IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 22ND JULY 2010 / 31ST ASHADHA 1932 MACA.No. 208 of 2010() ---------------------------------- OPMV.1041/2004 of PRL. MOTOR ACCIDENT CLAIMS TRIBUNAL, KOZHIKODE .................... APPELLANT/PETITIONER ------------------------------------- V.P. KANAKARAJAN, S/O.LATE P.M. KELAPPAN, AGED 54 YEARS, "ARKA", 33/4700, MALAPARAMBA, KOZHIKODE-9. BY ADV. SRI.V.N.RAMESAN NAMBISAN RESPONDENTS/RESPONDENTS ------------------------------------------------ 1. V.K. MOOSKOYA, S/O.MUHAMMED, VAITHALAKUNNUMMAL HOUSE, CHERUPPA AMSOM DESOM, MAVOOR, KOZHIKODE. 2. BEERANKUTTY, S/O.UNNIMOYIN, AGED 50 YEARS, PODENCHERRY HOUSE, CHERUPPA AMSOM DESOM, MAVOOR, KOZHIKODE. 3. THE NEW INDIA ASSURANCE CO.LTD., MAVOOR ROAD, KOZHIKODE. R3 BY ADV. SRI.P.JAYASANKAR. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 22/07/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs. M.N. KRISHNAN, J. ........................................... M.A.C.A.NO.208 OF 2010 ............................................. Dated this the 22nd day of July, 2010. J U D G M E N T This is an appeal preferred against the award of the Claims Tribunal, Kozhikode in OP(MV)No.1041/2004. The petition is one for damages of Rs.65,950/=. The claimant, owner of the car KL-11-M-9171, moved this application on account of the damages sustained to the car in a road accident. 2. The learned counsel for the appellant would submit that there was an own property claim for the vehicle and he had received about Rs.2,48,500/= whereas the actual damage sustained is more than Rs.3,24,150/=. Therefore the claim application is relating to the balance amount which has not been granted by his insurer. 3. The learned Tribunal had relied on the decision of this Court reported in National Insurance Co. Ltd. V. Mohan (2008 (2) KLT 683). There the principle considered by the court was that the claimant is not entitled to claim the amount twice; one from his insurer and the other from the tortfeasor's insurer. The court relied on the principle of : 2 : M.A.C.A.NO.208 OF 2010 unjust enrichment and refused to grant the amount. 4. But here the case is different. What is sought to be realised from the tortfeasor is the amount other than the amount which is granted by the insurer of his vehicle or in other words when he had sustained damages to the tune of Rs.3,24,150/= and as the insurer of his car had only given Rs.2,48,500/=, he is claiming the balance amount from the tortfeasor for the reason that he is entitled to get the entire damages sustained to his vehicle. There is no prohibition under this decision to make such a claim. Therefore the Tribunal was not right in dismissing the application summarily. 5. The learned counsel for the insurance company would contend that if the claimant had received the amount subject to full satisfaction from his insurer, it may be a point indicative of fixing the total damages sustained. If the total damages sustained comes to Rs.2,48,500/= only, then as the claimant has received that amount, he will not be entitled to any further compensation. But if he has sustained more damages and it is not the full satisfaction, he will be : 3 : M.A.C.A.NO.208 OF 2010 entitled to the additional amount. 6. Therefore the award under challenge is set aside and the matter is remitted back to the Tribunal with a direction to permit all concerned to produce documentary as well as oral evidence in support of their respective contentions and then dispose of the matter in accordance with law. In case the claimant is entitled to any amount, he will not be entitled to interest for the period between 4.1.2008 and 28.1.2010. Parties are directed to appear before the Tribunal on 3.9.2010. Disposed of accordingly. M.N. KRISHNAN, JUDGE. cl : 4 : M.A.C.A.NO.208 OF 2010