The court applied the pay and recovery principle and considered the validity of the driving license, quantum of compensation, and application of multiplier for disability.

JUDGMENT :

(Prayer: Civil Miscellaneous Appeal has been filed under Section 173 of the Motor Vehicles Act, 1988 against the judgment and decree passed in M.C.O.P.No.621 of 2014 on 23.02.2015 on the file of the learned Motor Accident Claims Tribunal (Special Subordinate Judge) at Dharmapuri District.)

(The case has been heard through video conference)

1. This appeal filed by the Insurance Company, being aggrieved by the liability fastened on it to pay the compensation of Rs.8,32,106/- with interest at the rate of 7.5% p.a., from the date of petition till the date of realisation to the claimant/accident victim and recover it from the owner of the vehicle.

2. On 20.01.2011, the first respondent Manjunathan along with his wife on the pillion was riding his two wheeler motor cycle bearing Reg.No.TN-29D-4246 Yamaha RX 135 bike along Dharmapuri to Pennagaram Main Road. At about 9.30 a.m., near Om Sakthi Nursing College, the rider of the Bajaj Discover Motorcycle bearing Reg.No.TN-29AC 0250 proceeding towards Dharmapuri dashed against the Yamaha motor cycle. The claimant and his wife sustained severe injury and were admitted in the Government Hospital, Dharmapuri. After First aid, the claimant was shifted to Ganga Medical Centre, Kovai where he was treated as in-patient from 20.01.2011 to 31.01.2011. Surgery was conducted for the fracture of left tibia and fibula bone. Skin transplant surgery was done subsequently at the fractured side. Alleging that the accident occurred due to the negligence of the Bajaj Discover motorcyclist, the claim petition for Rs.10,00,000/- was filed against the owner of the motorcycle and its insurer.

3. The Insurance Company filed a counter denying their liability stating that the rider of the Bajaj Discover motorcycle bearing Reg.No.TN 29AC 0250 did not inform about the accident and he had no valid and effective driving licence at the time of the accident. Further, the accident has occurred due to the contributory negligence of the claimant. Since the insurer of the claimant’s vehicle was not impleaded as respondent, the claim petition is liable to be dismissed. Since the rider of the Bajaj Discover vehicle had no valid driving license, as insurer of the said vehicle, the 2nd respondent insurance company is not liable to indemnify the owner of the said vehicle, in view of the policy violation. The quantum of compensation also questioned as excessive.

4. The claimant and his wife preferred separate claim petitions and both were heard together by the Motor Accident Claims Tribunal. On considering the evidence, the Tribunal in the petition M.C.O.P.No.621 of 2014 filed by the claimant awarded a sum of Rs.8,32,106/- payable by the Insurance company and thereafter, recover the same from the owner of the motorcycle Bajaj Discover Reg.No.TN29-AC-0250 in view of policy violation.

5. The Insurance Company in the appeal has stated that the accident occurred due to the fault of the claimant. Therefore, the claimant is entitled the compensation only under Section 140 of the Motor Vehicle Act and not under Section 166 of the Motor Vehicles Act. Further, the compensation of Rs.8,32,106/- is highly excessive, exorbitant and unsustainable in law. The driver of the vehicle insured under them had no valid driving licence and the same has been proved through the evidence of RW-1 Junior Assistant in RTO Office, Dharmapuri. The rider had obtained driving licence only after the accident. Having proved the same, the Tribunal ought not to have ordered pay and recovery. It should have exonerated the insurance company totally.

6. Regarding the quantum of compensation, the appellant contended that the multiplier applied for the disability as if the claimant has lost his earning capacity is factually erroneous. The claimant working as Teacher has neither lost his income nor employment. 50% physical disability itself is excessive and appli