IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 5TH NOVEMBER 2009 / 14TH KARTHIKA 1931 MACA.No. 2987 of 2008() ----------------------- OPMV.696/2003 of MOTOR ACCIDENT CLAIMS TRIBUNAL, PARAVUR .................... APPELLANT(S): 3RD RESPONDENT IN OP(MV)NO.696/03 ----------------------------------------------- NATIONAL INSURANCE COMPANY LIMITED, MYDHILY MANDIRAM, JANATHA JN., PALARIVATTOM, PIN-682 025, REPRESENTED BY ITS MANAGER, KOCHI REGIONAL OFFICE, OMANA BUILDINGS, JEWS STREET, PADMA JUNCTION, KOCHI-682 035. BY ADV. SRI.LAL GEORGE RESPONDENT(S): CLAIMANT AND RESPONDENTS 1,2 & 3 ----------------------------------------------- 1. PHILOMINA FRANCIS, AGED 56 YEARS, W/O.FRANCIS, UZHUNNUMKATTIL, KUTTIKATTUKARA, ELOOR VILLAGE. 2. P.P.SALU S/O.P.V.POULOSE, KELACHATTUPARAYIL HOUSE, MAIKKAD P.O., ANGAMALY, PIN-683 589. 3. A.V.ELDHO, S/O.VARKEY, ALUKA VEEDU, NEAR CHERIYA VAPPALASSERY CHURCH, MAIKKAD P.O., ANGAMALY, PIN-683 589. ADV. MR.V.K.GOPALAKRISHNA PILLAI FOR R1 SRI.GOPAKUMAR G. (ALUVA) FOR R1 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 05/11/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.N. KRISHNAN, J -------------------------. MACA No.2987 OF 2008 -------------------------------- Dated this the 5th day of November, 2009. J U D G M E N T This is an appeal preferred against award of the Claims Tribunal, North Paravur in O.P.(MV).No.696/2003. The claimant sustained injury in an accident and he has been awarded a compensation of Rs. 54,200/-. The Insurance Company was ordered to pay the amount and then directed to to realise the amount with interest from the owner by executing the award. It is against that decision the Insurance company has come up in appeal claiming total exoneration of the liability. The question has been considered in a three bench decision of the Supreme Court, in the decision reported in National Insurance Company Vs. Swaran Singh 2004(1) KLT 781. The necessity with respect to payment of the amount to claimant under a social welfare legislation had been considered in paragraph 76 of the said judgment. Paragraph 76 reads as follows: 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 MACA No.2987 OF 2008 2 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 provisions of the Act having regard to its purport and object, we fail to see a situation where beneficent provisions can given effect to. Sub-s(7) of S.149 of the Act, to which pointed attention of the court has bee 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(1) thereof. The right to avoid 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 regarded 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. So in the light of the said decision the purport is to pay the amount to the claimant and when there is a fundamental breach of policy condition to recover it from the owner. The learned counsel had relied upon two later decisions of the apex court and in those decisions the principle regarding the renewal of the licence had been considered with respect to Swaran Singh's case but paragraph 76 had not been dealt with in that case. Therefore in the light of the larger bench decision of the Supreme Court MACA No.2987 OF 2008 3 when there is fundamental breach of the policy condition, there must be a liability to pay and recover. I do not find any mistake committed by the court below and therefore appeal is dismissed. M.N. KRISHNAN JUDGE. ss