HONOURABLE Dr. JUSTICE B.SIVA SANKARA RAO
M.A.C.M.A.No.432 OF 2012
JUDGMENT:
The
Bajaj Allianz General Insurance Company Limited (2nd respondent in
the claim petition) filed this appeal, having been aggrieved by the Order/Award
of the learned Chairman of the Motor Accidents Claims Tribunal–cum-VI Additional
District Judge, Kurnool (for short,‘Tribunal’) in M.V.O.P.No.478 of 2008
dated 17.06.2011, awarding compensation of Rs.5,00,000/-(Rupees five lakh only)
as prayed for with interest at 9%p.a. as
against the claim of the respondent Nos.1 to 5 (claimants in the claim petition
i.e. wife, two minor children and parents of deceased) with joint liability
against the respondents 1 and 2 in the claim petition under Section 166 of the
Motor Vehicle Act, 1988 (for short, ‘the Act’).
2.
Heard Sri T.Mahender Rao, learned standing counsel for the appellant, Sri N.Chandrasekhar
Reddy, learned counsel for the respondent Nos.1 to 5-claimants and the 6th
respondent-owner of the crime vehicle having been remained ex parte before
the Tribunal did not choose to put forth his appearance in this appeal also and thus taken as heard
the 6th respondent for the absence to decide on merits and perused
the material on record. The parties hereinafter are referred to as arrayed
before the Tribunal for the sake of convenience in the appeal.
3. The contentions in the grounds of appeal as well as submissions
during course of hearing in nutshell are that the award of the Tribunal is
contrary to law, weight of evidence and probabilities of the case, that the Tribunal
erred in awarding such an exorbitant compensation without any basis, that it
should have been taken into consideration that the multiplier that is
applicable is not 18 but17, that there is no proof regarding the income of the deceased
much less to take Rs.5,000/- p.m. in assessing the compensation and the award
of 9%p.a. interest is also excessive and untenable, hence to set aside the award
and reduce the compensation to just compensation , that the insurer is not at
all made liable for the fact that the driver of the vehicle did not possess
valid driving license and thereby to exonerate him by allowing the appeal.
4.
The learned counsel for the respondent Nos. 1 to 5-the claimants who contended
that for this Court while sitting in appeal there is nothing to interfere with
the reasoned award of the Tribunal either on the quantum of appeal or rate of
interest and the Tribunal exercised its discretion in fixing joint liability
against the insured and Insurer and the so called difference in transport and
non transport of the light motor vehicle is only not in the use but in size
much less in skill required for driving that is not a fundamental breach to
exonerate. Hence, to dismiss the appeal.
5. Now the points that arise for consideration
in the appeal are:
1.
Whether the award of the Tribunal fastening joint liability on
the insurer with insured to indemnify the insured for the claimant(s) and
requires interference by this Court while sitting in the appeal?
2.
Whether the quantum of compensation awarded by the Tribunal is not just and requires interference
by this Court and if so with what extent and against whom with what rate of
interest with what observations?
3.
To what result?
POINT-2:
6.
The facts of the case are that, on 22.04.2008 at about 9.00 a.m, the deceased
Padigi Praveen Kumar, along with his friend P.Shanthi Bhusan were going on
their motor cycle bearing No.AP21 P 8206 to go to Linganavai village of Alampur
Mandal and after they crossed Alampur cross road towards Alampur road, one Tata
Ace Magic bearing No.AP21 TV 0245 belongs to the 1st respondent
insured with the 2nd respondent-appellant insured with Ex.B.1 policy
which came in opposite direction being driven by its driver in rash and
negligent manner at high speed, dashed their motor cycle and as a result of
which the deceased and his pillion rider fell down and the deceased sustained
fatal injuries and succumbed to the same while undergoing treatment at Government
General Hospital, Kurnool which occurrence is covered by Ex.A.1 FIR and Ex.A.2
charge sheet. The learned Tribunal basing on the oral and documentary evidence
on record, awarded total compensation as prayed for against both the respondents
in the claim petition jointly and severally.
7. The fact that the accident was due
to the rash and negligent driving of the driver of the crime vehicle of the 1st
respondent insured with the 2nd respondent-appellant covered by
Ex.B.1 policy and proved from the evidence of P.Ws.1 and 2 coupled with Exs.A.1
FIR and Ex.A.2charge sheet apart from Ex.A.5 MVI report and Ex.A.4 PM report
not in dispute and no way requires interference by this Court.
8. From the above, coming to the quantum
of compensation, the deceased was aged about 27 years and for a person aged
between 26 to 30 as per Sarla Verma v. Delhi Transport Corporation[1] the
multiplier that is applicable is 17 and not 18 that was taken by the Tribunal
to reduce. The claimants are five in
number who are wife, two minor children and the parents of deceased all
dependents on the deceased and as per Sarla
verma (supra) paras-27 to 32 the deduction for personal expenses of the deceased
for 5 dependents is 1/4th and not 1/3rd. Now coming to the monthly earnings of the
deceased, it is the contention of the Insurer that there is no basis for taking
earnings of the deceased. As per the expression of Apex Court in Latha Wadhwa vs. State of Bihar[2] that
even there is no proof of income and earnings, it can be reasonably estimated
at Rs.3,000/- p.m. for any non-earning member and even for housewife as
domestic contribution, accident was dated 22.04.2008 seven years after said
expression, by taking into consideration the economic index price rise it can
be taken at least Rs.3,600/- p.m. and even from that if 1/4th is
deducted towards personal expenses of deceased, it comes to Rs.2,700/-x12x17=Rs.5,50,800/-+loss
of consortium of Rs.1,00,000/- to the 1st claimant is entitled, for
funeral expenses Rs.25,000/- and care and guidance to minor children even taken
Rs.10,000/-each i.e.Rs.20,000/- and even minimum of Rs.5,000/- for loss of
estate as per Rajesh (supra), it
comes to Rs.7,00,800/- and what the tribunal awarded of Rs.5,50,000/- no way
excessive but as per the law laid down in Ranjana Prakash Vs. Divisional Manager[3],
the appellate Court cannot enhance the claim in appeal filed by the insurer or
owner or driver with no cross-objections but for to substantiate the claim by
allowing to defend on one ground or the other. However, coming to the rate of
interest, the 9%p.a. awarded by the Tribunal is excessive, it is the contention
of the Insurer that in Sarla Verma (supra)
the interest awarded is only 6%. In fact, under Section 171 of the MV Act, the
interest to be awarded is reasonable and as per the settled proposition of law
in TN Transport Corporation v. Raja Priya[4], Sarla Verma(supra) and from the latest expression of the Apex
Court in Rajesh (supra),interest is awarded
at 7½% per annum as reasonable. Hence, the interest at 9%p.a. awarded by the
Tribunal is modified and reduced to 7½%p.a.
Accordingly, Point-2 for consideration is answered.
Point
No.1
9. Now coming to decide whether the insurer can be exonerated from
liability to indemnify the insured to the third party claimants concerned:
i) No
doubt in National Insurance Company Limited Vs. Vidhyadhar Mahariwala &
Others[5], the two judge bench of the Apex Court in this
decision by referring to National Insurance Company Limited Vs.
Swaran Singh & Others[6] apart from other expressions in National
Insurance Company Limited Vs. Kusum Rai & Others[7] and Oriental Insurance Company Limited Vs.
Nanjappan & Others[8]
and Ishwar
Chandra & Others Vs. Oriental Insurance Company Limited & Others[9] held that the
insurer is not liable to indemnify the owner, when the driver has no license to
drive the crime vehicle.
ii) In
Ishwar Chandra (supra) it was held
by the two judge bench that
the driver’s licence when expired 30 days prior to the date of accident and no
renewal application filed even by date of accident to say a renewal dates back
to date of application, it is suffice to hold the driver has no valid licence
as on date of accident.
iii) In Kusumrai (supra) it was held by the two judge bench
that, the vehicle was used as taxi (commercial) and the driver is required to
hold appropriate licence but not having valid commercial vehicle licence and
from that breach, the insurer is held entitled to rise the defence.
iv) In Vidhyadhar Mahariwala (supra)—in para-8 of the judgment, it was
observed that in Swaran Singh (supra)whereupon
it was held as follows:-
“45. Thus, a person whose license is
ordinarily renewed in terms of the Motor Vehicles Act and the Rules framed
thereunder, despite the fact that during the interregnum period, namely, when
the accident took place and the date of expiry of the license, he did not have
a valid license, he could during the prescribed period apply for renewal
thereof and could obtain the same automatically without undergoing any further
test or without having been declared unqualified therefore. Proviso appended to
Section 14 in unequivocal terms states that the license remains valid for a
period of thirty days from the day of its expiry.
46. Section 15 of the Act does not
empower the authorities to reject an application for renewal only on the ground
that there is a break in validity or tenure of the driving license has lapsed,
as in the meantime the provisions for disqualification of the driver contained
in Sections 19,20,21,22,23 and 24 will not be attracted, would indisputably
confer a right upon the person to get his driving license renewed. In that view of the matter, he cannot be said
to be delicensed and the same shall remain valid for a period of thirty days
after its expiry.”
v) In Ram Babu Thiwari Vs. United Insurance Company Limited[10] by referring to Ishwar Chandra, Kusum Rai, Swaran Singh (supra) among other
expressions, held that when a driving license of the driver of the offending
vehicle was expired about three years prior to accident and it was got renewed
only subsequent to the accident it was held as violation of the terms of the
policy by referring to Kusum Rai (supra)
followed in Ishwar Chandra (Supra)
observed that in view of the Section 15(1) of the Act even the license
after period of expiry remains valid for thirty days to
renew meantime any renewal subsequently would be renewed from the date of
renewal only to say as on the date of accident even be subsequent renewal long
after thirty days expiry of the statutory period not a valid renewal to say no
valid license to exonerate the Insurer and thus exonerated the insurer.
vi) The above decisions other than Swaran singh (Supra) mostly speak of no
valid license as on the date of accident though earlier it was from its lapse and timely non-renewal
or holding one license not valid to
drive other type of vehicle.
vii) On perusal of Swaran Singh (Supra) referring earlier expressions speaks several
categories of cases as to such imperfect license or lapsed license with no
license in subsistence or a fake license or even driver with no license at all. An extreme case of this type of driver having
no license at all driving the vehicle knowingly without even application for
lilcence and without experience to drive even admittedly and in his saying it
is to the willful and conscious knowledge of the owner as a fundamental breach.
Coming to the cases no license is concerned:-
viii)
In Sardari vs. Sushilkumar[11]- the
facts show one Jageeru , Tonga
ix)
In UIIC Vs. Gianchand[12], it
was observed that when the insured handed over the vehicle to an un-licenced
driver, insurer would be exonerated from liability to meet III party claims.
x)
In Swaran Singh (three judges
bench-supra) it was laid down that the owner of the vehicle has a
responsibility to see that no vehicle is driven except by a person who doesn’t
satisfy Sections 3 & 4 of the MVAct.
In a case where the driver admittedly did not hold licence and the same
was allowed consciously to be driven by the owner of the vehicle by such person
insurer in its defence succeed to avoid liability. The matter, however, may be different
where a disputed question of fact arises as to driver had a licence or owner
committed a breach of the policy terms by consciously allowing a person to
drive without having a valid driving licence.
xi)
In NIAC Vs. Prabhulal[13] it
was a claim arisen out of Consumer District Forum holding no liability of the
insurer against the National Consumer Commission’s verdict fixing
responsibility.
xii)
In Prem Kumari Vs. Prahlad Dev[14] it
was also observed that owner of the vehicle cannot contend no liability to
verify the fact as to whether the driver possessed a valid licence or not.
xiii)
By referring all these expressions at Para 9 of the Judgment of the Apex Court
in Saradari (supra), the Apex Court
did not choose to interfere with the finding of the tribunal confirmed by the
High Court, in not chosen to make liable the insurer.
xiv)
In Surina Durvasulu Vs. Bhavanarayana
Murthy[15]
Para 14 it was held that when the driver had no valid driving licence to drive
tractor and the charge sheet also mentions a penal provision for violation of
the same in driving with no licence and nothing deposed by owner despite
contention of Insurance Company, that he has taken all necessary precautions to
entrust the vehicle to a person who had valid driving licence, insurance
company not made liable holds good.
10. The other type of cases are driver possessing
a fake license and not any real license to drive and driving the vehicle
entrusted by owner it all depends upon the facts as to the owner consciously by
knowing it is a fake license allowed or believing as genuine allowed and what
extent the liability to enquire lies on the owner concerned, the cases on that
principle are as follows: -
i) In National
Insurance Company Limited Vs. Laxmi Narain Dhut[16],
it was held by the Apex Court referring to Swaran
Singh (supra) and New India
Insurance Company Limited Vs. Kamala[17]
at page 41 that the defense available to the Insurer to indemnify the insured
or not (any) of a third party claim
under Section 149 of the Act includes the license claim as genuine is
fake. In that case on facts found the
license possessed was fake and it was even renewed by the Regional Transport
Officer concerned ignorant if the fact or otherwise held that mere renewal of a
fake license cannot cure the inherent defect as renewal cannot transform a fake license as genuine as
held in Kamala(supra) was the
conclusion arrived.
ii) The other decision on that is Oriental Insurance Company Limited Vs.
Prithvi Raj[18]
which is also a fake license and proved so and held that a renewal cannot take
away the effect of fake license to make the Insurer liable and the Insurer
cannot thereby be liable to that conclusion, they followed Kamala (Supra) besides United India Insurance Co. Ltd. V. Lehru[19]
(supra).
iii) The other decisions regarding fake license is
National Insurance Company Limited Vs.
Dupati Singaiah[20]
referring to Lehru, Swaran Singh, Gain
chand, Prithvi Raj, Prahlad dev(supra),
not to mention Oriental Insurance
Company Limited Vs. Meena Variyar[21]
earlier expression in Scandia Insurance
Company Limited Vs. Kokila Ben Chandravadan[22]
and United India Insurance Company
Limited Vs.Rakesh Kumar Arora[23]
held that in Swaran Singh (surpa) at
para-102 it was held that an insurer is entitled to raise a defense in a claim
filed under Section 163-A and 166 of the Act, in terms of Section 149
(2)(a)(ii) of the Act, as to breach of the policy conditions including
disqualification of the driver or invalid license of the driver etc., and to
avoid such a liability the defense has to be proved by the insurer with a plea raised
to establish such breach. However, it was not laid down in Swaran Singh (supra) any criteria as to how said burden would be
discharged. Thus same would depend upon facts and circumstances of each case.
The question as to whether owner has taken a reasonable care to find out as to
whether driving license produced by driver is fake or otherwise does not
fulfill the requirements of law or not will have to be determined in each
case. If available at the time of the accident
was driven by a person having learner’s license, Insurance Company would be
liable to satisfy the claim. Thus, unless the Insurer proves willful breach of
specific conditions of policy they cannot escape from liability. In Swaran Singh (supra), at para-85 and 94
as well as 102(3) observed that it may be true that a fake or forged license is
as good as no license, however, the question is whether Insurer must prove that
owner was guilty of willful breach of the conditions of the policy in the
contract of Insurance as considered with some details in Lehru (Supra). To agree said conclusion of Swaran singh and Lehru (supra), it was observed in Dhupati Singaiah (supra) at para-820
that in most of cases drivers and owners remaining ex-parte by taking it for granting that in the event of negligence
being proved, the Insurance Company would discharge its statutory
liability. It is the only Insurer that
has to lead evidence both on the question of negligence and on the question of
liability, therefore, main defense available to the Insurer is under Section
149(2) of the Act when if Insurer leads evidence to show license found in the
vehicle involved in the accident is fake or the driver had no license or valid
license, it can be taken sufficient
proof of breach of conditions as per Section 149 (2)(a) of Act therefrom
Section 149(2)(a)(ii) of the Act enables the Insurer to escape from liability
if shown that there has been a breach of specified condition of policy and on
facts therefrom held Insurer to be exonerated from liability.
iv) In Ashok Gangadhar Maratha V. Oriental Insurance Co. Ltd[24] and Roshanben (supra) also the
above principles of law are reiterated in exonerating the insurer.
v)
In fact, the three judges bench judgment of the Apex Court in Swaran Singh (supra) well laid down the
law in this regard referring to Lehru (supra) and Kamala (supra) that followed the earlier three-Judges bench
decision Sohan Lal Passi V. P.Sesha
Reddy[25]
wherein the reference was answered upholding the view taken Skandia Insurance Co. Ltd. V. Kokila Ben
Chandravadan[26]
and the principle laid down therefrom in Swaran Singh (supra) was approved and reiterated even in the
subsequent decisions including the above but for distinguishing for the facts
on hand in each of the cases as held by the Apex Court in
NIC Vs. Geetabhat[27] that the principle is the same but for any deviation from factual matrix of each case if at all to say non-liability.
NIC Vs. Geetabhat[27] that the principle is the same but for any deviation from factual matrix of each case if at all to say non-liability.
vi) The Apex court in Lehru (supra), Swaran Singh (supra), Nanjappan
(supra), Geetabhat (supra) and several
other expressions in the cases relating to no license at all or imperfect and no
valid license held that even it is one of breach of terms of policy and
violation of rules, since the policy otherwise covers risk, though denied
liability from no valid license, the insurer is to pay and recover. The insurance company cannot escape liability
unless the violation proved willful with conscious knowledge and fundamental,
every violation of policy conditions cannot be considered to escape the insurer
from liability to indemnify the owner (insured) to the 3rd party
claimants.
vii) Even in Geetabhat (supra) it was held reiterating the principle laid down
in the above decisions after referring the above among other several decisions
that when insurer seeks to avoid liability on ground of fake or no licence of
driver of the vehicle of the insurer, but for saying no licence issued by RTO
in name of the driver, even taken alleged licence as fake, insurer has to pay
to the third party claimants and recover from insured.
viii) In fact, in Swaran Singh's
case (supra), the Apex Court
ix) Furthermore, in Oriental
Insurance Company Limited Vs. Brij Mohan & Others[28] while holding that insurance company has no
liability, however, invoked Article 142 and 136 of the Constitution in
directing the insurer to pay first and recover from the vehicle owner, like in
several other cases within the power of the Apex Court.
x) The other decision of Apex
Court
xi) In National Insurance Company
Limited VS. Baljit Kaur[29] it was
held (even the case of unauthorized passenger of goods vehicle) as a general
observation that interest of justice would be sub-served in giving such a
direction to pay and recover having regard to the scope and purport of Sections
149 read with 168 of the MV Act,1988.
xii) In another judgment of two judges bench in National Insurance Company Limited Vs. Parvathneni & Another[30], the Apex Court doubted
the correctness of the directions issued in various judgments to the insurer to
pay even though not liable and therefrom formulated issues for consideration by
a larger bench
xiii) In fact, by referring to the above expression in Swaran Singh's case (supra), this Court
(High Court of Andhra Pradesh) in an appeal by insurance company, observed in New India Assurance Company Limited, Tirupati,
Vs. G.Sampoorna & Others[31] from paras-6
onwards that insurer raised the contention of driver was not having valid
license at the time of accident and examined employee of Regional Transport
Office, besides employee of the insurance company and the owner of the vehicle
did not speak anything. No evidence produced by claimants to show that there
was a license or it was even if lapsed renewed later. However, the Tribunal
held that even in the absence of driving license, insurance company has to pay
and recover rather than escaping from liability for the claimants are not
parties to the contract of insurance of the vehicle between insurer and
insured.
xiv) Therefrom further held that the conclusion is not acceptable from
reading of Section 149(2)(a) r/w Section 3 of the Act and by referring to Vidhyadhar Mahariwala case (supra) in
saying the statute itself excludes insurer's liability in such a case, thereby
the fact whether the claimant being a third party is not a privy to the policy
between insurer and insured has no relevance. It is however, by referring to
the Swaran Singh (supra) apart from
the earlier expressions referred therein, observed that the proposition laid
down in Swaran Singh (supra) is
referred to a larger bench and it is still pending.
xv) In Swaran Singh (supra)
it was held that the Tribunals and Courts in exercise of their jurisdiction to
issue any direction for pay and recovery considering, depending upon facts and
circumstances of each case. In the event
of such a direction has been issued despite arriving at a finding of fact to
the effect that the insurer has been able to establish that the insured has
committed a breach of contract of insurance under Section 149(2)(a)(ii) of the
Act, the insurance company shall be entitled to realise the award amount from
owner or driver, as the case may be, in execution of the same award in view of
Sections 165 and 168 of the Act.
xvi) It is from this, the Court in Sampoorna
(supra) from para-13 onwards observed that "In my opinion from the afore-extracted
passage of the judgment, it is evident that direction to the insurance company
to pay the compensation does not automatically follow in every case where the
insurance company is found not liable. The same depends upon the fats and
circumstances of each case. In all the aforementioned cases, which were
referred to by the Supreme Court, directions were given on the facts of each
case and considered the fact that the provisions of the Act dealing with
insurance and payment of compensation are beneficial in nature".
xvii) In paragraph 81 of Swaran Singh (supra), it was observed that
right to avoid liability in terms of Section 149(2) is restricted as has been
discussed herein before. It is one thing to say that the insurance companies
are entitled to raise a defence; but it is another thing to say that despite
the fact that its defence has been accepted, having regard to facts and
circumstances of the case, the Tribunal has power to direct them to satisfy the
decree at the first instance and then direct recovery of the same from the
owner. These two matters stand apart and require contextual reading.
xviii) The Supreme Court in subsequent judgments have not treated the
previous judgments including Swaran
Singh (supra) as laying down unexceptionable principle that in every claim
brought before the Tribunal, the insurance company should be directed to pay
compensation amount first even though its defence was found accepted, as
evident from some of the later expressions like in National Insurance Company Limited Vs. Bommithi Subbhayamma &
Others[32], (a case of passenger in a goods vehicle).
xix) By referring to the above, from paragraph 20, the High Court in Sampoorna (supra) observed that on the
strength of the discussion undertaken above, it is not possible for this Court
to treat the judgment in Swaran Singh
(supra) as containing mandatory directions to Tribunals and Courts to
invariably direct the insurer to pay at first instance and recover from owner
of the vehicle even though they are held not liable. Pending resolution of the issues by the
larger bench of the Supreme Court, it would be reasonable to understand the
judgment in Swaran Singh (supra) as
leaving discretion to the Tribunals and the Courts to give appropriate
directions depending upon facts and circumstances of each case.
xx) By applying the ratio in Swaran
Singh (supra) at para-21 of the judgment, the High Court held that some
amount that was already deposited by the insurance company, which holds good to
withdraw, and for the rest, insurance company is not liable.
11.
In fact besides Lehru (supra), Swaran Singh’s (supra) and Nanjappan
(supra) in holding that from lack of license or fake license or imperfect or
defective license, the insurer can be ordered firstly to satisfy the claimants by
indemnifying the owner and then recover from owner and driver;
i)
Even in the subsequent expressions of the Apex Court
ii)
Even in the recent expression of the High Court in Jaya Prakash Agarwal V. Mohd. Kalimulla[34]
having considered the law at length taken similar view, while saying at para-39
that each case has to be decided on its own facts and circumstances.
iii)
Even in the latest expression of the Apex Court in S.Iyyappan Vs. United India Insurance Company[35] a
two judge bench of the Apex Court held that even though the insurer has taken
the defence that there is a breach of conditions of the policy excluding from
liability, from the driver is not duly licenced in driving the crime vehicle
when met with accident, third party has a statutory right under Section 149
read with 168 of the Act to recover compensation from insurer and it was for
the insurer to proceed against the insured for recovery of amount paid to third
party in case there was any fundamental breach of condition of Insurance
policy.
12.
From the above legal position and coming to the factual matrix, as to the
driver not possessed LMV transport driving licence required for the vehicle but
for LMV non transport covered by Ex.B.2 and the owner even received the notice
covered by Ex.B.3 did not produce licence particulars as deposed by R.W.1 and 2
, once that is proved, the fact establishes that the driver has no LMV
Transport required, no doubt as per the claimants, difference is only in use not
even in size but violation is violation that too when the law speaks it is not
mere after lapse of time automatically entitlement to transport but for on
contest on subject to satisfaction for driving thereby there is no valid
driving license required by law. However, as discussed supra, since it is
established that the driver of the crime vehicle did not possess valid driving
licence having LMV non transport for transport LMV which is a breach, but it is
not so fundamental much less to escape the Insurer from liability to the
conscious and willful knowledge of the owner. Hence,
the finding of the Tribunal for joint liability is set aside and the insured is
liable to pay initially for the claimants and then recover from the owner of
the crime vehicle including from the above expressions of the Apex Court in Swaran Singh (supra), Lehru (supra), Nanjappan (supra), Kusumlata
(supra) and S.Iyyappan (supra).
13.
Having regard to the above, it is the insurer along
with the insured-owner of the crime vehicle jointly and severally liable to pay
compensation to the claimants and then it is for the insurer to recover from
the owner of the vehicle by filing execution petition in the same award without
need of any separate proceedings.
Accordingly Point No.1 is answered.
Point No.3:
14.
In the result, appeal is partly allowed while upholding quantum of compensation
awarded by the Tribunal for Rs.5,00,000/- by reducing the interest from 9%p.a.
to 7.5%p.a. from the date of claim
petition till the date of realization with joint and several liability of the
insurer and insured (respondents 1 and 2) to pay by the insurer and then to
recover. The respondents shall deposit said
amount within one month, failing which the claimant can execute and
recover. It is made clear from the
settled expressions of the Apex Court in Lehru
(supra) & Nanjappan (supra) that
the insurer is entitled, while depositing the amount payable, if not deposited
or paid any amount so far to deposit the balance and to approach the Tribunal
to direct the RTA concerned not to register any transfer of the crime vehicle
and to seek for attachment of the crime vehicle or other property of the
insured as an assurance for execution and recovery in the same proceedings or
under revenue recovery as per the MV Act, 1988 and also ask the Tribunal not to
disburse the deposited amount to claimants (but for to invest in a bank) till
such attachment order is made. However,
after the same, the Tribunal shall not withhold the amount of the claimants, if
there is any necessity to permit for any withdrawal but for to invest the
balance in fixed deposit in a nationalized bank. Rest of the terms of the award
of the Tribunal holds good. There is no
order as to costs.
15.
Miscellaneous petitions, if any pending in this appeal, shall stand closed.
_______________________
Dr. B. SIVA SANKARA RAO, J
Date:
23-01-2014
VVR
