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The Oriental Insurance Company Limited and Another Vs. C.S. Periyasamy and Another - Court Judgment

LegalCrystal Citation
CourtChennai Madurai High Court
Decided On
Case NumberC.M.A. (MD) No. 367 of 2009
Judge
AppellantThe Oriental Insurance Company Limited and Another
RespondentC.S. Periyasamy and Another
Excerpt:
.....486 (united india insurance co., ltd., v. rajammal), in an identical circumstance, namely, in an appeal filed by the insurance company, the respondents therein - claimants filed cross objection praying for higher compensation. the division bench, after referring the earlier decisions of this court and other high courts as well as the supreme court and in the light of the relevant provisions from the motor vehicles act as well as civil procedure code, held that, "the cross objection filed by the claimants in an appeal filed by the insurance company, questioning their liability only is not maintainable." 8. in 1999 acj 136 (united india insurance co., ltd., v. dulasi ammal), which is a judgment rendered by one of us (p. sathisivam, j.), similar question was considered. here again, the.....
Judgment:

S.M. Subramaniam, J.

1. The appellant/Oriental Insurance Company Ltd., Karur filed the present C.M.A. No. 367 of 2007 and the claimant has filed Cross Objection No.43 of 2009, challenging the award passed in M.C.O.P. No. 211 of 2007 by the Motor Accidents Claims Tribunal/Subordinate Court, Karur.

2. The contention of the appellant is that the first respondent met with an accident and sustained multiple grievous injuries and fractures. The second respondent is the owner of the vehicle and the appellant questioned the fact that the vehicle met with an accident did not possess fitness certificate and therefore, the Insurance Company is liable to be exonerated and the liability is to be fixed on the owner of the vehicle. The Tribunal though considered the fact that there is no fitness certificate and the second respondent/owner of the vehicle failed to establish that the vehicle was in possession of valid fitness certificate, fixed the liability to the appellant/Insurance company, which is questioned by the appellant in the present appeal.

3. Further, the learned counsel appearing for the appellant contended that the Cross Objection filed by the first respondent/claimant is not maintainable in view of the Judgment of the Hon'ble Division Bench of this Court in Branch Manager, New India Assurance Co. Ltd., v. Salat Mary and others in C.M.A. No. 185 of 1997 dated 04.02.2004, wherein the Hon'ble Division Bench of this Court held as under:

"7. In 1993 ACJ 486 (United India Insurance Co., Ltd., v. Rajammal), in an identical circumstance, namely, in an appeal filed by the Insurance Company, the respondents therein - claimants filed cross objection praying for higher compensation. The Division Bench, after referring the earlier decisions of this Court and other High Courts as well as the Supreme Court and in the light of the relevant provisions from the Motor Vehicles Act as well as Civil Procedure Code, held that,

"The cross objection filed by the claimants in an appeal filed by the Insurance Company, questioning their liability only is not maintainable."

8. In 1999 ACJ 136 (United India Insurance Co., Ltd., v. Dulasi Ammal), which is a Judgment rendered by one of us (P. Sathisivam, J.), similar question was considered. Here again, the Division Bench decision referred to above (1993 ACJ 486) was considered. After referring Section 110-D of the Motor Vehicles Act, 1939, Section 173 of the Motor Vehicles Act, 1988, Order 41, Rule 22 of the Code of Civil Procedure and after referring various decisions, it is held that,

"The cross objection filed by the claimants in an appeal exclusively filed by the Insurance Company questioning their liability alone is not maintainable."

Both the above referred decisions of this Court are directly on the point."

Hence, the cross appeal is to be dismissed.

4. In respect of the liability of the appellant, this Hon'ble High Court and the Hon'ble Apex Court settled the principle that the claimant is a third party and even if there is any violation of policy condition, in respect of the claim made by the third parties, the Insurance Company has to pay the award amount to the claimant at the first instance and thereafter, to recover the same from the owner of the vehicle.

5. On this aspect, in the judgment reported in (2004) 13 SCC 224 in the case of Oriental Insurance Co. Ltd., v. 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 realisation 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."

6. In view of the settled principles both by this Hon'ble Court and the Hon'ble Supreme Court of India, this Court is inclined to consider the principle of Pay and Recovery.

7. In the case on hand, the Tribunal while awarding Rs. 1,93,000/- together with interest at the rate of 7.5% p.a. directed the appellant to pay the award amount and thereafter, recover from the owner of the vehicle. Therefore, this Court finds no merit in the appeal and the award passed by the Tribunal in M.C.O.P. No. 211 of 2007 dated 18.12.2008 on the file of Motor Accidents Claims Tribunal/Subordinate Court, Karur is confirmed.

8. Accordingly, this Civil Miscellaneous Appeal is dismissed. No costs. In view of the decision of the Division of Bench of this Court, stated supra, the Cross Objection is not maintainable and the same is also dismissed. No costs.

9. The learned counsel for the appellant/Insurance Company informed that the entire award amount has been deposited before the Tribunal and the first respondent also was permitted to withdraw 50% of the award amount and accordingly the appellant Insurance Company is at liberty to recover the award amount from the owner of the vehicle by filing appropriate proceedings before the Executing Court. The first respondent/claimant is permitted to withdraw the balance award amount with accrued interest and costs by making necessary applications before the Tribunal.

Ordered accordingly.


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