In an accident that took place on 08.2.1999, a pedestrian suffered injuries when he was knocked down by a speeding motorcycle. He preferred a claim before the MACT, II Small Causes Court, Chennai, against the owner and the insurance company of the offending vehicle seeking a compensation of Rs.80,000/-. The Tribunal however has passed an award for Rs.45,000/-.
2. The learned counsel for the appellant submitted that there was no policy to cover any injury or death of third party subsisting to the date of the accident and continued that the second respondent/owner had obtained a policy which was in force between 04.04.1997 and 03.04.1998. This policy he considered however was not filed before the Tribunal and the Tribunal appeared to have carried away by the details of the policy as stated in the claim petition where it is mentioned that the policy was in force from 04.4.1998 to 03.04.1999 as well as in the counter of the second respondent/owner wherein he had pleaded that there was a full insurance cover.
3. The learned counsel argued that the owner of the vehicle however did not provide any policy particulars in his counter and before this Court the appellant /insurance company has produced a policy with a permission to receive the same in evidence vide MP.No.2 of 2010. The learned counsel submitted that the cumulative reading of the entire submission as well as the policy copy now produced would indicate that there was no contract between the appellant/ insurance company and the second respondent and as such the appellant is not duty bound to indemnify the claimant for the liability that the second respondent is obligated to face.
3. Per contra, the learned counsel for the first respondent/claimant would contend that the appellant's pleadings was silent on the factum of insurance cover and it also appeared to piggyback on the pleadings of second respondent/owner on this aspect. Secondly, it also did not choose to produce any evidence, consequently the claimant believed that there was a policy cover for the vehicle that was allowed to be reinforced by the conduct of the appellant, but the appellant after 18 years wants to introduce the policy which will be prejudicial to the interest of the claimant.
4. After weighing carefully, this Court considers that the appellant has indeed failed to plead want of policy cover and also failed in doing its homework while adducing evidence. However, inasmuch as it has produced the policy vide MP.No.2 of 2010, the same too cannot be brushed aside for what is involved at stake are the public funds which cannot go unaccounted in law. I therefore consider it appropriate to apply doctrine of 'pay and recover' whereby the appellant would be liable to meet the liability arising out of the impugned award at the first instance and thereafter to realise the same from the owner of the vehicle. This it could realise in the same proceedings and since the second respondent did not have a notice about the policy and to defend himself, the appellant is directed to prove the policy before the Tribunal.
6. In the result, the appeal is dismissed without costs. The appellant/insurance company submitted that the entire compensation amount had already been deposited and a part of the same has already been withdrawn by the claimant. The claimant is entitled to receive whatever balance that remains to be paid over to him forthwith. Consequently, connected miscellaneous petitions are closed.
24.02.2017 ds N.SESHASAYEE,J ds To:
1.The Motor Accident Claims Tribunal Small Causes Court No.II Chennai.
2.The Section Officer, VR Section, High Court, Madras.
C.M.A.No.2815 of 2010 24.02.2017 http://www.judis.nic.in