The National Insurance Company Ltd. v. Sudhakaran, K.M. Ravindran and K. Ravi

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN FRIDAY, THE 16TH DAY OF JUNE 2017 / 26TH JYAISHTA, 1939 MACA.No. 983 of 2009 ------------------------AGAINST THE AWARD IN OPMV 96/2002 of MACT,THRISSUR DATED 11-12-2008 APPELLANT(S)/3RD RESPONDENT THE NATIONAL INSURANCE CO.LTD., GURUVAYOOR BRANCH,THRISSUR,REP.BY ITS DEPUTY MANAGER, REGIONAL OFFICE, 2ND FLOOR, OMANA BUILDING, M.G.ROAD,KOCHI-35. BY ADV.SRI.GEORGE CHERIAN (THIRUVALLA) RESPONDENT(S)/CLAIMANT/RESPONDENTS 1& 2: 1. SUDHAKARAN, S/O.KUMARAN, PAMBUNGAL HOUSE, BRAHMAKULAM DESOM, THAIKKAD VILLAGE, CHAVAKKAD. 2. K.M.RAVINDRAN, S/O.MAKKOTHA, KONDAMPULLY HOUSE, VALMEKAHAM, ARIYANNOOR, GURUVAYOOR. 3. K.RAVI, S/O.KITTA, KANNAKULANGARA HOUSE, KOTTAI DESOM & VILLAGE, KUZHALAMANDAM, PALAKKAD. R,R2 BY ADV. SRI.RAJIT R,R2 BY ADV. SRI.RANJIT BABU THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 16-06-2017 ALONG WITH MACA NO.1873/2009 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **"C.R"** ## **C.T. RAVIKUMAR & ANIL K. NARENDRAN, JJ.** **-------------------------------------------------M.A.C.A.Nos.983, 1866 & 1873 of 2009, 981/2015 & Cross Objection No.54/2009 in M.A.C.A.No.1866/2009 -------------------------------------------------DATED THIS THE 16[th] DAY OF JUNE, 2017** ## **JUDGMENT** ## **C.T. RAVIKUMAR, J.** M.A.C.A.No.983/2009, placed before us for consideration based on a reference order dated 3.9.2010, of a learned Single Judge and the other appeals arising from the common judgment and awards of Motor Accidents Claims Tribunal, Ernakulam, in a pair of claim petitions germinated from the same motor vehicle accident, also carry the same question for resolution. “Can the insurer of a motor vehicle, involved in an accident during the currency of its policy of insurance, decline to assume the risk in respect of the insurance business, arising out of that accident occurred on the date of receipt of the premium merely because going by the policy of insurance, its coverage commenced not on the date of receipt of premium, but only from 00.hrs of the next day”, is the larger question to be resolved. A succinct narration of the facts of the cases, is required to answer the aforesaid question and allied issues. 2. We will firstly, deal with facts of the two claim petitions germinated from the same accident and culminated in the common 2 M.A.C.A.Nos.983, 1866 & 1873 of 2009, 981/2015 & Cross Objection No.54/2009 in M.A.C.A.No.1866/2009 judgment and awards of Motor Accident Claims Tribunal, Ernakulam, as mentioned above, viz., O.P.(MV) Nos.2198/2004 and 2410/2004. The claimants therein are husband and wife. They were knocked down by the maruthi car bearing registration No.KL-7H-3985 when they were walking alongside Ernakulam-Muvattupuzha road on 13.4.2004 at about 1.30 p.m. Respondents 1 to 3 therein are respectively its driver, owner and insurer, at the time of the accident. On sustaining, bodily injuries, they were taken to Malankara Orthodox Syrian Church Medical College Hospital, Kolencherry and after providing first aid, they were referred to Lissie Hospital, Ernakulam for better treatment. The husband filed OP(MV)No.2198/2004 claiming a total compensation of ₹3,06,000/- and the wife filed OP(MV)No.2410/2004 claiming a compensation of 2,33,000/-, under₹ Section 166 of the Motor Vehicles Act. The accident and the cause of accident as the negligence from the part of the 1[st] respondent, the driver of the said offending vehicle are not at all in dispute. At the same time, the Insurance Company, the 3[rd] respondent therein disowned the liability to indemnify the 2[nd] respondent, the insured owner of the offending vehicle, contending that as on the date of accident, there was no policy coverage as the policy in respect of the 3 M.A.C.A.Nos.983, 1866 & 1873 of 2009, 981/2015 & Cross Objection No.54/2009 in M.A.C.A.No.1866/2009 vehicle in question had commenced its coverage only from 00.hrs on 14.4.2004 and therefore, it had validity only from 14.4.2004 to 13.4.2005. Such a contention is raised even while admitting the factum of receipt of premium on the previous day viz., on 13.04.2004. The owner of the vehicle, the 2[nd] respondent remained ex parte before the Tribunal. The first and third respondents contested the matter. The claim petitions were jointly heard and on the side of the claimants Exts.A1 to A32 were got marked and on the side of the respondents, the policy of the offending vehicle was got marked as Ext.B1. On the side of the claimants, they were examined as PWs 1 and 2 and no oral evidence was tendered by the respondents. 3. After evaluating the evidence on record and appreciating the rival contentions, the Tribunal had passed a common award granting an amount of 1,54,000/- in OP(MV)No.2198/2004 and an amount of₹ ₹98,200/- in O.P.(MV) No.2410/2004, as compensation, with interest @7% per annum from the date of petition till the expiry of one month from the date of the judgment and in case of failure to satisfy the awards within the said stipulated time limit, the amount awarded in each of the cases, was ordered to carry interest @9% per annum till M.A.C.A.Nos.983, 1866 & 1873 of 2009, 981/2015 & Cross Objection No.54/2009 in M.A.C.A.No.1866/2009 4 realisation. The insurer was found liable to indemnify the 2[nd] respondent insured owner of the offending vehicle. In the said circumstances, the insurer of the vehicle involved in the said accident filed M.A.C.A.No.1866/2009 challenging the judgment and award in O.P.(MV)No.2198/2004. The claimant in O.P.(MV)No.2198/2004 filed M.A.C.A.No.981/2015 seeking enhancement of the quantum of compensation and besides the same, he filed a cross objection, viz., C.O.No.54/2009 in M.A.C.A.No.1866/2009. Evidently, it is apprehending that the same would not be maintained as the appellant had not disputed the quantum of compensation that he filed M.A.C.A.No.981/2015. The insurer has also filed an appeal against the award in O.P.(MV)No.2410/2004, viz., M.A.C.A.No.1873/2009. 4. We have heard the learned Senior Counsel Shri George Cherian (Thiruvalla) appearing for the appellants in M.A.C.A.Nos.1866/2009 and 1873/2009, the learned counsel appearing for the appellant in M.A.C.A.No.981/2015 and the cross objector in C.O.No.54/2009 in M.A.C.A.No.1866/2009 and the learned counsel for the 3[rd] respondent in M.A.C.A.Nos.1866/2009 and 1873/2009. The learned Senior Counsel for the appellant in the above insurer's appeals, appears for the appellant in M.A.C.A.Nos.983, 1866 & 1873 of 2009, 981/2015 & Cross Objection No.54/2009 in M.A.C.A.No.1866/2009 5 M.A.C.A.No.983/2009 also. We have also heard the learned counsel appearing for the insured owner of the vehicle involved in M.A.C.A.No.983/2009 arising from OP(MV)No.96/2002. We will deal with M.A.C.A.No.983/2009 a little later. 5. Essentially, the contention of the insurer of the offending vehicle involved in the accident who is the appellant in M.A.C.A.Nos.1866/2009 and 1873/2009 is that since Ext.B1 policy was valid only from 14.4.2004 to 13.4.2005, going by the endorsement thereon and that the accident had occurred at 1.30 p.m. on 13.4.2004, the Tribunal ought not to have saddled the liability to indemnify the registered owner of the vehicle involved in the said accident, ignoring the terms of the contract of insurance. In support of the said contention, the learned Senior Counsel appearing for the appellant in the said appeals has relied on a decision of a Division Bench of this Court in M.F.A.No.24/2010 dated 10.7.2013. 6. The learned Senior Counsel appearing for the appellants therein has also relied on the decision of the Hon'ble Apex Court in **New India Assurance Co. v. Kareemunnisa [(2009) 16 SCC 241]** to contend that the liability to indemnify the insured owner would arise only from the date and time shown in the policy. The M.A.C.A.Nos.983, 1866 & 1873 of 2009, 981/2015 & Cross Objection No.54/2009 in M.A.C.A.No.1866/2009 6 learned Senior Counsel further contended that the Apex Court had rendered the said decision relying on its earlier decisions in **Oriental Insurance Co. Ltd. v. Sunitha Rathi (AIR 1998 SC 257)** and **National Insurance Co. Ltd. v. Sobina Iakai [(2007) 7 SCC** **786]** . Apart from those decisions, reliance was also placed on the decision of the Hon'ble Apex Court in **Deokar Exports Private Limited. v. New India Assurance Company Limited [(2008) 14** **SCC 598]** . On the question as to how a policy document is to be construed, the learned Senior Counsel relied on the decisions of the Hon'ble Apex Court in **Central Bank of India v. The Harford Fire Insurance Co. Ltd. (AIR 1965 SC 1288)** , **General Assur. Society v. Chandmull Jain (AIR 1966 SC 1644)** , **Oriental Insurance Co. Ltd. v. Sony Cheriyan [(1999) 6 SCC 451]** and **National Insurance Co. Ltd. v. Laxmi Narain Dhut [(2007) 3 SCC 700]** . The learned Senior Counsel has also cited a decision of the High Court of Karnataka reported in **National Insurance Company Ltd. v. Smt.Bhadramma [(2010) 1 TAC 818=(2010 ACJ 1687)]** and submitted that though the said decision is virtually against the insurer, it is cited as it was rendered referring to **Sunitha Rathi's** case (supra) but in deviation of its dictum. It is further contended M.A.C.A.Nos.983, 1866 & 1873 of 2009, 981/2015 & Cross Objection No.54/2009 in M.A.C.A.No.1866/2009 7 that the decision in **Bhadramma's** case (supra) could not be taken into consideration at all, to decide the issues involved in the appeals. 7. In M.A.C.A.No.1873/2009, paper publication was taken out to the 2[nd] respondent, the driver of the offending vehicle. True that the status of the said person in the array of parties in the other appeals, is different. It is a fact that despite taking notice by paper publication, he has not chosen to enter appearance and contest the appeals. The owner of the offending vehicle, however, entered appearance. So also the claimants in OP(MV)No.2198/2004 and 2410/2004 who are also respondents in the respective appeals arising therefrom have entered appearance. Hereafter, the parties in these appeals are referred to, for the sake of convenience, in accordance with their rank and status in the claim petitions concerned, unless otherwise specifically mentioned. 8. The learned counsel appearing for the insured owner of the offending vehicle, the 2[nd] respondent who is the 3[rd] respondent in M.A.C.A.Nos.1866/2009 and 1873/2009 and the 1[st] respondent in M.A.C.A.No.981/2015 countered the contentions raised by the appellant-insurer in the appeals by relying on the decisions reported in **National Insurance Co. Ltd. v. Abhaysing Waghela [(2008) 9** 8 M.A.C.A.Nos.983, 1866 & 1873 of 2009, 981/2015 & Cross Objection No.54/2009 in M.A.C.A.No.1866/2009 **SCC 133]** and **The Manager, United India Insurance Co. Ltd. v. Jayalakshmi & others (2011 (2) KLJ 584)** . The learned counsel has also relied on the decision reported in **LIC of India v. Kamalamma (1986 KLT 347)** . Essentially, the core contention of the insured owner of the offending vehicle is that by virtue of the provision under Section 64VB of the Insurance Act and also the indisputable and undisputed factual position that the premium paid by him in respect of the offending vehicle was accepted by the appellantinsurer on 13.4.2004 itself, the insurer was bound to assume risk from the date of receipt of the premium. In other words, it is contended that in view of the undisputed position that premium for insurance policy in respect of the offending vehicle was received on 13.4.2004, the insurer could not challenge the fixation of the liability to indemnify the insured owner by virtue of the provisions under Section 64VB of the Insurance Act. In short, the contention of the insured owner is that the judgment of the Tribunal does not warrant an interference. 9. The learned counsel appearing for the claimants in O.P. (MV)Nos.2410/2004 and 2198/2004, the respective first respondent in M.A.C.A.Nos.1866/2009 and 1873/2009, submitted that the 9 M.A.C.A.Nos.983, 1866 & 1873 of 2009, 981/2015 & Cross Objection No.54/2009 in M.A.C.A.No.1866/2009 contentions raised by the insurer in the appeals are absolutely bereft of any basis and he endorsed the contentions raised for the insured owner of the vehicle. Nonetheless, it is submitted that the compensation granted in O.P.(MV)No.2198/2004 by the Tribunal invites an upward modification. It is to be noted that the claimant in O.P.(MV)No.2410/2004 had not preferred any appeal. In short, the contention of the learned counsel for the claimants in the aforesaid claim petitions is that the Tribunal was right in fastening the liability to indemnify the insured owner on the appellant-insurer. It is further submitted by him that though the claimant had filed a cross objection as C.O.No.54/2009 in M.A.C.A.No.1866/2009, in view of the fact that he has filed an independent appeal, viz., M.A.C.A.No.981/2015 challenging the award in O.P.(MV)No.2198/2004 on the ground of inadequacy of the quantum of compensation, C.O.No.54/2009 may be dismissed as not pressed without prejudice to the right of the claimant to pursue with M.A.C.A.No.981/2015, on merits. 10. Now, we will refer to M.A.C.A.No.983/2009. It was filed by the National Insurance Company Ltd., the insurer of the offending vehicle involved in O.P.(MV)No.96/2002 on the files of the Motor Accident Claims Tribunal, Thrissur, against the judgment and award M.A.C.A.Nos.983, 1866 & 1873 of 2009, 981/2015 & Cross Objection No.54/2009 in M.A.C.A.No.1866/2009 10 passed thereon. As noticed hereinbefore, this appeal has come up before us for consideration pursuant to a reference order of a learned Single Judge of this Court dated 3.9.2010. It is to be noted that earlier the appellant-insurer had approached this Court by filing M.A.C.A.No.1/2008 challenging the award passed by the Motor Accident Claims Tribunal, Thrissur in the said claim petition. The challenge was against the fixation of liability to indemnify the insured owner. This Court as per judgment dated 15.7.2008 disposed of the said appeal along with M.A.C.A.No.227/2007. In the said common judgment dated 15.7.2008, relying on the fact that the premium was paid on the date of the accident and the policy was issued on the next day and taking note of the decisions of the High Court of Madras reported in **Oriental Insurance Co. Ltd. v. Vedathal and Anr. (2001 ACJ 2022)** and the decision of the High Court of Karnataka reported in **T. Dinakar v. P.J. Jagadish and others (2000 ACJ 228)** this Court held that there is relevance for the time of payment of premium and that by virtue of Section 64VB of the Insurance Act risk is bound to be assumed from the date of receipt of premium in respect of the vehicle concerned. After referring to those decisions and Section 64VB of the Insurance Act, it was held that the policy M.A.C.A.Nos.983, 1866 & 1873 of 2009, 981/2015 & Cross Objection No.54/2009 in M.A.C.A.No.1866/2009 11 would take effect from the date of payment of premium. The learned Single Judge further held that the other question to be considered is whether the premium was paid prior to or after the accident and it was also observed that if the premium was paid prior to the accident the question would be what is its impact in view of the aforesaid decisions is also a matter to be looked into. It is making such observations and to enable the Tribunal to have a fresh consideration on such aspects based on the said decisions that the award was set aside. The Tribunal on such reconsideration based on the reference order, passed a fresh award on 11.12.2008 in O.P.(MV)No.96/2002 viz., the impugned award in M.A.C.A.No.983/2009. Such reconsideration was made by the Tribunal after taking additional evidence as permitted under the judgment in M.A.C.A.No.1/2008. As per the award dated 11.12.2008, the Insurance Company was held liable to indemnify the owner of the vehicle in pursuance of the finding that premium for insurance coverage of the said vehicle was paid before the accident and by virtue of the aforesaid decisions, the insurer was bound to assume the risk. When the appeal came up for consideration, the learned Single Judge took note of the decision of the the Karnataka High Court in Bhadramma's case (supra) and also M.A.C.A.Nos.983, 1866 & 1873 of 2009, 981/2015 & Cross Objection No.54/2009 in M.A.C.A.No.1866/2009 12 of the fact that the learned Judge had already taken a view in M.A.C.A.No.1/2008, passed the aforementioned reference order in M.A.C.A.No.983/2009. The learned Single Judge referred the said appeal upon forming an opinion that an authoritative pronouncement by a Division Bench is required in the matter and accordingly formulated the following point for reference:- “Whether the insurance policy will commence from the date and time shown therein or from the date of receipt of premium, which is received earlier.” 11. After hearing the learned counsel on both sides, we are of the view that essentially a question of law of seminal importance, as mentioned hereinbefore in the opening part of the judgment, crops up for consideration in all these cases. The question as formulated by the learned Single Judge would also stand answered on answering the aforesaid question. 12. As already noticed hereinbefore, the learned Senior Counsel for the Insurance Company contended that the provisions under Section 64VB of the Act cannot take away or nullify the effect and impact of the date of commencement of the policy mentioned in the policy of insurance. It is contended that the insured owner of the vehicle involved in the accident that led to the filing of O.P. M.A.C.A.Nos.983, 1866 & 1873 of 2009, 981/2015 & Cross Objection No.54/2009 in M.A.C.A.No.1866/2009 13 (MV)Nos.2198/2004 and 2410/2004 remained ex parte before the Tribunal and even though he entered appearance in these proceedings, he got no case that the date of commencement shown in Ext.B1 policy is not 00.hrs of 14.4.2004. It is, therefore, contended that in the light of the decisions in **Kareemunnisa's** case, **Harford Fire Insurance Co. Ltd** .'s case, **Chandmull Jain** 's, **Sony Cheriyan** 's case, and **Laxmi Narain Dhut** 's case, the terms of insurance policy have to be construed without making any addition or subtraction. In other words, the time and date shown in the policy has to be taken as the decisive factor in regard to the question of liability of the insurer to indemnify the insured owner. Sri Rajit and Sri S.Prasun, the learned counsel appearing for the insured owners of the vehicles involved in the above appeals countered the contentions and submitted that in the light of Section 64VB of the Insurance Act, it is not open to the insurer to postpone the liability to assume the risk and it is mandatory on the Insurance Company to assume the risk on the date of payment of premium in respect of the insurance business concerned. In elaboration of the said contention, the learned counsel submitted that in all these appeals, indisputably, the Insurance Company received the premium before the date of M.A.C.A.Nos.983, 1866 & 1873 of 2009, 981/2015 & Cross Objection No.54/2009 in M.A.C.A.No.1866/2009 14 commencement of the coverage shown in the policy of insurance. It is further submitted that in such circumstances, in order to wriggle out of its bounden duty to assume risk in terms of the provisions under Section 64VB of the Insurance Act and to indemnify the insured owner, it is incumbent on the insurer to establish that the premium was not paid prior to the accident as claimed by the insured owner of the vehicle concerned and it was paid only after the occurrence of the accident. 13. In the light of the rival submissions, it is inevitable to consider the question as to what exactly is the effect and impact of Section 64VB of the Insurance Act as regards the assumption of risk on receipt of premium. A bare perusal of the provisions under Section 64VB of the Insurance Act would make it abundantly clear that what is specifically provided thereunder is that the risk may be assumed not earlier than the date on which the premium has been paid in cash or by cheque to the insurer. In fact, the learned Senior Counsel for the insurance Company lays emphasis on the expression 'may be assumed' employed in Section 64VB (2) to canvass the position that the insurer has the discretion to decide the date on which the risk is to be assumed in respect of any insurance business. M.A.C.A.Nos.983, 1866 & 1873 of 2009, 981/2015 & Cross Objection No.54/2009 in M.A.C.A.No.1866/2009 15 14. For a proper consideration of the aforesaid question of law, and also the tenability of the aforesaid contention it is only proper to refer to Section 64VB of the Insurance Act, which reads thus:- - “ **64VB. No risk to be assumed unless premium is** — - **received in advance.** - (1) No insurer shall assume any risk in India in respect of any insurance business on which premium is not ordinarily payable outside India unless and until the premium payable is received by him or is guaranteed to be paid by such person in such manner and within such time as may be prescribed or unless and until deposit of such amount as may be prescribed, is made in advance in the prescribed manner. - (2) For the purposes of this section, in the case of risks for which premium can be ascertained in advance, the risk may be assumed not earlier than the date on which the premium has been paid in cash or by cheque to the insurer. - Explanation.—Where the premium is tendered by postal money order or cheque sent by post, the risk may be assumed on the date on which the money order is booked or the cheque is posted, as the case may be. - (3) Any refund of premium which may become due to M.A.C.A.Nos.983, 1866 & 1873 of 2009, 981/2015 & Cross Objection No.54/2009 in M.A.C.A.No.1866/2009 16 an insured on account of the cancellation of a policy or alteration in its terms and conditions or otherwise shall be paid by the insurer directly to the insured by a crossed or order cheque or by postal money order and a proper receipt shall be obtained by the insurer from the insured, and such refund shall in no case be credited to the account of the agent. (4) Where an insurance agent collects a premium on a policy of insurance on behalf of an insurer, he shall deposit with, or despatch by post to, the insurer, the premium so collected in full without deduction of his commission within twenty-four hours of the collection excluding bank and postal holidays. - (5) The Central Government may, by rules, relax the requirements of sub-section (1) in respect of particular categories in insurance policies. - (6) The authority may, from time to time, specify, by the regulations made by it, the manner of receipt of premium by the insurer.” 15. Thus it is clear from the aforequoted provision that the statutory inhibition is for assumption of risk earlier than the date on which the premium has been paid by any of the aforesaid mode of payment. This position is candidly clear from Section 64VB (1). Explanation to Section 64VB(2) is very much relevant in this context. M.A.C.A.Nos.983, 1866 & 1873 of 2009, 981/2015 & Cross Objection No.54/2009 in M.A.C.A.No.1866/2009 17 Going by the same, where the premium is tendered by postal money order or cheque sent by post, the risk may be assumed on the date on which the money order is booked or the cheque is posted. True that under Section 64VB(2) of the Insurance Act, the expression used is “the risk may be assumed”. Then, the latter limb of the Explanation essentially limits the statutory obligation to assume risk by prescribing that 'the risk may be assured on the date on which the money order is booked or the cheque is posted, as the case may be'. It is also relevant to note that going by the Explanation, risk could be assumed even when the premium is tendered by postal money order on the date on which money order was booked. So also, it could be assumed, when premium is tendered by cheque sent by post, on the date the cheque is posted. When that be so, how could an insurer be heard to say that it would not assume risk on the date on which it actually received the premium in cash though the vehicle in respect of which premium was thus received met with an accident only after the actual receipt of the premium in cash? In the context of the contentions, it is relevant to consider what exactly is the scope and object of an 'explanation' and whether the word 'may' used under Section 64VB(2) of the Insurance Act and in its 'Explanation' should M.A.C.A.Nos.983, 1866 & 1873 of 2009, 981/2015 & Cross Objection No.54/2009 in M.A.C.A.No.1866/2009 18 be construed to mean 'shall'. 16. In **Sonia Bhatia v. State of U.P.** reported in ( **AIR 1981 SC 1274)** , the Hon'ble Apex Court held that an 'explanation' would only widen the scope of the main section and it did not carve out a particular exception to the contents of the main section. In Section 64VB(2) of the Insurance Act and also in the explanation thereunder, the word used is 'may' as regards the question of assumption of risk when premium in respect of the life insurance business is tendered by resorting to any of the prescribed modes. To be precise, in the 'Explanation' it is used only in respect of instances where premium is tendered either by postal money order or by cheque sent by post. As stated earlier, the question is whether the word 'may' used in Section 64VB(2) of the Insurance Act and its explanation must be construed to mean 'shall'. Contextually, the decision of the Hon'ble Apex Court in **Textile Commissioner v. Sagar Textile Mills (AIR 1977 SC 1516)** wherein paragraph 8 of its earlier decision in **State of U.P. v. Jogendra Singh (AIR 1963 SC 1618)** was quoted with approval got relevance. In paragraph 8 of **Jogendra Singh** 's case, it was held thus:- “There is no doubt that the word “may” generally does not mean “must” or “shall”. But it is well-settled that the word M.A.C.A.Nos.983, 1866 & 1873 of 2009, 981/2015 & Cross Objection No.54/2009 in M.A.C.A.No.1866/2009 19 “may” is capable of meant, “must” or “shall” in the light of the context. It is also clear that where a discretion is conferred upon a public authority coupled with an obligation, the word “may” which denotes discretion should be construed to mean a command.” (emphasis supplied) 17. Bearing in mind the aforesaid aspects, we will have to consider as to whether the appellant Insurance Company could be heard to contend, even after receiving premium in cash directly, that it would not assume risk from the date and time on which it received the premium in respect of the said insurance business and that it would assume risk only on 00.hrs. of the next day on which it received the premium? 18. For a proper appreciation of the aforesaid contention and answering of the aforesaid question, it is only worthwhile to refer to the term 'life insurance business' as defined under section 2(11) of the Act and it reads thus :- - “2. xxxxxx - [(11) “life insurance business” means the business of effecting contracts of insurance upon human life, including any contract whereby the payment of money is assured on death (except death by accident only) or the happening of any contingency dependent on human life, and any contract which is subject to payment of premiums for a term dependent on human life and shall be deemed to include— (a) the granting of disability and double or triple indemnity accident benefits, if so provided in the contract of insurance; M.A.C.A.Nos.983, 1866 & 1873 of 2009, 981/2015 & Cross Objection No.54/2009 in M.A.C.A.No.1866/2009 20 (b) the granting of annuities upon human life; and (c) the granting of superannuation allowances and [benefits payable out of any fund] applicable solely to the relief and maintenance of persons engaged or who have been engaged in any particular profession, trade or employment or of the dependents of such persons;]” It is clear from the afore-extracted provisions that the life insurance business includes any contract whereby the payment of money is assured on death or the happening of any contingency dependent on human life and any contract which is subject to payment of premiums for a term deposit on human life. The provision under Section 64VB(1) of the Insurance Act, no doubt, prohibits an insurer to assume any risk in India in respect of any insurance business where premium is not ordinarily payable outside India and further from assuming risk earlier than the date on which the premium has been paid in cash or by cheque to the insurer. Going by Section 64VB(2), no such risk shall be assumed by an insurer except under the three situations envisaged thereunder, namely, (1) unless and until the premium payable is received by him, (2) the premium payable is guaranteed to be paid by such person in such manner and within such time as may be prescribed, or, (3) unless and until deposit of such amount as may be prescribed, is made in advance in the prescribed manner. In the cases on hand, we are only concerned with only one M.A.C.A.Nos.983, 1866 & 1873 of 2009, 981/2015 & Cross Objection No.54/2009 in M.A.C.A.No.1866/2009 21 mode of payment viz., direct payment of premium to the insurer. In all these cases on hand, admittedly, premium was paid in cash and received by the insurer on a date which is a day prior to the date shown in the policy of insurance as the date of commencement of the insurance policy. This fact is not at all disputed before us and in fact, it is the admitted case of both sides. The dispute centres round the question whether the insurer, in such circumstances, should assume any risk arising from a motor vehicle accident after the actual date and time of receipt of the premium though on the same day itslef or whether the insurer could postpone the assumption of risk to the date of commencement of the insurance coverage shown in the policy of insurance, even after receiving it on an earlier day. 19. While considering the aforesaid question, it is only proper to look into the distinction between a contract of insurance which is not statutory in nature and a contract of insurance which is statutory in nature. It was explained by the Honourable Apex Court in the decision in **Abhaysing Waghela's case** ( _supra)_ . While re-explaining the difference between contract of insurance qua the owner and one covering third party risk, the Hon'ble Apex Court held that a contract of insurance which is not statutory in nature should be construed like 22 M.A.C.A.Nos.983, 1866 & 1873 of 2009, 981/2015 & Cross Objection No.54/2009 in M.A.C.A.No.1866/2009 any other contract. It is thus evident that a contract of insurance which is statutory in nature could not be construed like any other contract. To know the nature of the contract of insurance under the Motor Vehicles Act, it is worthwhile to refer to Section 146 of the Motor Vehicles Act. Going by Section 146 of the M.V. Act, no person shall use, except as a passenger, or cause or allow any other person to use, a motor vehicle in a public place, unless there is force in relation to the use of the vehicle by that person or that other person, as the case may be, a policy of insurance complying with the requirements of Chapter XI of the M.V. Act. Thus, it can safely be said that there is statutory mandate under the provisions of Section 146 of the M.V. Act enjoining an owner of a vehicle that he shall not use or cause or allow his vehicle to be used, in public place without insurance coverage. The insurance in question is a contract of insurance for covering third party risk. The contract of insurance involved in these cases cover third party risk and liability of compensation awarded by the Tribunal to third party as per the mandate of Section 146 of the M.V.Act. The insurer has the statutory duty to the third party in such circumstances. The insurance in question was taken to honour the said statutory obligation of the M.A.C.A.Nos.983, 1866 & 1873 of 2009, 981/2015 & Cross Objection No.54/2009 in M.A.C.A.No.1866/2009 23 owner to take the compulsory insurance under Section 146 of the M.V.Act. On a bare perusal of Section 149 of the M.V.Act, it is clear that the usual rule is that once the assured proves that the accident is covered by the compulsory insurance clause, it is for the insurer to prove that there has been breach of conditions of the insurance policy by the assured, failing which, the insurance company cannot avoid the liability. We have adverted to these provisions and other aspects solely to make it clear that the policy of insurance involved in the cases on hand is 'contract of insurance' statutory in nature. In such circumstances, it has to be held that the insurance of policy required to be possessed by an owner of a motor vehicle to ply the same in a public place, is nothing but a contract of insurance which is statutory in nature. When that be so, whenever a question relating the liability of the insurer to assume risk is called in question or when it is to be adjudicated, the terms of the contract have to be construed realising the fact that it is a contract of insurance which is statutory in nature. Normally, a contract of insurance has to be construed strictly in terms of the conditions specified in the policy. In other words, while construing the same, there would be no liberty to make any addition or to subtract anything from it. As noticed hereinbefore, this position M.A.C.A.Nos.983, 1866 & 1873 of 2009, 981/2015 & Cross Objection No.54/2009 in M.A.C.A.No.1866/2009 24 has been settled by the Honourable Apex Court in the decision reported in **Laxmi Narain Dhut** 's case ( _supra_ ). True that it is nothing but a re-statement of the position settled earlier by the Hon'ble Apex Court in the decisions reported in **Harford Fire Insurance Co. Ltd.** 's case ( _supra_ ), **Chandmull Jain** 's case ( _supra_ ) and **Sony Cheriyan** 's case ( _supra_ ). In a still later decision reported in **Sobina Iakai** 's case ( _supra_ ) _,_ after referring to the decision reported in **Sunitha Rathi** 's case ( _supra_ ), the Apex Court held that the date and time shown in a policy is relevant for deciding the insurer's liability. That view was restated in **Kareemunnisa** 's case _(supra_ ). As can be seen from the aforementioned decisions, the strict construction of the conditions specified in a policy, which is contract of insurance statutory in nature is the normal rule and it cannot therefore, be said that it is the inviolable position. Essentially, the provisions contained in Section 64VB(2) of the Insurance Act and its Explanation and the decisions regarding the construction of the word 'may', adverted to hereinbefore, became relevant, in the said circumstances. 20. The question is when the premium to make an insurer to assume risk is paid or it is received by the insurer to assume a risk in M.A.C.A.Nos.983, 1866 & 1873 of 2009, 981/2015 & Cross Objection No.54/2009 in M.A.C.A.No.1866/2009 25 India, prior to the accident, can the date of assumption of the risk be postponed legally, even if, the commencement of the policy shown in the policy document, is not the date of its receipt, but 00.hrs of the next day of receipt of the premium in view of the specific provision under Section 64VB of the Insurance Act. The discussions and decisions referred to hereinbefore, in the previous paragraphs have to be borne in mind to answer the said question. It is an indisputable and crucial fact that Section 64VB (2) though appears to be discretionary, the discretion thereunder is coupled with a corresponding obligation. The said provision is couched in a negative manner. The statute without any room for any ambiguity or doubt makes it abundantly clear that risk should not be assumed by anyone indulging in life insurance business in India, on which, the premium is not ordinarily payable outside India unless and until it is received. When the statute mandates that such a risk shall not be assumed unless premium is received in advance, it necessarily to carry the command to assume risk when premium is received or paid by resorting to any of the recognized modes. The obligation to assume the risk is not at all disputed but the dispute is only with reference to the time and date from which the insurer should assume the risk. That by itself, would undoubtedly M.A.C.A.Nos.983, 1866 & 1873 of 2009, 981/2015 & Cross Objection No.54/2009 in M.A.C.A.No.1866/2009 26 indicate that the action in receiving the premium invariably creates an obligation/duty on the insurer to assume the risk. It is also worthwhile in this context to refer to a Division Bench decision of this Court in **Mathew Joseph v. Janaki** reported in **2007(1) KLT 747** . It was held therein that payment of premium alone could cast a corresponding duty on the insurer for rendering coverage. We are of the view that if payment of premium for insurance coverage would cast a corresponding duty/obligation on the insurer to assume the risk, it could not wriggle out of the duty/obligation to assume the risk and to indemnify the insured in respect of the liability arising out of the accident occurring subsequent to the receipt of premium in respect of the vehicle concerned. Merely because, the date and time of commencement of coverage was shown therein is different from the date and time of payment of premium and the accident had occurred earlier than the date and time therein, it could not absolve the insurer from assuming the risk when it had actually received the premium prior to the occurrence. This is due to the effect and impact of Section 64VB(2) of the Insurance Act and the Explanation thereto. In view of those specific provisions, the fact that the insurer cannot be permitted to escape the bounden statutory duty/obligation to M.A.C.A.Nos.983, 1866 & 1873 of 2009, 981/2015 & Cross Objection No.54/2009 in M.A.C.A.No.1866/2009 27 assume risk, raising the contention that policy is a contract of insurance of statutory in nature. Since the discretion conferred under Section 64VB(2) and the Explanation thereto, is coupled with an obligation/duty to assume the risk, the word 'may' occurring both in Section 64VB(2) of the Insurance Act and the Explanation thereto, should be construed to mean 'shall' and the obligation/ duty to assume the risk in respect of an accident occurred prior to the receipt of premium by any of the modes of payment prescribed. This view is fortified by the decisions in **Jogendra Singh** 's case and **Sagar Textile Mill** 's case. We are of the considered view that the soul of the provision under Section 64VB would also be defeated, if the said provision is interpreted to mean that even after the receipt of the premium in advance, the insurer receiving the premium could postpone the assumption of risk to any time or any day after its receipt and could place reliance on such aspects to disavow the obligations to assume the risk and the liability to indemnify the insured owner of the said vehicle. Such a construction would annihilate the very purpose and object of Section 146 of the M.V.Act as well. As noticed hereinbefore, the provision under Section 64VB of the Insurance Act is couched in such a negative manner solely to M.A.C.A.Nos.983, 1866 & 1873 of 2009, 981/2015 & Cross Objection No.54/2009 in M.A.C.A.No.1866/2009 28 ensure that the insurer doing life insurance business in India, is not assuming any risk in India before receiving the premium in advance and not for the purpose of enabling the insurer under the cover that discretion is conferred and therefore, it would not assume the risk even after the receipt of the premium prior to the accident concerned. In certain circumstances, the insurer may have to show different date and time for commencement of the coverage. We will elucidate such a circumstance. If an owner of the motor vehicle pays the premium, following anyone of the methods provided under Section 64VB in respect of a vehicle already having a valid insurance policy, which is on the verge of expiry, in advance, necessarily, despite the receipt of the premium in advance the insurer can show commencement of the coverage, only from the date and time of expiry of the already existing policy. Thus there cannot be two valid insurance policies in respect of one particular vehicle at any given point of time. Since we have already found under the M.V. Act, Section 146 is incorporated to ensure that no motor vehicle is plied in a public place without its owner obtains a policy of insurance, complying with the requirements of Chapter XI of the M.V. Act, we are of the considered view that that statutory compulsion enjoined M.A.C.A.Nos.983, 1866 & 1873 of 2009, 981/2015 & Cross Objection No.54/2009 in M.A.C.A.No.1866/2009 29 under Section 146, could be given effect in a rightful and purposeful manner, only if Section 64VB of the Insurance Act is construed in the aforementioned manner in respect of cases where the accident had occurred subsequent to the receipt of the premium in respect of that life insurance business. Any liberal construction would not only defeat the specific purpose but also would lead to a situation where even after effecting payment of premium, the vehicle in respect of which such premium is paid, may have to be plied in a public place without coverage of third party risk. That is why we observed earlier, a contra-construction of Section 64VB of the Insurance Act would defeat the very purpose and the goal intended to be achieved, by incorporating such a statutory compulsion under Section 146 of the M.V. Act. 21. The learned counsel appearing for the Insurance Company, the appellant in M.A.C.A.Nos.983/09, 1866/09 and 1873/09, further submitted that the assumption of risk could be postponed in view of the general practice prevalent in the field of insurance business and contended that it is the usual practice to issue policy from 0.00 hours of the next day. It is submitted by the learned counsel that since that being the practice hitherto being followed by M.A.C.A.Nos.983, 1866 & 1873 of 2009, 981/2015 & Cross Objection No.54/2009 in M.A.C.A.No.1866/2009 30 the insurers, the insurer cannot be called upon to assume any risk or deemed to have assumed any risk merely because it received the premium on any day before the date or the time specifically shown in the policy receipt. 22 _._ Evidently, such a contention is raised with reference to section 9 of the General Clauses Act. But, we are not actually concerned with the commencement and termination of the insurance coverage based on the conditions of the policy. The question pointedly posed for consideration is with respect to the applicability of the specific provision under section 64-VB of the Insurance Act taking into account the indisputable position that the insurer had received the premium in cash, in respect of the vehicle in question involved in the accident. In that context, the decision of the Hon'ble Apex Court in **Deokar Exports** ' case (supra) assumes relevance. Evidently, the Apex Court considered the question of assumption of risk by the insurer in terms of the provisions under section 64-VB of the Insurance Act. In paragraph 10 of the said decision, after extracting the said provision, the Apex Court held:- "Two things emerge from the said section. The first is that the insurer cannot assume risk unless and until premium received or guaranteed or deposited. The second is that a M.A.C.A.Nos.983, 1866 & 1873 of 2009, 981/2015 & Cross Objection No.54/2009 in M.A.C.A.No.1866/2009 31 policy issued can assume the risk from a retrospective date provided such date is not earlier than the date on which premium had been paid in cash or by cheque to the insurer.” Thus, it is evident that after extracting the provisions under section 64-VB of the Insurance Act, virtually, its scope has been specifically mentioned thereunder. The Apex Court evidently held that the insurer could not assume risk unless and until premium is received or guaranteed or deposited. In this context, admittedly, premium was received on 13.4.2004. Going by the decision, the insurer could not assume risk from a retrospective date provided such date is not earlier than the date on which premium had been paid in cash or by cheque. True that going by the endorsement in Ext.B1 policy, its coverage is only from 14.4.2004 to 13.4.2005. We have already taken note of the fact that the insurer would also admit the fact that the premium in respect of the vehicles involved in the accident had been received on a date prior to the date shown as the date of commencement in the policy. In such circumstances, when the statutory inhibition is only to assume risk from a retrospective date earlier than the date on which premium is received in cash or by cheque, the question is whether it would enable the insurer to escape statutory liability in terms of the provisions under section 64-VB and 32 M.A.C.A.Nos.983, 1866 & 1873 of 2009, 981/2015 & Cross Objection No.54/2009 in M.A.C.A.No.1866/2009 based on the endorsement with respect to the commencement of the policy given in the policy concerned. 23. When once it is admitted that the premium had been received at a particular date and time, from that moment onwards wherever an interpretation is required to consider the question of assumption of risk especially arising out of a motor vehicle accident the provision which is relevant is one given under section 64-VB of the Insurance Act. In such circumstances, the statutory provision under section 64-VB could not be made inapplicable simply by referring to and relying on the commencement of the insurance coverage going by the conditions in policy document concerned. If such a construction is not given, it would invariably make the provisions under section 64-VB of the Insurance Act annihilative to the purpose and intention of section 146 of the Motor Vehicles Act. The learned counsel appearing for the insurance company attempted to canvass the position that it only prohibits the insurance company to assume risk from any anterior date than the date on which premium was received or guaranteed or deposited and therefore, it is permissible to postpone the date to assume the risk even after the receipt of premium. Acceptance of such a contention would adversely M.A.C.A.Nos.983, 1866 & 1873 of 2009, 981/2015 & Cross Objection No.54/2009 in M.A.C.A.No.1866/2009 33 affect not only the insured, but would affect the third party as well, in respect of a claim for compensation arising out of a motor vehicle accident. The sum and substance of the discussions is that by virtue of the Insurance Act, in the light of section 146 of the M.V Act, section 64-VB though the section is couched in the negative manner, it would not and it could not be understood to give the liberty to the insurer to postpone the date of assumption of risk by virtue of statutory operation of the provision under section 64-VB even after receiving the premium in cash or when it is guaranteed or deposited. In short, in such circumstances, an insurer of a motor vehicle involved in an accident during the currency of its policy of insurance, cannot decline to assume the risk arising out of that accident merely because going by the policy document its coverage commenced not from the date of receipt of premium. On the other hand, the insurer is bound to assume the risk from the date and time of receipt of premium by virtue of section 64-VB of the Insurance Act. Even in such circumstances, a party who is playing fraud on the insurer cannot be permitted to take advantage of the said position emerging from section 64-VB in respect of a vehicle which involved in an accident prior to the actual time of the payment of premium. There M.A.C.A.Nos.983, 1866 & 1873 of 2009, 981/2015 & Cross Objection No.54/2009 in M.A.C.A.No.1866/2009 34 may be cases where after the involvement of the vehicle in an accident a person may, concealing the factum of the involvement of the vehicle in the accident, attempt to get it insured solely for the purpose of making the insurer to assume risk. There can be little doubt with respect to the position that fraud would vitiate everything and therefore, such a person shall not be permitted to get the fruit of his own fraud. The mere fact that premium was paid in cash immediately after the accident would not and could not fasten the statutory liability by virtue of section 64-VB on the insurer if the premium was paid subsequent to the accident merely because it was paid or guaranteed or deposited on the same day of the accident. Needless to say that the question of considering liability to assume risk need be considered only if anyone of the party takes up the contention that the premium was paid after the accident. In the absence of any such contentions, certainly, the question of liability has to be decided solely based on the terms of the contract regarding commencement and termination of the policy conditions. 24. Having held the applicability of section 64-VB as above, we may now, proceed to consider the question whether in the cases on hand, contentions compelling the Tribunal to consider the M.A.C.A.Nos.983, 1866 & 1873 of 2009, 981/2015 & Cross Objection No.54/2009 in M.A.C.A.No.1866/2009 35 applicability of section 64-VB were raised. 25. Evidently, in O.P.(MV).No.2198/2004 from which MACA Nos.981/2015 and 1866/2009 arose and also in O.P.(MV).2410/2004 from which MACA No.1873/2009 arose, the insurer had taken up the contention that the accident in question arose before the payment of the premium in respect of the vehicle involved in the accident. As noticed hereinbefore, it is the same accident which resulted in filing of O.P.(MV).Nos.2410/2004 and O.P.(MV).No.2198/2004. The insuredowner remained ex parte before the Tribunal. Though a contention that only after the accident which led to the filing of the aforesaid claim petitions premium in respect of the offending vehicle was made by its insured-owner, no evidence to establish such a contention was produced before the Tribunal. Obviously, due to the lack of such materials on record, the Tribunal after arriving at the conclusion that the accident in question occurred due to the negligence of the driver of the said vehicle found its owner vicariously liable and consequently, held that the insurance company is liable to indemnify the insured owner. In MACA No.1866/2009 arising from OP(MV)No.2198/2004, the appellant insurance company has produced certain documents along with I.A.No. 141/2013. The prayer M.A.C.A.Nos.983, 1866 & 1873 of 2009, 981/2015 & Cross Objection No.54/2009 in M.A.C.A.No.1866/2009 36 is to receive those documents as additional evidence in the appeal. Evidently, the attempt on the part of the appellant insurance company is to establish on the strength of such documents, that the insured owner of the vehicle in question paid the premium in respect of the vehicle only after its involvement in the accident. Though the insured owner remained ex parte before the Tribunal, on receipt of notice in this proceedings, he entered appearance through counsel. The learned counsel appearing for the insured owner of the vehicle contended that these documents would not establish that the premium in respect of the vehicle was paid only after the accident. On perusing the documents, we find that certain documents are computer generated. After going through the documents produced and also considering the rival contentions, we are of the view that the documents cannot be admitted in this appeal. But at the same time, taking into account the fact that the insurer had specifically taken up the contention before the Tribunal that the premium in respect of the vehicle was paid only after the accident and owing to the fact that the insured owner remained ex parte and he had not controverted the said contention, we are of the view that it would only be proper and just to afford the parties with an opportunity to establish such 37 M.A.C.A.Nos.983, 1866 & 1873 of 2009, 981/2015 & Cross Objection No.54/2009 in M.A.C.A.No.1866/2009 contentions before the Tribunal. Needless to say that while considering such contentions, if appropriate pleadings are made, the admissibility of the documents produced along with I.A.141/2013 in accordance with law and its evidentiary value are matters to be decided by the Tribunal. In other words, since it is a matter of evidence and that we are of the considered view that without oral evidence, question of admissibility cannot be properly considered, those documents cannot be admitted in evidence in the appeal. Hence, we are of the view that the matter has to be remitted for further fresh consideration solely on the issue of liability based on the aforesaid questions. In other words, the question of quantum of compensation cannot be revisited by the Tribunal and these cases need be remitted solely for considering the question of liability as to whether the insurer is liable to assume the risk and to indemnify the insured owner of the vehicle bearing Reg.No.KL-7 H 3985 involved in the accident which led to the filing of O.P.(MV).Nos.2198/2004 and 2410/2004. 26. M.A.C.A No.981/2015 has been filed by the injured claimant in O.P(MV)No.2198/2004 claiming compensation for the injuries sustained in the accident. In view of the conclusions and M.A.C.A.Nos.983, 1866 & 1873 of 2009, 981/2015 & Cross Objection No.54/2009 in M.A.C.A.No.1866/2009 38 findings as above, the remand of the matter for fresh consideration on the question of liability shall not be a reason for not considering the entitlement of the appellants for enhancement of compensation. At the same time, it is to be noted that seeking enhancement of compensation, the appellant in M.A.C.A.No. 981/2015 had filed Cross Objection in M.A.C.A.No.1866/2009 filed by the third respondent insurance company. As noticed hereinbefore, since in the cross objection as also in the appeal, the injured claimant seeks for enhancement of compensation, the learned counsel for the cross objector prayed that the cross objection filed in M.A.C.A.No. 1866/2009 may be dismissed as withdrawn without prejudice to take up the contentions for claim for enhancement of compensation in M.A.C.A.No. 981/2015. We find no reason for not accepting the said submission. 27. The learned counsel appearing for the injured appellant contended that the Tribunal had ignored Ext.A13 disability certificate issued by a duly constituted Medical Board in the matter of granting compensation for `permanent disability'. Going by Ext.A13, due to the injuries sustained by him in the accident he had incurred a disability of 29%. The Tribunal had granted an amount of 40,000/-₹ M.A.C.A.Nos.983, 1866 & 1873 of 2009, 981/2015 & Cross Objection No.54/2009 in M.A.C.A.No.1866/2009 39 under the combined head of “permanent disability and consequent loss in earning power and amenities in life”. The injured appellant was aged 44 years at the time of the accident. He was then working as Village Extension Officer in Edappally Block Office and he claimed that he was earning a monthly income of 5,200/-. In the light of₹ Exts.A17 and A18 the fact that he was then employed as Village Extension Officer cannot be disputed. His gross salary going by Ext.A17 was 5,836/-. The deductions were not at all noted therein.₹ The appellant had sustained injuries at the age of 44. The age of his retirement on superannuation is 56. The accident did not result in termination of his service. At the same time, after his retirement the appellant would have to suffer from the disability in the matter of earning anything over and above pension. In the circumstances, we are inclined to take the monthly income for the post-retiral period as ₹4,500/- for the purpose of granting compensation for the disability incurred by the appellant. In that regard we are taking the multiplier `9' applicable to the age group of 56-60, going by the schedule given ## in _**Sarla Verma v. Delhi Transport Corporation (2010 (2) KLT**_ _**802 (SC)).**_ We are inclined to take an amount of 4,500/- as the₹ monthly income for the aforesaid purpose. The Tribunal had granted M.A.C.A.Nos.983, 1866 & 1873 of 2009, 981/2015 & Cross Objection No.54/2009 in M.A.C.A.No.1866/2009 40 an amount of 40,000/- under the combined head of “permanent₹ disability and consequent loss in earning power and amenities in life”. Taking note of the nature of the injuries and the period of treatment we are inclined to adjust the amount of 40,000/-, less the amount₹ granted under a separate head of “loss of amenities, discomforts & inconveniences” viz., ₹15,000/-, under that head. In the said circumstances, the said amount has to be deducted from the total compensation granted by the Tribunal. Taking into account the extent of permanent disability the amount payable under the said head has to be computed. On such assessment, the appellant is entitled to 1,40,940/- (4,500x12x9x29/100). Under the combined₹ head of “transportation, hospitalisation, attendant expenses, extra nourishment & damage to clothings” the appellant was granted an amount of 6,000/-. The appellant had been an inpatient for a period₹ of 25 days. Taking into account the year of the accident and the other relevant aspects we are of the view that towards `extra nourishment' and `attendant expenses' the appellant ought to have been granted 3,750/- (at the rate of 150/- per day) and 2,500/-₹ ₹ ₹ (at the rate of 100/- per day) respectively. Taking into account the₹ number of reviews towards `transportation' an amount of 2,000/-₹ M.A.C.A.Nos.983, 1866 & 1873 of 2009, 981/2015 & Cross Objection No.54/2009 in M.A.C.A.No.1866/2009 41 ought to have been granted. Towards `damage to clothings' an amount of 1,000/- is granted. Thus, a total amount of 9,250/- is₹ ₹ granted under the aforesaid heads. After deducting the amount of ₹6,000/- granted by the Tribunal the appellant is entitled to 3,250/-₹ additionally under those heads. In the result, the appellant will be entitled to an additional compensation of ₹1,29,190/(1,40,940+3,250-15,000), rounded off to 1,29,200/-. It is awarded₹ and it will carry interest at the rate of 8% per annum from the date of the petition till realisation. 28. Now, we will consider M.A.C.A.No.983 of 2009. This is the second round of litigation for the appellant-insurance company. Earlier, an award was passed in O.P.(M.V)No.96 of 2002 for an amount of 1,50,000/- by the Tribunal after holding that respondents₹ 1 to 3 therein including the appellant herein are jointly and severally liable to pay compensation to the petitioner therein. In fact, the 3[rd] respondent therein viz., the appellant in M.A.C.A.No.983 of 2009 was held liable to indemnify the insured owner. Consequently, the appellant herein was directed to deposit the amount of compensation along with the interest and costs awarded. Against the said judgment and award the appellant herein had filed M.A.C.A.No.1 of 2008 and M.A.C.A.Nos.983, 1866 & 1873 of 2009, 981/2015 & Cross Objection No.54/2009 in M.A.C.A.No.1866/2009 42 this Court had set aside the said award by judgment dated 15.7.2008. In fact, the award of the Tribunal was set aside only to the extent of the finding on the issue of liability. In other words, the quantum of compensation awarded thereunder was upheld. It was remanded for finding out whether there was effective policy on the date of the accident and whether the insurance company is liable to pay the amount awarded or whether it is the owner of the vehicle who is liable to pay the compensation awarded. The judgment and award under challenge was passed after such fresh consideration on the aforesaid issue. Evidently, after the remand for fresh consideration on the aforesaid aspect, parties were permitted to adduce further evidence. Accordingly, RW2 and RW3 were examined and Exts.B3 and B4 were marked. It is after hearing the rival contentions and appreciating the evidence on record that the Tribunal had passed the impugned award holding respondents 1 to 3 jointly and severally liable to compensate the claimant based on the finding that the vehicle in question was having a valid insurance policy at the time of the accident and accordingly, the liability to indemnify the insured owner was fastened upon the appellant. It is in the said circumstances that this appeal has been preferred. M.A.C.A.Nos.983, 1866 & 1873 of 2009, 981/2015 & Cross Objection No.54/2009 in M.A.C.A.No.1866/2009 43 29. We have heard the learned counsel for the appellant and also Adv.Sri.Rajit, the learned counsel appearing for the second respondent. 30. A bare perusal of the impugned award in O.P.(M.V)No.96 of 2002 passed by the Motor Accidents Claims Tribunal, Thrissur would reveal that the question whether premium in respect of the vehicle was paid prior or after the accident was considered by the Tribunal. In fact, evidence was adduced on that issue. After appreciating the evidence on record the Tribunal had arrived at the finding that premium was paid by the insured owner in respect of the vehicle in question prior to the accident. Such a finding was evidently arrived at on an appreciation of the evidence. However, the ground raised in this appeal would reveal that no challenge is specifically made against the said finding of the Tribunal. When there is no challenge against the aforesaid finding of the Tribunal that the premium was paid in respect of the vehicle involved in the accident, prior to the accident and in view of the answer to the question regarding the applicability of Section 64VB of the Insurance Act by us, this appeal has to fail. 31. In the result, M.A.C.A.No.981 of 2015 is allowed by M.A.C.A.Nos.983, 1866 & 1873 of 2009, 981/2015 & Cross Objection No.54/2009 in M.A.C.A.No.1866/2009 44 awarding an additional compensation of ₹1,29,200/-. The said additional compensation will carry interest at the rate of 8% per annum from the date of the petition till realisation. The insurer, the Oriental Insurance Company shall deposit the compensation granted as per award dated 10.10.2008 in O.P.(M.V)No.2198 of 2004 and the additional compensation granted along with interest as ordered in this judgment within a period of three months from the date of receipt of a copy of this judgment. We make it clear that in view of the fact that we are remanding the matters for fresh consideration on the question of liability, subject to such consideration the insurer will be entitled to recover the amount paid to satisfy the award in case it is exonerated from the liability. M.A.C.A.Nos.1866 & 1873 are allowed to the extent the insurer, the Oriental Insurance Company was held liable to indemnify the insured owner. The matter is remanded for fresh consideration by the Tribunal on the question of liability. In other words, affording opportunity to the parties the Tribunal shall consider whether there was an effective policy so as to make the insurer liable to indemnify the insured owner. Needless to say that for such consideration the question whether the premium was paid prior or after the accident in M.A.C.A.Nos.983, 1866 & 1873 of 2009, 981/2015 & Cross Objection No.54/2009 in M.A.C.A.No.1866/2009 45 question is also to be adjudicated. Subject to such consideration and if the insurance company is exonerated from the liability to indemnify the insured owner it will be open to the insurer to recover the amount paid to satisfy the award in O.P.(M.V)No. 2410 of 2004 and the award in O.P.(M.V)No.2198 of 2004 and also the amount paid to satisfy the judgment in M.A.C.A.No.981 of 2015 whereby we awarded additional compensation with interest. M.A.C.A.No.983 of 2009 is dismissed. Cross Objection No.54 of 2008 in M.A.C.A.No.1866 of 2009 is dismissed as withdrawn. In all the appeals the parties will have to suffer their respective costs. **Sd/C.T. RAVIKUMAR (JUDGE) Sd/-** **ANIL K. NARENDRAN (JUDGE)** **dsn/ami/spc/tks** M.A.C.A.Nos.983, 1866 & 1873 of 2009, 981/2015 & Cross Objection No.54/2009 in M.A.C.A.No.1866/2009 46 M.A.C.A.Nos.983, 1866 & 1873 of 2009, 981/2015 & Cross Objection No.54/2009 in M.A.C.A.No.1866/2009 47