THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO M.A.C.M.A.Nos.2221 & 2226 OF 2011 COMMON JUDGMENT:- Both appeals arise out of a common accident. Both the petitioners are minors. According to them, on 23-04-1999 the petitioners were going to Kondagattu in a jeep bearing No.MH-12-P-9095 belonging to the first respondent and the driver of the jeep drove the same in a rash and negligent manner, as a result of which, the jeep turned turtle and petitioners sustained multiple injuries and they were treated in the hospital and they suffered disability. The petitioner in O.P.No.643 of 2003 claimed a compensation of Rs.1,06,000- and the lower Tribunal has granted a compensation of Rs.40,000/-. Questioning the same, M.A.C.M.A.No.2226 of 2011 was filed. The petitioner in O.P.No.641 of 2003 has claimed compensation of Rs.46,000/- and the lower Tribunal has granted a compensation of Rs.40,000/- and for the balance amount of Rs.6,000/- M.A.C.M.A.No.2221 of 2011 was filed. The first respondent is the owner of the vehicle and remained ex parte and the second respondent is the Insurance Company and did not file any appeal questioning the liability and pleaded that the petitioners are put to strict proof of the allegations with regard to the nature of the incident, nature of injuries and quantum of compensation. The learned counsel for the appellants contends that so far as the petitioner in O.P.No.643 of 2003 concerning M.A.C.M.A No.2226 of 2011 injury is said to have been received by him to his eye and there was a deficiency of his vision and consequently the injured being aged “7” years, the compensation arrived at by the lower Tribunal is not just and proper. Though the Doctor was not examined, the lower Tribunal has accepted the claim of the petitioner with reference to the injury and also the fact that he was treated at Sircilla and Mancheryal. The lower Tribunal has also taken into consideration the need of acute care to be taken for the nature of the injury sustained by the boy, who is aged 7 years. Taking into consideration of these factors, a sum of Rs.10,000/- was granted for pain and suffering and a sum of Rs.15,000/- was granted evidently towards disability and a sum of Rs.5,000/- was granted towards loss of academic year and a sum of Rs.10,000/- was granted towards medical expenses. Evidently, the boy being a tender age and the nature of injury being also of vital part, the pain, suffering and shock he might have felt due to the accident must be more. It is very difficult to determine with any mathematical accuracy. Therefore, in view of the above circumstances, I feel ends of justice would meet if a compensation of Rs.75,000/-granted particularly keeping in mind the nature of injury and the age of the petitioner. The enhanced compensation along with the balance of compensation Rs.25,000/- shall be kept in the Fixed Deposit till the petitioner attains majority. So far as the claim in O.P.No.641 of 2003 is concerned, the petitioner claimed that there was a fracture of left femur and the wound certificate Ex.A-4 was filed. The lower Tribunal has taken into consideration the wound certificate-Ex.A-4 showing one grievous injury and under the head of pain and suffering, granted a compensation of Rs.10,000/- and towards disability a sum of Rs.15,000/- was granted and towards loss of academic year Rs.5,000/- was granted and towards medical expenses a sum of Rs.10,000/- was granted. Therefore, I feel the composition of towards pain and suffering appears to be on the lower side and I feel ends of justice would meet if a compensation of Rs.46,000/- as claimed by the petitioner is granted. The learned counsel for the appellant contends that the Tribunal has exonerated the liability of the Insurance Company and should have directed the Insurance Company to pay the amount and realise the same. The policy clearly stipulates that it should not be used for “hire”. The evidence of PW.1 clearly goes to show that the jeep was said to have been hired. The jeep was driven by the owner of the jeep who is the first respondent. There are said to be 10 or 11 passengers travelling in the jeep. The allegations in the petition itself show that the jeep was engaged for pilgrimage. Therefore, in view of the above circumstances, it is a case of clear breach of policy and the Insurance Company cannot be held liable for the same. The premium was only collected for the non-fare paid passengers (N.F.P.D) travelling in the vehicle, but, it does not cover the risk of the persons travelling on hire. The counsel for the appellant relied on a decision reported in United India Insurance Company Limited Vs. K.M.Poonam and others([1]) which has practically no application to the facts of this case since there was a coverage of the policy for six persons, but, more members were carried. Under those circumstances, the theory of pay and recovery was considered. So also the decision reported in New India Assurance Company Limited Vs. Korukonda Appa Rao and another([2]) relied on by the counsel for the petitioners has also no application to the facts of this case since the judgment in National Insurance Company Limited Vs. Balajit Kaur [ 2004 ACJ 428(SC)] is not followed and it was explained by the Supreme Court in National Insurance Company Limited Vs. Bommithi Subhayamma [ 2005 ACJ 721 (SC)]. The theory of pay and recovery does not arise. Therefore, the Insurance Company cannot be held liable. Accordingly, the relief against the Insurance Company is rejected. In the result, M.A.C.M.A.No.2221 of 2011 is allowed and the compensation is enhanced to Rs.46,000/- as claimed by the petitioner. M.A.C.M.A.No.2226 of 2011 is allowed and compensation is enhanced to Rs.75,000/-. The enhanced compensation along with the balance compensation of Rs.25,000/- shall be kept in a Fixed Deposit till the petitioners attain majority. The relief against the Insurance Company is rejected. _______________________ N.R.L. NĀGESWARA RĀO,J 15-11-2011 TSNR [1] 2011(5) ALD 60 (SC) [2] 2010 ACJ 2807