Cholamandalam Ms General v. Maruthal, W/O.Aran,
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 01.12.2016 CORAM :
THE HONOURABLE MR.JUSTICE S.M.SUBRAMANIAM CMA(MD)No.288 of 2011 and M.P(MD)No.1 of 2011 Cholamandalam MS General Insurance Company Ltd., Coimbatore.
... Appellant/Respondent No.3 vs.
1)Maruthal 2)Karuppan 3)Maruthan 4)Nataraj 5)Kanniammal ... 1 to 5 Respondents/Petitioners 6)Naveenkumar 7)D.Rameshkumar ... Respondents 6 & 7/Respondents 1&2 Appeal filed under Section 173 of the Motor Vehicles Act, against the judgment and decree dated 06.12.2010 passed in MCOP.No.329 of 2006 on the file of the Motor Accident Claims Tribunal, (Sub Court), Palani.
For Appellant : Mr.S.Srinivasa Raghavan
JUDGMENT
It is the case of unfortunate fatal accident took place on 11.12.2005 around 11.30 a.m on Coimbatore-Vedandavalam road. The legal heirs of the deceased filed an application before the Motor Accident Claims Tribunal, (Sub Court), Palani, and the Tribunal considering the facts and circumstances of the case, awarded Rs.1,30,000/- as total compensation with interest at 7.5% per annum. The present appeal is filed by the appellant/insurance company, challenging the award passed by the Tribunal, on the ground that the driver, who was driving the vehicle, which met with the accident was not in possession of a driving licence and therefore, the insurance company ought to have been exonerated in toto, instead of ordering pay and recovery by the Tribunal. 2.In respect of the liability of the insurance company, 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.
3.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. The appeal is disposed of in the aforesaid terms, with no order as to costs."
4.In view of the settled principles both by this Court and the Hon'ble Supreme Court of India, the order of the Tribunal with regard to pay and recovery is confirmed and the appellant is permitted to recover the amount from the owner of the vehicle as per the mode stated in Nanjappan's case(supra). In all other respects, the impugned award is confirmed.
5.The appellant insurance company is directed to deposit the entire award amount with proportionate accrued interest and costs, to the credit of the claim petition, within a period of four weeks from the date of receipt of a copy of this judgment, if not deposited already and thereafter, the respondents/claimants are permitted to withdraw their shares with proportionate interest, through RTGS, by filing necessary applications before the Tribunal.
In the result, this Civil Miscellaneous Appeal is disposed of. No costs. Consequently, M.P(MD)No.1 of 2011 is closed. Sd/- Assistant Registrar (CS-II) /True Copy/ Sub Assistant Registrar To The Subordinate Judge, Motor Accident Claims Tribunal, Palani.
Copy To:- The Section Officer, V.R.Section, Madurai Bench of Madras High Court, Madurai.
+ 1 CC TO Mr.S.SRINIVASA RAGHAVAN, ADVOCATE IN SR No. 78706 NBI TE/SS2-KSM : 24/01/2017 : 3P/4C CMA(MD)No.288 of 2011 and M.P(MD)No.1 of 2011 01.12.2016