(Prayer: Civil Miscellaneous Appeal filed under Section 173 of the Motor Vehicles Act, 1988 against the fair and decretal order dated 30.09.2005 made in M.C.O.P.No.491 of 2002 on the file of the Motor Accident Claims Tribunal (Subordinate Judge), Srivilliputhur.)
1. The appellant/National Insurance Company Limited filed the present civil miscellaneous appeal, challenging the award passed in M.C.O.P.No. 491 of 2002 dated 30.09.2005 by the Motor Accidents Claims Tribunal (Subordinate Judge), Srivilliputhur.
2. It is the case of injury caused due to the accident that took place on 07.09.2002 at about 10.15 a.m on Rajapalayam Tenkasi Main Road. The injured/victim filed a claim petition seeking compensation of Rs.5,00,000/- before the Motor Accidents Claims Tribunal (Subordinate Judge), Srivilliputhur. Considering the facts and circumstances of the case, the Tribunal awarded a sum of Rs.50,000/- as total compensation with interest at 7.5% interest The appellant/National Insurance Company Limited preferred the present appeal mainly on the ground that the Tribunal committed an error in fixing liability on the side of the Insurance Company though it has been proved that the date on which, the accident took place, there was no insurance policy in force and hence, the Insurance Company ought to have been exonerated from the liability.
3. This Court found that original policy was commenced from 30.08.2002 to 29.08.2003. The first respondent/injured issued a cheuqe for renewal of the original policy, but the same was dishonoured. Hence, the Insurance Company cancelled the policy for non payment of premium. Thereafter, the first respondent obtained second policy only on 18.09.2002. In the meantime, the accident took place on 07.09.2002. During the interregnum period, there was no coverage of insurance policy for the vehicle. Therefore, it is clear that when there was no insurance policy at the time of the accident, the Tribunal erroneously, considered the case against the appellant Insurance Company.
4. It is an admitted fact that the cheque issued for renewal of the policy was dishonoured and the amount of the cheque could not be realised and therefore, the Insurance Company did not renew the Insurance Policy.
5. 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.
6. 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.
7. 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 1st respondent/claimant at the first instance and thereafter, the appellant is at liberty to recover the amount from the 2nd respondent, as per the mode stated in Nanjappan's case(supra). The quantum of compensation at Rs.5,00,000/- with interest at 7.5% per annum is just and reasonable.
8. In the result, this Civil Miscellaneous Appeal is disposed of. The award passed in M.C.O.P.No.491 of 2002 on the file of the Motor Accident Claims Tribunal (Subordinate Judge), Srivilliputhur is confirmed in all respects. No costs. Consequently connected miscellaneous petition is closed.
9. The learned counsel appearing for the appellant/Insurance Company represented that the entire award amount had already been deposited with proportionate accrued interests and costs to the credit of the claim petition. Hence, the first respondent/claimant is permitted to withdraw the entire award amount with proportionate accrued interest and costs through RTGS (Real Time Gross Settlement) by filing necessary application before the Tribunal concerned.