(Prayer: Appeal filed under Section 173 of the Motor Vehicles Act, to set aside the judgement and decree dated 25/06/2008 made in MCOP.No.398 of 2005 on the file of the Motor Accident Claims Tribunal/Additional District Judge/Fast Track Court-2, Tirunelveli.)
1. The present Civil Miscellaneous Appeal has been filed to set aside the judgement and decree dated 25/06/2008 made in MCOP.No.398 of 2005 on the file of the Motor Accident Claims Tribunal/Additional District Judge/Fast Track Court-2, Tirunelveli.
2. It is the case of injury caused due to the accident took place on 16.01.2003 at 17.00 hours near Sathankulam to Nazareth road. The injured victim filed an application in MCOP.No.398 of 2005, before the Motor Accident Claims Tribunal/Additional District Judge/Fast Track Court-2, Tirunelveli, and the Tribunal by considering the facts and circumstances of the case, awarded Rs.40,000/- as total compensation with interest at 7.5% per annum. The appellant insurance company filed the present appeal challenging the Award passed by the Tribunal, on the ground that the Tribunal ought not to have directed the appellant to pay the compensation to the claimant and thereafter, to recover the same from the owner of the vehicle, as the appellant had proved that the driver of the offending vehicle/2nd respondent did not have a valid and effective driving licence at the time of accident and therefore, the insurance company ought to have been totally exonerated from the liability. Questioning such order of pay and recovery, the present appeal has been filed by the insurance company.
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 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.40,000/- with interest at 7.5% per annum is just and reasonable.
6. In the result, the Award passed by the Motor Accident Claims Tribunal/Additional District Judge/Fast Track Court-2, Tirunelveli, in MCOP.No.398 of 2005 dated 25/06/2008, is confirmed in all respects and the present Civil Miscellaneous Appeal is disposed of. No costs. Consequently, M.P(MD)No.1 of 2010 is closed.
7. 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, by filing necessary application before the Tribunal.