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National Insurance Company Limited Vs. Dharmar and Another - Court Judgment

LegalCrystal Citation
CourtChennai Madurai High Court
Decided On
Case NumberCMA(MD)No. 1607 of 2007 & M.P(MD)No. 2 of 2007
Judge
AppellantNational Insurance Company Limited
RespondentDharmar and Another
Excerpt:
motor vehicles act - section 173 -.....the present appeal, on the ground that the injured was travelling as a gratuitous passenger in the vehicle insured with them, which met with the accident in violation of the insurance policy conditions and therefore, the tribunal ought to have exonerated the appellant from the liability in totality instead of ordering pay and recovery. 2. in respect of the liability of the appellant, this court and the hon'ble apex court settled the principle that the claimant is a third party and even if there is any violation of policy condition, in respect of the claim made by the third parties, the insurance company has to pay the award amount to the claimant at the first instance and thereafter, to recover the same from the owner of the vehicle. 3. on the aspect of mode of recovery available to the.....
Judgment:

(Prayer: Appeal filed under Section 173 of the Motor Vehicles Act, against the judgment and decree dated 28.02.2007 made in MCOP.No.844 of 2004 on the file of the Motor Accident Claims Tribunal, Additional Sub Court, Dindigul.)

1. It is the case of injury caused due to the accident took place on 22.02.2003 about 06.30 a.m on Nilakottai-Anaipatty main road. The injured victim filed an application in MCOP.No.844 of 2004 before the Motor Accident Claims Tribunal, Additional Sub Court, Dindigul, and the Tribunal considering the facts and circumstances of the case, awarded Rs.54,000/- as compensation with interest at 7.5% per annum, against which, the appellant insurance company has filed the present appeal, on the ground that the injured was travelling as a gratuitous passenger in the vehicle insured with them, which met with the accident in violation of the insurance policy conditions and therefore, the Tribunal ought to have exonerated the appellant from the liability in totality instead of ordering pay and recovery.

2. In respect of the liability of the appellant, this Court and the Hon'ble Apex Court settled the principle that the claimant is a third party and even if there is any violation of policy condition, in respect of the claim made by the third parties, the Insurance Company has to pay the award amount to the claimant at the first instance and thereafter, to recover the same from the owner of the vehicle.

3. On the aspect of mode of recovery available to the insurer, the Hon'ble Supreme Court inthe judgment reported in (2004)13 SCC 224in the caseof Oriental Insurance Co. Ltd., vs. Nanjappan and others,has held as follows:-

..... For the purpose of recovering the same from the insured, the insurer shall not be required to file a suit. It may initiate a proceeding before the concerned Executing Court as if the dispute between the insurer and the owner was the subject matter of determination before the Tribunal and the issue is decided against the owner and in favour of the insurer. Before release of the amount to the insured, owner of the vehicle shall be issued a notice and he shall be required to furnish security for the entire amount, which the insurer will pay to the claimants. The offending vehicle shall be attached, as a part of the security. If necessity arises the Executing court shall, take assistance of the concerned Regional Transport authority. The Executing Court shall pass appropriate orders in accordance with law as to the manner in which the insured, owner of the vehicle shall make payment to the insurer. In case there is any default it shall be open to the Executing court to direct realization by disposal of the securities to be furnished or from any other property or properties of the owner of the vehicle, the insured. The appeal is disposed of in the aforesaid terms, with no order as to costs.

4. In view of the settled principles both by this Court and the Hon'ble Supreme Court of India, the order of the Tribunal directing the appellant to pay compensation to the 1st respondent/claimant at the first instance and thereafter, the appellant is at liberty to recover the amount from the 2nd respondent, stands confirmed and the appellant is directed to recover the award amount as per the mode stated in Nanjappan's case(supra).

5. The appellant is directed to deposit the entire award amount with proportionate accrued interest and costs, to the credit of the claim petition, within a period of four weeks from the date of receipt of a copy of this judgment, if not deposited already. On such deposit, the 1st respondent/claimant, is permitted to withdraw the same, less the amount already withdrawn, if any, through RTGS, by filing necessary applications before the Tribunal.

In the result, this Civil Miscellaneous Appeal is dismissed. No costs. Consequently, M.P(MD)No.2 of 2007 is closed.


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