IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN TUESDAY, THE 14TH OCTOBER 2008 / 22ND ASWINA 1930 MFA.No. 415 of 2003(D) --------------------------------- O.P(MV).NO.2297/1998 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, THRISSUR. .................... APPELLANT/ 3RD RESPONDENT IN THE O.P(M.V): ------------------------------------------------------------------------ THE UNITED INDIA INSURANCE CO.LTD., TIRUPPUR BRANCH, REPRESENTED BY THE ADMINISTRATIVE OFFICER, THIRD PARTY CLAIMS CELL, UNITED INDIA INSURANCE CO.LTD., VETTUKATTIL BUILDINGS, M.G.ROAD, ERNAKULAM. BY ADV. SRI.M.A.GEORGE. RESPONDENTS/ PETITIONERS & RESPONDENTS 1, 2 & 4 IN THE O.P(M.V): ----------------------------------------------------------------------------------------------------------- 1. ANILKUMAR, AGED 41 YEARS, S/O.LATE V.P.P.NAIR, "PADMASREE", COLLEGE ROAD, PALAKKAD. 2. ANOOP KUMAR, AGED 39 YEARS, S/O.LATE V.P.P.NAIR, DO. DO. 3. SATHYA LAKSHMI, AGED 32 YEARS, W/O.LATE ANOOP.G.L., DO. 4. GURUSWAMI, 115, K.CHETTIPALAYAM, K.M.P.COLONY, DHARAPURAM, TIRUPUR, TAMILNADU. 5. KRISHNAN, S/O.KESAVAN, THACHAMKULAM HOUSE, THATHAMANGALAM, CHITTOOR, PALAKKAD DISTRICT. 6. THE ORIENTAL INSURANCE CO.LTD., PALAKKAD. R4. BY ADV. SRI.S.K.BRAHMANANDAN, ADV. SRI.G.SREENIVASA PRABHU, ADV. SRI.S.B.PREMACHANDRA PRABHU. THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 14/10/2008,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.F.A. NO. 415/2003-D: ORDER ON C.M.P. NO. 2055/2003 IN M.F.A. NO. 415/2003-D DISMISSED SD/- J.B.KOSHY, JUDGE, 14/10/2008. SD/- K.P.BALACHANDRAN, JUDGE. //TRUE COPY// P.A. TO JUDGE. prv. J.B.KOSHY & K.P.BALACHANDRAN, JJ. ------------------------------- M.F.A.NO.415 OF 2003 (D) ----------------------------------- Dated this the 14th day of October, 2008 J U D G M E N T KOSHY,J. This appeal is filed against the award of the Motor Accidents Claims Tribunal, Thrissur in O.P.(MV). No.2297/1998. Notice to claimants (respondents 1 to 3 in this appeal) were not served. But Insurance company is not seeking any relief against the claimants but they only want the right of recovery from the insured. This appeal is filed against a common award in four cases. Appeals from the four awards are already disposed of by a Division Bench of this Court by judgment dated 16th July 2008. It was found by the Tribunal that the driver of the lorry was negligent. The driver was in an intoxicated stage. The doctor has taken urine and blood. Chemical examination report Ext.P2 shows that there was 63 mg. of alcohol out of 100 ml. of blood which is above the permissible limit under Section 185 of the Motor Vehicles Act. M.F.A.415/03 2 The Tribunal also found that he was under intoxication. But, however, the entire liability was cast on the Insurance Company. The contention of the Insurance company is that it is not liable to pay compensation because the driver was intoxicated. Under Clause 2(c) of the policy conditions, it is specifically stated that the Insurance Company will not be liable, if the driver is driving the vehicle under the influence of liquor. Injured were the third parties. As far as the compulsory insurance is concerned, the liability to third party is a statutory liability. It is true that under Section 149(2) also, the Insurance company cannot escape liability, as it is not one of the conditions mentioned therein exonerating the Insurance company. But at the same time, policy condition is valid between insurer and the insured. There is violation of policy conditions. The Insurance company should deposit the amount so as to satisfy the third party statutory liability, but at the same time the Insurance company is entitled to recover the amount from the insured as well as the driver in execution of the award. The Division Bench of this Court by judgment dated 16th July 2008 have allowed the connected appeals (M.F.A.No.414/2003 and connected cases) to the extent that M.F.A.415/03 3 the Insurance company is entitled to recover the amount from the driver and the insured in execution of the award after depositing the amount. We make the same directions in this case also. With regard to the quantum of compensation and injuries, award is modified accordingly. We are of the opinion that only just and reasonable compensation was awarded. Therefore, we are not disturbing the quantum of compensation. Appeal is accordingly allowed. J.B.KOSHY, JUDGE K.P.BALACHANDRAN, JUDGE prp J.B.KOSHY & K.P.BALACHANDRAN, JJ. -------------------------------------------------------- M.F.A.NO.415 OF 2003 (D) --------------------------------------------------------- J U D G M E N T --------------------------------------------------------- 14th October, 2008