IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 17TH FEBRUARY 2010 / 28TH MAGHA 1931 MACA.No. 334 of 2009() --------------------------------- OPMV.1554/2004 of MOTOR ACCIDENT CLAIMS TRIBUNAL, KOLLAM .................... APPELLANT(S): 3RD RESPONDENT ---------------------- THE ORIENTAL INSURANCE CO.LTD, KOLLAM, REPRESENTED BY ITS ASSISTANT MANAGER, REGIONAL OFFICE, ERNAKULAM NORTH, KOCHI-18. BY ADV. MR.GEORGE CHERIAN (THIRUVALLA) RESPONDENT(S): RESPONDENTS 1 AND 2 ---------------------------- 1. KIRAN GOPALAKRISHNAN, S/O.GOPALAKRISHNAN NEDUNGOLAM, PARAVUR. 2. SURESH, S/O.MADHAVAN,SIVASAKTHI BHAVAN, NEDUNGOLAM, PARAVUR. 3. PRADEEP, PREETHA NIVAS, KOONAYIL, PARAVUR. R1 BY ADVS. MR.PRATHEESH.P R2 BY MR.R.S.KALKURA, MR.HARISH GOPINATH. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 17/02/2010, ALONG WITH MACA NO. 337 OF 2009 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON IA. NO.396/2009 IN MACA. NO.334/2009 DISMISSED 17/02/2010 SD/- M.N.KRISHNAN, JUDGE TRUE COPY P.A. TO JUDGE tss M.N. KRISHNAN, J. = = = = = = = = = = = = = = M.A.C.A. NOs. 334 & 337 OF 2009 = = = = = = = = = = = = = = = Dated this the 17th day of February, 2010. J U D G M E N T These appeals are preferred against the common award passed in O.P.(MV)Nos.1554/04 and 1557/04. The contention in these appeals is regarding the finding of the Tribunal that the insurance company has to pay third party and recover it from the owner as there is breach of policy conditions. According to the learned counsel it is submitted that if there is breach of policy conditions the insurance company does not have any liability and therefore the insurance company has to be totally exonerated from the liability. In Swaran Singh's case, National Insurance Co. Ltd. v. Swaran Singh (2004 (1) KLT 781)(SC) the matter has been considered in paragraph 76 of the award which is extracted as follows. “Sub-section 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, M.A.C.A. NOs. 334 & 337 OF 2009 -:2:- 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 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.(1) thereof. The right to avoid liability in terms of sub-s(2) of S.149 is restricted as has been discussed hereinbefore. 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 M.A.C.A. NOs. 334 & 337 OF 2009 -:3:- 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 the paragraph quoted above would reveal that the purport and object of the legislation has to be looked into and a poor third party victim who has nothing to do with the insurance companies of the vehicle or of the owner shall not be put into hardship and that is why the beneficent legislation is intended to be interpreted in a way that a poor third party is not put into hardship. This is what has been precisely done by the Tribunal and therefore the award does not require any interference and therefore these appeals are dismissed. M.N. KRISHNAN, JUDGE. ul/-