(Prayer: Civil Miscellaneous Appeal filed under Section 173 of the Motor Vehicles Act, 1988 against the common order dated 13.12.2001 made in M.C.O.P.No.680 of 1993 on the file of the Motor Accident Claims Tribunal (Additional Subordinate Judge) Madurai.)
All the appeals have been filed challenging the common award passed in M.C.O.P.Nos.184, 186 to 189 and 680 of 1993 dated 13.12.2001.
2. When the claimants were travelling in a Van bearing registration No.TN.57/5774 belonging to the 2nd respondent, due to the rash and negligent driving, the driver was unable to control the speed, and consequently, the van collapsed. Hence, all the claimants, who were travelled in the Van sustained injuries. The victims/injured persons filed petitions seeking compensation. The Tribunal considering the facts and circumstances of the case awarded compensation to the victims. The New India Assurance Company Limited preferred these appeals challenging the common award passed by the Tribunal, on the ground that the claimants/victims, who were travelled in the van bearing Registration No.TN 57/5774 are unauthorised occupants. But, the Tribunal erroneously fixed the liability on the side of the Insurance Company instead of total exoneration.
3. 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.
4. On the aspect of mode of recovery available to the insurer, the Hon'ble Supreme Court in the judgment reported in (2004)13 SCC 224 in the case of 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. 5. In view of the settled principles both by this Court and the Hon'ble Supreme Court of India, the appellant is directed to pay compensation to the claimants at the first instance and thereafter, the appellant is at liberty to recover the amount from the owner of the vehicle, as per the mode stated in Nanjappan's case(supra). The award of the Tribunal is confirmed in all respects and the present Civil Miscellaneous Appeals are disposed of. No costs. Consequently, connected miscellaneous petitions are closed.
6. The appellant is directed to deposit the entire award amount with proportionate accrued interest and costs, to the credit of the claim petitions, 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 their respective award amount with proportionate accrued interest and costs through RTGS by filing necessary application before the Tribunal concerned.