IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 22.12. 2008 CORAM:- The Hon'ble Mr. Justice R. SUDHAKAR C.M.A.No.384 and 385 of 2008 and M.P.No.1 of 2008 Divisional Manager United India insurance Co. Ltd., M.M.Reddy Complex, Old Bangalore road, Hosur .. Appellant in both C.M.As/2nd Respondent Vs. 1. S.Sowkath Ali 2. G.Gopalappa .. Respondents in CMA.384/08/Claimant & I Respondent 1. Imtiaz 2. G.Gopalappa .. Respondents in (2nd Respondent exparte CMA 385/08/Claimant Lower Court) & I Respondent . . . Appeals filed under Section 173 of the M.V.Act against the award and decree dated 30.03..2007 made in M.C.O.P Nos. 124 and 125 of 2005 on the file of the Motor Accidents Claims Tribunal, (Sub Court) Hosur. . . . For Appellant in both CMAs : Mr.M.B.Raghavan For respondents in both CMAs : Mr.U.Karunakaran (R1) R2-Exparte . . . J U D G M E N T The Insurance Company has filed this appeal challenging the award dated 30.03..2007 made in M.C.O.P Nos. 124 and 125 of 2005 on the file of the Motor Accidents Claims Tribunal, (Sub Court) Hosur. https://hcservices.ecourts.gov.in/hcservices/ 2. The brief facts relating to the accident are as follows: It is a case of injury. The accident in this case happened on 17.12.2003. The injured Sowkath Ali, claimant in M.C.O.P.NO.124 of 2005 and Imtiaz, the injured claimant in M.C.O.P.No.125 of 2005 were travelling in an autorickshaw bearing registration No.T.M.R.1083 from Hosur to Nallur. When the Autorickshaw was nearing Sithanapalli, at a curve, the driver of the autorickshaw drove the vehicle in a rash and negligent manner and lost the control over the vehicle and it capsized. Due to the accident, the passengers Sowkath Ali and Imtiaz sustained grievous injuries. They were taken to the Government hospital, Hosur. Thereafter, they were treated at Sanjay Gandhi hospital at Bangalore. 3. The injured claimant Sowkath Ali filed a claim in M.C.O.P. 124 of 2005 for compensation in a sum of Rs.5,00,000/- stating that his income was Rs.6,000/- per month. The other injured claimant Imtiaz filed a claim in M.C.O.P.No.125 of 2005 for compensation in a sum of Rs. Rs.5,00,000/- stating that his income was Rs.6,000/- per month. 4. In support of the claim, Sowkath Ali, the claimant, in M.C.O.P.No.124 of 2005 was examined as P.W.1 and Imtiaz, the claimant in M.C.O.p.No.125 of 2005 was examined as P.W.2 and Dr.Gandhi was examined as P.W.3. Exs.P.1 to P.17 were marked. Ex.P.1 is the copy of the first information report. Ex.P.2 is the Wound Certificate given to Sowkath Ali. Ex.P.3 is the copy of Insurance Policy relating to the autorickshaw. Ex.P.4 is the copy of the Motor Vehicle Inspector's report. Ex.P.5 is the medical notes in respect of Sowkath Ali.Ex.P.6 is the Driving Licence of Sowkath Ali. Ex.P.7 is the wound certificate of Imtiaz. Ex.P.8is the medical notes in respect of Imtiaz. Ex.P.9 is the Medical Bills. Ex.P.10 is the Wound Certificate issued by Sanjay Gandhi Hospital for Imtiaz. Ex.P.11 is the medical notes of Imtiaz given JIPMER Hospital. Ex.P.12 is the Disability Certificate of Sowkath Ali Ex.P.13 is the X-ray. Ex.P.14 is the X-ray bill. Ex.P.15 is the Disability Certificate of Imtiaz. Ex.P.16 is the X-ray (Imtiaz) Ex.P.17 is the X-ray bill. An Officer in R.T.O office was examined as R.W.1 and an officer of the Insurance Company was examined as R.W.2. Ex.R.1, copy of the Motor Vehicle Inspector's report. 5. Learned counsel for the claimants stated that the injuries were caused to the claimants as a result of the rash and negligent driving on the part of the driver of the autorickshaw insured with the appellant and supported the plea by oral and documentary evidence. https://hcservices.ecourts.gov.in/hcservices/ 6. Learned counsel for the appellant while accepting the plea with regard to the nature of the accident and the nature of negligence on the part of the driver of the autorickshaw, contended that though the vehicle in question had a valid insurance policy, the said vehicle however did not have valid fitness Certificate so as to ply on the road on the date of the accident. The permit period expired and it was not renewed. Therefore, the learned counsel for the appellant/Insurance Company pleaded that there is violation of the terms of the policy on the date of accident and consequently, their liability to compensate the claimant will not arise. The Tribunal did not accept the plea of the appellant and held that since the vehicle had a valid insurance policy and that the Motor Vehicle Inspector's report did not say anything about the mechanical defect in the vehicle involved in the accident on the date of the accident, held that the Insurance company is liable to compensate the claimants. 7. In appeal, the learned counsel for the appellant contended that since the vehicle in this case did not have a valid fitness certificate and was allowed to be used by the owner contrary to the terms and conditions of the Insurance Policy, they are not liable to compensate the claimants. There is breach of condition of Policy and on that ground, the owner alone is liable to compensate the claimants. Learned counsel for the claimants, on the other hand relied on the decision of a Division Bench of this Court in Velammal and others Vs. P.Kanaga and others reported in 2006 ACJ 1039. In this case, the following two issues were considered by the Division Bench: 1. The vehicle was covered by an insurance policy on the date of accident is not in dispute. But the insurer seeks to avoid its liability on the ground of violation of policy conditions,namely,i) The vehicle has no valid fitness Certificate. ii) the vehicle was driven by a driver who did not possess the authorisation to drive max cab or the driver was not possessed of a valid licence to drive the max cab. 8. The Division Bench while holding that the Insurance Company is not liable for violation of policy condition, held that the insurer insofar as a claim by third parties is concerned, has to first pay the claimant and proceed against the owner of the vehicle to recover the amount paid by it. The relevant portion reads as follows: " In the result, we hold that the insurer cannot avoid the liability to answer the claim of the third parties, but the insurer is at liberty to proceed https://hcservices.ecourts.gov.in/hcservices/ against the owner of the vehicle and recover the amount paid by it after paying the claimants- appellants herein" 9. Following the ratio laid down in the above said Division Bench Judgment, in this case, since the vehicle in question did not have a valid fitness Certificate on the date of accident, there is violation of policy condition and the owner will be liable for the breach. The Insurance Company, as far as the third party claim is concerned will at the first instance pay the claimant and recover the same from the owner of the vehicle in accordance with law. 10. As far as the compensation is concerned, The nature of injuries suffered by Sowkath Ali are as follows: Fracture of both bones on the right leg and grievous injuries all over the body. Initially, he took treatment at the Government Hospital at Hosur and then at Sanjay Gandhi Hospital at Bangalore as in patient from 17.12.2003 to 31.12.2003 and at that time, he underwent an operation and rod was fixed in his leg. As there was fracture of both bones in the right leg, the claimant, a driver by occupation could not work and earn as before. The disability was assessed at 35% by the Doctor. Therefore, the Tribunal for the disability granted Rs.50,000/- and Rs.25,000/- towards pain and suffering and Rs.30,000/- for loss of earning capacity, and Rs.5,000/- towards extra nourishment. In all, the Tribunal granted the following amounts with interest at 9% interest. Sl.N o. Head Amount granted by the Tribunal 1 For Disability 35% Rs. 50,000/- 2. Pain and suffering Rs. 25,000/- 3 Loss of earning capacity Rs. 30,000/- 3 Extra nourishment Rs. 5 000/- Total Rs. 1,10,000/- 11.The Tribunal granted reasonable amount for pain and suffering and for disability assessed at 30% However, no reason has been given as to how a sum of Rs.30,000/- was granted towards loss of earning capacity and it cannot be justified as it will amount to grant of compensation on two heads on one issue. There is no proof that earning capacity is affected consequent to the injury. The claimant, however, will be entitled to attendant charges, for loss of income during the https://hcservices.ecourts.gov.in/hcservices/ period of treatment, and enhanced compensation for extra nourishment and transport expenses. Considering the evidence of fracture of both bones of the right leg, the age and the period of treatment in the hospital, the following amounts is granted under various heads and the award stands modified as follows: Sl.N o. Head Amount granted by the Tribunal Amount granted by this Court 1 For Disability 35% Rs. 50,000/- Rs. 50,000/- 2. Pain and suffering Rs. 25,000/- Rs. 25,000/- 3 Loss of earning capacity Rs. 30,000/- 4 Loss of income during treatment Rs. ... Rs. 9,000/- 5 Attendant charges . . . Rs. 5,000/- 6 Transport expenses . . . Rs 5,000/- . 7 Extra nourishment Rs. 5 000/- Rs. 5,000/- Total Rs. 1,10,000/- Rs. 99,000/- 12. Insofar as Imtiaz is concerned, he suffered fracture of lumbar vertebrae and fracture of pelvis bone resulting in paraplegia. He was treated in the Sanjay Gandhi hospital at Bangalore from 17.12.2003 to 31.01.2004 as in patient. Bone grafting was done to him on 23.12.2003.Thereafter, he took further treatment in the JIPMER Hospital at Pondicherry till 19.03.2005. The medical treatment includes bone grafting. 13. The disability has been assessed at 80% and considering the nature of injury which resulted in the claimant being declared as a paraplegia after the accident and also taking note of long period of treatment in the hospital where several surgical procedures were done and the continuing disability even today, the decision of the Apex Court in the case of Sunil Kumar – vs. Ram Singh Gaud and others 2008(2) LW 18 (SC) was applied to the facts of this case to adopt the multiplier 17. The Tribunal granted compensation of Rs.6,12,000/- towards pecuniary loss (Rs.3,000 X 12 = Rs.36,000/-X 17 = 6,12,000/-). It also granted amounts on various other heads with 9% interest as follows: Sl. No. Head Amount granted by the Tribunal 1 For pecuniary loss Rs. 6,12,000/- https://hcservices.ecourts.gov.in/hcservices/ Sl. No. Head Amount granted by the Tribunal 2. Pain and suffering Rs. 80,000/- 3 For future attendant charges Rs. 2,04,000/- 4 Medical expenses Rs. 34,000/- 5. Loss of amenities and permanent disability Rs. 60,000/- Total Rs. 9,90,000/- 14. Considering the serious nature of ailment consequent to the injuries, and further taking note of the fact that he has become totally immobile consequent to the injuries as recorded by the Presiding Officer of Lok Adalat, the amounts granted on one head or the other head has to be suitably modified. 15. Keeping in line with the decision of the Apex Court in Sunil Kumar's case the compensation granted by the Tribunal for pecuniary loss by adopting 17 multiplier in the case of 23 years old injured claimant amounting to Rs.6,12,000/- is justified. As far as the attendant charges is concerned considering the lumpsum payment, as against Rs.1,000/- per month granted by the Tribunal, it can be taken as Rs.500/-per month.Rs.6,000 X 17 = 1,02,000/- A sum of Rs.80,000/- granted for pain and suffering is confirmed as it will remain life long. sum of Rs. 34,000/- granted towards medical expenses is confirmed as it is as per records. The sum of Rs.60,000/- granted towards loss of amenities is confirmed in view of the doctor's evidence which states that claimant is a paraplegic. The award stands modified as follows: Sl. No. Head Amount granted by the Tribunal Amount granted by this Court 1 For pecuniary loss Rs. 6,12,000/- Rs. 6,12,000/- 2. Pain and suffering Rs. 80,000/- Rs. 80,000/- 3 For future attendant charges Rs. 2,04,000/- Rs. 1,02,000/- 4 Medical expenses Rs. 34,000/- Rs. 34,000/- 5. Loss of amenities Rs. 60,000/- Rs. 60,000/- https://hcservices.ecourts.gov.in/hcservices/ Sl. No. Head Amount granted by the Tribunal Amount granted by this Court Total Rs. 9,90,000/- Rs. 8,88,000/- 16. In both the cases, considering the date of accident, the facts and circumstances of the case and taking note of the fact that the award was passed in the year 2007 and following the Apex court's decision in T.N. State Transport Corporation Ltd. - v. S.Rajapriya, 2005(6) SCC 236, the rate of interest stands reduced to 7.5% as against 9% per annum ordered by the Tribunal. 17. In the result, the Civil Miscellaneous Appeals are allowed in part as follows: i. The award of the Tribunal in M.C.O.P 124 of 2005 is reduced to Rs 99,000/- from Rs.1,10,000/- ii. The Award of the Tribunal in M.C.O.P.No.125 of 2005 is reduced to Rs.8,88,000/- from Rs.9,90,000/- iii. The rate of interest is reduced to 7.5%p.a. from 9% p.a. iv. Learned counsel for the appellant has stated that as per the conditional order of this Court dated 12.02.2008, the entire amount has already been deposited. v. The claimant in both the cases are permitted to withdraw the amount as the order of this Court. The appellant in both the cases is permitted to withdraw the excess amount after settling the claimants. vi. Consequently, connected miscellaneous petition is closed. vii. There will be no order as to costs. PAL Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ To The Motor Accidents Claims Tribunal, (Subordinate Judge) Hosur. CK(CO) SR/12.2.2009 CMA Nos.384 & 385 of 2008 https://hcservices.ecourts.gov.in/hcservices/