IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN WEDNESDAY, THE 16TH JULY 2008 / 25TH ASHADHA 1930 MFA.No. 414 of 2003(D) --------------------------------- OPMV.2353/1998 of MOTOR ACCIDENT CLAIMS TRIBUNAL, THRISSUR .................... APPELLANT: THIRD 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 INIDA 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.(MV). -------------------------- 1. SATHYA LAKSHMI, AGED 32 YEARS, W/O. LATE ANOOP G.L., "PADMASREE", COLLEGE ROAD, PALAKKAD-678 001. 2. ROSHAN P. ANOOP (MINOR), AGED 11 YEARS, REP. BY GUARDIAN & MOTHER 1ST PETITIONER SATHYALAKSHMI, DO. DO. 3. ROSHNI ANOOP (MINOR), AGED 5 YEARS, DO. DO. 4. GOPINATHAN NAIR, 71 YEARS, "ARCHANAI", T.C.15/1004, VAZHUTHAKAUD, TRIVANDUM-695 014. 5. LEELA G. NAYAR, 58 YEARS, W/O.GOPINATHAN NAIR, DO. DO. 6. GURUSWAMI, 115, K. CHETTIPALAYAM, K.M.P. COLONY, DHARAPURAM, TIRUPUR, TAMILNADU. M.F.A. NO.414/2003 7. KRISHNAN, S/O. KESAVAN, THACHAMKULAM HOUSE, THATHAMANGALAM, CHITTOOR, PALAKKAD DISTRICT. 8. THE ORIENTAL INSURANCE CO.LTD., PALAKKAD. ADV. SRI.S.K.BRAHMANANDAN FOR R6 SRI.S.B.PREMACHANDRA PRABHU FOR R6 SRI.P.V.CHANDRA MOHAN FOR R1 TO R5 SRI.MATHEWS JACOB (SR.) FOR R8 THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 16/07/2008, ALONG WITH MFA NO. 418 OF 2003 MFA NO. 419 OF 2003 MFA NO. 385 OF 2003 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.F.A. NO.414/2003 ORDER ON CMP. NO.2054/2003 IN MFA. NO.414/2004 DISMISSED 16.07.2008 SD/- J.B.KOSHY, JUDGE SD/- P.N.RAVINDRAN, JUDGE /TRUE COPY/ P.A. TO JUDGE tss J.B.KOSHY & P.N.RAVINDRAN,J J. ====================================== M.F.A.No.414/2003, 418/2003, 419/2003 and 385 of 2003 ====================================== Dated this the 16th day of July 2008 JUDGMENT Koshy, J. Appeal Nos.414/2003, 418/2003 and 419/2003 filed by the Insurance Company and Appeal No.385/2003 filed by a claimant in O.P.(MV)No.2310/1998 are against a common award passed by the Tribunal. In a head-on- collision between a lorry and a car, three passengers of the car died and one got injured. The injured passenger as well as the dependent of the deceased victims approached the Tribunal for compensation. It was found by the Tribunal that the driver of the lorry was negligent. Since 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. The Tribunal also found that he was under MFA 414/2003 & conn.cases 2 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 condition, it is specifically stated that the Insurance Company will not be liable, if the driver is driving the vehicle under the influence of intoxicated 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. 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. We, therefore, allow the appeal of the Insurance Company to the extent that they are entitled to recover the amount from the driver and the MFA 414/2003 & conn.cases 3 insured in execution of the award itself after making the deposit as indicated above. Considering the amounts awarded, we are of the opinion that the amount awarded is just and reasonable. MFA 385/2003 was filed by the insured person. She was aged 57 at that time. Even accepting the medical certificate produced by her, there is only 12% disability. The total amount awarded by the Tribunal was Rs.1,44,900/- with 9% interest from the date of application till date of deposit. Even though the application was filed in 1998, the award was passed only in 2002. Considering the total amount granted, nature of disability and the age of a claimant, it cannot be stated that the award of the Tribunal is not just and reasonable. Therefore, MFA 385/2003 is dismissed. The appeal filed by the Insurance Company is partly allowed to the extent, as indicated earlier. J.B.KOSHY, JUDGE P.N.RAVINDRAN, JUDGE css/ MFA 414/2003 & conn.cases 4 J.B.KOSHY & P.N.RAVINDRAN, J. MFA Nos.414/2003, 418/2003, 419/2003 & 385/2003 JUDGMENT 16.07.2008