The insurer must prove any policy violations to be exonerated from liability, and the appellate court can enhance compensation based on injuries and lost income.

JUDGMENT :

C.S. SUDHA, J.

1. This appeal has been filed under Section 173 of the Motor Vehicles Act, 1988 (the Act) by the claim petitioner in O.P.(MV) No.230/2017 on the file of the Motor Accidents Claims Tribunal, Palakkad (the Tribunal), aggrieved by the amount of compensation granted by Award dated 14/11/2019. The respondent herein is the third respondent in the petition. In this appeal, the parties and the documents will be referred to as described in the original petition.

2. According to the claim petitioner, on 18/09/2016 at about 03:05 p.m., while she was walking along the side of Palakkad-Thrissur national highway, tempo van bearing registration no.AP03-TD-3357 driven by the second respondent knocked her down, as a result of which she sustained grievous injuries.

3. The first respondent-owner and the second respondent-driver of the offending vehicle remained ex-parte.

4. The third respondent-insurer filed written statement admitting the policy but denying negligence on the part of the second respondent. The averments in the petition regarding age, occupation and monthly income of the claim petitioner were disputed. The compensation claimed under various heads was contended to be exorbitant.

5. Before the Tribunal, no oral evidence was adduced by either side. Exts.A1 to A16 were marked on the side of the claim petitioner. Exts.B1 to B4 were marked on the side of the third respondent.

6. The Tribunal on consideration of the documentary evidence and after hearing both sides, found negligence on the part of the second respondent-driver of the offending vehile resulting in the incident and hence awarded an amount of ₹1,34,800/- together with interest @ 7.5% per annum from the date of the petition till realisation along with proportionate costs. Aggrieved by the Award, the claim petitioner has come up in appeal.

7. The only point that arises for consideration in this appeal is whether there is any infirmity in the findings of the Tribunal calling for an interference by this Court.

8. Heard both sides.

9. The award of compensation by the Tribunal under the following heads is challenged by the claim petitioner- Before the appeal is considered on merits, I refer to the argument advanced by the learned counsel for the third respondent/insurer, who drew my attention to paragraph 16 of the impugned award. In the said paragraph, the Tribunal refers to the contention that has been taken up by the third respondent/insurer that the driver of the offending vehicle, namely, the second respondent, did not have a valid driving license at the time of the accident and that the vehicle did not have a valid permit. The Tribunal rejected this contention on the ground that the same had not been proved by the third respondent/insurer. It is submitted by the learned counsel for the third respondent/insurer that, in the light of the contention taken up in the written statement that there was no valid driving licence or a valid permit for the offending vehicle, the burden of proof was on the claim petitioner to disprove the said contention and establish that there was necessary license and permit. As they have failed to discharge the burden, it has to be found that there has been a fundamental breach, which would entitle the insurer to be exonerated of the liability. On the other hand, it is submitted by the learned counsel for the claim petitioner that the burden is on the third respondent/insurer to prove the violations and even if there is any violation, the insurer can be given the liberty to recover the amount from the first and the second respondents.

9.1. When the insurer takes up a plea of violation of the policy condition(s), it is well settled that the burden