Liability of the insurance company in cases of violation of terms of the policy and the assessment of compensation considering the future prospects of the deceased.

JUDGMENT :

U. DURGA PRASAD RAO, J.

1. M.A.C.M.A No. 252/2017 and M.A.C.M.A. No. 3035/2017 are filed by the Insurance Company and claimants respectively challenging the judgment dated 26.11.2016 in M.V.O.P. No. 586/2012 passed by the Principal Motor Accidents Claims Tribunal, Nellore granting compensation of Rs.42,55,000/- against the claim of Rs.75,00,000/- for the death of one Cherukupalli Sailaja Rani in a lorry accident.

2. The claimants are the son and parents of the deceased who filed MVOP No. 586/2012 against the owner and insurer of the offending lorry bearing registration No. AP-21-X-2898. Since both the appeals arose out of the same MVOP, they are disposed of by this common judgment.

3. Parties in these appeals are referred to as they are arrayed in M.V.O.P. No. 586/2012.

4. Heard arguments of Sri P. Ramanjaneyulu, learned counsel for appellant in MACMA No. 252/2017 and Sri G. Venkateswarlu, learned counsel for appellants in MACMA No. 3035/2017.

5. Severely fulminating the judgment of the lower tribunal, Sri P. Ramanjaneyulu, learned counsel for insurance company/Appellant in M.A.C.M.A. No. 252/2017 would argue that by the date of accident, the crime vehicle bearing registration No. AP-21-X-2898 was not covered with valid permit and in spite of noting the said fact, the tribunal has, instead of exonerating the insurance company of its liability, erroneously fastened primary liability on it with a direction to pay the compensation to claimants at first and then recover the same from the owner of the offending lorry later. Learned counsel would emphasize that lack of the permit issued by the concerned RTA authorities amounts to violation of the terms of the insurance policy and thereby the liability of the insurance company ceases and hence the question of payment of compensation at first and recovering later does not arise. He reiterated that the lower tribunal ought to have directed the owner of the lorry to pay compensation by exempting the insurance company from its liability. To buttress his argument he placed reliance on National Insurance Co. Ltd. vs. Challa Bharathamma, (2004) ACJ 2094 and Amrit Paul Singh vs. Tata Aig General Insurance Co. Ltd. (2018) ACJ 1768.

6. Nextly learned counsel argued that the lower tribunal committed gross mistake in fixing the monthly income of the deceased at Rs.30,000/- on mere conjecture and thereby smacked stout compensation upon the insurance company. He would argue that there is no legal or evidentiary basis to fix a high notional income of Rs.30,000/- per mensem. Instead, going by series of income tax returns of the deceased filed by the petitioners, the tribunal ought to have fixed a lesser and reasonable amount as monthly earnings of the deceased. Learned counsel thus, at the first instance, prayed to allow the appeal No. 252 of 2017 and exonerate the insurance company from its liability and alternatively to re-assess the compensation in accordance with law and direct the insurance company to pay and recover.

7. In oppugnation, Sri G. Venkateswarlu, learned counsel for appellants/claimants in MACMA 3035/2017 would firstly argue that the tribunal has rightly held that mere lack of permit would not absolve the insurance company of its liability because the occurrence of the accident had no direct nexus with the lack of permit but the accident was due to the rash and negligent driving by the driver of the 1st respondent and more over, the offending vehicle was covered with insurance policy by the date of accident. Hence the tribunal directed the insurance company to pay compensation at first and recover the same later from the owner of the offending vehicle. He would emphasize that the said finding is backed by the relevant case law on the subject and hence the same needs no interference. He would further argue that in fact the decisions relied upon by the learned counsel for insurance company also reiterate the principle of pay and recover in cases of violation of terms of the policy