(Prayer: Appeal filed under Section 173 of the Motor Vehicles Act, 1988, against the judgment and decree in M.C.O.P.No.103 of 2008 dated 26.02.2010, on the file of the Motor Accident Claims Tribunal Sub Court, Virudhunagar.
Prayer: Appeal filed under Section 173 of the Motor Vehicles Act, 1988, against the judgment and decree in M.C.O.P.No.102 of 2008 dated 26.02.2010, on the file of the Motor Accident Claims Tribunal Sub Court, Virudhunagar.)
1. The accident took place on 09.05.2008 at about 09.45 a.m., at M.Reddiapatti Aruppukkottai Main Road near Kalayarkarisalkulam Diversion 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.102 and 103 of 2008 before the file of the Motor Accident Claims Tribunal Sub Court, Virudhunagar. Considering the facts and circumstances of the case, the Tribunal awarded the total compensation of Rs.15,000/- (Rupees Fifteen Thousand only) each to the respective claimants.
3. The learned Counsel for the appellant in both the appeals contended that the present appeals are filed only on the ground that there is a policy violation committed by the driver of the school van, more specifically, by carrying the elders in the school van, which is in violation of the statutory rules. The deposition of R.W.2 is solicited by the learned Counsel for the appellant, in which, the Assistant working in the Regional Transport Office, stated that the vehicle met with an accident is a school van and as per the Permit, 17 persons including the driver can travel in it and further, it is deposed that the school van should carry only the school children and either the parents or the third parties are not permitted in the school van. In spite of the specific condition imposed while granting Permit, the same was violated by the insured at the time of the accident. Hence, the principles of 'pay and recovery' are to be ordered in view of the decision of the Honourable Supreme Court in Oriental Insurance Co. Ltd., vs. Nanjappan and others reported in (2004) 13 Supreme Court Cases 224.
4. The learned Counsel for the respondents in both the appeals are unable to rebut the fact that the school van was carrying only the school children and not others and in the absence of production of any valid proof, the findings of the Tribunal are to be confirmed.
5. Heard the learned Counsel for the appellant Insurance Company and the learned Counsel for the respondents and also perused the materials available on record.
6. 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 the vehicle.
7. 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.
8. 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.
9. It is also represented that 50% of the award amount has already been deposited by the appellant Insurance Company.
10. In the result, C.M.A(MD)Nos.1709 and 1710 of 2010 are dismissed, confirming the common award in M.C.O.P.Nos.103 and 102 of 2008 dated 26.02.2010 respectively, passed by the Motor Accident Claims Tribunal Sub Court, Virudhunagar. The appellant Insurance Company is directed to deposit the respective balance award amounts with accrued interest and costs, less the amount already deposited, before the Tribunal within a period of four weeks from the date of receipt of a copy of this judgment. On such deposit, the respective claimants are permitted to withdraw the same 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.