IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED :24.8.2010 C O R A M THE HONOURABLE MR.JUSTICE B.RAJENDRAN C.M.A. NO.2569 of 2007 and M.P.No.1 of 2007 The New India Assurance Co. Ltd 11-19,20 Govt. Arts College Road Coimbatore – 18. ... Appellant/3rd Respondent Vs 1.D. Rajagopal ... 1st Respondent/Petitioner 2.K.Govindaraj 3.M.Elangovan @ Elango ( R-2 & R3 set expare by the court below) ... 2nd & 3rd Respondents/ 1st & 2nd Respondent Prayer : Appeal filed under Section 173 of the Motor Vehicles Act 1988 against the judgment and decree dated 30.08.2005 made in MCOP No.849 of 2003 on the file of the Motor Accidents Claims Tribunal, (Additional District and Sessions Judge, Fast Track Court No.3), Coimbatore. For Appellant : Mr.K.Padmanabhan For Respondents : No Appearance J U D G M E N T The Insurance Company has come forward with this appeal challenging the Award dated 30.08.2005 passed by the Motor Accidents Claims Tribunal granting a sum of Rs.2,05,000/-as compensation in respect of an accident that took place on 17.5.2002. 2. The learned counsel for the appellant would contend that at the time of the accident, the vehicle being Tourist Taxi vehicle, did not have a permit and therefore, they will not be held liable to pay compensation. Even otherwise, the lower court has awarded the compensation and permitted the insurance company to pay and recover which is also not acceptable to the appellant on the ground that only the owner would be liable to pay and not the insurance company, as it is statutory obligation that the vehicle https://hcservices.ecourts.gov.in/hcservices/ should be plying in the road with necessary permit. As there is no permit at all, there may not be any liability on the insurance company. As far as quantum is concerned, in a case of injury, the multiplier theory itself is wrong and only if the disability is accepted, a lesser amount has to be granted. Hence, the insurance company challenges the award. 3. Heard learned counsel for the appellant. Even though respondents were served and their names were printed, none appeared. Hence, the matter is taken up for final disposal. 4. The short points for consideration in this appeal are:- (i) whether the insurance company is liable to pay compensation? (ii) whether the compensation paid is high? 5. It is the case of passengers travelling in a tourist taxi. One of the passengers in the vehicle got injured in the accident, where the vehicle dashed against the tree and in view of the accident, injury is caused to the passenger of the vehicle. 6. The only contention raised by the Insurance company was even though insurance policy was given for the period between 18.12.2002 to 17.12.2003 and the accident took place on 17.5.2003, admittedly the insurance policy was in force, but the insurance company claimed that the permit for running the vehicle namely, tourist permit was available only for the period of 5 years commencing from 29.4.1998 to 28.4.2003. Therefore, on the date when the accident took place on 17.5.2003, there was no permit and as there was no permit, the insurance company cannot be held liable. At the out set, it is pertinent to point out herein when the policy was given by the insurance company for the period commencing from 18.12.2002 to 17.12.2003, the insurance company was very well aware of the fact that the permit would expire on 28.4.2003. Knowing fully well that the permit would expire on 28.4.2003, it is not known how the insurance company thought it fit to give a policy for a period beyond the permitted period of plying of the vehicle. Therefore, at this point of time, it is not open to the appellant to say that even though the policy was in force, the appellant cannot be held liable to pay. No doubt, it is always open to the appellant insurance company to raise a statutory defence namely, the vehicle should not have been permitted to ply on the date when there was no permit for transport under the transport category. It is admitted that the injured was occupier of the taxi along with the family members, who were travelling. The passenger may not be aware of the permit condition. But the insurance company should be aware at the time of granting of the policy regarding the date of expiry of the permit. Therefore, the fact that the accident is admitted then the question is the insurance company at best can say that they will be https://hcservices.ecourts.gov.in/hcservices/ liable to pay and then will be entitled to recover he amount, as it is violation of a policy condition. In fact, in this case, it is not specifically mentioned in the policy that the insurance company will not be held liable if an accident took place after 29.4.2003, though the permit expires on 17.12.2003. But this defence is available as a statutory defence. But in a contract between the party and the insurance company, insurance company should have been careful in incorporating that specific clause when they know very well that the permit would expire on 29.04.2003, in the absence of that clause, it may not be open to insurance company to reject the claim of the third party. Therefore, this court holds the finding of the court below in directing the insurance company to pay is correct as per the decision of the Supreme Court reported in 2004(2) TN MAC 196 (National Insurance Co. Ltd. v. Chella Bharthamma & Ors.) wherein, the Apex court categorically held 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. Insurance company, at best, is at liberty to recover the amount from the insured. Therefore, as far as liability is concerned, this court holds that the appellant insurance company would be liable to pay and then only recover from the owner. 5. As far as quantum is concerned, the learned counsel rightly pointed out that in the case of injury, that too, a fracture in the right arm, in respect of 74 years old man, Doctor has been examined as P.W.2, and Ex.P42 has been marked as disability certificate. As per Ex.P42, the Doctor has certified 40% disability. Unfortunately, the court below adopted the multiplier theory method which is wrong. Time and again this court as well as Supreme court has stated that in so far as injury cases are concerned, multiplier theory would not apply. In the case on hand, the age of the injured is 74 years and the percentage of the disability is 40%. Especially with fracture, as per Supreme Court decision, upto Rs.2,000/- could be awarded per percentage. Therefore, applying the above theory also, for 40% disability, only Rs.80,000/- can be awarded. So far as pain and sufferings are concerned, the lower court awarded a sum of Rs.5,000/- which can be increased to Rs.15,000/-. Taking into consideration the age of the injured, the lower court has awarded a sum of Rs.5,000/- for loss of income, which will not come as per the Division Bench judgment of this court. Towards extra nourishment Rs.5,000/- has been awarded, which can be increased to Rs.10,000/-and towards medical expenses,Rs.65,000/- has been awarded and the same is confirmed and Rs.5,000/- has been awarded towards transport expenses, which can be confirmed. Therefore, the compensation awarded by the Court below is modified as follows: 1 For 40% disability Rs. 80,000/- 2 Pain and suffering Rs. 15.000/ 3 Extra nourishment Rs. 10,000 https://hcservices.ecourts.gov.in/hcservices/ 1 For 40% disability Rs. 80,000/- 4 For Medical Expenses Rs. 65,000 5 Transportation Rs. 5,000 6 Total Rs.1,75,000 6. In the result, the appeal is partly allowed reducing the compensation from 2,05,000/- to 1,75,000/- along with interest at 7.5% from the date of petition till the date of deposit. The learned counsel for the appellant contended that already a sum of Rs.1,50,000/- is deposited. He is directed to deposit a further sum of Rs.25,000/- along with interest, within a period of six weeks from the date of receipt of a copy of this order and on such deposit, the 1st respondent/claimant is entitled to withdraw the same. It is also open to the appellant to recover the amount so paid to the first respondent from the owner/3rd respondent, who has been set as ex parte in the petition. No costs. Consequently, connected miscellaneous petition is closed. Sd/- Asst. Registrar //true copy// Sub Asst.Registrar To 1.The Motor Accidents Claims Tribunal, Additional District and Sessions Judge, Fast Track Court No.3, Coimbatore. Copy to: The Section Officer, V.R.Section, High Court, Madras-104. 1 cc to Mr.K.Padmanabhan, Advocate, Sr.No.62277 Judgment in C.M.A. NO.2569 of 2007 KU {CO} TP/1.10.2010. https://hcservices.ecourts.gov.in/hcservices/