(Prayer: Civil Miscellaneous Appeal filed under Section 173 of the Motor Vehicles Act, 1988, against the Judgement and Decree passed in M.C.O.P.No. 231 of 2011 dated 08.08.2011 on the file of the Motor Accident Claims Tribunal-cum-Fast Track Court No.II, Tirunelveli.)
1. The appellant/Oriental Insurance Company Ltd., filed the present C.M.A.No.564 of 2012, challenging the award passed in M.C.O.P.No.231 of 2011 by the Motor Accidents Claims Tribunal/Additional District Judge, Fast Track Court No.2, Tirunelveli.
2. The present case is a case of fatal and the death occurred instantly. The heirs of the deceased filed the application for compensation before the Motor Accidents Claims Tribunal/Additional District Judge, Fast Track Court No.2, Tirunelveli in M.C.O.P.No.231 of 2011 and the Tribunal, considering facts and circumstances of the case, awarded Rs.5,75,000/- as total compensation to the respondent/victims.
3. The present appeal is filed by the Oriental Insurance Company Limited solely on the ground that the driving license of the driver, who was driving the vehicle at the time of accident, was not renewed and therefore, it is to be treated as if the driver was not having any license and therefore, the appellant/insurance company is to be exonerated.
4. 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.
5. 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.
6. In view of the settled principles both by this Court and the Hon'ble Supreme Court of India, the order of the Tribunal is modified to the extent that the appellant insurance company shall pay compensation to the respondents 1 to 5/claimants at the first instance and thereafter, the appellant is at liberty to recover the amount from the owner of the vehicle as per the mode stated in Nanjappan's case(supra).
7. It is represented by the appellant / Insurance Company that the entire award amount has already been deposited. Therefore, the respondents 1, 4 and 5/claimants are entitled withdraw their shares as apportioned by the Tribunal, through RTGS, by filing necessary applications before the Tribunal. As far as the shares of the minors are concerned, the Tribunal is directed to deposit their entire share amount in Fixed Deposit, in any one of the nationalized banks, initially for a period of three years, renewable thereafter, till they attain majority and the first respondent/mother of the 2nd and 3rd respondents is permitted to withdraw interest from the said deposit once in three months, directly from the bank.
With the above-said modification, this Civil Miscellaneous Appeal is disposed of. No costs. Consequently, connected miscellaneous petition is closed.