(Prayer: Appeal filed under Section 173 of the Motor Vehicles Act, against the fair and decreetal order dated 02/09/2005 and made in MCOP. 505/2000 on the file of Motor Accident Claims Tribunal, (Sub Court), Palani in so far the finding relating to the liability on the 1st respondent alone is concerned.
1. The present Civil Miscellaneous Appeal has been filed against the fair and decreetal order dated 02/09/2005 made in MCOP.No.505/2000 on the file of Motor Accident Claims Tribunal, Sub Court, Palani, in so far as the finding fixing liability on the 1st respondent alone, is concerned.
2. It is the case of unfortunate fatal accident caused due to the accident took place on 05.08.1999 at 7.15 p.m in Ottanchathram-Palani main road and the death occurred on the spot. The legal heirs of the deceased filed an application in MCOP.No.505 of 2000, before the Motor Accident Claims Tribunal, Sub-Court, Palani, and the Tribunal by considering the facts and circumstances of the case, awarded Rs. 2,96,000/- as total compensation with interest at 6% per annum. The claimants have filed the present appeal, challenging the Award passed by the Tribunal, on the ground that the Tribunal had wrongly fixed the entire liability on the owner of the vehicle/1st respondent herein, instead of fixing the liability on the 2nd respondent/insurance company with whom, the offending vehicle belonging to the 1st respondent, has been insured. The insurance policy was also in force at the time of accident. The only finding given by the Tribunal is that at the time of accident, the deceased person was unauthorisedly travelling in the goods vehicle and therefore, negligence has to be fixed on the person, who died and consequently, on the owner of the vehicle and the insurance company was totally exonerated by the Tribunal.
3. The learned counsel for the 2nd respondent insurance company opposed this appeal, by stating that at the time of accident, the deceased person was unauthorisedly travelling in the goods vehicle, which met with the accident and therefore, the insurance company is not liable to pay compensation and the Tribunal has rightly fastened the liability, only on the owner of the vehicle and the exoneration of the insurance company, is very much in accordance with the legal principles. Hence, no interference can be made in respect of the Award passed by the Tribunal.
4. 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.
5. 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.
6. Considering the arguments and counter arguments advanced both for the appellant and the respondent, this Court is of the view that the 2nd respondent insurance company cannot be totally exonerated from the liability, in view of the fact that the insurance policy was very much in force on the date of accident and that there was a coverage of one person even in the goods vehicle. Applying the principle that one person, who got injured in the accident, is the person deceased, and accordingly, the impugned judgment and decree of the Tribunal exonerating the insurance company is set aside
7. In view of the settled principles both by this Court and the Hon'ble Supreme Court of India, the entire liability to pay compensation is fixed on the 2nd respondent, who shall pay compensation to the appellants/claimants at the first instance and thereafter, the 2nd respondent is at liberty to recover the amount from the 1st respondent/owner of the vehicle, as per the mode stated in Nanjappan's case(supra).
8. In the result, the the present Civil Miscellaneous Appeal is partly allowed. No costs. The 2nd respondent 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 appellants/claimants are permitted to withdraw their respective share as apportioned by the Tribunal, by filing necessary application before the Tribunal.