FAO No.5008 of 2008 (O&M) [ 1 ] IN THE HIGH COURT FOR THE STATES OF PUNJAB & HARYANA AT CHANDIGARH ... FAO No.5008 of 2008 (O&M) Decided on : August 25, 2009 Oriental Insurance Company ... Appellant VERSUS Suresh Kumar and others ... Respondents CORAM : HON'BLE MR.JUSTICE A.N.JINDAL Present: Mr.Vinod Chaudhri, Advocate for the Appellant. Mr.Vabhav Prashar, Advocate for Mr.Arun Luthra, Advocate for respondent No.1. A.N.JINDAL, J.- This appeal filed by the Oriental Insurance Company (herein referred as `the appellant') is directed against the order dated 8.8.2008 passed by Motor Accident Claims Tribunal, Sonipat, awarding compensation of Rs.2,45,400/- for the damage to the truck bearing Reg.No.HR-69-0660, inspite of the fact that the claim had already been paid as full and final settlement by the Insurer/ respondent No.4 – New India Assurance Company (herein referred as respondent No.4). In nutshell, the case of the appellant is that on 4.11.2002 a truck bearing Reg.No.HR-69-0660 carrying a consignment of coal from the State of Assam was coming to Palwal, when it met with an accident with a FAO No.5008 of 2008 (O&M) [ 2 ] tractor-trailer bearing Reg.No.UP-86A-4017 and was damaged. The owner/claimant – respondent No.3 (herein referred as `the owner') filed a claim petition for compensation to the tune of Rs.six lacs, stating that the truck was purchased on 3.1.2002 and was insured with respondent No.4 i.e. Insurer. However, the insurer had paid him a sum of Rs.3,68,100/-, as against the loss suffered by it to the tune of Rs. twelve lacs, which is now payable by the Insurer of the offending tractor-trailer i.e, the appellant. The appellant contested the claim stating that respondent No.4 had satisfied the claim and paid compensation of Rs.3,68,100/- to the owner on account of full and final settlement of the claim, set up by him while denying the loss. It was also submitted that in view of the satisfaction of the claim by respondent No.4, the application under Section 166 of the Motor Vehicles Act (for short `the Act') was not maintainable. On the pleadings of the parties, the Tribunal framed the following issues:- “1. Whether the truck of the claimant bearing registration No.HR-69-0660 was damaged due to the rash and negligent driving of tractor No.UP-86A-4017 by respondent No.1? OPP 2. If issue No.1 is proved in the affirmative, what compensation the claimant is entitled to and from whom?OPP 3. Whether respondent No.1 was not holding a valid driving licence at the time of accident? If so, its effect? OPR-3 4. Relief.” There is no dispute with regard to the facts that the accident FAO No.5008 of 2008 (O&M) [ 3 ] took place and the truck bearing Reg.No.HR-69-0660 was damaged on account of the rash and negligent driving of tractor No.UP86-A-4017 and the said tractor was insured with the appellant Insurance Company. The finding of the trial court returned on issue No.1 has not been challenged. Similarly, since there is no dispute that respondent No.1 – Krishan was holding a valid driving licence, therefore, this finding was also affirmed. The only question, which remains to be answered is, whether the owner was entitled to sue the appellant Company even after his claim stood satisfied by the insurer of his vehicle i.e, respondent No.4. There is no denying a fact that it was a 2002 model truck, purchased for a sum of Rs.8.55 lacs and a sum of Rs.1.20 lacs was spent on its body. It is also not in dispute that surveyor of respondent No.4 had assessed the loss of the truck, to the tune of Rs.6,13,500/-. However, the claim was settled for a sum of Rs.3,68,100/-. Though, the accident took place on 4.11.2002, but the owner did not file any petition for compensation for three years, obviously, for the reason that his claim has been settled finally by respondent No.4, by making payment of adequate compensation. As such, now the filing of this application for compensation for the remaining amount, would mean duplicacy of the claim. A similar proposition arose before the Karnataka High Court in case D.I.Narayana Swamy and another vs. National Insurance Company Limited and another, 2006 ACJ 2566, wherein, it was held as under:- “2. The petitioner No.1 is entitled to maintain a claim for FAO No.5008 of 2008 (O&M) [ 4 ] compensation for the damage caused to his vehicle under section 166 of the Motor Vehicles Act (for short `the Act'). But the petitioner No.1 has already been reimbursed by his insurer. Hence, the Tribunal rightly came to the conclusion that the claim against the owner and insurer of the offending vehicle on the same cause amounts to duplicated claim and accordingly, dismissed the petition. 3. The grievance of the appellant No.2 herein is that it has right of subrogation and, therefore, entitled to recover from the owner and the insurer of the offending vehicle and, therefore, the dismissal is bad, is an untenable contention. Appellant No.2 may have right of subrogation, but the forum is different. The claim to enforce subrogation rights is outside the jurisdiction of Tribunal under Section 166 of the Act. Hence, appellant No.2 has to work out his remedy before the competent forum and not before the Tribunal. Accordingly, appeal dismissed. The amount in deposit to be refunded.” In the instant case, a similar proposition has arisen before me regarding the maintainability of claim under Section 166 of the Act. Once, the appellant has taken recourse to one remedy, then he cannot adopt the second remedy, saying that he has not been adequately compensated by his own insurer and the Tribunal did not take into consideration the aforesaid aspect of the matter. Therefore, the findings returned by the Tribunal on issue No.3 stand reversed. FAO No.5008 of 2008 (O&M) [ 5 ] Resultantly, the appeal is allowed, impugned award dated 8.8.2008 is set aside and the claim petition is dismissed. August 25, 2009 ( A.N.JINDAL ) `gian' JUDGE