(Prayer: Appeal filed under Section 173 of the Motor Vehicles Act, 1988, against the judgment and decree in M.C.O.P.No.409 of 2004 dated 22.01.2010, on the file of the Motor Accident Claims Tribunal Chief Judicial Magistrate, Tirunelveli.
Prayer: Appeal filed under Section 173 of the Motor Vehicles Act, 1988, against the judgment and decree in M.C.O.P.No.410 of 2004 dated 22.01.2010, on the file of the Motor Accident Claims Tribunal Chief Judicial Magistrate, Tirunelveli.
1. The accident took place on 06.03.2004 at about 06.30 p.m., at Sankarankoil Senthamaram Main Road near Senthamaram Harijan Colony and it is a case of grievous injury and the claimants sustained multiple injuries all over their bodies.
2. The claim petitions were filed in M.C.O.P.Nos.409 and 410 of 2004 before the file of the Motor Accident Claims Tribunal Chief Judicial Magistrate, Tirunelveli. Considering the facts and circumstances of the case, the Tribunal awarded the total compensation of Rs.1,17,864/- (Rupees One Lakh Seventeen Thousand Eight Hundred and Sixty Four only) and Rs.11,000/- (Rupees Eleven Thousand only) respectively, to the claimants.
3. The learned Counsel for the appellant in both the appeals contended that it is a case of driving without licence and it is proved before the Tribunal that the driver who was plying the vehicle was not in possession of a valid driving licence and accordingly, pay and recovery has to be ordered.
4. The learned Counsel for the third respondent vehemently opposed stating that this case cannot come under the principles of 'pay and recovery theory', in view of the fact that the owner of the vehicle had not permitted the driver to drive the vehicle. To substantiate his claim, he cited the findings of the Tribunal to the effect that the owner of the vehicle had not given the permission to the driver to drive the two wheeler. But the learned Counsel for the appellant reiterated that the owner is none other than the brother of the driver and is living in a joint family and therefore, such a contention cannot be admitted in view of the relationship between the owner of the vehicle and the driver and they are residing in a joint family and such an inference cannot be drawn in view of the relationship between the owner of the vehicle and the driver and accordingly, the contention of the learned Counsel for the third respondent is to be rejected.
5. The learned Counsel for the appellant Insurance Company is unable to dispute the quantum of compensation awarded by the Tribunal.
6. Heard the learned Counsel for the appellant Insurance Company and the learned Counsel for the respondents 3 and 5 and also perused the materials available on record.
7. It is a settled law that though the Insurance Company established violation of the policy condition and in respect of the claim made by the third parties, the Insurance company has to first satisfy the award and recover the same from the owner of the vehicle.
8. In Oriental Insurance Co. Ltd., vs. Nanjappan and others reported in (2004) 13 Supreme Court Cases 224, the Honourable Supreme Court has held as follows:
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.
9. In the light of the ratio laid down by the Honourable Supreme Court in the above decision, this Court does not find any illegality or infirmity in the common award passed by the Tribunal. Accordingly, these appeals fail.
10. It is also represented that the entire award amount has already been deposited by the appellant Insurance Company.
11. In the result, C.M.A(MD)Nos.859 and 860 of 2010 are dismissed, confirming the common award in M.C.O.P.Nos.409 and 410 of 2004 dated 22.01.2010 respectively, passed by the Motor Accident Claims Tribunal Chief Judicial Magistrate, Tirunelveli. The respective claimants are permitted to withdraw their respective award amounts forthwith. Further, the appellant Insurance Company is at liberty to recover the award amount from the insured as per the law laid down by the Honourable Supreme Court in Nanjappan's case (cited supra). No costs. Consequently, connected miscellaneous petitions are dismissed.