HON’BLE SRI JUSTICE GHULAM OHAMMED M.A.C.M.A.NO. 1165 OF 2007 AND CROSS OBJECTIONS SR NO. 30459 OF 2007 JUDGMENT: This Appeal under Section 173 of the Motor Vehicles Act 1988, is directed against the Judgment and Decree dated 07.03.2007 passed by the Motor Vehicles Accidents Claims Tribunal cum III Additional Chief Judge, City Civil Court, Hyderabad (for short ‘the Tribunal’) in MVOP No. 518 of 2005 filed by the claimant claiming compensation of Rs. 5,00,000/- for the injuries- sustained in a motor vehicle accident that occurred on 19.10.2004 when the claimant was driving his two wheeler, he was hit by Tata Indica Car bearing No. AP 29C 9389 and due to which he sustained composite fracture of right leg, mandible and lost teeth. First respondent owner of the Tata Indica set ex pate and the second respondent insurer of the same filed its counter denying the averments made in the petition. 2. The Tribunal held that the accident occurred only due rash and negligent driving of the Tata Indica Car bearing No. AP 29C 9389 belonging to the first respondent and insured with the second respondent, and due to which, the claimant sustained grievous injuries and therefore, both the respondents are jointly and severally liable to pay the compensation. The Tribunal also taking into consideration the evidence available on record, granted total compensation of Rs. 3,10,000/-with interest at 7.5% per annum from the date of petition till the date of realization. Aggrieved by the same, the present Civil Miscellaneous Appeal is filed by the appellant- Insurance Company and also claimant preferred cross objections (sr) No. 30459 of 2007. 3. The learned counsel appearing for the appellant-Insurance Company submits that the Tribunal ought to have dismissed the claim on the ground that the first respondent-claimant has driven his Kenitic Honda in high speed with rash and negligent manner came in opposite direction and dashed to the Indica Car bearing No. AP 29C 9389. He also submits that the Tribunal ought to have dismissed the OP as the accident occurred on 19.10.2004 and the 2nd respondent obtained fresh policy on 27.10.2004 and the earlier policy issued by the appellant was cancelled on 29.1.2004 due to dishonour of the cheque. He further submits that the compensation awarded is highly excessive, exorbitant and unjust. 4. On the other hand, the claimant preferred cross objections and contended that the Tribunal ought to have awarded compensation of Rs. 5,000/- towards repairs and ought to have granted loss of earnings for the period 19.10.2004 to 19.06.2005. He also contended that the Tribunal ought to have granted Rs.50,000/- towards future surgical operation to remove the rod, which was fixed at the time of initial operation. 5. Heard the learned counsel appearing for both sides and also perused the entire material made available on record. 6. It is evident from the record that the accident occurred on 19.10.2004 when the claimant driving his two-wheeler, a Tata Indica car bearing No. AP 29C 9389 driven in a rash and negligent manner by its driver dashed against the two- wheeler of the claimant and due to which, the claimant sustained grievous injuries. PW-2 is the Doctor, who treated the claimant and according to him he was examined the claimant on 27.11.2006 and found that the claimant has sustained 40% disability and he opined that the claimant is unable to walk and sit or squat due to problem to left hip. The income taken by the Court below is 50,000/- per annum. As per Ex. A-12, the claimant is an income tax payer, therefore, ends of justice would be met if the income of the claimant is taken as Rs. 60,000/- per annum. Out of that 40% disability if deducted the amount comes to Rs. 24,000/- (60,000x40/100=24,000). The relevant multiplier for the age of 50 years is 13 as per the judgment of the Supreme Court reported in SMT SARALA VERMA AND OTHERS VS. DELHI TRANSPORT CORPORATION AND ANTOEHR[1] and if applied the correct multiplier, the total amount comes to Rs. 3,12,000/- (24,000 x 13 = 3,12,000). An amount of Rs. 10,000/- is granted towards pain and suffering. Thus the total amount of compensation comes to Rs. 3,22,000/- (3,12,000 + 10,000 = 3,22,000). 7. The Supreme Court in HARDEO KAUR VS. RAJASTHAN STATE TRANSPORT CORPORATION[2] held that the determination of compensation in respect of injury cases must be liberal. The relevant portion of the same reads as under: “the determination of compensation in respect of injury cases must be liberal and the amount of compensation so awarded should not be niggardly and at the same not a wind fall as a profit making venture through the Tribunals or Courts. When the compensation is awarded by the Courts and Tribunals even the tort feasor should feel that he is atoned for the sin committed by him in committing the accident robbing the precious life of a human being and injuring the innocent person for no fault of his and the guidelines from such precedents is only to emphasise that if there are two precedents dealing with the same question of assessing the compensation, the one which has adopted a liberal approach should be preferred than the one which has adopted the conservative approach.” 8. As far as the liability is concerned, the Tribunal following the view taken by the Supreme Court in ORIENTAL INSURANCE COMPANY LIMITED VS. INDERJEET KOUR[3] followed by the latest judgment of the A.P. High Court in ORIENTAL INSURANCE COMPNAY LIMITED VS. PINJARY HUSSAINAMMA AND OTHERS[4], held that the Insurance Company is also liable to pay the compensation. In both cases referred to above, policy was cancelled on account of dishonour of the premium cheque. The relevant portion is extracted hereunder: “It must also be noted that it was the appellant itself who was responsible for its deed it has issued policy of insurance upon receipt only of a cheque towards the premium in contravention of the provisions of Section 54 VB of the Insurance Act. The public interest that a policy of insurance serves must clearly prevail over the interest of the appellant’. 9. The learned counsel appearing for the Insurance Company brought to our notice the judgment of the Supreme Court reported in NATIONAL INSURANCE COMPNAY LIMITED VS. SEEMA MALHOTRA[5], wherein the Supreme Court at paragraph 2 of the judgment observed as under: “2. Under a contract of insurance the insured gave a cheque to the insurer towards the first premium amount, but the cheque was dishonoured by the drawee-bank due to insufficiency of funds in the account of the drawer. Is the insurer liable in such a situation to honour the contract of insurance? There is no dispute that the insurer is liable as against third parties because it is covered by the statutory provisions contained in Chapter X of the Motor Vehicles Act, 1988. But the insurer vehemently disputed the liability when the claim is made by the insured himself or his legal heirs, without any third party being involved. To avoid confusion we may point out that the insurance company has no dispute that the claims, if any, made by the kith and kin of the insured for the injuries sustained by them in the accident including the claims made by the legal representatives of the deceased in such accident would also be treated as third party claims.” 10. He also relied on the judgment of the Supreme Court reported in NATIONAL INSURANCE COMPNAY LIMITED VS. SEEMA MALHOTRA AND OTHERS, wherein it is observed that when the cheque issued for payment of first premium dishonoured by drawee-Bank, insurer is not liable to pay claim raised by insured himself, when no third party is involved. The relevant portion is at paragrapah 20, reads as under: “20. However, if the insured makes up the premium even after the cheque was dishonoured but before the date of accident it would be a different case as payment of consideration can be treated as paid in the order in which the nature of transaction required it. As such an event did not happen in this case the insurance company is legally justified in refusing to pay the amount claimed by the respondents.” 11. In view of the law laid down by the Supreme Court in the above judgments, and also taking into consideration facts and circumstances of the case, the appeal filed by the Insurance Company is allowed and the insurance company is directed to pay the compensation granted to the claimant and recover the same from the owner of the Tata Indica Car bearing No. AP 29C 9389. As far as the Cross-objections filed by the claimant is concerned, the same are allowed enhancing the compensation granted by the Tribunal from Rs.3,10,000/- to Rs. 3,22,000/-. Rate of interest granted by the Tribunal is reduced from 7.5% per annum to 7% per annum. There shall be no order as to costs. __________________________ GHULAM MOHAMMED, J Date: 24.2.2011 KA [1] 2009 (6) SCALE 129 [2] AIR 1992 SC 1261 [3] 1998 ACJ 123 [4] 2002 ACJ 597 [5] 2001 AIL SCW 902