This Civil Miscellaneous Appeal has been filed by the appellant against the award dated 11.04.2011, made in M.C.O.P.No.275 of 2007 on the file of the Motor Accident Claims Tribunal, Sub Court, Srivilliputhur and to set aside the same.
2.It is a case of injury, which caused because of the accident that took place on 01.05.2005 at about 08.00 a.m., when the minor first respondent / petitioner was walking along with her mother at the west side of the Ritanpatti Road, a Tractor bearing Reg.No.T.N.67 M 1998, belonging to the second respondent / first respondent, was driven by its Driver in a rash and negligent manner and hit the first respondent/petitioner. Due to the said accident, the first respondent/petitioner sustained injury and she was taken to the Government Hospital, Srivilliputhur and thereafter, she was taking treatment at R.S.Ortho Clinic, Rajapalayam. Hence, she filed a claim petition in M.C.O.P.No.275 of 2007, on the file of the Motor Accident Claims Tribunal, Sub Court, Srivilliputhur, claiming a sum of Rs.1,00,000/- as compensation.
3.The appellant / second respondent filed counter affidavit before the Tribunal and denied the manner of accident. It is also submitted that the Driver of the vehicle has no driving licence at the time of accident; As there is violation of policy conditions, the Insurance Company is not liable to pay compensation; in any way, the compensation claimed is excessive and prayed for dismissal of the M.C.O.P.
4.Before the Tribunal, on the side of the petitioner P.W.1 and P.W.2 were examined and 10 documents viz., Exs.P.1 to P.10 were marked and on the side of Insurance Company, two witnesses viz., R.W.1 and R.W.2 were examined and four documents viz., Ex.R.1 and Ex.R.4 were marked.
5.The Tribunal, after considering the pleadings, oral and documentary evidence and arguments of the counsel on both sides and also appreciating the evidence on record, held that the accident occurred only due to rash and negligent driving of the driver of the vehicle belonging to the first respondent. As the vehicle was insured with the appellant herein, the Tribunal has directed the appellant to pay a sum of Rs.71,968/- as compensation to the minor first respondent /petitioner herein.
6.Against the said order, the appellant / The New India Assurance Co,Ltd., has filed the present appeal, questioning the liability as well as quantum of compensation.
7.The learned Counsel appearing for the appellant submitted that the Tribunal held that the accident took place only due to the rash and negligent driving of the Driver of the vehicle belonging to the second respondent / first respondent and the Driver did not have the valid driving licence at the time of the accident. At the same time, the Tribunal has held that the appellant ought to have verified the type of vehicle and the purpose, for which, the same would be used, and ought to have insured the same properly. The Tribunal failed to consider that the Driver of the Tractor has no valid licence on the date of accident. The compensation awarded by the Tribunal is in excessive. There is violation of policy conditions. Therefore, he prayed for pay and recovery.
8.The learned Counsel appearing for the appellant further submitted that without impleading the Driver of second respondent/ first respondent as party respondent, the claimant has filed the claim petition and the Tribunal has erred in allowing the same, directing them to pay the compensation. Therefore, he prayed to set aside the award.
9.I have heard the submissions made by the learned counsel for the appellant and perused the materials available on record.
10.On a perusal of the entire records, I find no infirmity in the quantum of compensation awarded by the Tribunal and therefore, I am inclined to confirm the quantum of compensation awarded by the Tribunal. However, in my considered opinion, the Tribunal ought to have considered the fact that there is a violation of policy conditions and therefore, the Tribunal should have ordered pay and recovery.
11.The Division Bench of this Court in Dr.Balaji Vs. K.Sunil Kumar and The Manager, National Insurance Co., Ltd., reported in 2012(1) TN MAC 117 (DB), has held that the theory of pay and recovery has been introduced by the Honourable Apex Court by applying the principles of social welfare legislation with an intention that claimants should not suffer on account of breach of policy conditions. For instance, driving of motorcycle without a valid licence is a breach of policy condition and in that case, the Court can order pay and recovery. Hence, I find force on the argument put forth by the learned Counsel for the appellant that the Tribunal ought to have followed pay and recovery theory.
12.Therefore, this Court is inclined to direct the appellant / The New India Assurance Co,Ltd., Tenkasi Road, Rajapalayam, to pay the compensation amount to the claimant and then recover the same from the owner of the offending vehicle.
13.In the result, this Civil Miscellaneous Appeal is partly allowed and the compensation awarded by the Tribunal on 11.04.2011 in M.C.O.P.No.275 of 2007 on the file of the Motor Accident Claims Tribunal, Sub Court, Srivilliputhur is confirmed. The appellant/Insurance Company is directed to deposit the entire award amount of Rs.71,968/- with accrued interest and costs, within a period of eight weeks from the date of receipt of a copy of this order, if not already deposited. On such deposit being made, the Tribunal is directed to deposit the said amount in a Fixed Deposit, in any one of the nationalized bank proximity to the place of minor, in the name of the minor, initially for a period of three years and renewable thereafter, till the minor attains majority. The father of the minor, is permitted to withdraw the accrued interest, once in three months, directly from the bank, only for the welfare of the minor. The appellant / Insurance Company is at liberty to recover the same from the owner of the vehicle as per the decision of the Honourable Supreme Court in Nanjappan Vs. Oriental Insurance Company Limited and Others, reported in 2003(1)L.W. 77. No costs. Consequently, the connected miscellaneous petition is closed.
To
1.The Motor Accident Claims Tribunal Padmanabhapuram.
2.The Record Keeper, V.R.Section, Madurai Bench of Madras High Court, Madurai.
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