IN THE HIGH COURT OF KERALA AT ERNAKULAM
MACA.No. 495 of 2004()
1. THE ORIENTAL INSURANCE CO. LTD.,
... Petitioner
Vs
1. JOSEPH CHACKO,
... Respondent
2. RAVI, S/O. MANICKEN,
3. LEKSHMI BALASUBRAMANIAN,
For Petitioner :SRI.M.JACOB MURICKAN
For Respondent :SRI.MATHEW JOHN (K)
The Hon'ble MR. Justice M.N.KRISHNAN
Dated :08/07/2008
O R D E R
M.N. KRISHNAN, J.
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M.A.C.A. NO. 495 OF 2004
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Dated this the 8th day of July, 2008.
J U D G M E N T
This appeal is preferred against the award of the Motor
Accidents Claims Tribunal, Kottayam in O.P.(MV)874/97. It
is a petition filed for claiming compensation for the damages
sustained to the vehicle which belong to the claimant. The
claimant has been awarded an amount of Rs.86,240/- as
compensation. The insurance company has come up in
appeal. The principal challenge is that after settling the
amount with its own insurance company the claimant is not
entitled to again get the amount from the insurance company
involved in this case. The learned Tribunal relying upon the
decision of the Delhi High Court reported in A.C. Mehra v.
Behari Lal (1998 ACJ 379) held that the insurance
company is not entitled to raise such a plea and therefore
proceed to award the compensation. This point has been
considered by this Court in a recent decision reported in
National Insurance Co. Ltd. v. Mohan (2008 (2) KLT
683). The learned Judge held that,
M.A.C.A. 495 OF 2004
-:2:-
“The insured is entitled to maintain an action
against the tortfeasor even if he had received
compensation from his insurer. But he cannot
appropriate that amount which he had received
from the company and he will hold that amount
as trustee of the insurer and he is answerable
and accountable to the insurance company to
that extent. If the insurer after obtaining a
letter of subrogation from the first respondent
had filed an Original Petition or it had also joined
in filing the original petition it would have been
entitled to that amount. Even assuming that
first respondent is entitled to receive the amount
he can only receive the same in trust. But the
insurer has not made any claim over the amount
though it is made a party to this proceedings.
So the first respondent cannot be allowed to
make any double benefit. So he is not entitled
to get any compensation in this proceedings.”
2. In such cases the principle applied is that there
cannot be two compensation for the same incident. Unless
there are records to prove that the original claim has been
satisfied as full and final settlement there is always a scope
to claim for the balance amount against the tortfeasor.
M.A.C.A. 495 OF 2004
-:3:-
Here, except for the averment in the appeal memorandum
and the written statement that it was full and final
settlement of the claim, nothing is forthcoming from the side
of the insurance company to establish that fact. Therefore I
feel this is a fit case where the claimant is entitled to claim
the difference. The Tribunal has awarded a sum of
Rs.86,240/- as damages whereas the claimant has already
received a sum of Rs.77,900/- from its insurance company.
Therefore, the claimant will be only entitled to realise the
balance amount of Rs.8,340/- towards damages. So
applying the principles on the question of tortfeasor the
maximum amount the claimant is entitled to will be only this
amount in the absence of any evidence regarding the fact
that the earlier settlement by the insurance company of the
claimant was in full and final settlement. Therefore the
award passed by the Tribunal is modified and the claimant is
awarded a compensation of Rs.8,340/- with 6% interest on
the said sum from the date of petition till realisation with
costs of Rs.500/-.
M.A.C.A. 495 OF 2004
-:4:-
It is submitted that Rs.43,000/- had been deposited
and the claimant has withdrawn the same. Therefore, the
claimant is directed to redeposit the excess amount
withdrawn. If he does not deposit, the insurance company can
execute this award for realisation of the same.
M.N. KRISHNAN, JUDGE.
ul/-