(Prayer: Civil Miscellaneous Appeal filed under Section 173 of the Motor Vehicles Act, 1988 against the Judgment and decree in M.C.O.P.No.681 of 2008, dated 17.10.2012, on the file of the Motor Accident Claims Tribunal, District and Sessions Court, Communal clash cases Court, Madurai.)
1. The appellant/Insurance Company Limited has filed the present C.M.A(MD)No.2029 of 2013, challenging the award passed in M.C.O.P.No.681 of 2008, dated 17.10.2012, on the file of the Motor Accidents Claims Tribunal, District and Sessions Court, Communal clash cases Court, Madurai.
2. The case on hand, it is a fatal accident and the death occurred in the hospital after the accident. The heirs of the deceased filed claim the petition before the Motor Accident Claims Tribunal, District and Sessions Court, Communal clash cases Court, Madurai and the Tribunal, considering the facts and circumstances of the case, awarded a total amount of Rs.5,18,000/-. Against which, the appellant/Insurance Company has preferred the present civil miscellaneous appeal solely on the ground that the driver was not in possession of driving licence and has none other than the owner of the vehicle. Hence, the liability of the appellant/Insurance Company is to be exonerated and the Tribunal without considering the fact that the driver was not in possession of any driving licence. Therefore, the Tribunal ought to have adopted the principles of pay and recovery laid down by the Hon ble Supreme Court of India in the case of Oriental Insurance Company Limited vs. Nanjappan and others reported in(2004) 13 SCC 224is applied which is extracted below:
8. Therefore, while setting aside the judgment of the High Court we direct in terms of what has been stated in Baljit Kaur's case (supra) that the insurer shall pay the quantum of compensation fixed by the Tribunal, about which there was no dispute raised, to the respondent-claimants within three months from today. 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.
3. The learned counsel appearing for the respondents disputing the fact that the deceased was a coolie and he was possessing Post Graduate Degree in Science and he should not have been designated as a coolie and further disputing the quantum by stating that no amount was ordered for medical expenses, since it is a question of fact and the respondents/claimants have not filed any appeal against the order, this Court is not inclined to consider the disputed facts argued by the learned counsel appearing for the respondents at the time of hearing the present appeal, which is filed by the appellant/Insurance Company.
4. Considering the facts and circumstances of the case, the pay and recovery is ordered. The order passed by the Motor Accident Claims Tribunal in M.C.O.P.No.681 of 2008, dated 17.10.2012, is modified to the extent of adopting the principles of pay and recovery as per the Judgment of the Hon ble Supreme Court of India in the case of Oriental Insurance Company Limited vs. Nanjappan and otherscited above.
5. Accordingly, the civil miscellaneous appeal is disposed of.
6. The learned counsel appearing for the appellant/Insurance Company represented that the award amount has already been deposited and the respondents 1 and 2/claimants are permitted to withdraw their share by making necessary applications before the Tribunal as per the ratio fixed by the Tribunal. In so far as the minor share is concerned, the Tribunal is directed to deposit the said amount in any one of the Nationalised Bank, till she attains majority. The guardian of the minor is permitted to withdraw the interest of the minor share once in three months directly from the bank. No costs. Connected miscellaneous petition is closed.