(Prayer: Civil Miscellaneous Appeal filed under Section 173 of the Motor Vehicles Act, 1988 against the Judgment and Decree dated 25.02.2005 made in M.C.O.P.No.1202 of 2003 on the file of the Motor Accident Claims Tribunal/Principal Subordinate Court, Tirunelveli
Prayer: Civil Miscellaneous Appeal filed under Section 173 of the Motor Vehicles Act, 1988 against the Judgment and Decree dated 25.02.2005 made in M.C.O.P.No.243 of 2003 on the file of the Motor Accident Claims Tribunal/Principal Subordinate Court, Tirunelveli)
1. Since both these appeals arise out of the same accident and a common judgment they are taken up together and disposed of by this common judgment.
2. The appellant/Oriental Insurance Company Ltd., filed the present C.M.A.(MD)Nos.303 and 304 of 2006, challenging the award passed in M.C.O.P.Nos.1202, 243 of 2003 respectively, by the Motor Accidents Claims Tribunal/Principal Subordinate Court, Tirunelveli.
3. The facts in nutshell is that the accident took place at about 5.00 p.m. on 24.08.2002 in front of Coca Cola Company, Vannarpettai, Tirunelveli. The legal heirs of deceased Navaneetha Krishnan filed M.C.O.P.No.1202 of 2003 and the injured Velmurugan filed M.C.O.P.No.243 of 2003 seeking compensation before the Motor Accident Claims Tribunal/Principal Subordinate Court, Tirunelveli and the Tribunal considering the facts and circumstances of the case awarded a sum of Rs.6,67,000/- in M.C.O.P.No.1202 of 2003 and Rs.83,000/- in M.C.O.P.No.243 of 2003 towards total compensation.
4. The award passed by the Motor Accident Claims Tribunal in M.C.O.P.Nos.1202 and 243 of 2003 on 25.02.2005 is challenged by the appellant Insurance Company mainly on the ground that the Tribunal ought not to have fixed the entire liability on the appellant Insurance Company in view of the fact that the driver who was driving the two-wheeler at the time of accident was not in possession of valid driving licence.
5. Evidence of R.W.1 and Ex.R.1 show that the driver had no valid driving license to drive the two-wheeler and there is a violation of policy condition. In respect of the liability of the appellant, this Hon'ble High 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.
6. On this aspect, inthe judgment reported in (2004)13 SCC 224in the caseof Oriental Insurance Co. Ltd., vs. Nanjappan and others,the Hon'ble Apex Court made the following observations:-
8. Therefore, while setting aside the judgment of the High Court we direct in terms of what has been stated in Baljit Kaur's case (supra) that the insurer shall pay the quantum of compensation fixed by the Tribunal, about which there was no dispute raised, to the respondent-claimants within three months from today. 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.
7. In view of the settled principles both by this Hon'ble Court and the Hon'ble Supreme Court of India, as this case is one of violation of policy conditions, this Court is inclined to consider the principle of Pay and Recovery. As regards quantum of compensation awarded by the Tribunal, this Court finds no reason to interfere with the same.
8. In the case on hand, the Tribunal while awarding Rs.6,67,000/- and Rs.83,000/- together with interest at the rate of 7.5% p.a. has not directed the appellant to pay the award amount and thereafter, recover from the owner of the vehicle. Hence, this Court modify the award of the Tribunal by directing the appellant Insurance Company to pay the award amount at the first instance and thereafter recover it from the owner of the vehicle in consonance with the settled position of law.
9. Accordingly, this Civil Miscellaneous Appeal is partly allowed. No costs. Consequently, connected Miscellaneous Petitions are closed.
10. The learned counsel for the appellant/Insurance Company informed that the entire award amount has been deposited before the Tribunal and accordingly the appellant Insurance Company is at liberty to recover the award amount from the owner of the vehicle by filing appropriate proceedings before the Executing Court. The 1st respondent/claimant in C.M.A.(MD) No.304 of 2006 is permitted to withdraw the entire award amount with proportionate accrued interest and costs through RTGS by making necessary application before the Tribunal. In C.M.A.(MD) No.303 of 2006, it is represented that 1st respondent/1st claimant is no more and the minor claimants 2 and 3 are entitled for the share allotted to her. Respondents 7 to 13 are permitted to withdraw the amount which they are legally entitled as Legal heirs of deceased 4th claimant through RTGS by making necessary applications before the Tribunal. The shares of the minor claimants are directed to be deposited in a Nationalized bank till they attain majority and till such time the interest accrued thereon shall be paid to the 7th respondent/guardian/next friend of the minors once in three months directly from the bank for maintenance of the minor claimants.