IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID TUESDAY, THE 24TH MAY 2011 / 3RD JYAISHTA 1933 MACA.No. 1006 of 2009(G) ------------------------------------- [O.P(MV).NO.1569/2004 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, IRINJALAKUDA] .................... APPELLANT/PETITIONER IN O.P(MV): ------------------------------------------------------ MARY PATHROSE, W/O.PATHROSE, KAVUNGAL HOUSE, KUTTIKKAD DESOM, PARIYARAM VILLAGE, KUTTIKKAD P.O., MUKUNDAPURAM TALUK, THRISSUR DISTRICT. BY ADVS. SRI.P.V.BABY, SRI.A.N.SANTHOSH. RESPONDENTS/RESPONDENTS IN O.P(MV): --------------------------------------------------------------- 1. RAZAK, S/O.AZEEZ, KALAKATTUKARA HOUSE, VETTUKADAVU, CHALAKUDY P.O. 2. RANJITH, S/O.SASI, KAINIKKARA HOUSE, KUTTIKKAD P.O. 3. THE UNITED INDIA INSURANCE CO.LTD., ALENGADAN BUILDING, IRINJALAKUDA. R3 BY SRI.MATHEWS JACOB, SENIOR ADVOCATE, ADV. SRI.P.JACOB MATHEW. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 24/05/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. HARUN-UL-RASHID, J. ------------------------ M.A.C.A.No.1006 Of 2009 ---------------------- Dated this the 24th day of May, 2011. J U D G M E N T The claimant in O.P.(MV).No.1569/2004 on the file of the M.A.C.T, Irinjalakkuda is the appellant. The appeal is directed against the award passed by the said Tribunal. 2. The petitioner seeks compensation for the injuries sustained in a motor accident on 23.5.2004. The claimant was aged 70 years at the time of the accident. Her case is that while she was walking along the road she was hit by an autorikshaw driven by the second respondent. 3. Exts.A1 to A7 and B1 were marked. The third respondent insurance company was permitted to contest the case under Section 170 of the Motor Vehicles Act. The Tribunal after considering Ext.A1-FIR, A2-copy of the charge sheet, Ext.A3-copy of the judgment in C.C.No.986/2004 and other facts and circumstances found that the accident occurred due to the rashness and negligence of the second respondent in the O.P. The Tribunal also considered the quantum of compensation payable to the applicant. Considering the nature of the injuries ::2:: M.A.C.A.No.1006 Of 2009 and the old age of the petitioner, the Tribunal assessed the compensation and held that the total compensation payable is Rs.24,500/- with interest and also proportionate costs. The Tribunal also held that the second respondent had no licence at the time of accident and therefore, the insurance company was absolved from the liability. Thus, the claimant is allowed to realise the compensation from respondents 1 & 2 jointly and severally. On going through the evidence, the quantum fixed by the court is just and reasonable. 4. The learned counsel for the appellant contended that if there is any violation of the policy terms and conditions, the Tribunal should have directed the insurance company to make payment and recover the same from the first respondent insured of the vehicle. The learned counsel also submits that on going through the statutory provisions as well as the various decisions rendered by this Court as well as the apex Court wherein it was held that if there is any violation of the policy terms and conditions the insurer has to satisfy the amount and recover the same from the insured. The learned counsel also pointed out the ::3:: M.A.C.A.No.1006 Of 2009 recent decision of the Apex Court in Kusum Lata and others v. Satbir and others (AIR 2011 SC 1234) wherein it was held that if there is any violation of the terms and conditions of the policy, the insurer has to first satisfy the amount and recover the same from the insured. In the above circumstances, a modification of the awarded passed by the Tribunal is necessary. In the result, the appeal is partly allowed. The award under challenge is modified to the extent of directing the third respondent to satisfy the award amount and recover the amount from the insured first respondent/owner. The insurance company shall make payment to the claimant by way of a Demand Draft or cheque within two months from today. No order as to costs. HARUN-UL-RASHID, Judge. bkn/-