1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 30.06.2011 CORAM: THE HONOURABLE MS.JUSTICE K.B.K.VASUKI C.M.A.No.681 of 2011 and M.P(MD)No.1 of 2011 The Branch Manager, The New India Assurance Company Ltd., No.3, Main Raod, Dindigul Town, Dindigul District. ... Appellants/2nd Respondent Vs. 1.Perumal ...1st Respondent/Petitioner 2.Rengasamy ...2nd Respondents/1st Respondents PRAYER: Civil Miscellaneous Appeal filed under Section 173 of the Motor Vehicles Act against the award dated 31.12.2010 made in M.C.O.P.No.289 of 2009 on the file of the Motor Accident Claims Tribunal(Chief Judicial Magistrate Court), Dindigul. For Appellant :M/s.B.Vijay Karthikeyan For R1 :Mr.C.K.M.Appaji J U D G M E N T This Civil Miscellaneous Appeal is filed by the second respondent/insurer against the award of compensation of Rs.7,62,000/- in favour of the claimant who is the injured in the accident occurred at 9.15 a.m. on 10.08.2009 at Kollapagtti bus stop on Vedachandur Salai due to rash and negligent driving of Mahindra Van owned by the first respondent and insured with the second respondent at the time of the accident. 2. The Tribunal on the basis of the available records accepted the permanent disability at 80% and assessed loss of earning capacity and loss of earning by applying multiplier method and awarded compensation of Rs.7,62,000/- under different headings as follows: Loss of earning capacity and loss of earning :Rs.3,00,000/- Pain and suffering :Rs. 10,000/- Extra Nourishment :Rs. 5,000/- Transport Charges :Rs. 5,000/- Loss of amenities in life :Rs. 25,000/- Medical expenses :Rs.4,17,000/- ------------- Total :Rs.7,62,000/- ------------- https://hcservices.ecourts.gov.in/hcservices/ 2 3. The Tribunal having found that the driver of the offending vehicle possessed no requisite endorsement to drive transport vehicle applied doctrine of pay and recovery theory and directed the payment of compensation at the first instance by the insurer with right given to the same to recover the same from the insured by virtue of statutory liability imposed upon the insurer under Section 148(4) of the Motor Vehicles Act. 4. In this appeal, the appellant/insurer has questioned the correctness of the award relating to the direction against the insurer to satisfy the award and by disputing the quantum of compensation of Rs.4,17,000/- awarded for medical expenses. 5. Regarding the first aspect, it is submitted by the learned counsel for the appellant that the first respondent is the owner cum driver of the vehicle and he drove the vehicle with full knowledge about his non-possession of requisite endorsement to drive transport vehicle, and is hence guilty of breach of policy conditions and such conduct of the first respondent/owner cum driver totally absolves the insurer from any liability to indemnify the insured and doctrine of pay and recovery theory is not applicable to the facts of the present case. 6. The learned counsel for the appellant has also in support of such contention cited the authorities of the Apex Court, Mathaya Pradesh High Court and our High Court reported in (1) 2008 ACJ 2855(United India Insurance Co. Ltd., v. Rakesh Kumar Arora and others), (2) 2008 ACJ 2277 (Direndra Singh Sengar v. Gopi Singh Kalicharan and another) and (3) another unreported judgment of the learned brother judge of this Court dated 12.01.2011 in C.M.A.No.222 of 2010. 7. In the case decided by the Supreme Court, the vehicle was allowed to be driven by minor son aged 15 years of the owner of the vehicle and the Tribunal exempted the insurance company from any liability and the finding of the Tribunal to that extent was reversed by the learned single judge in appeal and by the Division Bench in L.P.A on the ground that the Insurance Company failed to prove breach of contract of insurance and is hence liable to answer the award. Such finding rendered by the Tribunal and the Division Bench was challenged before the Supreme Court and the Apex Court has by following the earlier judgments of the Supreme Court reported in (1) 2008 ACJ 733(SC)(Oriental Insurance Co. Ltd., v. Prithvi Raj, (2) 2008 ACJ 2144(SC)(National Insurance Co. Ltd. v. Kaushalya Devi and (3) 2004 ACJ 1 (SC) National Insurance Com. Ltd. v. Swaran Singh, set aside the finding of the High Court rendered in appeal and in L.P.A and restored the Tribunal order. The Apex Court while confirming the trial Court finding found that the amount is already deposited by the insurer and withdrawn by the claimant and allowed the insurer to recover the amount in question from the owner of the vehicle. 8. The other case, decided by Mathya Pradesh High Court involves identical facts wherein the offending vehicle was driven by owner cum driver and Mathaya Pradesh High Court exonerated the Insurance Company by applying the principle laid down in Swaran Singh's Case and did not apply pay and recovery theory on the ground that owner and driver are one and the same. https://hcservices.ecourts.gov.in/hcservices/ 3 9. Similar view is also expressed by the learned brother judge of our High Court in the judgment cited above and following the earlier judgment held that doctrine of pay and recovery theory cannot be applied as there is violation of policy condition by the owner/driver. 10. Here in this case, as breach of policy conditions is apparent on the basis of the records pay and recovery need not be applied and the liability aspect is answered accordingly. 11. Regarding the quantum of compensation, the learned counsel for the appellant raised serious objection against the compensation of Rs.4,17,000/- awarded for medical expenses. Here is the case wherein the claimant even in the claim petition has claimed only Rs.3,00,000/- towards medical expenses. The claimant has in Para 13 and 21(A) of his claim petition, specifically claimed that the amount spent for medical expenses is to the tune of Rs.3,00,000/- and claimed only Rs.3,00,000/- Whereas the claimant who was examined as P.W.1 in the witness box, deposed that he was given treatment as inpatient between 10.08.2009 and 23.08.2009 and between 28.01.2010 and 06.02.2010 and has been continuously under treatment as outpatient and incurred expenses to the tune of Rs.4,50,000/-. The Claimant has in support of his contention produced Ex.P.3-Discharge summery and Ex.P.4-Medical bills to the value of Rs.4,14,358/- and Ex.P.5-Taxi Receipt to the tune of Rs.25,000/-. 12. As rightly pointed out by the learned counsel for the appellant, Ex.P.5-Medical Bills are not produced along with medical prescriptions and no treating doctor is not examined to prove the same. Further, perusal of medical bills would show that except few bills, other bills related to the period from August 2009 and December 2009. Had these bills been with the custody of the claimant, he would not have given total value of the medical expenses at Rs.3,00,000/- in the claim petition filed during October 2009. It is now well settled that mere production of medical records without examining any witness to prove the same is not sufficient enough to place any reliance upon the same. This Court is of the view that the Tribunal ought not to have in the absence of proof of medical bills through competent witness accepted the same in entirety and awarded huge amount of Rs.4,17,000/- for medical expenses. 13. However, this Court is inclined to award reasonable amount towards medical expenses having regard to the nature and duration of the treatment undergone by him in Ganga Medical Centre and Hospital in the course of which one of his leg was amputated below knee and the same can be reasonably fixed at Rs.2,00,000/-. In the result, this Court is inclined to award the compensation as follows: Pain and suffering :Rs. 20,000/- Extra Nourishment and Transport charges :Rs. 10,000/- Loss of joy and amenities in life :Rs. 50,000/- Medical Expenses :Rs,2,00,000/- Loss of earning capacity and loss of earning :Rs.3,00,000/- ------------ Total :Rs.5,80,000/- ------------ https://hcservices.ecourts.gov.in/hcservices/ 4 The same is payable with interest at 7.5% per annum from the date of petition till date of payment by the first respondent/owner of the vehicle. 14. In the result, the award dated 31.12.2010 made in M.C.O.P.No.289 of 2009 on the file of the Motor Accident Claims Tribunal(Chief Judicial Magistrate Court), Dindigul, is modified by awarding a sum of Rs.5,80,000/-(Rupees Five Lakhs and Eighty Thousand Only) with costs and interest at 7.5% per annum from the date of petition till date of payment within two months from the date of receipt of the copy of this order by the first respondent/insured. On deposit of the amount into Court, the claimant is permitted to withdraw the entire amount with accrued interest and entire costs. The claim petition is dismissed as against the second respondent/insurer. This Civil Miscellaneous Appeal is disposed of accordingly. No Costs. Consequently, connected miscellaneous petition is closed. pm Sd/- Assistant Registrar[AE] /True copy/ To Sub Assistant Registrar The Motor Accident Claims Tribunal/Chief Judicial Magistrate, Dindigul. C.M.A(MD)No.681 of 2011 Dated:30.06.2011 4P/2C RPB : 28.10.2011 https://hcservices.ecourts.gov.in/hcservices/