National Insurance Co.Ltd., v. Panandhan,

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 05.10.2015

CORAM:

THE HONOURABLE DR.JUSTICE P.DEVADASS C.M.A. (MD) No.929 of 2015 and M.P.(MD) No.2 of 2015 National Insurance Company Limited Sekkalai Road Karaikudi, Sivagangai District rep.by its Branch Manager ... Appellant / 3rd Respondent -vs1.Panandhan ... 1st Respondent / 1st Petitioner 2.Karuppiah ... 2nd Respondent / 2nd Petitioner 3.Subramani ... 3rd Respondent / 3rd Petitioner 4.Chellappan ... 4th Respondent / 4th Petitioner 5.Karuppayee ... 5th Respondent / 5th Petitioner 6.Jeya ... 6th Respondent / 6th Petitioner 7.Muthulakshmi ... 7th Respondent / 7th Petitioner 8.Deivanai ... 8th Respondent / 8th Petitioner 9.Dharmalingam ... 9th Respondent / 1st Respondent 10.D.Muthuraman ... 10th Respondent / 2nd Respondent PRAYER: Appeal is filed under Section 173 of the Motor Vehicle Act, 1988, to set aside the Judgment and Decree passed by the Motor Accident Claims Tribunal, Sub Court, Devakottai, in M.C.O.P.No.91 of 2009, dated 01.11.2011.

For Appellant : Mr.D.Sivaraman For Respondents : Mr.A.L.Kannan for R1 to R8

J U D G M E N T

This is an insurer's appeal on the aspect of liability.

2. On 01.12.2008, in a road accident one Papa, a pillion rider in a motorcycle, had died. Her dependants claimed compensation before the Motor Accident Claims Tribunal

3. The Tribunal, appreciating the evidence held that the accident was due to the rash and negligent driving of the driver of an Ambassador Car, which has been insured with the appellant and awarded Rs.4,72,000/- as compensation.

4. The learned counsel for the appellant would submit that the evidence of RTO / R.W.1 clearly shows that that at the time of accident the car driver was not holding the required badge to drive such type of vehicle, thus, there is violation of terms and conditions of the policy and in the circumstances, the insurer is not liable to the award amount.

5. On the other hand, the learned counsel for the respondents 1 to 8 / claimants would submit that it will not enable the appellant to avoid its statutory liability under Section 149 of the M.V.Act.

6. In Oriental Insurance Co. Ltd., v. Shri Nanjappan and others (2004 (1) TN MAC (SC) 211), the Hon'ble Apex Court held as under: "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.

disposed of in the aforesaid terms, with no order as to costs."

7. The principle behind this 'pay and recover' is to see that the injured or the dependents of the deceased in a road accident should not be allowed to go in high and dry with a paper (award) decree in their hands. On the other hand, while directing the Insurer to pay the compensation, it is to see that the Insurance Company shall not suffer so enabling it to recover the amount from the vehicle owner.

8. In the circumstances, the appellant will deposit the entire award amount including the costs and interest, to the credit of M.C.O.P.No.91 of 2009, on the file of the Motor Accident Claims Tribunal / Sub Court, Devakottai, within four weeks from the date of receipt of a copy of this Judgment, less amount, if any already deposited. On such deposit, the appellant is entitled to proceed in execution as against the vehicle owner, without filing a separate suit. The appellant will have all the remedies available under Order XXI C.P.C. It can also seek remedy as against the offending vehicle. On the request of the Company, the concerned Regional Transport Officer shall render necessary assistance. The claimants shall be paid the entire amount, as per the allocation of the amount, less amount, if any already received.

9. Accordingly, this civil miscellaneous petition is disposed of. No costs. Consequently, connected miscellaneous petitions is closed. Sd/- Assistant Registrar (AE) /True Copy/ Sub Assistant Registrar krk To:

1.The District Judge, Sivagangai.

2.The Motor Accident Claims Tribunal, (Subordinate Judge) Devakottai.

+1CC to Mr.A.L.Kannan Advocate Sr.No.58695 +1CC to Mr.D.Sivaraman Advocate Sr.No.58676 CSL/KBM/SARI-6.11.2015-3P-5C C.M.A. (MD) No.929 of 2015 and M.P.(MD) No.2 of 2015 05.10.2015