IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 17TH MAY 2010 / 27TH VAISAKHA 1932 AS.No. 597 of 1996() ----------------------------- OS.168/1994 of SUB COURT, VADAKARA .................... APPELLANT/2ND DEFENDANT: --------------------------------------------- M/S.UNITED INDIA INSURANCE COMPANY LIMITED, VADAKARA BRANCH THROUGH DIVISIONAL MANAGER, KOZHIKODE. BY ADV. SRI.SIBY MATHEW RESPONDENTS/PLAINTIFF AND 1ST DEFENDANT: -------------------------------------------------------------------------- 1. VANIMEL PANCHAYAT THROUGH ITS EXECUTIVE OFFICER, P.O.KODIYARA, KALLACHI, VADAKARA TALUK. 2. IRUNNALATTUMMAL MOOSA, VANIMEL AMSOM, MAMBILAKOOL DESOM OF VADAKARA TALUK. R1 BY ADV. MR.PARTHASARATHY. R2 BY ADV. SRI.VAKKOM N.VIJAYAN. THIS APPEAL SUITS HAVING COME UP FOR ADMISSION ON 17/05/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs. AS.No. 597 of 1996 ORDER ON C.M.P. NO.3634/1996 IN A.S. NO.597/1996 DISMISSED 17/05/2010. SD/- M.N.KRISHNAN, JUDGE //TRUE COPY// P.A. TO JUDGE rs. M.N. KRISHNAN, J. = = = = = = = = = = = = = = = A.S. NO. 597 OF 1996 & CROSS OBJECTION = = = = = = = = = = = = = = = Dated this the 17th day of May 2010. J U D G M E N T This appeal is preferred against the judgment and decree passed by the Subordinate Judge, Vadakara in O.S.168/94. It was a suit filed for damages. The lorry owned by the first respondent in the suit rammed into the bus shelter and thereby caused damages to the same. It is submitted that an agreement was entered into between the owner and the plaintiff whereby the owner of the lorry had undertaken to repair the shelter shed. Since he had committed breach of the same a suit is instituted for realisation of the amount. The plaintiff also subsequently impleaded the insurance company of the lorry. 2. The first defendant would contend that there was a valid third party insurance for the vehicle and the insurance company has sanctioned Rs.18,178/- as cost for the construction of the bus shelter. The 2nd defendant would contend that it is not a party to the agreement and so it cannot be made liable. It is also contended that A.S. 597 OF 1996 -2- the civil Court has no jurisdiction to entertain the case. The learned trial court judge had granted a decree against the insurance company and in favour of the plaintiff for a sum of Rs.24,250/- but it did not even make the first respondent in the suit liable. The plaintiff has moved a cross objection to make the first respondent also liable so that the insurance company can indemnify him. 3. At the out set the plaintiff has approached the Court fully bearing in mind the implications of Ss.165 and 175 of the M.V.Act. U/s 165 of the M.V.Act a claim with respect to damages caused to the property for a third party comes within the jurisdiction of the Claims Tribunal constituted under the Act. U/s 175 when there is a jurisdiction conferred on the Tribunal the civil Court shall not have the jurisdiction. A reference to S.147 of the M.V.Act 1988 and S.95 of the M.V.Act 1939 is necessary. Under Sec.95 of the Act, 1939 the insurance liability was Rs.2,000/- and after amendment it has been enhanced to Rs.6,000/-. The Tribunal's power to determine the damages had not been taken away at all. Therefore after coming into force of the M.V.Act and when there is a provision like S.165 enabling the Tribunal to determine the damages caused to the property of a A.S. 597 OF 1996 -3- third party S.175 will be squarely attracted and therefore there will be a bar of jurisdiction for the civil Court. Most probably knowing the full implications of the same the plaintiff in paragraph 3 has very cautiously pleaded the tortious liability of the defendant to the plaintiff was extinguished when the defendant covenanted in the said agreement to repair the bus shelter defraying the cost. In paragraph 7 also the cause of action mentioned is that the defendant breached the agreement dated 8.9.93. So it is very clear the suit is based essentially on the breach of terms of the agreement Ext.A1. When by virtue of Ext.A1 the first respondent in the suit has undertaken to repair and has not complied with the terms and conditions of the agreement it is certain that he has committed the breach and for such breach he is liable. So the suit is of a nature where claim is made for the breach of terms of the agreement namely Ext.A1. The insurance company is not a party to Ext.A1 and thereby for the breach of Ext.A1 when a suit is filed the insurance company cannot be made a party or made liable. If the claim is under the provisions of the M.V.Act before a competent Tribunal along with the owner, driver and insurance company on the party array the Tribunal would have decided that question regarding A.S. 597 OF 1996 -4- the tortious liability and then fixed the quantum. In such cases when the owner becomes vicariously liable for the act of his servant then by virtue of the terms and conditions of the policy the insurance company would be bound to indemnify the owner subject to the restrictions of the amount unless a wider premium is paid. But unfortunately this is a case where the claim is not based on the provisions of the M.V.Act but only on the basis of an agreement which takes place subsequent to the accident between the plaintiff and the first defendant. The trial court has looked into the evidence and had arrived at a figure that Rs.24,250/- has to be paid by the 2nd defendant for getting the property back into position. The finding of the trial court making the insurance company liable is incorrect and therefore has to be set aside and similarly exoneration of the first defendant from the liability has also to be set aside and the appeal has to be allowed by fixing the liability on the first defendant namely the owner of the vehicle. In the result the Appeal is allowed and the judgment and decree of the trial court casting the liability on the insurance company is set aside and a revised decree is passed whereby the plaintiff is given a decree for realisation of an amount of Rs.24,250/- with 6% interest on A.S. 597 OF 1996 -5- the said sum from the date of suit till realisation with proportionate costs from the first defendant. Parties are directed to bear their respective costs in the appeal. Sd/- M.N. KRISHNAN, JUDGE. ul/- [true copy] P.A. To Judge. A.S. 597 OF 1996 -6- M.N. KRISHNAN, J. = = = = = = = = = = A.S. No.597 OF 1996 = = = = = = = = = = = J U D G M E N T 17th May, 2010.