BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 23.10.2024 CORAM THE HON'BLE MR.JUSTICE SUNDER MOHAN C.M.A.(MD) Nos.1379 & 779 of 2024 & C.M.P.(MD).No.8573 of 2024 C.M.A.(MD).No.1379 of 2024

1.Palaniappan

2.Azhagu

3.Ramanathan ... Appellants Vs.

1.Udayakumar

2.The Divisional Manager, New India Assurance Company Limited, Sethu Amirtham Towers, Seenivasampillai Road, Thanjavur. ... Respondents Prayer: Civil Miscellaneous Appeal filed under Section 173 of the Motor Vehicles Act, 1988, to enhance the award amount in M.C.O.P.No.58 of 2020 on the file of the Motor Accident Claims Tribunal (Special District Judge), Thanjavur, dated 12.01.2024.

For Appellants : Mr.G.Karnan For R-1 : Mr.S.Venkatesan The Divisional Manager, New India Assurance Company Limited, Sethu Amirtham Towers, Seenivasampillai Road, Thanjavur. ... Appellant Vs.

1.Palaniappan

2.Azhagu

3.Ramanathan

4.Udayakumar ... Respondents Prayer: Civil Miscellaneous Appeal filed under Section 173 of the Motor Vehicles Act, 1988, to set aside the judgment and decree made in M.C.O.P.No.58 of 2020 on the file of the Motor Accident Claims Tribunal (Special District Judge), Thanjavur, dated 12.01.2024.

For Appellant : Mr.J.S.Murali For R-1 to R-3 : Mr.G.Karnan For R-4 : Mr.S.Venkatesan *****

COMMON JUDGMENT

The claimants have preferred the appeal in C.M.A.(MD).No.1379 of

2024 seeking enhancement of compensation.

2. The Insurance Company has preferred the appeal in C.M.A.

(MD).No.779 of 2024 challenging the award relating to 'pay and recover' and the quantum of compensation. The learned counsel of the appellant / Insurance Company would submit that since the appellant had established that the driver of the insured vehicle did not have a valid licence, the tribunal ought not to have directed pay and recovery. As regards quantum, the learned counsel would submit that considering the number of dependents 1/3^rd of the income ought to have been deducted towards personal expenses and the tribunal had not deducted any amount towards personal expenses.

3. Since the findings on negligence is not under challenge, the facts leading to the filing of these claim petitions are unnecessary for the disposal of these two appeals.

4. The learned counsel appearing for the appellants / claimants in C.M.A.(MD).No.1379 of 2024 submitted that though the claimants have produced income tax returns for the period from 2016-2017 to 2019-2020 which would show that the deceased was earning nearly Rs.75,000/- per month, the same has been ignored by the Tribunal and hence, the compensation has to be enhanced.

5. The learned counsel appearing for the appellant / Insurance Company in C.M.A.(MD).No.779 of 2024, per contra, submitted that, the Tribunal had rightly rejected the income tax returns filed by the claimants and fixed the notional income correctly and that no deductions were made towards personal expenses and hence, the compensation has to be reduced.

6. The learned counsel appearing for the owner / fourth respondent in C.M.A.(MD).No.779 of 2024 submitted that the award of the Tribunal directing the Insurance Company to pay and recovery from him cannot be sustained. He further submitted that the compensation awarded by the Tribunal need not be interfered with.

7. The points for consideration in the instant appeal are as follows:

(a) Whether the direction to the appellant / Insurance company to pay and recover is justified?

(b) Whether the quantum of compensation awarded by the tribunal is just and reasonable?

8. As regards the first point, it is seen that the appellant / Insurance Company had established that the driver of the insured vehicle did not have a valid licence. It is well settled that where there is a violation of policy condition, the insurance company can be directed to pay the compensation at the first instance and thereafter, recover from the owner. Therefore, this Court finds no infirmity in the award of the tribunal directing the appellant / insurance company to pay and recover the compensation.

9. As regards