1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 10.03.2011 CORAM: THE HONOURABLE MS.JUSTICE K.B.K.VASUKI C.M.A(MD).No.1717 of 2010 And M.P.(MD).No.2 of 2010 The Oriental Insurance Company Ltd., Door No.555/1, First Floor, Maria Joseph Building G.H.Road Theni – 626 531 Through its Branch Manager ... Appellant/2nd Respondent Vs. 1. Murugan ...1st Respondent/Petitioner 2. Rajagopal Palani ... 2nd Respondent/1st Respondent PRAYER: Civil Miscellaneous Appeal filed under Section 173 of the Motor Vehicles Act, 1988 against the award and decreetal award, dated 24.09.2009 made in M.C.O.P.No. 546 of 2008 on the file of the Motor Accidents Claims Tribunal/II Additional District Judge, Tirunelveli. For Appellant : Mr.P.Ramani For 1st Respondent: No appearance For 2nd Respondent: Mr.Mayil Vahana Rajendran J U D G M E N T This Civil Miscellaneous Appeal is filed by the Insurance Company against the award of compensation of Rs.66,970/- payable with interest at the rate of 7.5% per annum from the date of petition to the claimant, who was the injured in the accident occurred at 9.30 a.m., on 21.05.2008 at Malayadikurichi Gomathyammal Polytechnic bus stop, caused by the driver of the Tata Sumo Car, belonging to the first respondent and insured with the second respondent in the claim petition. 2. In this appeal, the Insurance Company has sought to question the correctness of the award both by denying its liability to indemnify the insurerd and by questioning the quantum of compensation. The liability is sought to be disputed on the ground of breach of policy condition by reason of non- possession of valid driving license by the driver of the Tata https://hcservices.ecourts.gov.in/hcservices/ 2 Sumo Car and the quantum is sought to be questioned on the ground that the compensation awarded for pain and suffering is exorbitantly high. 3. It is not in dispute that RW-1, driver of Tata Sumo Car possessed valid driving license, only to drive LMV type of vehicles without any specific endorsement to drive commercial vehicle and the vehicle which is involved in the accident is tourist taxi and was at the time of accident carrying no passenger at all. 4. The Larger Bench of the Hon'ble Supreme Court in the case of National Insurance Company Ltd., Vs. Swaran Singh & Others reported in 2004(1) TNMAC 104 (SC) has observed that the burden to prove and the breach of policy condition is upon the insurer and the insurer must in order to avoid its liability towards the insured establish that not only insured used or caused or permitted to be used the motor vehicle in breach of the policy but also the damage suffered flowed from such breach and the said breach is so fundamental and is found to have contributed to the cause of accident. 5. In the absence of any such proof, the Insurance Company cannot be permitted to deny its liability to indemnify the insured and the Tribunal has rightly fastened the liability upon the insurer to satisfy the award made in favour of the claimants. 6. Regarding the quantum of the compensation, the tribunal has awarded. A total compensation of Rs.66,970/- under various heads and what is seriously disputed is the award of Rs.30,000/- as compensation for the injuries and pain and suffering, suffered by the petitioner and the same, according to the learned counsel appearing for the appellant, is on higher side. 7. This Court, considering the nature of injuries sustained by the first respondent – claimant, the nature of treatment undergone by him, and duration of his hospitalisation, finds some force in such contention raised on the side of the appellant and is inclined to reduce the same to Rs.25,000/-. Accordingly, the total compensation awarded by the Tribunal is reduced to Rs.61,970/-, which is rounded off to Rs.62,000/- 8. In the result, the award, dated 24.09.2009, made in M.C.O.P.No. 546 of 2008, on the file of the Motor Accidents Claims Tribunal/II Additional District Judge, Tirunelveli, is modified and there shall be an award for Rs.62,000/- payable with interest at the rate of 7.5% per annum from the date of petition. No costs. Consequently, connected Miscellaneous Petition is closed. Sd/- Assistant Registrar(Crl.Side) /True Copy/ Sub-Assistant Registrar https://hcservices.ecourts.gov.in/hcservices/ 3 To The Motor Accidents Claims Tribunal/ II Additional District Judge, Tirunelveli +One cc to Mr.P.Ramani, Advocate, SR.No.5825 +One cc to Mr.C.Mayilvahana Rajendran, Advocate, SR.No.5899 vsg rl/4c – 31.5.2011 C.M.A(MD).No.1717 of 2010 And M.P.(MD).No.2 of 2010 10.03.2011 https://hcservices.ecourts.gov.in/hcservices/