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2017 Supreme(Mad) 3354
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
J. NISHA BANU, J.
The New India Insurance Company Ltd., - Appellant
Versus
Minor Venthan (minor represented through its father & natural guardian, Periyakaruppan) & Others - Respondents
C.M.A(MD)Nos. 687 & 688 of 2011 & M.P.(MD) Nos. 1 & 1 of 2011
Decided On : 21-11-2017
For the Appellant :B. Vijay Karthikeyan, Advocate.
The principle of 'pay and recovery' should be applied to help the claimants in motor accident claims.
Headnote:
Insurance - Motor Accident Claims - Violation of policy conditions - Pay and recovery - 2004(2)CTC 464 - The court ordered the appellant/Insurance Company to pay the compensation to the claimants and then recover the same from the owner of the offending vehicle, in accordance with the principle of 'pay and recovery'.
Fact of the Case:
The claimants sustained injuries in a motor accident and filed a claim petition. The Tribunal held the accident occurred due to the negligence of the first respondent's vehicle and directed the appellant/Insurance Company to pay compensation to the claimants.
Finding of the Court:
The court found that the accident occurred due to the negligence of the first respondent's vehicle and ordered the appellant/Insurance Company to pay the compensation to the claimants and then recover the same from the owner of the offending vehicle, in accordance with the principle of 'pay and recovery'.
Issues: Violation of policy conditions, negligence of the first respondent's vehicle, and the applicability of the principle of 'pay and recovery'.
Ratio Decidendi: The court held that the principle of 'pay and recovery' should be applied to help the claimants and ordered the appellant/Insurance Company to pay the compensation to the claimants and then recover the same from the owner of the offending vehicle.
Final Decision: The Civil Miscellaneous Appeals are allowed and the appellant/Insurance Company is directed to pay the amount awarded by the Tribunal to the claimants and then recover the same from the owner of the offending vehicle.
1. The Civil Miscellaneous Appeals have been filed against the award and decree dated 23.12.2010 made in M.C.O.P.Nos.37 and 38 of 2006 on the file of Motor Accidents Claims Tribunal(Additional District Court/Fast Track Court No.2), Madurai.
2. Since the issue involved in the both the civil miscellaneous appeals are inter-woven to each other, both the appeals are taken up together and disposed of by this common judgment.
2.1. The brief facts of the case are as follows:
The first respondent in C.M.A.(MD).No.688 of 2011 is the mother of Master. Venthan, who is the first respondent in C.M.A.(MD).No.687 of 2011. It is a case of injury. On 01.11.2005, at about 01.00 p.m., when the petitioners were standing in front of their house, at Erukkalainatham, Madurai, at that time, the first respondent's vehicle Bajaj M-80 bearing Registration Number T.N.59 T 7369 was driven by its driver in a rash and negligent manner and dashed against the petitioners. Due to the impact, the petitioners sustained injuries. Hence, the injured claimants filed a separate claim petition in M.C.O.P.Nos.37 and 38 of 2006, on the file of the Motor Accident Claims Tribunal, (Additional District Court/Fast Track Court No.2), Madurai, claiming a sum of Rs.2,00,000/- each as compensation.
3. Before the Tribunal, on the side of the claimants, five witnesses viz., P.Ws.1 to 5 were examined and eight documents viz., Exs.P.1 to P.8 were marked and on the side of the respondents, two witnesses viz., R.Ws.1 and 2 were examined and nine documents viz., Exs.R.1 to R.9 were marked.
4. The Tribunal, after considering the pleadings, oral and documentary evidence and arguments of the counsel appearing on either side and also appreciating the evidence on record, held that the accident occurred only due to the negligence of the first respondent's vehicle and directed the appellant/Insurance Company to pay a sum of Rs.84,000/- to the minor claimant and a sum of Rs.10,000/- to the mother of the minor claimant respectively as compensation to the claimants.
5. Against which, the appellant/Insurance Company have filed the present Civil Miscellaneous Appeals.
6. The learned Counsel for the appellant would contend that it is a clear case of violation of policy conditions, since the owner of the offending vehicle in question allowed a minor boy to drive the motorcycle without any care and caution and therefore, the Tribunal ought to have ordered 'pay and recovery'. Therefore, he would pray this Court that 'pay and recovery' may be ordered by this Court.
7. Heard the learned counsel appearing for the appellant and the matter was admitted on 14.06.2011 itself and when the matter was taken up for hearing, there was no representation on behalf of the respondents and this Court passed orders on the basis of the materials before this Court.
8. In the case on hand, it is useful to refer paragraph No.12 of the Court below, wherein, The Tribunal in its judgment has held as follows:
“....A perusal of the evidence of R.W.2 would reveal that the first respondent's vehicle was driven by the first respondent's son, one Kumar and the condition of the police of Insurance Company was violated by the first respondent. The first respondent remained ex-parte in this case”.
Accordingly, it fixed the liability on the first respondent's driver. Here, the main grievance of the insurance company is that though the Tribunal relied on various decisions with regard to 'pay and recovery' and held that the judgments are squarely applicable to the given case, but the Tribunal has not failed to order pay and recovery. I find much force in the submission of the learned counsel appearing for the insurance company. On a perusal of the judgment, it is seen that at paragraph No.15, though the Court below has specifically observed that sofar as the third party is concerned, though the insurer not liable, the insurer must pay and proceed against insured/owner of the vehicle, in the operative portion, it has failed to observe th
