(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.815 of 2005, dated 19.12.2007, on the file of the Motor Accidents Claims Tribunal, Principal District Judge, Tirunelveli.)
1. The appellant/Insurance Company Limited has filed the present C.M.A(MD)No.384 of 2010, challenging the award passed in M.C.O.P.No.815 of 2005, dated 19.12.2007, on the file of the Motor Accidents Claims Tribunal. Principal District Judge, Tirunelveli.
2. The learned counsel appearing for the appellant/Insurance Company fairly concedes that it is a case of pay and recovery and the accident took place on 24.03.2005 at about 5.40 p.m. at South Perumalpuram. It is a case of fatal accident and the deceased was about 19 years and he was a student at the time of accident. Considering the facts and circumstances of the case, the Tribunal awarded Rs.3,92,000/- towards total compensation, against which, the appellant/Insurance Company preferred an appeal solely on the ground that the deceased was riding a motor cycle at Nagercoil-Tirunelveli Road and when he came near South Perumalpuram, a van bearing Registration No.TN-72-D-4651 came from opposite direction in a rash and negligent manner and dashed against the two wheeler and the deceased was admitted in Thiraviyam Hospital at Nagercoil and died on 29.03.2005.
3. According to Ex.P5, the Motor Vehicle Inspector's Report, the driver of the van was in possession of the licence to drive the Light Motor Vehicle and there was no badge endorsement with him. In view of the fact that there was no badge endorsement, there was a violation of policy condition and accordingly, the appellant/Insurance Company is to be exonerated from liability. But the liability of the Insurance Company cannot be exonerated, even in the case of violation of the Insurance policy, in view of the principles 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 224 is 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.
4. Accordingly, the principles of pay and recovery is ordered. The award of the Tribunal in MCOP.No.815 of 2005, dated 19.12.2007, is confirmed and the civil miscellaneous appeal is disposed of.
5. The learned counsel appearing for the appellant/Insurance Company represented that the entire award amount has already been deposited. The respondents 1 and 5/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 minors share is concerned, the Tribunal is directed to deposit the said amount in any one of the Nationalised Bank, till they attain majority. The guardian of the minors is permitted to withdraw the interest of the minors share once in three months directly from the bank. No costs. Connected miscellaneous petition is closed.