IN THE HIGH COURT OF KERALA AT ERNAKULAM
MACA.No. 637 of 2003(P)
1. M. BHAMINI, W/O. P. SIVARAJAN,
... Petitioner
2. THE ORIENTAL INSURANCE COMPANY LIMITED,
Vs
1. THE KERALA STATE ROAD TRANSPORT
... Respondent
For Petitioner :SRI.MATHEWS JACOB (SR.)
For Respondent :SHRI.JOHNSON P.JOHN, SC, KSRTC
The Hon'ble MR. Justice M.N.KRISHNAN
Dated :18/12/2008
O R D E R
M.N.KRISHNAN, J
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MACA Nos.637,683 & 693 OF 2003
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Dated this the 18th day of December 2008
JUDGMENT
These appeals are preferred against the award of the Motor Accidents
Claims Tribunal, Thiruvananthapuram in O.P.(MV)Nos.612/1998,
1721/2000 & 1249 of 1997. All these cases were filed by the insurance
company claiming damages on behalf of the first claimant therein as the
power of attorney holder as well as in their own capacity by virtue of the
letter of sabrogation. The KSRTC challenged the very maintainability of
the petitions on the ground that the insurance company is not a third party to
the proceedings and therefore it cannot claim damages. In all these cases,
the Tribunal took the view that in the light of the decision of a Division
Bench of this Court reported in KSRTC v. United India Insurance Co.Ltd.
(2000(2) KLT 456, the petitions are not maintainable. In all these cases,
viz., in O.P.(MV)No.612/1998, the damage was fixed at Rs.41,793/-, in O.P.
(MV)No.1721/2000, it was fixed at Rs.36,255/- and in O.P.(MV)No.1249 of
1997, it was fixed at Rs.17,740/-. But, in the light of the acceptance of the
contention that the petitions are not maintainable, all these petitions were
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dismissed. It is against that decision the insurance company has come up in
appeal.
2. The basis on which the trial court had dismissed the applications is
on the basis of the decision referred to above. In the said decision, the
Division Bench held that “the insurer has to indemnify the insured and pay
the compensation to third parties and the insured in terms of the policy.
There is no direct ‘damage to the property’ so far as the insurer is concerned.
By no stretch of imagination the insurer of a vehicle can be treated as a third
party contemplated under the Motor Vehicles Act. The Claims Tribunal
have jurisdiction to decide on claims by a third party, but had no
jurisdiction to decide a claim by an insurance company for damages, on the
basis of a letter of subrogation for the amount paid to the insured, from the
owner of an offending vehicle. On that ground also such a claim is not
maintainable before a Tribunal”. So, the Tribunal found that since there is
lack of jurisdiction, it cannot entertain a claim petition and it was
dismissed. In these cases what are due to the claimants, viz, the third parties
had been satisfied by the insurance company and in junction with the said
party and also under the letter of subrogation the claim petitions are filed.
Therefore the decision of the Division Bench will not squarely apply to the
facts of the case for the reason that in the case before the Division Bench
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there was no junction of the said persons but in the cases on hand there is
junction of the claimant as well by virtue of irrevocable power of attorney.
3. It has also to be remembered that the word ‘subrogation’ means
substitution. A substitution is always permissible under Section 41 of the
Contract Act and the person who gets substituted only gets into the shoes of
the person who gives the subrogation and therefore when there is a letter of
subrogation directly there is a substitution for the claimant himself. But, I
am not probing more into that. The legal position will be that where a letter
of subrogation may provide a valid locus standi for a suit by the insurer
against a carrier for reimbursement of the damages paid by the insurer to its
insured party where the suit has been brought in the name both of the
insurer and the insured, a claim by the insurer before the Motor Accidents
Claims Tribunal can be entertained only on basis of the letter of
subrogation coupled with an agreement of transfer of rights of the insured to
the insurer. On the basis of such documents, the insurer can maintain its
claim against a third party tortfeasor virtually as agent of the insured. The
nature of such claim is expressly covered by section 166 (1)(d) of the Motor
Vehicles Act, 1988.
4. Here, we have got irrevocable power of attorney supported by
valid subrogation letters and therefore there is real junction of the person
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who is affected and it is that person who authorises the insurance company
to realise the amount and therefore his relationship can be termed as that of
an agent and principal and further letter of subrogation also makes the
insurance company entitled to the amount. Therefore the finding of the
Tribunal in all these cases that the petitions are not maintainable is liable to
be set aside and I do so and hold that all these petitions are maintainable.
5. So far as damages are concerned, as the Tribunal has fixed the
damages and I am passing awards in all cases. In MACA 637/2003, the
award is passed in favour of the 2nd petitioner, i.e. the insurance company
for realisation of a sum of Rs.41,793/- as damages with 6% interest on the
said sum from the date of petition till realisation from respondents 1 and 2
jointly and severally. In MACA No.683/2003 the award is passed in O.P.
(MV0no.1721/2000 awarding damages of Rs.36,255/- with 6% interest on
the said sum from the date of petition till realisation in favour of the 2nd
petitioner. Respondents therein are jointly and severally made liable to pay
the amount. In MACA No.693 of 2003 an award is passed in O.P.(MV)
No.1249 of 1997 in favour of the 2nd petitioner to realise damages of
Rs.17,740/- with 6% interest on the said sum from the date of petition till
realisation and respondents are made jointly and severally made liable to
pay the amount. In all these cases, the parties are directed to bear their
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respective costs.
MACAs are disposed of as above.
M.N.KRISHNAN, JUDGE
Cdp/-