JUDGMENT : Heard Sri G.Sai Narayana Rao, learned counsel for the appellant and Smt.A.Jayanthi, learned counsel for the 3rd respondent/Insurance Company. 2. The appeal is directed by the claimant against the order and decree dated 30.06.2011 passed in M.V.O.P.No.794/2009 on the file of Motor Accidents Claims Tribunal-cum-I Addl. District Judge, Vizianagaram. 3. For the sake of convenience, the parties are arrayed as parties before the learned Tribunal. 4. The claimant filed the claim petition before the learned Tribunal U/s.166 of Motor Vehicles Act, 1988 claiming compensation of Rs.1,50,000/-for the personal injuries sustained by the claimant in a motor vehicle accident occurred on 30.04.2009 near Alluvari Kallalu, Vizianagaram District. 5. The case of the claimant is that she is a minor, aged 11 years, boarded an auto bearing No. AP 35T 5316 as a passenger to go to her village; the auto reached a place near Alluvari Kallalu at about 03.45 p.m.; the 1st respondent was driving the auto; he drove the auto in a rash and negligent manner; as a result, the auto turned turtle; the claimant fell down on the road and sustained injuries on her left and other parts of the body; she was shifted to Sri Sai Super Speciality Hospital, Vizianagaram; the doctor found fracture to left femur and conducted operation; the claimant was studying 5th class at the material point in time; on account of the injuries, she lost her academic career; she cannot walk or move, as she did prior to the accident, as she permanently disabled; police registered a case in Cr.No.48/2009 on the file of Jami P.S.; the accident was occurred due to rash and negligent driving of the auto by the 1st respondent/driver; the 2nd respondent is the owner of the offending vehicle; the 3rd respondent is insurer of the offending vehicle. 6. The driver and owner of the offending vehicle remained exparte before the learned Tribunal. 7. 6. The driver and owner of the offending vehicle remained exparte before the learned Tribunal. 7. The insurer of the offending vehicle i.e., Insurance Company filed counter, while traversing with the material averments with regard to manner of accident; rash and negligence on the part of the driver of the offending vehicle; nature of injuries; liability to pay compensation, contended that the offending vehicle was insured with the Insurance Company, but it was not having valid fitness certificate to ply on the road at the material point in time, and therefore, owner violated the conditions of the insurance policy; Hence, the Insurance Company is not liable to indemnify the owner to pay compensation; The claim made by the claimant is excessive. 8. Basing on the above pleadings, the learned Tribunal framed the following issues for trial: 1. Whether the pleaded accident was occurred resulting in injuries to the petitioner due to rash and negligent driving of the vehicle (auto) bearing No. AP 35 T 5316 by its driver? 2. Whether the petitioner is entitled to any compensation? If so, at what quantum and what is liability of the respondents? 3. To what relief? 9. Before the learned Tribunal, on behalf of the claimant, father of the claimant was examined as P.W-1. Claimant was examined as P.W-2 and the doctor, who treated the claimant was examined as P.W-3 and nine documents were marked as Exs.A-1 to A-7 and Exs.X-1 and X-2 respectively. On behalf of the 3rd respondent / Insurance Company, its official was examined as R.W-1 and an official from R.T.O. was examined as R.W-2 and three documents were marked as Ex.B-1, Exs.X-3 and X-4 respectively. 10. The learned Tribunal basing on the evidence placed before it, on issue No.1 held that the accident was occurred due to rash and negligent driving of the auto by the 1st respondent, and that the claimant sustained injuries in the said accident. This finding was not challenged by the owner of the offending vehicle or Insurance Company. 11. 10. The learned Tribunal basing on the evidence placed before it, on issue No.1 held that the accident was occurred due to rash and negligent driving of the auto by the 1st respondent, and that the claimant sustained injuries in the said accident. This finding was not challenged by the owner of the offending vehicle or Insurance Company. 11. When coming to the quantum of compensation, the learned Tribunal considering the evidence placed by the clamant and the doctor, held that the claimant sustained fracture of left femur, and she undergone treatment in Sri Sai Super Speciality Hospital at Vizianagaram, from 30.04.2009 to 09.05.2009 and awarded a sum of Rs.22,000/-towards medicines, extra nourishment and attendant charges, Rs.25,000/- towards compensation for pain and suffering, Rs.10,000/-towards loss of future prospects on account of permanent disability, Rs.500/-towards transport expenses, and in all the learned Tribunal awarded a sum of Rs.57,500/-and the same was rounded to Rs.58,000/-, with interest @ 7.5% p.a. from the date of petition, till the date of deposit. 12. The appellant/claimant filed appeal challenging the order and decree of the learned Tribunal on two counts. One is on the ground that the amount of compensation awarded by the learned Tribunal is not a just compensation in the facts and circumstances of the case. The second count is that the learned Tribunal erroneously exonerated the Insurance Company from its liability to indemnify the insured from paying compensation amount awarded by the learned Tribunal. 13. The learned counsel for appellant would submit that the learned Tribunal failed to award proper amount under the head loss of earnings on account of permanent disability inspite of evidence on record with regard to disability suffered by the claimant on account of the fracture, and functional disability suffered by the claimant. He would further submit that it is a fact that the claim petitioner underwent two surgeries at the tender age of 11 years; One at the time of treatment of fracture, and later for removing the implants fixed to set right the fracture; The learned Tribunal awarded only a meagre amount towards pain and suffering. He also submitted that the learned Tribunal failed to award amount covered by Ex.A-5 medical bills, though they were proved through the evidence of the doctor, and in those circumstances, the amount awarded by the learned Tribunal is not a just compensation. 14. He also submitted that the learned Tribunal failed to award amount covered by Ex.A-5 medical bills, though they were proved through the evidence of the doctor, and in those circumstances, the amount awarded by the learned Tribunal is not a just compensation. 14. The learned counsel for appellant would further submit that the claimant is a third party to the insurance policy issued by the Insurance Company; Therefore, considering the facts and circumstances in the case, pay and recovery principle may be applied, directing the Insurance Company to pay the compensation first and recover the same later from the insured in view of the principles laid down by the Hon’ble Apex Court in the case of National Insurance Company Limited Vs. Challa Bharathamma. 15. The learned counsel for the 3rd respondent/Insurance Company would submit that the evidence on record would establish that the offending vehicle has no valid fitness certificate to ply the vehicle on the road at the time of accident, and therefore, the insured has violated the conditions of the insurance policy, and in view of section 149(2) of M.V.Act, the Insurance Company is not liable to indemnify the insured, and in that view of the matter, there are no grounds to interfere with the findings of the learned Tribunal. 16. On the aspect of quantum of compensation, the learned counsel for Insurance Company would submit that the learned Tribunal has considered the evidence of the claimant as well as the doctor, and awarded reasonable amounts under various heads as referred in the order of the learned Tribunal, and in that view of the matter, there are no grounds to interfere with the quantum of compensation awarded by the learned Tribunal. 17. In the light of above rival contentions, the points that would arise for consideration in this appeal are as under: 1. Whether the learned Tribunal did not award just compensation to the claimant? 2. To what relief? 18. POINT No.1: It is an admitted fact that the claimant was travelling in the offending vehicle on 30.04.2009, and the offending vehicle was met with an accident, and in the said motor vehicle accident, the claimant suffered injuries to her left leg, and she was admitted in Sri Sai Super Speciality Hospital, Vizianagaram, for treatment. 2. To what relief? 18. POINT No.1: It is an admitted fact that the claimant was travelling in the offending vehicle on 30.04.2009, and the offending vehicle was met with an accident, and in the said motor vehicle accident, the claimant suffered injuries to her left leg, and she was admitted in Sri Sai Super Speciality Hospital, Vizianagaram, for treatment. As already stated above, the learned Tribunal considering the evidence on record, held that the accident was occurred due to rash and negligent driving of the auto by the 1st respondent/driver. The owner or the Insurance Company did not challenge the said finding of the learned Tribunal. 19. The claimant filed the application U/s.166 of M.V.Act, 1988, claiming a sum of Rs.1,50,000/-towards just compensation under various heads. The learned Tribunal considering the evidence of the claimant, her father and the doctor, who were examined as P.Ws-1 to 3 respectively, found that the claimant took treatment in Sri Sai Super Speciality Hospital, Vizianagaram, from 30.04.2009 to 09.05.2009 as in-patient and Ex.A-2 wound certificate would show that there was deformity of left femur, and x-ray would establish fracture of left femur, and it is grievous in nature, and as per Ex.X-1 case sheet, the claimant took treatment in the hospital and P.W-3 treated the claimant for the fracture of left femur, and he performed operation for insertion of implants and also for their removal, and on account of the fracture, the claimant suffered pain and suffering at the time of accident, and also during the period of treatment in the hospital, and awarded a sum of Rs.25,000/-towards compensation for pain and suffering. 20. It is an admitted fact that the claimant was aged 11 years, studying 5th class at the time of accident. She underwent two surgeries for the fracture and advised bed rest for a period of three months. Considering all these circumstances, the said amount is enhanced to Rs.35,000/-. 21. The learned Tribunal considering the medical bills produced by the claimant vide Ex.A-5, awarded a sum of Rs.22,000/- under the head towards medicines, extra nourishment and attendant charges. Ex.A-5 was proved through the evidence of P.W-3. There is no contra evidence in that regard. Therefore, the learned Tribunal ought to have awarded the amount covered by Ex.A-5 medical bills towards costs of medicines, apart from the amount awarded towards extra nourishment and attendant charges. Ex.A-5 was proved through the evidence of P.W-3. There is no contra evidence in that regard. Therefore, the learned Tribunal ought to have awarded the amount covered by Ex.A-5 medical bills towards costs of medicines, apart from the amount awarded towards extra nourishment and attendant charges. Therefore, the claimant is entitled to the balance amount of Rs.7,040/-under the head towards medicines, treatment, extra nourishment and attendant charges. 22. When coming to the compensation awarded under the head loss of earnings on account of partial permanent disability suffered by the claimant, she was examined the doctor, who treated her, and he issued Ex.A-6 disability certificate. As per evidence of doctor, the claimant suffered fracture of left femur. On account of fracture, the claimant suffered disability at 20% partial and permanent in nature. The functional disability suffered by the claimant was also deposed by the doctor stating that the claimant cannot do prolonged walking, squat on plain surface. 23. The learned Tribunal considered the evidence of doctor, arrived the functional disability at 10% and awarded a sum of Rs.10,000/-towards loss of earnings on account of physical disability. 24. The claimant was aged 11 years at the time of accident. In the light of judgment of Division Bench of the High Court of Andhra Pradesh in the case of Setty Chandra Sekhar and another Vs. Mohd.Ghouse and another, 2011 ACJ 2403 , the income of the non-earning member can be fixed at Rs.15,000/-per annum as per II Schedule of M.V.Act, 1988. The multiplier applicable is ‘18’ as per judgment of Hon’ble Apex Court in the case of Sarla Verma and another Vs. Delhi Road Transport Corporation and others, 2009 ACJ 1298 . Hence, the loss of earnings on account of physical disability would be Rs.15,000x18 = Rs.2,70,000/-, and 10% of the same would be Rs.27,000/-. 25. In the light of foregoing discussion, the claimant in all entitled to Rs.35,000 + 22,000 + 27,000 + 7,040 = Rs.91,040/-towards just compensation, instead of Rs.58,000/-awarded by the learned Tribunal. 26. When coming to the liability of the Insurance Company to indemnify the insured, evidence of R.W-2, discussed by the learned Tribunal would establish that the offending vehicle was not having fitness certificate at the time of accident. The Hon’ble Apex Court in the case of National Insurance Company Limited Vs. 26. When coming to the liability of the Insurance Company to indemnify the insured, evidence of R.W-2, discussed by the learned Tribunal would establish that the offending vehicle was not having fitness certificate at the time of accident. The Hon’ble Apex Court in the case of National Insurance Company Limited Vs. Challa Bharathamma, 2004 ACJ 2094 , in similar circumstances, considering section 149 and 166 of M.V.Act, 1988 held as follows: “Plying the vehicle without requisite permit is a breach of specific condition of the policy and, therefore, the insured had no liability, and that a person without permit to ply a vehicle cannot be placed at a better pedestal vis-à-vis one who has a permit, but has violated any condition thereof, and that plying a vehicle without a permit is an infraction.” The Hon’ble Apex Court further held as follows: “In terms of section 149 (2) defence is available to the insurer on that aspect, and that the acceptability of the stand is a matter of adjudication.” 27. In the case on hand, as already discussed above, the evidence on record would establish that the offending vehicle was plied without fitness certificate at the time of accident. Therefore, the learned Tribunal rightly held that the insurer is not liable to indemnify the insured. However, in view of the observation of the Hon’ble Apex Court in the above judgment i.e., National Insurance Company Limited Vs. Challa Bharathamma, the Motor Vehicles Act is a beneficial legislation and it would be proper for the insurer to satisfy the award, though in law it has no liability, and for the purpose of recovering the amount paid from the owner, the insurer shall not be required to file a suit, and it may initiate a proceeding before the Executing Court, as if the dispute between the insurer and the owner was the subject matter of determination before the Tribunal, and the issue decided against the owner and in favour of the insurer. 28. In that view of the matter, this Court is of the opinion that in the case on hand also, the insurer i.e., Insurance Company can be directed to pay compensation amount first and later can recover the same from the insured i.e., owner of the offending vehicle by filing necessary application as per law in the same proceedings before the Executing Court. 29. 29. The learned Tribunal awarded interest at 7.5% p.a. from the date of petition, till the date of deposit. This Court do not find any ground to interfere with the rate of interest awarded by the learned Tribunal at 7.5% p.a., from the date of petition, till the date of deposit, in view of the Hon’ble Apex Court judgement in the case of National Insurance Company Limited Vs. Mannat Johal, 2019 ACJ 1849 (SC). Accordingly, the point is answered. 30. POINT No.2: To what relief? In the light of finding on point No.1, the appeal be allowed partly, by modifying the order and decree dated 30.06.2011 passed in M.V.O.P.No.794/2009 on the file of Motor Accidents Claims Tribunal-cum-I Addl.District Judge, Vizianagaram. 31. In the result, the appeal is partly allowed, by modifying the order and decree dated 30.06.2011 passed in M.V.O.P.No.794/2009 on the file of Motor Accidents Claims Tribunal-cum-I Addl.District Judge, Vizianagaram, holding that the appellant/claimant is entitled to a compensation of Rs.91,040/-(Rupees Ninety One Thousand and Fourty only) with interest @ 7.5% p.a. from the date of petition, till the date of deposit, instead of Rs.58,000/-as awarded by the learned Tribunal, against the respondents No.1 to 3 jointly and severally. There shall be no order as to costs. 32. The 3rd respondent/Insurance Company shall first pay the compensation amount of Rs.91,040/-(Rupees Ninety One Thousand and Fourty only), along with accrued interest thereon, within four (04) weeks from the date of judgment, and can recover the same later from the 2nd respondent/owner of the offending vehicle, by filing necessary application in the same proceedings, as per law. 33. On such deposit, the Appellant/claimant is entitled to an amount of Rs.91,040/-(Rupees Ninety One Thousand and Fourty only), and she is permitted to withdraw the said amount along with accrued interest thereon. As a sequel, miscellaneous applications pending, if any, shall stand closed.