Madras High Court
The Branch Manager vs )Renuga Dhanasekaran on 21 November, 2016
Author: S.M.Subramaniam
Bench: S.M.Subramaniam
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 21.11.2016
CORAM
THE HONOURABLE MR.JUSTICE S.M.SUBRAMANIAM
CMA(MD)No.1323 of 2007
and M.P(MD)No.1 of 2007
The Branch Manager,
National Insurance Company Limited,
140, Gandhi Kalaimanram Road,
Rajapalayam, Virudhunagar District. ... Appellant
vs.
1)Renuga Dhanasekaran
2)Minor Manikandan
3)Minor Karthik
(Minor Respondents 2 and 3 are represented by
their mother and guardian 1st respondent)
4)K.J.Rengaperumal Raja ... Respondents
Appeal filed under Section 173 of the Motor Vehicles Act, against the
judgment and decree dated 18.01.2007 made in MCOP.No.133 of 2004 on the file
of the Motor Accident Claims Tribunal, Additional District Court/Fast Track
Court, Virudhunagar.
!For Appellant : Mr.S.Srinivasa Raghavan
^For R1 to R3 : Mr.G.Marimuthu
:JUDGMENT
The present Civil Miscellaneous Appeal is filed against the judgment and decree dated 18.01.2007 made in MCOP.No.133 of 2004 on the file of the Motor Accident Claims Tribunal, Additional District Court/Fast Track Court, Virudhunagar.
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 the evidence of PW2 and Ex.P1-FIR. 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 present Civil Miscellaneous Appeal is to be allowed.
4.There is no representation on behalf of the counsel for the 4th respondent.
5.Evidence on record would show that it is the deposition of PW2 who is a co-passenger and a witness to the accident that at the time of accident, there was smoking from the bus, even then, the driver of the bus drove the same and stopped the bus in a forest and that the bus got fired automatically. During his cross-examination, PW2 has deposed that some of the passengers loaded bags containing explosives in the dickey in the presence of the Conductor. PW2 is the informant to the FIR. The Tribunal has also categorically found that there were some explosives, which caused the terrific accident and therefore, that is the only reason for the accident. 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.
6.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.?
7.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.
8.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 order, if not deposited already and thereafter, the 1st respondent/major claimant is permitted to withdraw her 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/respondents 2 and 3 shall be deposited in a Nationalized Bank till they attain majority and the interest accrued thereon is permitted to be withdrawn by the 1st respondent/guardian of the minor claimants once in three months directly from the Bank. Upon attaining majority, it is for the respondents 2 and 3 to approach the Tribunal for disbursement of their shares.
In the result, this Civil Miscellaneous Appeal is partly allowed. No costs. Consequently, M.P(MD)No.1 of 2007 is closed.
To The Additional District Court/Fast Track Court, Motor Accident Claims Tribunal, Virudhunagar..