Nelson Sailo DECISION
Nelson Sailo, J.
1. Heard Ms. R.D. Mozumdar, the learned counsel for the appellant and Mr. I.H. Borbhuiya, the learned counsel for the respondent No. 1. None appears for the respondent Nos. 2 and 3 despite service.
2. This appeal is directed against the judgment dated 11.11.2013 passed by the Addl. District & Sessions Judge cum Member, Motor Accident Claims Tribunal, (the Tribunal), Hojai, Sankardev Nagar in MAC Case No. 190(N)/2012 whereby an amount of Rs. 1,97,481/- has been awarded as compensation to the claimant/respondent No. 1 alongwith the interest at the rate of 6% per annum from the date of filing of the claim/application for the injury sustained by him. The claimant on 15.01.2012 at about 4:30 p.m. was returning from Murajhar Market and at the relevant time, one motorcycle under bearing Registration No. AS-02H/4593 hit him causing serious injuries upon his person. He was taken to Nilbagan Mini Primary Health Centre and thereafter, to Haji Abdul Memorial Hospital and subsequently to Gauhati Medical College Hospital at Guwahati. In view of the accident and injury sustained by him, the applicant filed the claim application and the Tribunal awarded him compensation as already stated hereinabove. While awarding the compensation, the Tribunal came to a finding that although the violation of the terms of the insurance policy may be there since three persons were riding the motorcycle at the time of the accident but the Insurance Company cannot be absolved from making the payment. Therefore, the Tribunal directed the appellant to pay the compensation alongwith the interest and thereafter to make a recovery from the owner of the motorcycle.
3. The learned counsel Ms. R.D. Mozumdar for the appellant submits that although the Tribunal permitted the appellant to recover the compensation from the owner of the motorcycle but there is no mentioned about the owner of the motorcycle requiring to deposit adequate security against the payment to be made by the appellant in terms of the Apex Court decision in Oriental Insurance Co. LTD. Vs. Shri Nanjappan and Ors. reported in MANU/SC/0122/2004 : (2004) 13 SCC 224. She further submits that as directed by this Court during the pendency of this appeal, the entire amount of compensation alongwith the interest up to the time of the deposit was made by appellant before the Registry of this Court, amounting to Rs. 2,20,400/- vide cheque No. 738645 dated 19.05.2014 (UCO Bank). She therefore submits that by applying the ratio laid down by the Apex Court in Nanjappan and Ors. (supra), the judgment of the Tribunal may be appropriately modified by insisting proper and adequate security to be deposited by the owner of the motorcycle before the awarded amount is released to the claimant.
4. Mr. I.H. Borbhuiya, the learned counsel for the respondent No. 1 submits that the appellant itself has taken the ground that the pay and recovery process cannot be applied in every case. Referring to the grounds of appeal he submits that according to the appellant, it is only under Article 142 of the Constitution of India that the Apex Court is empowered in certain case to direct the party concerned to pay and recover. Further, the respondent Nos. 2 and 3 as owner and driver of the motorcycle involved failed to contest the claim and as such, there is bound to be much delay in the payment of compensation and in the meantime, the claimant is suffering since the day of the accident i.e. 15.01.2012.
5. I have considered the submissions made by the learned counsel for the parties and perused the materials available on record. As can be seen, the limited ground taken in the appeal by the appellant/Insurance Company is that no security before disbursement of the amount was insisted by the Tribunal from the owner of the vehicle (motorcycle). From the evidence of the claimant himself, there were three persons riding on the motorcycle when the accident and therefore, violation of the Insurance policy by the rider of the motorcycle is obvious and for which, the interest of the insurer will have to be protected. Having regard to the facts and circumstances of the case, the protection given to the insurer in the case of Nanjappan and Ors. (supra) will have to be given to the appellant herein as well. Paragraph No. 8 of the decision in Nanjappan and Ors. (supra) may be quoted below for ready reference-
"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 respondents claimants within three months from today. The 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."
6. From the above abstract, it can be seen that the Apex Court has laid down in the manner in which, the security is to be furnished by the insured owner prior to the release of the compensation amount by the insurer. The same will have to be followed in the present case as well.
7. In that view of the matter, the appeal is disposed of with a direction to the MACT, Hojai at Sankardev Nagar to comply with the direction at paragraph No. 8 of the Nanjappan and Ors. (supra) as abstracted hereinabove before releasing the amount of compensation to the claimant. Let the LCR be returned back immediately. Registry shall transfer the amount deposited by the appellant before the Registry of this Court vide cheque No. 738645 dated 19.05.2014 (UCO Bank) to the Member/Presiding Officer, MACT, Hojai at Sankardev Nagar.
8. The appellant is also permitted to withdraw the statutory depository amount at the time of filing of appeal. The Tribunal upon receipt of the LCR as well as amount deposited by the appellant shall expeditiously carry of the exercise as directed without delay.
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