IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 8TH JULY 2008 / 17TH ASHADHA 1930 MACA.No. 495 of 2004() --------------------------------- OPMV.874/1997 of MOTOR ACCIDENT CLAIMS TRIBUNAL, KOTTAYAM .................... APPELLANT/3RD RESPONDENT IN MV(OP): ------------------------------------------------------------- THE ORIENTAL INSURANCE CO. LTD., BRANCH PALAKKAD, T.S.M. COMPLEX, V.H. ROAD, PALAKKAD, REPRESENTED BY THE ASSISTANT MANAGER, MOTOR THIRD PARTY CLAIMS CELL, REGIONAL OFFICE, NORTH RAILWAY STATION ROAD, ERNAKULAM, COCHIN-682 018. BY ADV. SRI.M.JACOB MURIKAN RESPONDENTS: PETITIONER & RESPONDENTS 1 AND 2 IN MV(OP): ------------------------------------------------------------------------------------------------- *1. JOSEPH CHACKO, NEDUMPATHALIL, VALIA THEVALA P.O., KATTAPPANA, IDUKKI DISTRICT. (* DIED, LRS IMPLEADED ADDL. R4 TO R7) **2. RAVI, S/O. MANICKEN, GANDHINAGAR, KANJIKODE, PALAKKAD DISTRICT. (** DELETED) 3. LEKSHMI BALASUBRAMANIAN, KUMARANKUNNATH HOUSE, NEAR TRINITY CONVENT, KALAZHI P.O., THRISSUR DISTRICT. ADDL. R4. THRESIAMMA CHACKO, W/O. LATE JOSEPH CHACKO, NEDUMPATHALIL EZHUKUMVAYAL.P.O., VIA. NEDUMKANDAM, IDUKKI DT. ADDL. R5. SONY JACOB, S/O.LATE JOSEPH, CHACKO, -DO- -DO- ADDL. R6. LEENA JACOB, D/O. -DO- -DO- ADDL. R7. JULIE JACOB, D/O. -DO- -DO- * ADDL. RESPONDENTS 4 TO 7 ARE IMPLEADED AS THE LRS OF DECEASED 1ST RESPONDENT, AS PER ORDER DATED 13/01/05 IN I.A. 2923/2004. ** NAME OF THE 2ND RESPONDENT IS DELETED FROM THE PARTY ARRAY AT THE RISK OF THE APPELLANT, AS PER ORDER DATED 10/01/05 ON I.A. 3753/04. BY ADV. SRI.MATHEW JOHN (K) - ADDL.R4 TO R7 SRI.SUJESH MENON V.B. - ADDL.R4 TO 7 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 08/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON I.A. NO.781/2005 IN MACA. NO.495/2004. DISMISSED 08/07/2008. SD/- M.N.KRISHNAN, JUDGE // TRUE COPY // Rs/ M.N. KRISHNAN, J. = = = = = = = = = = = = = = M.A.C.A. NO. 495 OF 2004 = = = = = = = = = = = = = = = Dated this the 8th day of July, 2008. J U D G M E N T This appeal is preferred against the award of the Motor Accidents Claims Tribunal, Kottayam in O.P.(MV)874/97. It is a petition filed for claiming compensation for the damages sustained to the vehicle which belong to the claimant. The claimant has been awarded an amount of Rs.86,240/- as compensation. The insurance company has come up in appeal. The principal challenge is that after settling the amount with its own insurance company the claimant is not entitled to again get the amount from the insurance company involved in this case. The learned Tribunal relying upon the decision of the Delhi High Court reported in A.C. Mehra v. Behari Lal (1998 ACJ 379) held that the insurance company is not entitled to raise such a plea and therefore proceed to award the compensation. This point has been considered by this Court in a recent decision reported in National Insurance Co. Ltd. v. Mohan (2008 (2) KLT 683). The learned Judge held that, M.A.C.A. 495 OF 2004 -:2:- “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.” 2. In such cases the principle applied is that there cannot be two compensation for the same incident. Unless there are records to prove that the original claim has been satisfied as full and final settlement there is always a scope to claim for the balance amount against the tortfeasor. M.A.C.A. 495 OF 2004 -:3:- Here, except for the averment in the appeal memorandum and the written statement that it was full and final settlement of the claim, nothing is forthcoming from the side of the insurance company to establish that fact. Therefore I feel this is a fit case where the claimant is entitled to claim the difference. The Tribunal has awarded a sum of Rs.86,240/- as damages whereas the claimant has already received a sum of Rs.77,900/- from its insurance company. Therefore, the claimant will be only entitled to realise the balance amount of Rs.8,340/- towards damages. So applying the principles on the question of tortfeasor the maximum amount the claimant is entitled to will be only this amount in the absence of any evidence regarding the fact that the earlier settlement by the insurance company of the claimant was in full and final settlement. Therefore the award passed by the Tribunal is modified and the claimant is awarded a compensation of Rs.8,340/- with 6% interest on the said sum from the date of petition till realisation with costs of Rs.500/-. M.A.C.A. 495 OF 2004 -:4:- It is submitted that Rs.43,000/- had been deposited and the claimant has withdrawn the same. Therefore, the claimant is directed to redeposit the excess amount withdrawn. If he does not deposit, the insurance company can execute this award for realisation of the same. M.N. KRISHNAN, JUDGE. ul/-