The Branch Manager,1 v. Rajagopal

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 15.11.2016 CORAM :

THE HONOURABLE MR.JUSTICE S.M.SUBRAMANIAM CMA(MD)Nos.190 and 191 of 2015 and M.P(MD)Nos.1 and 1 of 2015 The Branch Manager, National Insurance Company Limited, South Raja Street, Thanjavur town & Munsif.

... Appellant in both CMA/ 2nd Respondent in both Petitions vs.

1)Rajagopal ...1st Respondent / Petitioner in M.C.O.P No. 273/10 in CMA.190/15 2)Rajendran ... 1st Respondent in CMA.191/15 / Petitioner in M.C.O.P 274/10 3)Iqbal ... Respondents in both CMA/ Respondent No.1 in both Petitions Appeals filed under Section 173 of the Motor Vehicles Act, against the judgment and decree dated 25/08/2011 made in MCOP Nos.273 and 274 of 2010 on the file of the Motor Accident Claims Commodities Act, Thanjavur.

For Appellant(Both CMA) : Mr.R.Srinivasan For Respondents(Both CMA) : No appearance

JUDGMENT

The present Civil Miscellaneous Appeals have been filed against the common judgment and decree dated 25/08/2011 made in MCOP Nos.273 and 274 of 2010, on the file of the Motor Accident Claims Tribunal/Additional District Judge/Special Court for Essential Commodities Act, Thanjavur.

2.Both the Appeals are relating to the cases of injury caused due to the accident took place on 05.01.2010 at 07.00 p.m near Neduvasal-Aavanam road. The injured victims filed applications in MCOP Nos.273 and 274 of 2010, before the Motor Accident Claims

Commodities Act, Thanjavur, and the Tribunal by considering the facts and circumstances of the case, awarded Rs.4,01,400/- and Rs.1,07,300/- respectively, as total compensation with interest at 7.5% per annum. The appellant insurance company filed the present appeals, challenging the Award passed by the Tribunal, on the ground that the Tribunal ought not to have directed the appellant to pay the compensation to the claimants and thereafter, to recover the same from the owner of the vehicle, as the appellant had proved that at the time of accident, the driver of the offending vehicle/Load Auto bearing registration No.TN.55.R.3507, belonging to the 2nd respondent did not possess a valid badge in his licence to drive Load Auto and therefore, the insurance company ought to have been totally exonerated from the liability. Questioning such order of pay and recovery, the present appeals have been filed by the insurance company.

3.In respect of the liability of the appellant, this 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.

4.On the aspect of mode of recovery available to the insurer, the Hon'ble Supreme Court in the judgment reported in (2004)13 SCC 224 in the case of Oriental Insurance Co. Ltd., vs. Nanjappan and others, has held as follows:- "..... 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.

costs."

5.In view of the settled principles both by this Court and the Hon'ble Supreme Court of India, the appellant is directed to pay compensation to the 1st respondent/claimant at the first instance and thereafter, the appellant is at liberty to recover the amount from the 2nd respondent, as per the mode stated in Nanjappan's case (supra). The quantum of compensation at Rs.4,01,400/- and Rs.1,07,300/- respectively, with interest at 7.5% per annum is just and reasonable.

6.In the result, the Award dated 25/08/2011 made in MCOP Nos.273 and 274 of 2010, on the file of the Motor Accident Claims Commodities Act, Thanjavur, is confirmed in all respects and the present Civil Miscellaneous Appeals are dismissed. No costs. Consequently, M.P(MD)Nos.1 and 1 of 2015 are closed. 7.The appellant is directed to deposit the entire award amount with proportionate accrued interest and costs, to the credit of the claim petitions, within a period of four weeks from the date of receipt of a copy of this judgment, if not deposited already. On such deposit, the 1st respondent/claimant in both the cases are permitted to withdraw the same, by filing necessary applications before the Tribunal.

Sd/- Assistant Registrar(Crl.side) /TRUE COPY/ Sub Assistant Registrar To The Additional District Court / Special Court for Essential Commodities Act, Motor Accident Claims Tribunal, Thanjavur.

Copy to:

The Section Officer, V.R.Section, Madurai Bench of Madras High Court, Madurai.

+1 cc to MR.R.SRINIVASAN, Advocate, SR No:68791 CMA(MD)Nos.190 and 191 of 2015 nbi SH/RR-ME:25.01.2017:3P/4C