Insurance companies cannot avoid liability under Section 149 of the Motor Vehicles Act despite permit violations; the principle of pay and recover ensures claimants receive compensation first.

JUDGMENT :

K. MANMADHA RAO, J.

1. This appeal is filed by the appellant/claimant seeking to set aside the judgment and award dated 20.07.2017, on the file of the Principal District Judge, MACT, D.K. Mangaluru, passed in MVC No.283/2016.

2. The appellant herein is the claimant before the Tribunal, respondents No.1 and 2 herein are the Respondent No.1 is the owner and Respondent No.2 is the Insurance Company.

3. The facts leading to the filing of this appeal are that.

4. On 19.07.2015 at 1.30 p.m., when Mohammed Shamim, son of the petitioner was driving Honda City car bearing No.KA-19/ME-7482 by observing traffic rules, the driver of lorry bearing Reg.No.MH-11-AL-2915 came in a rash and negligent manner and dashed to the right side of petitioner’s car, as a result, the petitioner’s car was damaged. The petitioner is the RC owner of the car. The damage to the vehicle was assessed by M/s. Patel Cars Pvt. Ltd., and was in their custody from 22.12.2015 to 13.06.2016 for repairs. The petitioner claims that she has spent Rs.82,722/- towards repair charges, Rs.4,850/- towards survey charges and Rs.22,000/- for hiring charges. Due to the accident, value of the car is reduced to Rs.1,00,000/-. The lorry of the respondent No.1 is insured with respondent No.2 and both the respondents are liable to pay compensation.

5. Respondent No.1 was placed exparte and Respondent No.2 appeared through counsel and filed written statement.

6. Respondent No.2-Insurance Company admitted that the insurance policy has been issued to Lorry No.MH- 11-AL-2915, which was in force from 17.01.2015 to 16.01.2016.

7. The petitioner got examined herself and two other witnesses as P.W.1 to P.W.3 and got marked 08 documents. The 2^nd respondent got marked one witness as R.W.1 and got marked 05 documents.

8. As per Ex.P3- surveyor’s report, the cost of the repair of car and profession fee was valued at Rs.80,275/-. As per receipt issued by P.W.3, a sum of Rs.82,722/- was spent towards repair charges and placement of spare parts. Survey charges were valued at Rs.4,850/- and Rs.22,000/- was spent by the petitioner for hiring a car for 22 days and Rs.2,200/- was spent towards engaging autorickshaw.

9. The Tribunal has allowed the petition in part and awarded a sum of Rs.89,800/- with 6% interest per annum and cost of Rs.2,000/- to be deposited by Insurance Company within 60 days from the date of award. The Tribunal has awarded to release the entire amount in favour of the appellant.

10. Heard the learned counsel appearing on both sides and perused the materials on record.

11. The learned counsel appearing for the appellant would contend that the compensation awarded by the Tribunal is on the lower side. The petitioner has spent considerable amount towards repair charges, hiring of other vehicle and idling charges. Further there is a reduction in the value of the car an extent of Rs.1,00,000/-.

12. It is also contended that the Tribunal also failed to note that the Insurance Company has admitted that third party risk is covered under the Policy. There is no clause in the policy to absolve the liability on the ground of plying the vehicle outside permit area. It is further contended that as per Amrit Paul Singh and Another v. Tata Aig General Insurance Company Insurance Company Limited and others , (2018) SC 2662, if there is no valid permit, the insurance company has to pay the compensation and recover the same from the owner of the offending vehicle.

13. Learned counsel for the appellant/claimant further contended that the Insurance Company is liable to pay compensation and quantum of compensation is also on the lower