(Prayer: Civil Miscellaneous Appeal filed under Section 173 of the Motor Vehicles Act, 1988, against the decree and judgment passed in M.C.O.P.No.1275 of 2007 dated 23.01.2009 on the file of the Motor Accident Claims Tribunal cum Additional District Judge FTC-I, Tirunelveli.)
1. It is a case of injury and the accident took place on 11.03.2007 at about 6.00 p.m in front of Esakkiamman Temple at Alagiapandipuram Village. The claimant filed the Claim Petition before the Motor Accident Claims Tribunal-cum-Additional District Judge FTC-I, Tirunelveli, in M.C.O.P.No.1275 of 2007.
2. The Tribunal, considering the facts and the circumstances of the case, awarded Rs.70,000/- towards total compensation, against which, the Insurance Company preferred the present appeal mainly on the ground that the vehicle was in possession of permit to carry only 3 persons and at the time of accident, 4 persons were travelling in the Mini Van and therefore, the policy condition is violated and the appellant Insurance Company is to be exonerated from liability.
3. This Court considered the submissions of the learned counsel for the appellant and perused the materials available on record.
4. It is settled position of law that in the case of claim made by the third party, even if there is any violation of the policy conditions, the Insurance Company has to pay the award amount to the claimant and thereafter, recover the same from the owner of the vehicle.
5. InOriental Insurance Co.Ltd., Vs. Shri Nanjappan and others, reported in I (2004) ACC 524 (SC), the Hon'ble Supreme Court in paragraph 7 it has been held as follows:-
(7) ....For the purpose of recovering the compensation amount 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 insured was the subject matter of determination before the Tribunal and the issue is decided against the owner and in favour of the insurer. A notice shall be issued to the insured to furnish security for the entire amount. 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 realisation by disposal of the securities to be furnished or from any other property of the insured.
6. In view of the above, the award of the Tribunal passed inM.C.O.P.No.1275 of 2007 dated 23.01.2009 is confirmed.
7. The learned counsel for the appellant is directed to deposit the entire amount with accrued interest and costs, if the award amount is not deposited. On such deposit being made, the respondents 1 to 5/claimants are permitted to withdraw the award amount with accrued interest by filing necessary permission petition and the minor's share shall be deposited in one of the nationalized banks in fixed deposit till they attain majority and the mother/guardian is permitted to withdraw interest once in 3 months directly from the bank.
8. The Insurance Company is permitted to recover the award amount from the owner of the vehicle as per the mode incorporated in Shri Nanjappan's case referred to above.
9. With the above observation, the Civil Miscellaneous Appeal is disposed of. No costs. Consequently, connected miscellaneous petition in M.P.(MD) No.2 of 2009 is also closed.