IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 20.08.2010 CORAM: THE HONOURABLE MR.JUSTICE B.RAJENDRAN C.M.A.No. 2455 of 2007 The Branch Manager United India Insurance Co. Ltd., #12 A, Covai Salai, B.C.A.Building, 2nd Floor, Karur – 639 002. ... Appellant/II Respondent Versus 1. Poondiammal 2. M.Kesavan ... Respondents/Petitioner & 1st Respondent Appeal filed under Section 173 of the Motor Vehicles Act, 1988 against the Judgment and Decree dated 9th day of November 2006 made in M.C.O.P.No.1058 of 2004 on the file of Motor Accidents Claims Tribunal, Additional District Judge, (Fast Track Court – 3) at Namakkal. For Appellant : Mr. C. Ramesh Babu For Respondents : Mr. M. Anirutham for R1 JUDGMENT The Insurance Company has come forward with this appeal questioning the liability as well as the compensation ordered by the Court below. 2. The facts which led to the filing of the claim petition was that on 06.06.2004 at about 02.00 pm when the claimant was walking on the left side of the Paramathi to Tiruchengode road, at the time, the tipper lorry bearing Registration No. TN 28-V-7239 was driven by its driver in a rash and negligent manner and hit the claimant. In the impact, the claimant sustained grievous injuries all over her body. At the time of the accident, the claimant was aged 58 years and earning a sum of Rs.2,000/- per month as agricultural coolie. Therefore, for the injuries sustained by her, she filed the claim petition claiming compensation of Rs.5,00,000/-. 3. Before the Court below, the claimant examined herself as PW1 and Dr. Khaja Mohideen as PW2 besides Exs. P1 to P8 were marked. On behalf of the insurance company, Exs. R1 to R7 were marked and two witnesses were examined as RW1 and RW2. Before the Court below, Exs. C1 to C3 were also marked and CWs 1 and 2 were examined. The https://hcservices.ecourts.gov.in/hcservices/ court below, after analysing the oral and documentary evidence, awarded a sum of Rs.66,500/- as compensation in favour of the claimant/first respondent herein. Aggrieved by the same, the present appeal has been filed by the Insurance Company. 4. The learned counsel for the appellant would mainly contend that the insurance company is not liable to pay the compensation as the driver of the vehicle did not possess a valid licence at the time of accident. The learned counsel for the appellant would further contend that the amount granted by the Court towards compensation, especially a sum of Rs.25,000/-, apart from Rs.20,000/- for disability is legally impermissible as per the full bench decision of this Court. 5. The learned counsel for the claimant/first respondent would contend that for no fault on the part of the claimant, the compensation amount should not be denied. Even assuming without admitting that the driver of the lorry did not possess valid driving licence at the time of accident, at best, the insurance company has to pay the compensation and recover it from the owner of the lorry. As far as injury is concerned, the claimant sustained lacerated wound over fore head, sutured wound above left ear. The Doctor, PW2 has assessed the disability of the claimant and 20% and based on that the Court below has granted meagre compensation, which cannot be said to be excessive. 6. Heard both sides. The short point for consideration in this appeal is (i) whether the Insurance Company will be liable for payment of compensation in a case where the driver of the lorry did not possess valid licence at the time of accident and (ii) whether the quantum of compensation awarded by the court below is fair and reasonable. 7. The Insurance Company mainly contended that the driver of the lorry did not possess a valid licence at the time of accident. In this connection, the insurance company has taken steps to summon the driver of the lorry but the summons sent to them return unserved which are evident from Exs. C1 and C2 and CWs 1 and 2 were examined to prove this fact. The owner of the lorry remained ex-parte before the court below. The driver did not appear in this case nor he produced the driving licence. Further the Insurance Company also summoned the Regional Transport Officer in that area as RW2 who has deposed that no license was issued in the name of the driver in the said address. Therefore, according to the appellant, every possible steps have been taken by the Insurance Company to prove that the driver of the lorry did not possess a valid licence at the time of accident and therefore, the insurance Company cannot be fastened with the liability to pay the compensation. But at the same time, the insurance company cannot disown its liability to pay the compensation to a third party who sustained accident in a road accident. As far as third party is concerned, whether the driver of the lorry was in possession of a valid driving licence or not cannot be a criterion because she is an injured person, therefore, if at all, the Insurance Company can pay the compensation amount and https://hcservices.ecourts.gov.in/hcservices/ recover it from the owner of the vehicle as per the decision reported in (National Insurance Co. Ltd. Vs Kusum Rai and others) 2006 (2) CTC 347 wherein the Supreme Court has categorically stated that in such cases, the Insurance Company would be permitted to pay the compensation amount and recover it from the owner of the vehicle. In Paragraphs 9 and 17 of the said judgment, it was held thus:- "9.It has not been disputed before us that the vehicle was being used as a taxi. It was, therefore, a commercial vehicle. The driver of the said vehicle, thus, was required to hold an appropriate licence therefOrder Ram Lal who allegedly was driving the said vehicle at the relevant time, as noticed hereinbefore, was holder of a licence to drive a Light Motor Vehicle only. He did not possess any licence to drive a commercial vehicle. Evidently, therefore, there was a breach of condition of the contract of insurance. The appellant therefore, could raise the said defence. ...... 17.Although, thus, we are of the opinion that the appellant was not liable to pay the claimed amount as the driver was not possessing a valid licence and the High Court was in error in holding otherwise, we decline to interfere with the impugned award, in the peculiar facts and circumstances of the case, in exercise of our jurisdiction under article 136 of the Constitution of India but we direct that the appellant may recover the amount from the owner in the same manner as was directed in Nanjappan (Supra)" 8. Therefore, applying the said principal, I hold that the Insurance Company is liable to pay the compensation amount to the claimant/first respondent herein, but with a direction that the Insurance Company is entitled to recover the same from the owner of the vehicle. Accordingly, the first point for consideration is answered against the insurance company. 9. In so far as quantum is concerned, the court below has granted a sum of Rs.20,000/- by taking into consideration the disability assessed by the Doctor at 20%. Thus, it is evident that the Court below has granted 1,000/- per percentage of disability as has been held by the Supreme Court, which is fair and reasonable and correct. 10. The court below has granted a sum of Rs.10,000/- towards pain and suffering, which is fair and reasonable. A sum of Rs.7,000/- was awarded towards transport and extra nourishment, which is also fair and reasonable. But the lower Court has granted a further sum of Rs.25,000/- under the heading "loss of earning power". As per the Full Bench decision of this Court, reported in (Cholan Roadways Corporation Limited vs. Ahmed Thambi) (2006) 4 CTC 433 when compensation was granted towards disability, there cannot be a separate award for loss of earning power, which is overlapping https://hcservices.ecourts.gov.in/hcservices/ each other. Hence, the award of Rs.25,000/- granted by the Court below towards 'loss of earning power' is set aside. The court below has also granted a sum of Rs.4,500/-, towards medical expenses, which is based on medical bills and therefore I am not inclined to interfere with the same. 11. Under those circumstances, the appeal is allowed reducing the compensation awarded by the court below from Rs.66,500/- to Rs.41,500/- along with interest at the rate of 7.5% from the date of petition till the date of realisation. No costs. It is brought to the notice of this Court that the appellant/Insurance Company has deposited the entire amount, as awarded by the court below. Therefore liberty is given to the appellant/insurance company to withdraw the excess amount over and above Rs.41,500/- along with accrued interest at 7.5% per annum. vsm/rsh Sd/- Asst. Registrar //True Copy// Sub Asst. Registrar To The Motor Accidents Claims Tribunal, (Additional District Judge) (Fast Track Court – 3) Namakkal. + 1 cc to Mr. M. Aniruthan, Advocate SR No.61947 GV(CO) SR/26.11.2010 C.M.A.No. 2455 of 2007 https://hcservices.ecourts.gov.in/hcservices/