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The Branch Manager, The Oriental Insurance Company Limited, Opposite to Vadaseri Bus Stand, Nagercoil Vs. Arumugam and Another - Court Judgment

LegalCrystal Citation
CourtChennai Madurai High Court
Decided On
Case NumberC.M.A. (MD)No. 256 of 2009 & M.P (MD)No.1 of 2009
Judge
AppellantThe Branch Manager, The Oriental Insurance Company Limited, Opposite to Vadaseri Bus Stand, Nagercoil
RespondentArumugam and Another
Excerpt:
.....thousand only) to the claimant. 3. the main grievance of the appellant is that it is a case of 'no driving licence' and the tribunal made a categorical finding that the driver who was driving the vehicle, was not in possession of a valid driving licence, which was not disputed by the claimant. the claimant had not produced any record to show that the driver of the vehicle was in possession of a valid driving licence and therefore, the findings of the tribunal became conclusive in respect of non-possessing a valid driving licence at the time of plying the vehicle. while making such a finding, the tribunal ought to have considered the 'pay and recovery theory' in respect of the owner of the vehicle, but had failed to do so. hence, the present appeal is filed by the appellant insurance.....
Judgment:

(Prayer: Appeal filed under Section 173 of the Motor Vehicles Act, 1988, against the judgment and decree in M.C.O.P.No.222 of 2007 dated 12.12.2008, on the file of the Motor Accident Claims Tribunal Sub Court, Valliyur.)

1. The accident took place on 01.07.2007 at about 10.15 p.m., near Kavalkinaru Kanyakumari Main Road and it is a case of grievous injury and the claimant sustained multiple injuries all over his body.

2. The claim petition was filed in M.C.O.P.No.222 of 2007 before the file of the Motor Accident Claims Tribunal Sub Court, Valliyur. Considering the facts and circumstances of the case, the Tribunal awarded the total compensation of Rs.1,84,000/- (Rupees One Lakh and Eighty Four Thousand only) to the claimant.

3. The main grievance of the appellant is that it is a case of 'No Driving Licence' and the Tribunal made a categorical finding that the driver who was driving the vehicle, was not in possession of a valid driving licence, which was not disputed by the claimant. The claimant had not produced any record to show that the driver of the vehicle was in possession of a valid driving licence and therefore, the findings of the Tribunal became conclusive in respect of non-possessing a valid driving licence at the time of plying the vehicle. While making such a finding, the Tribunal ought to have considered the 'pay and recovery theory' in respect of the owner of the vehicle, but had failed to do so. Hence, the present appeal is filed by the appellant Insurance Company.

4. Heard the learned Counsel for the appellant Insurance Company and perused the materials available on record.

5. In the instant case, as rightly contended by the learned Counsel appearing for the appellant Insurance Company, it has been established before the Tribunal that the driver of the vehicle was not having a valid driving licence and hence, this Court is of the view that it is a case of 'No Driving Licence'.

6. It is 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.

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 award passed by the Tribunal. Accordingly, this appeal fails.

9. It is also brought to the notice of this Court that the appellant Insurance Company has already deposited 50% of the award amount with accrued interest and costs, as per the conditional order of stay passed in M.P(MD)No.1 of 2009 in C.M.A(MD)No.256 of 2009, dated 24.03.2009.

10. In the result, this Civil Miscellaneous Appeal is dismissed, confirming the judgment and decree in M.C.O.P.No.222 of 2007 dated 12.12.2008, passed by the Motor Accident Claims Tribunal Sub Court, Valliyur. The appellant Insurance Company is directed to deposit the balance 50% of the award amount with accrued interest and costs before the Tribunal within a period of four weeks from the date of receipt of a copy of this judgment. On such deposit, the claimant is 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 petition is dismissed.


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