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2026 Supreme(Online)(Chh) 27405
HIGH COURT OF CHHATTISGARH AT BILASPUR
Sanjay K. Agrawal, J
Kiran Thakur – Appellant
Versus
Yogesh Kumar Rathore @ Yogeshwar Rathore – Respondent
MAC No. 1075 of 2019 | MAC No. 460 of 2019
For the Appellants/Petitioners: Vinod Deshmukh
For the Respondents: HP Agrawal, Sushma Pandey
The court affirmed the 'Pay and Recover' doctrine for gratuitous passengers, ruled that passengers in the offending vehicle cannot be held contributorily negligent without strong evidence, and granted additional compensation for parental consortium.
Headnote:(A) Insurance Law - Gratuitous Passenger - Liability of Insurance Company - Where a passenger is gratuitous and not covered under the insurance policy, the doctrine of "Pay and Recover" is applicable, requiring the insurance company to indemnify the claimant and subsequently recover the amount from the owner of the vehicle. (Para 9)
(B) Motor Accident Claims - Contributory Negligence - Passenger in vehicle - A finding of contributory negligence against a passenger sitting in the offending vehicle is perverse if the insurance company fails to lead clinching evidence to establish such negligence. (Para 10)
(C) Compensation - Parental Consortium - Claimants are entitled to compensation under the head of loss of parental consortium. (Para 11)
Issues: Whether the Insurance Company is liable to pay compensation under the "Pay and Recover" principle for a gratuitous passenger and whether the deduction for contributory negligence was legally sustainable.
(Order on Board)
1. Regard being had to the similitude of the questions of facts and law involved, being arising out of a common impugned award and on the joint request of learned counsel for the parties, both these appeals are clubbed together, heard together and being disposed of by this common order.
In MAC-460-2019:
2. None for the Driver & Owner in two rounds today. Even on 06.07.2026 also there was no representation on behalf of the appellant when the matter was last listed. It appears that driver & owner of the offending vehicle has lost interest in further prosecuting this appeal. Accordingly, MAC-460-2019 is dismissed for want of prosecution.
In MAC-1075-2019:
3. MAC-1075-2019 has been filed by the Claimant under Section 173 of the Motor Vehicle Act, 1988 challenging award dated 10.01.2019, seeking enhancement of the amount of compensation.
4. Learned counsel for the claimant would submit that:
(i) the plea of contributory negligence has wrongly been found proved by the learned Claims tribunal and erred in deducting 50% amount on the said head, therefore, the same is liable to be set aside and claimant is entitled for full compensation and further learned Claims Tribunal has erred in awarding less amount of compensation in the facts of the case also;
(ii) learned Claims Tribunal further erred in exonerating the respondent- Insurance Company from the liability on the ground of gratuitous passenger, whereas, in light of recent decision of the Supreme Court in Sunita & ors v. United India Insurance Co. Ltd. and other12025 SCC Online SC 1469 : 2025 INSC 867, the principle of pay and recover deserves to be adopted in the present case. Therefore, the instant appeal be allowed and the compensation awarded by the Claims Tribunal may suitably be enhanced.
5. Learned counsel for the Insurance Company would submit that the claimant was himself negligent, therefore, 50% amount on the head of contributory negligence has rightly been deducted. The amount of compensation awarded by the Claims Tribunal is just and proper which does not call for any interference. Even, there is no illegality in the findings of the tribunal whereby the Insurance Company has been exonerated from the liability to pay compensation to the claimant.
6. I have heard learned counsel for the parties, considered their rival submissions made herein-above and went through the record with utmost circumspection.
7. In the case at hand, it is the plea of the Claimant that learned Claims Tribunal erred in exonerating the respondent- Insurance Company from the liability on the ground of gratuitous passenger, where in light of Sunita (supra) principle of pay and recover is required to be directed.
8. The Supreme Court in the matter of Sunita (supra) has held as under:
“12. The next question which arises for our consideration is whether the Insurance Company is liable to indemnify the compensation amount to the claimant-appellant and, thereafter, recover the same from the driver and owner of the vehicle.
13. Adverting to the facts in hand, from a bare perusal of the record, it is borne that the vehicle in question was insured with “Liability Only Policy” and no premium was paid to cover the driver, owner, or a gratuitous passenger travelling therein. However, even then, in our view, the Courts below erred in holding that the Insurance Company is not liable to pay the compensation to the claimant-appellants, for the principle of “Pay and Recover” ought to have been invoked. As such, we are inclined to interfere with the above findings of the Courts below.
14. We must advert to the exposition of this Court in National Insurance Co. Ltd. v. Baljit Kaur (2004) 2 SCC 1. The deceased therein was travelling as a gratuitous passenger, and due to the rash and negligent driving of the offending vehicle, lost his life. The Insurance Company was directed to satisfy the amount awarded by the Courts below and recover th
