IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 18TH DECEMBER 2008 / 27TH AGRAHAYANA 1930 MACA.No. 637 of 2003(P) ----------------------- OPMV.612/1998 of MOTOR ACCIDENT CLAIMS TRIBUNAL, TRIVANDRUM .................... APPELLANT(S): APPELLANTS ------------------------ 1. M. BHAMINI, W/O. P. SIVARAJAN, E-1, POLICE QUARTERS, CONTONMENT LANE, VIKAS BHAVAN P.O., PALAYAM, THIRUVANANTHAURAM, NOW REPRESENTED BY HER POWER OF ATTORNEY HOLDER 2ND APPELLANT. 2. THE ORIENTAL INSURANCE COMPANY LIMITED, THIRUVANANTHAPURAM NOW REPRESENTED BY ITS ASSISTANT MANAGER, REGIONAL OFFICE, METRO PALACE, KOCHI-18. BY ADV. SRI.MATHEWS JACOB (SR.) RESPONDENT(S): 1ST RESPONDENT: --------------------------------------------------------- THE KERALA STATE ROAD TRANSPORT CORPORATION REPRESENTED BY ITS MANAGING DIRECTOR, TRANSPORT BHAVAN, EAST FORT, THIRUVANANTHAPURAM. ADV. SHRI.JOHNSON P.JOHN, SC, KSRTC THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 18/12/2008 ALONG WITH MACA NO. 683 OF 2003 AND MACA NO.693 OF 2003, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss M.N.KRISHNAN, J ===================== MACA Nos.637,683 & 693 OF 2003 ===================== Dated this the 18th day of December 2008 JUDGMENT These appeals are preferred against the award of the Motor Accidents Claims Tribunal, Thiruvananthapuram in O.P.(MV)Nos.612/1998, 1721/2000 & 1249 of 1997. All these cases were filed by the insurance company claiming damages on behalf of the first claimant therein as the power of attorney holder as well as in their own capacity by virtue of the letter of sabrogation. The KSRTC challenged the very maintainability of the petitions on the ground that the insurance company is not a third party to the proceedings and therefore it cannot claim damages. In all these cases, the Tribunal took the view that in the light of the decision of a Division Bench of this Court reported in KSRTC v. United India Insurance Co.Ltd. (2000(2) KLT 456, the petitions are not maintainable. In all these cases, viz., in O.P.(MV)No.612/1998, the damage was fixed at Rs.41,793/-, in O.P. (MV)No.1721/2000, it was fixed at Rs.36,255/- and in O.P.(MV)No.1249 of 1997, it was fixed at Rs.17,740/-. But, in the light of the acceptance of the contention that the petitions are not maintainable, all these petitions were MACA 637/2003 & con.cases -:2:- dismissed. It is against that decision the insurance company has come up in appeal. 2. The basis on which the trial court had dismissed the applications is on the basis of the decision referred to above. In the said decision, the Division Bench held that “the insurer has to indemnify the insured and pay the compensation to third parties and the insured in terms of the policy. There is no direct 'damage to the property' so far as the insurer is concerned. By no stretch of imagination the insurer of a vehicle can be treated as a third party contemplated under the Motor Vehicles Act. The Claims Tribunal have jurisdiction to decide on claims by a third party, but had no jurisdiction to decide a claim by an insurance company for damages, on the basis of a letter of subrogation for the amount paid to the insured, from the owner of an offending vehicle. On that ground also such a claim is not maintainable before a Tribunal”. So, the Tribunal found that since there is lack of jurisdiction, it cannot entertain a claim petition and it was dismissed. In these cases what are due to the claimants, viz, the third parties had been satisfied by the insurance company and in junction with the said party and also under the letter of subrogation the claim petitions are filed. Therefore the decision of the Division Bench will not squarely apply to the facts of the case for the reason that in the case before the Division Bench MACA 637/2003 & con.cases -:3:- there was no junction of the said persons but in the cases on hand there is junction of the claimant as well by virtue of irrevocable power of attorney. 3. It has also to be remembered that the word 'subrogation' means substitution. A substitution is always permissible under Section 41 of the Contract Act and the person who gets substituted only gets into the shoes of the person who gives the subrogation and therefore when there is a letter of subrogation directly there is a substitution for the claimant himself. But, I am not probing more into that. The legal position will be that where a letter of subrogation may provide a valid locus standi for a suit by the insurer against a carrier for reimbursement of the damages paid by the insurer to its insured party where the suit has been brought in the name both of the insurer and the insured, a claim by the insurer before the Motor Accidents Claims Tribunal can be entertained only on basis of the letter of subrogation coupled with an agreement of transfer of rights of the insured to the insurer. On the basis of such documents, the insurer can maintain its claim against a third party tortfeasor virtually as agent of the insured. The nature of such claim is expressly covered by section 166 (1)(d) of the Motor Vehicles Act, 1988. 4. Here, we have got irrevocable power of attorney supported by valid subrogation letters and therefore there is real junction of the person MACA 637/2003 & con.cases -:4:- who is affected and it is that person who authorises the insurance company to realise the amount and therefore his relationship can be termed as that of an agent and principal and further letter of subrogation also makes the insurance company entitled to the amount. Therefore the finding of the Tribunal in all these cases that the petitions are not maintainable is liable to be set aside and I do so and hold that all these petitions are maintainable. 5. So far as damages are concerned, as the Tribunal has fixed the damages and I am passing awards in all cases. In MACA 637/2003, the award is passed in favour of the 2nd petitioner, i.e. the insurance company for realisation of a sum of Rs.41,793/- as damages with 6% interest on the said sum from the date of petition till realisation from respondents 1 and 2 jointly and severally. In MACA No.683/2003 the award is passed in O.P. (MV0no.1721/2000 awarding damages of Rs.36,255/- with 6% interest on the said sum from the date of petition till realisation in favour of the 2nd petitioner. Respondents therein are jointly and severally made liable to pay the amount. In MACA No.693 of 2003 an award is passed in O.P.(MV) No.1249 of 1997 in favour of the 2nd petitioner to realise damages of Rs.17,740/- with 6% interest on the said sum from the date of petition till realisation and respondents are made jointly and severally made liable to pay the amount. In all these cases, the parties are directed to bear their MACA 637/2003 & con.cases -:5:- respective costs. MACAs are disposed of as above. M.N.KRISHNAN, JUDGE Cdp/-