period upto 10.3.2016. The accident occurred on 14.11.2011. It is thus
clear that on the date of accident there was no valid and effective license
available with the driver of the insured vehicle. In this view of the matter, the
findings as recorded by the claims tribunal in para 15 are correct. However,
the observation in para 21 that it cannot issue direction for pay and recover
and it is only for the Hon'ble Apex Court to issue such kind of direction, it is
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not sustainable in view of the law as laid down by the Apex Court in the case
of Shamanna and Another V/s. The Divisional Manager, Oriental Insurance
Company Limited and Others in Civil Appeal No.8144 of 2018 [arising out
of SLP (C) No.26955 of 2017] in which it was held that the Tribunal can
direct pay and recover. Paras 12 and 13 of the said judgment reads as under :-
" 1 2 . Since the reference to the larger Bench in Parvathneni case
[National Insurance Co. Ltd. v. Parvathneni, (2009) 8 SCC 785 : (2009)
3 SCC (Civ) 568 : (2009) 3 SCC (Cri) 943] has been disposed of by
keeping the questions of law open to be decided in an appropriate case,
presently the decision in Swaran Singh case [National Insurance Co.
Ltd. v. Swaran Singh, (2004) 3 SCC 297 : 2004 SCC (Cri) 733]
followed in Laxmi Narain Dhut [National Insurance Co. Ltd. v. Laxmi
Narain Dhut, (2007) 3 SCC 700 : (2007) 2 SCC (Cri) 142] and other
cases hold the field. The award passed by the Tribunal directing the
insurance company to pay the compensation amount awarded to the
claimants and thereafter, recover the same from the owner of the
vehicle in question, is in accordance with the judgment passed by this
Court in Swaran Singh [National Insurance Co. Ltd. v. Swaran Singh,
(2004) 3 SCC 297 : 2004 SCC (Cri) 733] and Laxmi Narain Dhut
[National Insurance Co. Ltd. v. Laxmi Narain Dhut, (2007) 3 SCC 700 :
(2007) 2 SCC (Cri) 142] cases. While so, in our view, the High Court
ought not to have interfered with the award passed by the Tribunal
directing the first respondent to pay and recover from the owner of the
vehicle. The impugned judgment [Shamanna v. Laxman, 2016 SCC
OnLine Kar 6928] of the High Court exonerating the insurance
company from its liability and directing the claimants to recover the
compensation from the owner of the vehicle is set aside and the award
passed by the Tribunal is restored.
13. So far as the recovery of the amount from the owner of the vehicle,
the insurance company shall recover as held in the decision in Oriental
Insurance Co. Ltd. v. Nanjappan [Oriental Insurance Co. Ltd. v.
Nanjappan, (2004) 13 SCC 224 : 2005 SCC (Cri) 148] wherein this
Court held that : (SCC p. 226, para 8)
"8. ... For the purpose of recovering the same from the insured,
the insurer shall not be required to file a suit. It may initiate a
proceeding before the executing court concerned 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."
11. In such circumstances, the tribunal should have directed for pay and
recover as the appellants/claimants are third party and the dispute of license
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is between owner and insurer. Considering the same, it is hereby directed that
the respondent No.3/Insurance Co. shall first pay the amount of
compensation to the appellants/claimants and then shall recover the same
from the owner / driver of the offending vehicle.
12. As regards the quantum of compensation, it is seen from the findings
recorded by the claims tribunal in para 25 and 26 that there was complete
absence of any material to establish the income of the deceased at Rs.8000/-
per month. However, the tribunal while assessing his income at Rs.4000/- per
month on notional basis has not referred to any material. The guidelines of
the State Legal Services Authority would show that at the relevant time
minimum wages for an unskilled labourer were Rs.4,545/- per month, which
is taken as the income of the deceased by making addition of 25% under the
head of future prospects considering his age at 45 years, the amount of
compensation after deducting 1/4th considering the five claimants, would
now come to Rs.7,15,837/- under the head of loss of dependency, for funeral
expenses the awarded amount on this head is modified to Rs.15,000/- and an
amount of Rs.15,000/- is awarded for loss of estate. For loss of consortium,
considering that the claimants are widow and four children of the deceased,
Rs.40,000/- each is awarded. Now this amount comes to Rs.2,00,000/-.
Consequently, the amount of Rs.1,00,000/- awarded for love and affection
and Rs.1,00,000/- awarded under the head of love and affection to the
children are hereby deleted. The total amount of compensation would now
comes to Rs.9,45,837/-. After deducting the already awarded amount of
Rs.7,29,000/- by the claims tribunal, the appellants are thus now entitled for
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enhanced amount of Rs.2,16,837/- over and above the amount already
awarded by the claims tribunal, which shall carry the interest @ 6% per
annum from the date of filing of claim application till its payment.
13. From the record, it is seen that the appellants are required to pay deficit
court fees. Therefore, they are directed to pay the same within a period of six
weeks from the date of receipt of certified copy of this order. In absence of
which the interest shall not apply on enhanced amount beyond the period of
six weeks.
14. With the aforesaid, the present appeal stands partly allowed and
disposed off.
(PAVAN KUMAR DWIVEDI)
JUDGE
SS/-
