IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 02.09.2020 CORAM THE HONOURABLE DR. JUSTICE G.JAYACHANDRAN C.M.A.No.1478 of 2015

1.Pankajam

2.Suresh

3.Sathiya @ Sakthivel

4.Minor Palani ...Appellants /versus/

1.Rajendran

2.Divisional Manager, New India Assurance Co.Ltd., Having Office at No.42, Big Street, Thiruvannamalai ...Respondents Prayer: Appeal filed under Section 173 of the Motor Vehicles Act against the Decree and Judgment dated 23.11.2010 and made in M.A.C.T.O.P.No.801 of 2009 on the file of the Motor Accident Claims Tribunal, District Judge, Thiruvannamalai.

For Appellants : Mr.F.Terry Chella Raja For Respondents : No appearance for R1 Mr.Neethi Perumal for R2

J U D G M E N T

(The case has been heard through video conference)

Heard the learned counsel for the appellant and the learned counsel for the respondent.

2. It is a case of fatal accident of one Mr.Thanigachalam aged about

45 years working as a coolie in brick-kiln near Polur Taluk, Tiruvannamalai District. The claimants are his wife and his three children, of them one is a minor boy. The Tribunal, after considering the facts has exonerated the Insurance Company on the ground that the offending vehicle has violated the policy condition. It had no Fitness Certificate at the relevant point of time. Regarding the quantum, taking into account the alleged avocation of the deceased, income of Rs.3,000/- per month was tentatively fixed as the fundamental income of the deceased. After deducting 1/3^rd for his personal expenditure multiplier 15 was applied and a sum of Rs.3,60,000/- was awarded, besides Rs.48,000/- was awarded under the other non conventional head. Totally a sum of Rs.4,08,000/- was awarded as compensation to the claimants with 7.5% interest from the date of petition till the date of deposit. The award amount was ordered to be apportioned in the ratio of Rs.1,08,000/- to the first claimant/wife and Rs.1,00,000/- each to the children/ claimants 2 to 4.

3. The learned counsel for the appellant would pointedly argued that it is now well settled preposition of law in case of policy violation, the principle of pay and recovery should be applied and the Insurance Company cannot be exonerated from the liability.

4. In support of his submission, the learned counsel would rely upon the judgment of this Court rendered in United India Insurance Company Limited Vs. Sowkath Ali and others reported in 2009 (1) TN MAC 301, which was in consonance with the judgment of this Court in Velammal and others Vs. Kanagu reported in 2006 TNMAC 75 DB, wherein at Para 8 & 9. the ratio has been laid down as under:

“8. The Division Bench while holding that the Insurance Company is not liable for violation of policy condition, hekd that the Insurer insofar as a claim by third parties is concerned, has to first pay the claimant and proceed against the owner of the vehicle to recover the amount paid by it. The relevant portion reads as follows:

“In the result, we hold that the Insurer cannot avoid the liability to answer the claim of the third parties, but the Insurer is at liberty to proceed against the owner of the vehicle and recover the amount paid by it after paying the claimants-appellant herein.”

9. Following the ratio laid down in the above said Division Bench Judgment, in this case, since the vehicle in question did not have a valid fitness certificate on the date of accident, there is violation of policy condition and the owner will be liable for the breach. The Insurance Company, as far as the third party claim is concerned will at the first instance pay the claimant and recover the same from the owner of the vehicle in accordance with law.”

5. Regarding the quantum, the learned counsel for the appellant would submit that the principle laid down by the Division Bench of this Court in 2019 1 TNMAC 54 DB has to be applied and the factor of inflation index referred in the judgment to be applied. He would submit that if such index is applied tentative income of the deceased person should have