IN THE HIGH COURT OF KERALA AT ERNAKULAM
MFA.No. 415 of 2003(D)
1. THE UNITED INDIA INSURANCE CO.LTD.,
... Petitioner
Vs
1. ANILKUMAR, AGED 41 YERARS, S/O.LATE
... Respondent
2. ANOOP KUMAR, AGED 39 YEARS, S/O.LATE
3. SATHYA LAKSHMI, AGED 32 YEARS,
4. GURUSWAMI, 115, K.CHETTIPALAYAM,
5. KRISHNAN, S/O.KESAVAN, THACHAMKULAM
6. THE ORIENTAL INSURANCE CO.LTD.,
For Petitioner :SRI.M.A.GEORGE
For Respondent :SRI.S.K.BRAHMANANDAN
The Hon'ble MR. Justice J.B.KOSHY
The Hon'ble MR. Justice K.P.BALACHANDRAN
Dated :14/10/2008
O R D E R
J.B.KOSHY & K.P.BALACHANDRAN, JJ.
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M.F.A.NO.415 OF 2003 (D)
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Dated this the 14th day of October, 2008
J U D G M E N T
KOSHY,J.
This appeal is filed against the award of the
Motor Accidents Claims Tribunal, Thrissur in O.P.(MV).
No.2297/1998. Notice to claimants (respondents 1 to 3 in this
appeal) were not served. But Insurance company is not
seeking any relief against the claimants but they only want the
right of recovery from the insured. This appeal is filed against
a common award in four cases. Appeals from the four awards
are already disposed of by a Division Bench of this Court by
judgment dated 16th July 2008. It was found by the Tribunal
that the driver of the lorry was negligent. The driver was in
an intoxicated stage. The doctor has taken urine and blood.
Chemical examination report Ext.P2 shows that there was 63
mg. of alcohol out of 100 ml. of blood which is above the
permissible limit under Section 185 of the Motor Vehicles Act.
M.F.A.415/03 2
The Tribunal also found that he was under intoxication. But,
however, the entire liability was cast on the Insurance
Company. The contention of the Insurance company is that it
is not liable to pay compensation because the driver was
intoxicated. Under Clause 2(c) of the policy conditions, it is
specifically stated that the Insurance Company will not be
liable, if the driver is driving the vehicle under the influence of
liquor. Injured were the third parties. As far as the
compulsory insurance is concerned, the liability to third party
is a statutory liability. It is true that under Section 149(2)
also, the Insurance company cannot escape liability, as it is
not one of the conditions mentioned therein exonerating the
Insurance company. But at the same time, policy condition is
valid between insurer and the insured. There is violation of
policy conditions. The Insurance company should deposit the
amount so as to satisfy the third party statutory liability, but at
the same time the Insurance company is entitled to recover
the amount from the insured as well as the driver in execution
of the award. The Division Bench of this Court by judgment
dated 16th July 2008 have allowed the connected appeals
(M.F.A.No.414/2003 and connected cases) to the extent that
M.F.A.415/03 3
the Insurance company is entitled to recover the amount from
the driver and the insured in execution of the award after
depositing the amount. We make the same directions in this
case also. With regard to the quantum of compensation and
injuries, award is modified accordingly. We are of the opinion
that only just and reasonable compensation was awarded.
Therefore, we are not disturbing the quantum of
compensation. Appeal is accordingly allowed.
J.B.KOSHY, JUDGE
K.P.BALACHANDRAN, JUDGE
prp
J.B.KOSHY & K.P.BALACHANDRAN, JJ.
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M.F.A.NO.415 OF 2003 (D)
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J U D G M E N T
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14th October, 2008