IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 23RD NOVEMBER 2009 / 2ND AGRAHAYANA 1931 MACA.No. 1567 of 2004() ----------------------------------- OP.MV.1955/1997 of MOTOR ACCIDENT CLAIMS TRIBUNAL, KOTTAYAM .................... APPELLANT/PETITIONER: ----------------------------------- VINOD, S/O.SUKUMARAN, PATHACHUZHIYIL HOUSE, (CHELIKUZHY LAKSHAM VEEDU COLONY), MUNDAKAYAM KARA, MUNDAKAYAM VILLAGE. BY ADV. MR.LIJI.J.VADAKEDOM RESPONDENTS/RESPONDENTS: ---------------------------------------------- 1. SUNILKUMAR, S/O.SREEDHARAN NAIR, NIEAPPEL HOUSE, MUNDAKAYAM KARA, MUNDAKYAM VILLAGE. 2. GOPALAKRISHNAN, PONKUNNEL, PATTITHANAM, KOTTAYAM. 3. THE NEW INDIA ASSURANCE CO.LTD., MOOVATTUPPUZHA. R3 BY ADV. MR.PMM.NAJEEB KHAN THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 23/11/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs. M.N. KRISHNAN, J. ........................................... M.A.C.A.No.1567 OF 2004 ............................................. Dated this the 23rd day of November, 2009 J U D G M E N T This is an appeal preferred against the award of the Claims Tribunal, Kottayam in OP(MV)No.1955/1997. The claimant sustained injuries in a road accident and the Tribunal has awarded him a compensation of Rs.8,000/=, exonerated the insurance company from the liability and directed respondents 1 and 2 to pay the amount. It is against that decision, the claimant has come up in appeal for enhancement as well as challenging total exoneration of the insurance company from the liability. 2. Heard the learned counsel for the appellant as well as the insurance company. A perusal of the award would clearly establish that the claimant did not suffer any serious injuries and he had only some swelling on the leg with multiple abrasions and he was treated in a hospital as an inpatient for 5 days. Taking into consideration totality of the circumstances, the Tribunal has awarded him a sum of Rs.8,000/= which appears to be a reasonable compensation : 2 : M.A.C.A.No.1567 OF 2004 and therefore, it does not call for any interference. 3. The next question is regarding the liability. The learned Tribunal on the basis of a decision of this Court in Oriental Insurance Co. Ltd. v. Narayanan (2003 (1) KLT 1) exonerated the insurance company from the liability. But the position has changed subsequently by virtue of the decisions reported in National Insurance Co. Ltd. V. Swaran Singh [(2004 (1) KLT 781 (SC)]. In that decision, the Hon'ble Supreme Court had underlined the importance of coverage for a third party and held that when it is proved to be a fundamental breach of the policy conditions though the insurance company would be liable to pay the amount to the third party, it would be entitled to get recovery of the amount from the owner. The said position was considered in para-76 of the said judgment. Sub-s(5) of S.149 which imposes a liability on the insurer must also be given its full effect. The insurance company may not be liable to satisfy the decree and, therefore, its liability may be zero but it does mean that it did not have initial liability at all. Thus, if the insurance company is made liable to pay any amount, it can recover the entire amount paid to the third party on behalf of assured. If this interpretation is not given to the beneficent : 3 : M.A.C.A.No.1567 OF 2004 provisions of the Act having regard to its purport and object, we fail to see a situation where beneficent provisions can be given effect to Sub-s(7) of S.149 of the Act, to which pointed attention of the court has been drawn by learned counsel for the petitioner, which is in negative language may now be noticed. The said provision must be read with sub-s.(10 thereof. The right to a void liability in terms of sub-s.(2) of S.149 is restricted as has been discussed herein before. It is one thing to say that the insurance companies are entitled to raise a defence but it is another thing to say that despite the fact that its defence has been accepted having regard to the facts and circumstances of the case, the Tribunal has power to direct them to satisfy the decree at the first instance and then direct recovery of the same from the owner. These two matters stand apart and require contextual reading”. 4. In the light of this decision, it has to be held that the Tribunal should have ordered the insurance company to pay it and recover it from the owner. Therefore, the MACA is disposed of as follows: 5. The award amount is sustained and the insurance company is directed to deposit the amount and then recover it from the owner of the vehicle by executing the award. The insurance company is directed to deposit the amount within a period of 60 days from the date of receipt of a copy : 4 : M.A.C.A.No.1567 OF 2004 of this judgment. Being an old matter, the claimant be permitted to withdraw the amount. Disposed of accordingly. M.N. KRISHNAN, JUDGE cl : 5 : M.A.C.A.No.1567 OF 2004