IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA MONDAY, THE 6TH FEBRUARY 2006 / 17TH MAGHA, 1927 MFA.No. 20 of 2003() -------------------- OPMV.238/1997 of MOTOR ACCIDENT CLAIMS TRIBUNAL, THALASSERY .................... APPELLANT: 3RD RESPONDENT: --------------------------------------------- NATIONAL INSURANCE COMPANY LIMITED KANNUR NOW REPRESENTED BY ITS DEPUTY MANAGER, REGIONAL OFFICE, AJAY VIHAR, M.G. ROAD, KOCHI-16. BY ADV. SRI.MATHEWS JACOB RESPONDENTS: PETITIONER: ----------------------------------------- SEBASTIAN K. JACOB, S/O. CHACKO, KARUKULATH HOUSE, CHARAL P.O., VIA. KILIYANTHARA, KANNUR DISTRICT. BY ADV. SRI.GRASHIOUS KURIAKOSE THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 6.2.2006, THE COURT ON 06/02/2006 DELIVERED THE FOLLOWING: K. HEMA, J. ------------------------------------- M.F.A.No.20 of 2003 ------------------------------------- Dated this the 6th February, 2006 JUDGMENT Appellant is the insurer who was the third respondent before the M.A.C.T. First respondent in this appeal is the claimant. An award was passed in favour of the respondent herein allowing him to realise a sum of Rs.24,033/- with interest with proportionate cost from the driver, owner and the insurer jointly and severally, payable by the third respondent-appellant. 2. According to the appellant insurer, the insurer is not liable to make the payment, since the claimant is already compensated by another Insurance Company by paying Rs.21,700/- for the same cause of action, consequent to the same accident. Hence it is contended that the claimant is not entitled to a double payment of compensation. 3. The facts briefly: A petition was filed under Section 166 of the Motor Vehicles Act by the respondent herein claiming compensation of Rs.50,000/- for the damage caused to his jeep No.KL-13/A-183. The jeep was damaged on account of the accident which occurred on 13.7.1995. As per the allegations, a bus which was insured with the appellant came in rash and negligent manner and dashed against the jeep consequent to which, the jeep was damaged. The bus driver was MFA.20/03 2 allegedly negligent and rash in his driving. The appellant being the insurer of the bus was impleaded as the third respondent. 4. The third respondent-appellant admitted the policy, but contended that the claim is not sustainable, since the claimant cannot get compensation from two Insurance Companies for the same accident. Evidence was let in on behalf of the third respondent to show that the respondent herein had already received Rs.21,700/- in full and final settlement of the claim for damage to his vehicle from Oriental Insurance Company by virtue of a comprehensive policy in respect of the damage. The Insurance Company adduced evidence both oral and documentary. RWs 1 and 2 were examined and Exhibits B1 and B2 were marked. On the side of the claimant no oral evidence was adduced, but Exhibits A1 to A8 were marked. 5. The fact that the respondent received Rs.21,700/- from the Oriental Insurance Company is not disputed. Exhibit B1 letter issued by the Branch Manager, Oriental Insurance Company also shows that on collision of the vehicle with a stage carriage No.KLN 705 on 13.7.1995 the “own damage claim” was settled for Rs.21,700/- on 6.12.1995. It is clear from the evidence of RWs 1 and 2 that the claimant has already received Rs.21,700/- from the Oriental Insurance Company for the damages caused to the jeep in the same accident referred to in the claim petition. The appellant would contend that the MFA.20/03 3 claimant is not entitled to get a double payment of compensation with respect to the same cause of action. 6. The argument is that since the claimant has already received payment from an insurance company towards compensation for the damage caused to his vehicle in the same accident, he is not entitled to get compensation from another insurance company for the damage caused in the same accident. In other words it was submitted that the payment of compensation made by the Oriental Insurance Company was in connection with the accident involved in this case which has caused damage to the vehicle and therefore for the same damage, no compensation can be ordered against the third respondent-appellant. 7. Referring to the decision reported in Jacob Joseph v. Devasy (2005(2) KLT 259), it was contended that in this case also it is established that the amount paid by the Oriental Insurance Company to the claimant was for the compensation for the damage caused to the same vehicle arising out of the same accident and therefore there is a co-relation between the compensation already paid and the accident and hence the appellant is not liable to make any payment to the claimant. 8. Learned counsel for the respondent vehemently contended that in the present case there is no evidence or pleading which would help the court to come to a finding regarding the liability of the Insurance Company to make the compensation. It was pointed out that neither the policy nor MFA.20/03 4 any document produced by the Insurance Company to show for what or on what account the amount of compensation was allegedly paid to the claimant. Even Exhibit B1 will not show that the amount was paid, though it is stated that the claim was settled for Rs.21,700/-, it is contended. The insurance policy in respect of the jeep is also not produced to find out what are the terms of the policy. It is not in evidence whether there was any subrogation or whether the terms of policy would allow the Oriental Insurance Company to subrogate the claim, if any, made by the claimant from others. Without knowing the details of the terms of policy, the court will not be in a position to come to a right decision in this case, it is submitted. 9. On facts of this case, I find that in the absence of evidence, especially with regard to the terms of policy, the terms of subrogation, pendency of the claim etc. in respect of the claims against other persons, it will not be proper to arrive at a conclusion that the appellant is not liable to make any compensation. The liability depends upon the terms of policy and the terms under which the claim was settled with the Oriental Insurance Company. The evidence of RW1 shows that the officers were not able to give details with respect to the relevant facts. 10. RW2, Assistant Administrator of the Oriental Insurance Company deposed in cross-examination that he did not know the full details regarding the own-damage-claim made in this case. He even did not know MFA.20/03 5 whether the claim petition is filed for getting compensation from respondents 1 to 3. To a definite question put in the cross-examination, he stated that he did not know whether the claimant can make an additional claim though he has obtained compensation on own-damage- claim. 11. From the evidence of Rws 1 and 2 it is not clear whether there is any co-relation between the claim made and paid to the claimant and the accident and whether the appellant is liable to pay compensation, as claimed in the claim petition . The evidence of RW1, the Divisoinal Manager of the third respondent also is of no help for the court to resolve this dispute. In the above circumstances, there is no ground to interfere in the award passed against the appellant. The appeal is dismissed. K.HEMA, JUDGE vgs.