{"id":63419,"date":"2008-03-27T00:00:00","date_gmt":"2008-03-26T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/national-insurance-co-ltd-vs-mohan-m-s-on-27-march-2008"},"modified":"2014-03-26T00:43:58","modified_gmt":"2014-03-25T19:13:58","slug":"national-insurance-co-ltd-vs-mohan-m-s-on-27-march-2008","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/national-insurance-co-ltd-vs-mohan-m-s-on-27-march-2008","title":{"rendered":"National Insurance Co. Ltd vs Mohan.M.S on 27 March, 2008"},"content":{"rendered":"
Kerala High Court<\/div>\n
National Insurance Co. Ltd vs Mohan.M.S on 27 March, 2008<\/div>\n
       \n\n  \n\n  \n\n \n \n  IN THE HIGH COURT OF KERALA AT ERNAKULAM\n\nMFA.No. 1301 of 2000()\n\n\n\n1. NATIONAL INSURANCE CO. LTD.\n                      ...  Petitioner\n\n                        Vs\n\n1. MOHAN.M.S.\n                       ...       Respondent\n\n                For Petitioner  :SRI.RAJAN P.KALIYATH\n\n                For Respondent  :SRI.MATHEW JOHN (K)\n\nThe Hon'ble MR. Justice K.PADMANABHAN NAIR\n\n Dated :27\/03\/2008\n\n O R D E R\n                                                                            \"C.R.\"\n\n\n                           K. PADMANABHAN NAIR ,J.\n                       -------------------------------------------------\n                                M.F.A.No.1301 of 2000\n                       -------------------------------------------------\n                     Dated, this the 27th day of March, 2008\n\n                                      JUDGMENT\n<\/pre>\n
       The second respondent insurer in O.P.(MV) No.1123\/1995 on the Motor<\/p>\n
Accidents Claims Tribunal, Pala is the appellant. Insurer has filed this appeal<\/p>\n
challenging an award passed by the Tribunal by which it had awarded an amount<\/p>\n
of Rs.33,718\/- as compensation to the first respondent\/claimant for the damages<\/p>\n
sustained to his motor car bearing registration No.KL-5\/A 3183. A collision took<\/p>\n
place between the car owned by the first respondent                     and a jeep bearing<\/p>\n
registration No.KEK 1933. On 16.2.1993 the car was proceeding towards south<\/p>\n
through    Pala-Ponkunnam road.          According to the first respondent the       jeep<\/p>\n
bearing registration No.KEK 1933 was parked on the eastern side of the road.<\/p>\n
The driver of the jeep abruptly started it and turned to the west in a rash or<\/p>\n
negligent manner which caused a collision of               car with the jeep.    The first<\/p>\n
respondent filed the Original Petition initially claiming an amount of Rs.8,545\/- as<\/p>\n
compensation alleging that car sustained substantial damages due to the negligence<\/p>\n
of the driver of the jeep.\n<\/p>\n
MFA No.1301\/2000                         2<\/span><\/p>\n
        2.    The second respondent\/owner of the jeep filed a written statement<\/p>\n
contending that the petition was not maintainable. It was contended that the first<\/p>\n
respondent received an amount of Rs.42,032\/-as full and final settlement for the<\/p>\n
damages sustained to his car from the third respondent who was the insurer of car.<\/p>\n
Since the first respondent was compensated by his own insurer he is not entitled<\/p>\n
to get any compensation again from the owner of the jeep. The averment that the<\/p>\n
accident occurred due to the negligence of the second respondent driver was<\/p>\n
denied. It was contended that the accident occurred due to the negligence of the<\/p>\n
first respondent himself. It was also contended that jeep was covered with a valid<\/p>\n
policy of insurance issued by the appellant . The second respondent was holding a<\/p>\n
valid driving licence and in case the claimant is entitled to get any compensation<\/p>\n
the appellant is liable to pay the same.\n<\/p>\n<\/p>\n
        3.    The appellant\/second respondent\/insurer of jeep filed a written<\/p>\n
statement contending that the petition was not maintainable. It was contended<\/p>\n
that since the first respondent was compensated by his own insurer he was not<\/p>\n
entitled to get any compensation again for the very same damage from the owner<\/p>\n
of the offending vehicle.   It was also contended that accident occurred due to the<\/p>\n
negligence of the claimant himself.\n<\/p>\n<\/p>\n
        4.    Third respondent\/insurer of the car filed a written statement<\/p>\n
MFA No.1301\/2000                         3<\/span><\/p>\n
contending that petition was not maintainable against it. It was admitted that the<\/p>\n
car was covered with a valid policy of insurance issued by it. Claim made by the<\/p>\n
insured was paid by it and hence it was not liable to pay any additional<\/p>\n
compensation.\n<\/p>\n<\/p>\n
       5.     The first respondent gave evidence as PW1. Exts.A1 to A7 proved<\/p>\n
and marked. On the side of respondents Ext.B1 copy of insurance policy in<\/p>\n
respect of jeep was marked.\n<\/p>\n<\/p>\n
       6.     In the Original Petition     the petitioner calculated the damages<\/p>\n
sustained to the car on account of the accident at Rs.50,577\/-. But initially the<\/p>\n
claim was limited to Rs.8,545\/-. It was admitted that the vehicle was covered with<\/p>\n
a policy of insurance issued by the third respondent and the third respondent had<\/p>\n
paid an amount of Rs.42,032\/- as repair charges for the damages sustained to the<\/p>\n
vehicle.   It was further averred that hence respondent No. 2 and appellant were<\/p>\n
jointly and severally liable to pay compensation of Rs.8,545\/-. Subsequently<\/p>\n
petitioner filed I.A.No.562\/1999 by which the compensation claimed was<\/p>\n
enhanced to Rs.50,577\/-. The averment in the Original Petition that the first<\/p>\n
respondent had received Rs.42,032\/- from his insurer was deleted.          To the<\/p>\n
amended Original Petition the appellant filed additional written statement<\/p>\n
contending that the third respondent paid an amount of Rs.42,032\/- to the first<\/p>\n
MFA No.1301\/2000                           4<\/span><\/p>\n
respondent as full and final settlement for the alleged damages caused to the motor<\/p>\n
car and hence he was not entitled to get any compensation again from the<\/p>\n
appellant. It was further contended that the first respondent was claiming amounts<\/p>\n
which had already received to make undue advantage.\n<\/p>\n<\/p>\n
        7.    Tribunal found that the accident occurred due to the negligence of<\/p>\n
the driver of the jeep and the petitioner had spent an amount of Rs.50,577\/- for<\/p>\n
the repair of the vehicle. The Tribunal after deducting the depreciation value<\/p>\n
passed an award in favour of the first respondent allowing him to recover an<\/p>\n
amount of Rs.33,718\/- from the second respondent and appellant. The appellant\/<\/p>\n
insurer of jeep was directed to pay the compensation. Challenging that award the<\/p>\n
second respondent who is the insurer of jeep has filed this appeal.<\/p>\n
       8.     The only point arising for consideration is whether the first<\/p>\n
respondent\/petitioner is entitled to claim compensation for the damages sustained<\/p>\n
to his vehicle from his insurer as well as the owner and insurer of the offending<\/p>\n
vehicle.   Learned counsel appearing for the appellant has strenuously argued<\/p>\n
before me that the attempt of the first respondent is to make undue gain and double<\/p>\n
enrichment on account of the damages sustained to his vehicle. It is argued that<\/p>\n
the first respondent who is a Law Graduate had admitted that he had signed and<\/p>\n
issued the receipt to his insurer after fully understanding the content of the same.<\/p>\n
MFA No.1301\/2000                          5<\/span><\/p>\n
It is argued that first respondent had received an amount of Rs.42,032\/- as full and<\/p>\n
final settlement from his insurer and hence he is not entitled to maintain another<\/p>\n
action claiming the same damages. It is argued that there is difference between<\/p>\n
pecuniary damages and non-pecuniary damages. It is argued that in a case of<\/p>\n
personal injury claim the Tribunal is awarding compensation but in the case of<\/p>\n
pecuniary damages it is being capable of being calculated in terms of money. It is<\/p>\n
also argued that the car as such got a value which can be ascertained. The value of<\/p>\n
the spare parts of the car can also be ascertained. It is argued that compensation on<\/p>\n
account of the damages to the property is pecuniary damages and the same can be<\/p>\n
quantified accurately. It is argued that a person who sustained damages to the<\/p>\n
property received that amount from his insurer in full and final settlement cannot<\/p>\n
be allowed to claim value of that article again from tortfeasor. It is argued that the<\/p>\n
insurer who reimbursed the value along with claimant may file a claim for<\/p>\n
compensation. It is argued that if there is proper subrogation the insurer alone may<\/p>\n
maintain a claim against the tortfeasor.\n<\/p>\n<\/p>\n
        9.    Learned counsel for      respondents has argued that the claim for<\/p>\n
compensation is founded on common law of tort and it is not open to tortfeasor to<\/p>\n
raise a contention that since the person who sustained damages had received<\/p>\n
compensation from another source is not entitled to get compensation from<\/p>\n
tortfeasor. It is argued that in a case of this nature the only question arising for<\/p>\n
MFA No.1301\/2000                          6<\/span><\/p>\n
consideration is whether the first respondent\/petitioner sustained damages on<\/p>\n
account of tort committed by the second respondent, owner of jeep. If it is found<\/p>\n
that he sustained damages, he is entitled to recover the same irrespective of the fact<\/p>\n
that his insurer reimbursed him the amount he had incurred for repairs of the car.<\/p>\n
       10.    There   are    certain   admitted   or    proved    facts.        First<\/p>\n
respondent\/claimant was the owner of a motor car bearing registration No.KL-5\/A<\/p>\n
3183 insured with the third respondent. On 16.2.1993 a collision took place<\/p>\n
between that car and jeep bearing registration No.KEK 1933.          The motor car<\/p>\n
sustained damages. According to the first respondent the accident occurred solely<\/p>\n
due to the negligence of the driver of the jeep and he sustained damages to the tune<\/p>\n
of Rs.50,577\/-. In the Original Petition it was admitted that the vehicle of the first<\/p>\n
respondent was covered with a valid policy of insurance issued by the third<\/p>\n
respondent and he lodged a claim         for damages with his insurer and third<\/p>\n
respondent paid an amount of Rs.42,032\/- towards cost of repairs. Originally his<\/p>\n
stand was that the actual damages sustained to the vehicle was much more than<\/p>\n
that and hence he is entitled to that much amount also, i,e., Rs.50,577 – 42,032 =<\/p>\n
8,545\/-.   Subsequently he changed his stand and contended that he is entitled to<\/p>\n
get Rs.50,577\/- as compensation from the second respondent as well as the<\/p>\n
appellant.   The only question arising for consideration is whether          the first<\/p>\n
respondent\/claimant can be allowed to recover Rs.42,032\/- from the owner of the<\/p>\n
MFA No.1301\/2000                           7<\/span><\/p>\n
jeep who is the primary tortfeasor in view of the fact that he received that amount<\/p>\n
from the third respondent, his insurer.\n<\/p>\n<\/p>\n
       11.      The Tribunal had relied on a decision of the Delhi High Court in<\/p>\n
Dr. A.C.Mehra v. Behari Lal (1998 ACJ 379) and held that the amount paid by<\/p>\n
the Insurance Company of the claimant is not deductible from the compensation<\/p>\n
awarded against the tortfeasor on the ground that such an amount was paid under a<\/p>\n
separate contract between claimant and his insurer. It was also held that the<\/p>\n
tortfeasor cannot take advantage of the claimant’s contract with a third party. In<\/p>\n
Dr.A.C.Mehra’s case (supra) the learned Judge had extracted two paragraphs in<\/p>\n
Chapter 10 from the book ‘Quantum of Damages’ by Kemp & Kemp (1986 Edn.).<\/p>\n
A reading of the passages extracted in the decision shows that the learned author<\/p>\n
was considering non-pecuniary damages. The learned Single Judge took a view<\/p>\n
that there is no distinction so far as the law relating to injury is concerned. I find<\/p>\n
it very difficult to agree with such a proposition. Whether the principles applicable<\/p>\n
to personal injury claims can be applied as such to claims for damages to property<\/p>\n
which is a pecuniary damage was not considered in Dr.A.C.Mehra’s case (supra).<\/p>\n
The learned Single Judge had relied on a Division Bench decision of the Allahabad<\/p>\n
High Court in Union of India v. Deoria Sugar Mills Ltd.<\/a> (1980 ACJ 140). In<\/p>\n
Deoria Sugar Mills’s case (supra) the plaintiff received part of compensation from<\/p>\n
his insurer. He claimed that amount again. It was held that the plaintiff was<\/p>\n
MFA No.1301\/2000                               8<\/span><\/p>\n
entitled to get damages including the amount paid by his insurer. But it was<\/p>\n
further held that the consignor will receive the compensation for damages as a<\/p>\n
trustee for his insurer. After allowing the claim the court held as follows:<\/p>\n
                      “………..Of course from out of a sum of
\n               Rs.37,860\/- which the plaintiff would receive from the
\n               Union of India, a sum of Rs.33,135\/- would be held by
\n               him as a trustee for the insurance company which had
\n               insured the machinery involved in the suit…..”
\n               (emphasis supplied).<\/p>\n
The court had elaborately descend the law on the point. In para 9 of the judgment<\/p>\n
a passage from ‘Marine Insurance (British Shipping Laws), Vol.10, written by<\/p>\n
Arnold was extracted. It reads as follows:\n<\/p>\n
                      “…………It is entirely foreign to the spirit of
\n              contracts of indemnity that a person damnified should
\n              recover his loss more than once; it is, therefore, clear
\n              that if he had already recovered from a third party, there
\n              can be no liability under the contracts of indemnity; on
\n              the other hand, if he has not previously recovered from
\n              such third party, but has the right to do so, there is no
\n              reason why such third party should be allowed to allege
\n              that his liability has been satisfied or reduced by a
\n              payment made by a stranger to him, under a contract
\n              with which he has nothing to do.            The third party
\n              remains liable to the person indemnified just as if there
\n              had been no contract of indemnity.           But the person
\n              indemnified can only take the sum recovered from the
\n              third party as trustee for the indemnifier, and similarly,
\n              if he has not himself received any sum to which he is
\n              entitled he is bound to afford the latter all facilities for
\n              doing so.” (emphasis supplied)<\/p>\n
After considering various authorities it was held as follows:\n<\/p><\/blockquote>\n
                      “A perusal of the aforesaid authorities shows that<\/p>\n
MFA No.1301\/2000                          9<\/span><\/p>\n
            the position of the insurance company in the
\n            circumstances was, that of an indemnifier. The railway
\n            company continues to be primarily liable for the
\n            damages sustained by the plaintiff and it not being a
\n            party to the contract of indemnity, cannot be absolved
\n            of its liability to pay the damages to consignor merely
\n            because the consignor had already recovered the money
\n            from the insurance company, under a contract of
\n            insurance. In such a case the consignor will receive the
\n            compensation for damage suffered by him in trust for
\n            the insurance company. After the consignor receives
\n            the amount from the railway company, he will have to
\n            make it over to the insurance company to the extent to
\n            which it had already indemnified him. This is how the
\n            consignor is prevented from being doubly compensated
\n            in respect of the loss suffered by him i.e. once by
\n            receiving the compensation from the insurance
\n            company and again receiving the same directly from the
\n            railway company.”(emphasis supplied)<\/p>\n
This material aspect was not considered by the learned Single Judge in<\/p>\n
Dr.A.C.Mehra’s case (supra). So the principle laid down in Dr.A.C.Mehra’s case<\/p>\n
(supra) cannot be relied upon as an authority to hold that a person who sustained<\/p>\n
pecuniary damage can claim that amount from the tortfeasor as well his insurer.<\/p><\/blockquote>\n
      12.   In Union of India v. Sri Sarada Mills (AIR<\/a> 1973 SC 281) it was<\/p>\n
held that –\n<\/p><\/blockquote>\n
                    “…….the cause of action of the Mill against the
\n            Railway Administration did not perish on giving the
\n            letter of subrogation.      The Mill was competent to
\n            institute and maintain the suit against the Railway
\n            Administration. The Mill could be answerable and
\n            accountable to the insurance company for the moneys<\/p>\n
MFA No.1301\/2000                          10<\/span><\/p>\n
              recovered in the suit to the extent the insurance
\n              company paid the respondent mill.” (emphasis
\n              supplied)<\/p>\n
The Apex Court also held as follows:\n<\/p><\/blockquote>\n
                     “It is equally indisputable that an insurance
\n              company is entitled to subrogation in accordance with
\n              the provisions of Section 79 of the Marine Insurance
\n              Act, 1963. Subrogation does not allow the subrogee or
\n              the underwriter to sue in its own name. In the present
\n              case, the insurance company has not enforced its claim
\n              by virtue of subrogation.”<\/p><\/blockquote>\n<\/blockquote>\n
                                    xxxxxxxxxxxx<\/p>\n
                     “The respondent mill will give a valid discharge
\n              to the Railway Administration in respect of loss and
\n              damages. This decree will be a bar to the institution of
\n              any suit by the insurance company in respect of the
\n              subject matter of the suit.      The respondent mill is
\n              answerable and accountable to the insurance company
\n              for the moneys recovered in the suit to the extent the
\n              insurance company paid the respondent mill.”(emphasis
\n              supplied)<\/p>\n
It was further held that the letter of subrogation did not divest the mill of its cause<\/p>\n
of action against the Railway Administration for loss and damages.<\/p><\/blockquote>\n
       13.    So the position is clear. The insured is entitled to maintain an action<\/p>\n
against the tortfeasor even if he had received compensation from his insurer. But<\/p>\n
he cannot appropriate that amount which he had received from the company and he<\/p>\n
will hold that amount as trustee of the insurer and he is answerable and<\/p>\n
accountable to the insurance company to that extent.\n<\/p>\n
MFA No.1301\/2000                         11<\/span><\/p>\n
      14.    In this case the claim is not for damages for personal injury. It is a<\/p>\n
pecuniary loss.\n<\/p>\n<\/p>\n
      15.     In Jai Bhagwan v. Laxman Singh<\/a> (1994 ACJ 983) a Three Judge<\/p>\n
Bench of the Apex Court had considered the difference between damages for<\/p>\n
personal injuries and pecuniary loss. It was held as follows:<\/p>\n
                     “In Clerk and Lindsell on Torts (16th Edn.),
\n              referring to damages for personal injuries, it is stated:\n<\/p><\/blockquote>\n
                                  “In all but a few exceptional
\n              cases the victim of personal injury suffers two distinct
\n              kinds of damage which may be classed respectively as
\n              pecuniary and non-pecuniary. By pecuniary damage
\n              is meant that which is susceptible of direct translation
\n              into money terms and includes such matters as loss of
\n              earnings, actual and prospective, and out-of-pocket
\n              expenses, while non-pecuniary damage includes such
\n              immeasurable elements as pain and suffering and loss
\n              of amenity or enjoyment of life. In respect of the
\n              former, it is submitted, the court should and usually
\n              does seek to achieve restitutio in integrum in the sense
\n              described above, while for the latter it seeks to award
\n              ‘fair compensation’.       This distinction between
\n              pecuniary and non-pecuniary damage by no means
\n              corresponds to the traditional pleading distinction
\n              between ‘special’ and ‘general’ damages, for while the
\n              former is necessarily concerned solely with pecuniary
\n              losses–notably accrued loss of earnings and out-of-
\n              pocket expenses–the latter comprises not only non-
\n              pecuniary losses but also prospective loss of earnings
\n              and other future pecuniary damage.”\n<\/p><\/blockquote>\n
In Nazeema v. George Kuriakose<\/a> (1991(2) KLJ 232) another Division Bench of<\/p>\n
MFA No.1301\/2000                         12<\/span><\/p>\n
this Court took a view that insurance money, provident fund, gratuity and pensions<\/p>\n
payable to the dependents upon the death of a deceased are not deductible from<\/p>\n
the amount of compensation payable. It was further held that these benefits are not<\/p>\n
received by them by reason of the death though it was payable or receivable at the<\/p>\n
death of the deceased. It was also held that the value of the accelerated benefit of<\/p>\n
these are also not deductible. In New India Assurance Co. Ltd. v. C.S.Ouseph<\/p>\n
and others<\/a> (1993 ACJ 203) a Division Bench of this Court held that the injured<\/p>\n
claimant cannot claim medical expenses which he had incurred if he had already<\/p>\n
received the same by way of reimbursement.\n<\/p>\n<\/p>\n
       16.     In Seetha Lakshmi Krishnan v. Gian Prakash (1993 ACJ 206) a<\/p>\n
learned Single Judge of Delhi High Court held that the amounts received by the<\/p>\n
injured under life insurance policy, pension, gratuity, etc. are not to be deducted.<\/p>\n
In Helen C. Rebello v. Maharashtra S.R.T.C. ((1999) 1 SCC 90) the Apex<\/p>\n
Court had held that provident fund, family pension, cash balance, shares, fixed<\/p>\n
deposits, etc. cannot be termed as pecuniary advantages and the same cannot be<\/p>\n
deducted while fixing the quantum. In Geethakumari v. Rubber Board<\/a> (1994<\/p>\n
(1) KLT 674) a Division Bench of this Court held that salary of a dependent who<\/p>\n
was given employment on compassionate grounds on the death of a person who<\/p>\n
was injured in a motor accident cannot be deducted from the compensation<\/p>\n
payable on account of his death. It will not amount to a pecuniary damage.<\/p>\n
MFA No.1301\/2000                         13<\/span><\/p>\n
      17.     But the facts of the above stated cases show that all those cases arose<\/p>\n
from personal injury claims which are non-pecuniary damages. So the principles<\/p>\n
laid down in those decisions can have no application to a case for recovery of<\/p>\n
pecuniary damages.\n<\/p>\n<\/p>\n
      18.     In Jacob Joseph v. Devassy<\/a> (2005 (2) KLT 259) an elephant died in<\/p>\n
a motor vehicle accident. The elephant as well as the vehicle were insured by the<\/p>\n
same insurance company. The owner of the elephant received compensation from<\/p>\n
his insurer and executed a letter of subrogation in favour of the insurer. A<\/p>\n
Division Bench of this Court held that since the elephant and offending vehicle<\/p>\n
were insured with the same insurer the owner of the elephant is not entitled to<\/p>\n
claim compensation from the owner of the vehicle on the ground that the owner of<\/p>\n
the vehicle is to be indemnified by the same insurer who paid the compensation to<\/p>\n
the owner of the elephant and obtained a letter of subrogation.<\/p>\n
      19.     In this case the damage sustained to the property could be calculated<\/p>\n
accurately. In New India Assurance Co. Ltd. v. T.M.Chayapathi (IV<\/a> (2005)<\/p>\n
ACC 61) a learned Single Judge of the Andhra Pradesh High Court had held as<\/p>\n
follows:\n<\/p>\n
                         “So,      respondent      who       received<\/p>\n
MFA No.1301\/2000                         14<\/span><\/p>\n
              compensation from the insurer of his van for the
\n              damage caused to it in the same accident, cannot
\n              recover the same amount from owner or insurer of the
\n              offending vehicle also. It should be kept in view that
\n              principles for computing damages to the victims in a
\n              motor accident are different       from the principles
\n              for computing damages to a property damaged in an
\n              accident, obviously because limbs of a human being,
\n              which are fractured in an accident, cannot be replaced,
\n              an even if operated they may not gain the normal
\n              shape, and human life, if lost, cannot be brought back.\n<\/p>\n
              But damaged property can be replaced, if not easily,
\n              with some difficulty. Obviously for that reason some
\n              decisions laid down that ex gratia received from other
\n              sources cannot be taken into consideration for arriving
\n              at the damages payable to a victim or his legal
\n              representatives in a motor accident. In cases of death
\n              of a victim in a motor accident decisions held that
\n              since the victim would have had the benefit of the life
\n              insurance policy even if he survived up to the age upto
\n              which it was taken, the policy amounts received from
\n              the Life Insurance Corporation cannot be taken into
\n              consideration for computing the damages payable to
\n              the legal representatives of the deceased victim. In
\n              case of insurance of a motor vehicle question of
\n              insurer paying any amount to the insured, if no risk
\n              takes place, does not arise.        So the principles
\n              governing computation of damage to victim in an
\n              accident cannot be applied to damage for property in
\n              an accident”.\n<\/p>\n<\/p>\n
       20.      In this case what is claimed is not fair compensation but the<\/p>\n
compensation on account of the pecuniary damages sustained. In fact, originally<\/p>\n
the first respondent\/claimant wanted only the difference between the amount paid<\/p>\n
by his insurer and the amount alleged to have been spent by him.               Third<\/p>\n
respondent, insurer of the first respondent had filed a written statement contending<\/p>\n
MFA No.1301\/2000                          15<\/span><\/p>\n
that the first respondent received the amount by executing a receipt admitting that<\/p>\n
he received the amount in full and final settlement. It is very pertinent to note that<\/p>\n
third respondent is not making any claim for the amount paid by it. The third<\/p>\n
respondent paid an amount of Rs.42,032\/- to the first respondent. The Tribunal<\/p>\n
found that the first respondent is entitled to get only an amount of Rs.33,718\/- as<\/p>\n
compensation on account of the damages sustained to his vehicle. There is no<\/p>\n
challenge against the quantum. Even if the first respondent receives the amount<\/p>\n
awarded he has to handover the same to the third respondent.<\/p>\n
       21.     As I have already stated, if the insurer after obtaining a letter of<\/p>\n
subrogation from the first respondent had filed an Original Petition or it had also<\/p>\n
joined in filing the Original Petition it would have been entitled to that amount.<\/p>\n
Even assuming that first respondent is entitled to receive the amount he can only<\/p>\n
receive the same in trust. But the insurer has       not made any claim over the<\/p>\n
amount though it is made a party to this proceedings. So the first respondent<\/p>\n
cannot be allowed to make any double benefit. So he is not entitled to get any<\/p>\n
compensation in this proceedings. The appeal is only to be allowed.<\/p>\n
       In the result, appeal is allowed. The award passed by the Tribunal in O.P.<\/p>\n
(MV) No.1123\/1995 is hereby set aside and Original Petition is dismissed.<\/p>\n
MFA No.1301\/2000                16<\/span><\/p>\n
    C.M.P.No.7577\/2000 in M.F.A.No.1301\/2000 will stand dismissed.<\/p>\n
                                          K. PADMANABHAN NAIR,
\n                                                      JUDGE.\n<\/p>\n
\ncks<\/p>\n
MFA No.1301\/2000    17<\/span><\/p>\n
                        K.PADMANABHAN NAIR, J.\n<\/p>\n
                        M.F.A.No.1301 of 2000<\/p>\n
                        JUDGMENT<\/p>\n
                        27th March, 2008.<\/p>\n","protected":false},"excerpt":{"rendered":"
Kerala High Court National Insurance Co. Ltd vs Mohan.M.S on 27 March, 2008 IN THE HIGH COURT OF KERALA AT ERNAKULAM MFA.No. 1301 of 2000() 1. NATIONAL INSURANCE CO. LTD. … Petitioner Vs 1. MOHAN.M.S. … Respondent For Petitioner :SRI.RAJAN P.KALIYATH For Respondent :SRI.MATHEW JOHN (K) The Hon’ble MR. Justice K.PADMANABHAN NAIR Dated :27\/03\/2008 O […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,21],"tags":[],"class_list":["post-63419","post","type-post","status-publish","format-standard","hentry","category-high-court","category-kerala-high-court"],"yoast_head":"\nNational Insurance Co. 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