Madras High Court
M/S. National Insurance Co. Ltd vs R.Kannan .. 1St on 18 November, 2016
Author: S.M.Subramaniam
Bench: S.M.Subramaniam
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 18.11.2016 Coram THE HONOURABLE MR.JUSTICE S.M.SUBRAMANIAM C.M.A(MD)Nos.632 of 2005 to 669 of 2005 and C.M.P.(MD)No.4264, 4266, 4268, 4274, 4276, 4278, 4282, 4288, 4290, 4296, 4300, 4302, 4304, 4306, 4308 & 2553, 4314, 4316, 4324, 4326, 4328 and 4330 of 2005 in C.M.A.(MD) Nos.634 to 635, 639 to 641, 643, 646, 647, 650, 652, 653 to 656, 659, 660, 664, 665, 666 and 667 of 2005 C.M.A.(MD) No.632 of 2005: M/s. National Insurance Co. Ltd., 140, Gandhi Kalaimanthiram Road, 1st Floor, Rajapalayam rep. by Branch Manager .. Appellant/2nd Respondent -Vs- 1.R.Kannan .. 1st Respondent/Petitioner 2.M/s.Sri Jayaram Roadways, Propr. K.J.Shri Rengaperumal Raja, Tenkasi Road, Rajapalayam. .. 2nd Respondent/1st Respondent Prayer:- Civil Miscellaneous Appeal filed under Section 173 of the Motor Vehicles Act, 1988 against the Judgment and Decree dated 30.10.2002 made in M.C.O.P.No.407 of 1997 on the file of the Motor Accident Claims Tribunal, Subordinate Judge at Virudhunagar. !For Appellant : Mr.S.Srinivasa Raghavan ^For 1st Respondent : Mr.V.Venkatasamy For 2nd Respondent : Mr.P.T.S.Narendra Vasan :COMMON JUDGMENT
These batch of Civil Miscellaneous Appeals are filed against the common order dated 30.10.2002 passed by the Motor Accident Claims Tribunal/Subordinate Court, Virudhunagar District in M.C.O.P.Nos.407 to 443 of 1997 and 256 and 311 of 2001.
2.The facts in nutshell are that the accident took place at about 11.30 a.m. on 25.05.1992 near Palanatham in Aruppukottai ? Virudhunagar Main Road. The bus which met with the accident was proceeding from Aruppukottai to Rajapalayam. It is a private route bus.
3.The case of the appellant is that the passengers who were travelling in the bus have illegally loaded explosives in the bus, which was known to the conductor or driver of the bus and as per the regulation it is the duty of conductor and driver to see prohibited goods were not loaded in the bus. In spite of the regulations, the conductor and driver were negligent in allowing the passengers to carry the same, which caused the fatal accident resulting in death of passengers and grievous injuries to some other. The engine got fired due to the presence of the explosives inside the bus, which was proved before the Tribunal through report of the forensic department and through some witnesses. Such being the case, the Tribunal while granting compensation ought to have considered the pay and recovery in respect of the appellant insurance company is concerned. Contrary to the principles, the Tribunal failed to award pay and recovery and fixed the liability only on the insurance company and therefore, the Civil Miscellaneous Appeals are to be allowed.
4.The learned counsel appearing for the owner of the vehicle opposed the submissions of the learned counsel for the appellant by stating that only the appellant is liable to pay the compensation in view of the fact that the accident took place not on account of any explosives and it occurred due to some fire arose from the engine and therefore, the fixation of liability on the owner of the vehicle cannot be accepted and the Tribunal has rightly fixed the liability on the insurance company. Further, he pointed out the finding of the Tribunal and would submit that some witnesses have deposed that they had seen fire from the Engine of the bus, thereafter the terrific accident took place. Hence, it is to be construed that the accident took place on account of fire in the engine of the bus and not on account of explosives.
5.This Court considered the rival submissions and perused the materials available on record.
6.Evidence on record would show that samples from the bus, which met with the accident was sent for analysis and as per the forensic reports Exs.P.8 and 9, presence of explosives were proved and that was recorded by the Tribunal. Further, the Tribunal has categorically found that there were some explosives, which caused the terrific accident and therefore, that is the only reason for the accident. Hence, this Court is not inclined to accept the counter arguments advanced by the learned counsel appearing for the owner of the bus. Further, it is the duty of the conductor and driver of the bus to see that prohibited items are not loaded in the bus. While fixing the liability, the Tribunal ought to have seen that whether there was any violation of policy conditions or not. Since explosives were carried on the bus, in violation of the policy conditions, the Tribunal ought to have fixed the liability on the owner of the bus.
7.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. Hence, this Court is inclined to consider the arguments advanced by the learned counsel for the appellant in respect of pay and recovery by following the principles laid down in the judgment reported in (2004)13 SCC 224 in the case of Oriental Insurance Co.Ltd., vs. Nanjappan and others, wherein it is held as follows:
?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. The appeal is disposed of in the aforesaid terms, with no order as to costs.?
8.The Tribunal while awarding compensation has not directed the appellant to pay the award amount and thereafter, recover from the owner of the vehicle. Hence, this Court modify the award of the Tribunal by directing the appellant Insurance Company to pay the award amount at the first instance and thereafter recover it from the owner of the vehicle in consonance with the settled position of law.
9.Accordingly, these Civil Miscellaneous Appeals are partly allowed. No costs. Consequently, connected miscellaneous petitions are closed.
10.The learned counsel for the appellant/Insurance Company informed that the entire award amount has been deposited before the Tribunal 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 respondents/major claimants are permitted to withdraw their share in the award amount as apportioned by the Tribunal with proportionate accrued interest and costs through RTGS by making necessary applications before the Tribunal. The shares of the minor claimants shall be deposited in a nationalized bank till they attain majority and the interest accrued thereon is permitted to be withdrawn by the guardian/next friend of the minor claimants once in three months directly from the Bank.
To The Motor Accident Claims Tribunal, The Subordinate Judge, Virudhunagar..