IN THE HIGH COURT OF KERALA AT ERNAKULAM
MFA.No. 642 of 2002(C)
1. THE ORIENTAL INSURANCE CO. LTD.,
... Petitioner
Vs
1. V.A.AUGUSTINE,
... Respondent
2. K.J.CHACKO, S/O.JOSEPH,
3. JOSEPH,
For Petitioner :SRI.M.JACOB MURICKAN
For Respondent :SRI.MATHEW JOHN (K)
The Hon'ble MR. Justice M.N.KRISHNAN
Dated :18/06/2008
O R D E R
M.N. KRISHNAN, J.
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M.F.A.NO. 642 OF 2002
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Dated this the 18th day of June, 2008.
J U D G M E N T
This appeal is preferred against the award of the Motor
Accidents Claims Tribunal, Pala in OP(MV)1287/95. It relates
to the damages sustained by the vehicle in a road accident.
The Tribunal after elaborately considering the materials
available awarded a compensation of Rs.33,333/- as damages
with 9% interest. The point that arises for determination is
whether a tortfeasor is liable to get the benefit out of the
compensation paid under a comprehensive policy to the owner
of the vehicle concerned. The Delhi High Court has taken a
view that in such cases a tortfeasor shall not be a beneficiary
and therefore that it is liable to pay the entire amount. The
matter has been considered by this Court in the decision
reported in National Insurance Co. Ltd. v. Mohan (2008
(2) KLT 683). The learned judge of this Court held that
insured is entitled to maintain an action against the tortfeasor
MFA 642 of 2002
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even if he has received compensation from his insurer. But he
cannot appropriate that amount he had received from the
Company and he will hold that amount as trustee of insurer.
The Court held that,
“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.”
MFA 642 of 2002
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2. So the dictum laid down very clearly indicates that
at the most one may be entitled to get the difference of the
actual damages that is sustained but one will not be entitled to
that amount also which had been paid by the insurer of one’s
own vehicle. It is on the salutary principle that for the same
act one cannot get compensation twice.
3. So far as this case is concerned there is one
difference to the effect that what is now claimed is only the
balance amount other than what is paid by the other insurance
company. The Tribunal has fixed the total compensation
amount at Rs.33,333/- and it is submitted that the owner of
the vehicle had received Rs.20,803/- from the insurer of his
vehicle. When it is so the compensation which the owner is
entitled to from the tortfeasor has to be limited to Rs.12,530
for the reason that the other insurance company has not made
any claim applying the principles of subrogation. Therefore
recording the factum of payment of Rs.20,803/- only the
balance amount of Rs.12,530/- is liable to be paid by the
insurance company of the tortfeasor. To this extent the award
requires modification.
MFA 642 of 2002
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4. Therefore the MACA is partly allowed and the
claimant is awarded a compensation of Rs.12,530/- with 9%
interest on the said sum from the date of petition till
realisation with the costs ordered by the Tribunal. In the
appeal parties are directed to bear their respective costs.
M.N. KRISHNAN, JUDGE.
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MFA 642 of 2002
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M.N. KRISHNAN, J.
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M.F.A. No. 642 OF 2002
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J U D G M E N T
18th June, 2008.