(Prayer:Civil Miscellaneous Appeal filed under Section 173 of the Motor Vehicles Act, 1988, against the Judgment and Decree dated 17.04.2006 passed in MACOP No.236 of 2003 on the file of the learned Principal District Judge, Motor Accidents Claims Tribunal, Fast Track Court, Dindigul.)
1. Challenging the Judgment and Decree passed by the learned Principal District Judge, Motor Accidents Claims Tribunal, Fast Track Court, Dindigul, in MACOP No.236 of 2003, dated 17.04.2006, this Civil Miscellaneous Appeal has been filed.
2. It is a case of fatal accident caused due to the accident took place on 10.10.2002, at about 6.00 a.m., on Dindigul-Palani road near Ottanchathiram Check-post. The death occurred instantly and the legal heirs of the deceased Senthilkumar filed a claim petition seeking compensation before the Motor Accidents Claims Tribunal, Dindigul.
3. The Tribunal, after considering the facts and circumstances of the case and granted Rs.2,94,000/- towards total compensation. Challenging the same, the appellant/Insurance Company filed the present appeal on the ground that the deceased who was an unauthorized person travelling in the mini goods lorry and he was not sitting in the cabin. Though there is a policy coverage of one person, the deceased was travelling in the back side of the mini lorry. Hence, the appellant/Insurance Company has to be excluded from the liability.
4. The main contention raised by the learned counsel for the appellant is that though there is a coverage for one person, the Insurance Company is not liable, in view of the fact that the deceased was not travelling within the cabin and therefore, the compensation awarded by the Tribunal was erroneous and liable to be set aside.
5. The learned counsel for the respondent would submit that the deceased person was a coolie. In our country, the agricultural or other coolies are permitted to travel only on the top of the goods vehicle and they are not even permitted to sit in the cabin. Such inhuman activities are to be deprecated and in all means, a pragmatic approach is highly warranted.
6. This Court is of the view that this kind of untouchability is adopted by the owners of the goods carriers and the said practice by allowing such poor persons to travel on the top of the goods vehicle has to be severely condemned. This Court is able to realize that the majority of the goods vehicle, the coolies and the load-men are made to travel on the top of the vehicle, despite the fact there will be space in the cabin. In other words, the drivers of the lorries or the owners of the lorries are not allowing such persons to sit near by them. This untouchable practice and such things are to be deprecated and severely condemned. The case on hand is also of such a nature and admittedly, there is a coverage of policy of one person and this Court is inclined to consider that the policy to be covered with the deceased person in the present case.
7. At this juncture, the learned counsel for the appellant would submit that it is the case of violation of policy condition and therefore, the Insurance Company has to be exonerated.
8. This Court do not find any error with regard to the quantum of amount awarded by the learned tribunal and the only point to be decided is the adoption of principles of pay and recovery.
9. On this aspect, in the judgment reported in (2004)13 SCC 224in the caseof Oriental Insurance Co. Ltd., vs. Nanjappan and others, the Hon'ble Apex Court made the following observations:-
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.
10. In view of the settled principles both by this Hon'ble Court and the Hon'ble Supreme Court of India, as this case is one of the violation of policy conditions, this Court is inclined to consider the principles of Pay and Recovery.
11. In the case on hand, the Tribunal has not directed the appellant to pay the award amount and thereafter, recover from the owner of the vehicle. Hence, this Court modifies the award of the Tribunal by directing the appellant Insurance Company to pay a sum of Rs.2,94,000/- with accrued interest at the rate of 7.5% interest and costs and thereafter, recover it from the owner of the vehicle, namely the fifth respondent in consonance with the settled position of law. Accordingly, the findings of the Tribunal in other respects are confirmed and the Civil Miscellaneous Appeal is disposed of.
12. The learned counsel for the appellant has represented that the entire amount along with proportionate interest and costs has already been deposited. The respondents 1,3 and 4/claimants are permitted to withdraw their shares in the award amount along with proportionate interest and costs, through R.T.G.S., by filing necessary application before the Tribunal. The share of the 2nd respondent/minor claimant shall be deposited in a Nationalised Bank in Fixed Deposit, till she attains majority and on attaining majority, it is for her to approach the Tribunal for disbursement of her share, by making necessary application. No costs. Consequently, connected Miscellaneous petitions are closed.