IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 18TH JUNE 2008 / 28TH JYAISHTA 1930 MFA.No. 642 of 2002(C) -------------------------------- OPMV.1287/1995 of MOTOR ACCIDENT CLAIMS TRIBUNAL, PALA .................... APPELLANT: 3RD RESPONDENT IN M.V.O.P: -------------------- THE ORIENTAL INSURANCE CO. LTD., REPRESENTED BY THE ASSISTANT MANAGER,MOROT THIRD PARTY CLAIMS CELL, REGIONAL OFFICE, NORTH RAILWAY STATION ROAD, ERNAKULAM, COCHIN-682 018. BY ADV. SRI.M.JACOB MURICKAN RESPONDENTS: PETITIONER & RESPONDENTS 1 & 2 IN M.V.O.P: ------------------------- 1. V.A.AUGUSTINE, VAZHAKKAMALAYIL HOUSE, RAMAPURAM, PALA. 2. K.J.CHACKO, S/O.JOSEPH, KUNNATHU HOUSE, KANJIRAPPALLY. 3. JOSEPH, MEKKADASSERIL HOUSE, KANJIRAPPALLY. BY ADV. SRI.MATHEW JOHN (K) - R2 SRI.BABY THOMAS - R2 SRI.M.J.THOMAS - R1 THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 18/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.F.A. NO.642/2002 ORDER ON CMP. NO.5183/2002 IN MFA. NO.642/2002 DISMISSED 18.06.2008 SD/- M.N.KRISHNAN , JUDGE /TRUE COPY/ P.A. TO JUDGE tss M.N. KRISHNAN, J. = = = = = = = = = = = = = = = M.F.A.NO. 642 OF 2002 = = = = = = = = = = = = = = = Dated this the 18th day of June, 2008. J U D G M E N T This appeal is preferred against the award of the Motor Accidents Claims Tribunal, Pala in OP(MV)1287/95. It relates to the damages sustained by the vehicle in a road accident. The Tribunal after elaborately considering the materials available awarded a compensation of Rs.33,333/- as damages with 9% interest. The point that arises for determination is whether a tortfeasor is liable to get the benefit out of the compensation paid under a comprehensive policy to the owner of the vehicle concerned. The Delhi High Court has taken a view that in such cases a tortfeasor shall not be a beneficiary and therefore that it is liable to pay the entire amount. The matter has been considered by this Court in the decision reported in National Insurance Co. Ltd. v. Mohan (2008 (2) KLT 683). The learned judge of this Court held that insured is entitled to maintain an action against the tortfeasor MFA 642 of 2002 -2- even if he has received compensation from his insurer. But he cannot appropriate that amount he had received from the Company and he will hold that amount as trustee of insurer. The Court held that, “The insured is entitled to maintain an action against the tortfeasor even if he had received compensation from his insurer. But he cannot appropriate that amount which he had received from the company and he will hold that amount as trustee of the insurer and he is answerable and accountable to the insurance company to that extent. If the insurer after obtaining a letter of subrogation from the first respondent had filed an Original Petition or it had also joined in filing the original petition it would have been entitled to that amount. Even assuming that first respondent is entitled to receive the amount he can only receive the same in trust. But the insurer has not made any claim over the amount though it is made a party to this proceedings. So the first respondent cannot be allowed to make any double benefit. So he is not entitled to get any compensation in this proceedings.” MFA 642 of 2002 -3- 2. So the dictum laid down very clearly indicates that at the most one may be entitled to get the difference of the actual damages that is sustained but one will not be entitled to that amount also which had been paid by the insurer of one's own vehicle. It is on the salutary principle that for the same act one cannot get compensation twice. 3. So far as this case is concerned there is one difference to the effect that what is now claimed is only the balance amount other than what is paid by the other insurance company. The Tribunal has fixed the total compensation amount at Rs.33,333/- and it is submitted that the owner of the vehicle had received Rs.20,803/- from the insurer of his vehicle. When it is so the compensation which the owner is entitled to from the tortfeasor has to be limited to Rs.12,530 for the reason that the other insurance company has not made any claim applying the principles of subrogation. Therefore recording the factum of payment of Rs.20,803/- only the balance amount of Rs.12,530/- is liable to be paid by the insurance company of the tortfeasor. To this extent the award requires modification. MFA 642 of 2002 -4- 4. Therefore the MACA is partly allowed and the claimant is awarded a compensation of Rs.12,530/- with 9% interest on the said sum from the date of petition till realisation with the costs ordered by the Tribunal. In the appeal parties are directed to bear their respective costs. M.N. KRISHNAN, JUDGE. ul/- MFA 642 of 2002 -5- M.N. KRISHNAN, J. = = = = = = = = = = M.F.A. No. 642 OF 2002 = = = = = = = = = = = J U D G M E N T 18th June, 2008.