IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR FRIDAY, THE 28TH NOVEMBER 2008 / 7TH AGRAHAYANA 1930 WP(C).No. 34207 of 2003(V) ------------------------------------------ PETITIONER(S): ------------------------ BIJU, AGED 30 YEARS S/O. ABRAHAM, KULATHOTTACHALIL HOUSE, KIZHAKAMBALAM VILLAGE & P.O.KUNNATHUNADU TALUK. BY ADV. SRI.V.K.ISSAC SRI.K.K.APPU SRI.ISAC SANJAY RESPONDENT(S): --------------------------- 1. THE DISTRICT COLLECTOR, ERNAKULAM CIVIL STATION, KAKKANAD P.O. 2. THE DEPUTY TAHASILDAR, REVENUE RECOVERY, TALUK OFFICE, KUNNATHUNADU, PERUMBAVOOR. 3. THE VILLAGE OFFICER, KIZHAKAMBALAM VILLAGE, KIZHAKKAMBALAM P.O., PIN 683 562. 4. THE SHERISTHADAR, MACT, HOUSING BOARD BUILDING, KADAVANTHRA, ERNAKULAM. 5. THE ORIENTAL INSURANCE CO.LTD., MOTOR CLAIMS (LEGAL), METRO PALACE, RAILWAY STATION ROAD, ERNAKULAM NORTH,KOCHI-682 018. 6. K.S.SABJAN, KOCHANGADIPUTHENPURA, ROTARY ROAD, KADATHY EAST, MOOVATTUPUZHA, PIN 686 661. 7. M.A.CHINNAN S/O. AYYAPPAN, MOLATH PARAMBIL HOUSE, KUNNATHIRI RESIDING AT IAC QUARTERS, ALUPURAM, KALAMASSERY. BY SR. GOVERNMENT PLEADER SRI. BENJAMIN PAUL ADV. SRI.GEORGE CHERIAN (THIRUVALLA) FOR R5 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 28/11/2008,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss W.P.(C)NO. 34207/2003 APPENDIX PETITIONER'S EXHIBITS: P1:- COPY OF THE AWARD DT. 29.6.01 IN OP. (MV) 3998/95 IN THE FILES OF MACT, ERNAKULAM. P2:- COPY OF THE E.P. NO.66/02 IN OP(MV) NO.3998 OF 95 DT. 5.4.02. P3:- COPY OF THE ORDER DT. 13.1.03 IN EP. 66/02 IN OP(MV) 3998/95. P4:- COPY OF ORDER NO.B5 18406/03(K) I DT. 22.4.03. /True copy/ P.S. TO JUDGE Kss K.BALAKRISHNAN NAIR, J. - - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No.34207 of 2003 - - - - - - - - - - - - - - - - - - - - - - - - - Dated: 28th November, 2008 JUDGMENT The petitioner was the 2nd respondent in O.P.(M.V.)No.3998 of 1995 before the M.A.C.T., Ernakulam. The said claim petition was allowed by the M.A.C.T. by Ext.P1 award. It was held that the claimant is entitled to get Rs.5500/- with interest thereon at the rate of 9% per annum from 30.12.1995, the date of application, till the date of payment or realisation from respondents 1 and 2 who are respectively the owner and driver of the vehicle involved in the accident. The 2nd respondent therein is the writ petitioner herein. The insurance company was also directed to pay the amount and it was given liberty to recover the amount from respondents 1 and 2 in Ext.P1 award, i.e., from the owner and driver. The petitioner is aggrieved by the permission granted to the insurance company to recover it from him also. Hence this Writ Petition challenging Ext.P1 to the extent objected to by him. 2. The petitioner submits that Ext.P1 is vitiated in view of the provisions contained in Section 149(4) of the Motor Vehicles Act, 1988. In support of that submission, the petitioner relies on the decision of the Division Bench of this court in Oriental Insurance W.P.C.No.34207/03 - 2 - Co. Ltd. v. Narayanan (2001(2) KLT 714) wherein this court held as follows: “3. We are of the view the above dictum laid down by the Apex Court is squarely applicable to the facts of this case. Facts reveal that the driver had no licence at the time of the accident but admittedly the vehicle is insured. Under such circumstance, Insurance Company is bound to honour the statutory commitment of compensating the victim. They cannot take up the stand that since there is violation of conditions of policy they need not discharge the statutory liability. Therefore the tribunal is right in its findings. We are therefore of the view Insurance Company is bound to honour the statutory liability of honouring commitment to the third parties. After honouring commitment they can recover the amount from the insured. We find no infirmity in the order of the tribunal.”(emphasis supplied). 3. Heard learned counsel for the 5th respondent-Insurance Company and also the learned Government Pleader appearing for the W.P.C.No.34207/03 - 3 - official respondents. 4. Section 149(4) of the Motor Vehicles Act, 1988 reads as follows: “Where a certificate of insurance has been issued under sub-section (3) of section 147 to the person by whom a policy has been effected, so much of the policy as purports to restrict the insurance of the persons insured thereby by reference to any conditions other than those in clause (b) of sub-section (2) shall, as respects such liabilities as are required to be covered by a policy under clause (b) of sub-section (1) of section 147, be of no effect: Provided that any sum paid by the insurer in or towards the discharge of any liability of any person which is covered by the policy by virtue only of this sub-section shall be recoverable by the insurer from that person.” The insurance company is bound to discharge the liability of the insured only as the privity of contract is between them. Therefore, I find considerable force in the submission of the learned counsel for the petitioner. The submission is supported by the above quoted W.P.C.No.34207/03 - 4 - decision of the Division Bench also. In view of the above position, Ext.P1 to the extent it permits the insurance company, the 5th respondent herein to proceed against the petitioner also is set aside. In other words, the 5th respondent can proceed only against the owner of the vehicle who is the insured. The Writ Petition is disposed of as above. srd K.BALAKRISHNAN NAIR, JUDGE