Kerala High Court
Thomas Philip (Died) vs Saji Mathew on 26 March, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.S.DIAS
FRIDAY, THE 26TH DAY OF MARCH 2021 / 5TH CHAITHRA, 1943
MACA.No.2221 OF 2008
AGAINST THE AWARD IN OP(MV)NO. 1612/1999 DATED 29-01-2008 OF
MOTOR ACCIDENT CLAIMS TRIBUNAL ,PATHANAMTHITTA
APPELLANT/PETITIONER:
1 THOMAS PHILIP (DIED)
VARAYANNOOR P.O., PULLAD, THIRUVALLA,, PATHANMTHITTA.
*2 PEELIPOSE THOMAS
S/O THOMAS PHILIP
KIZHAKEL,PULLAD,THIRUVALLA 989548
*3 JOSEPH PHILIP
S/O THOMAS PHILIP
KIZHAKEL ,RSPO,THIRUVALLA 689111
(*ARE IMPLEADED AS ADDL.APPELLANTS BEING LRs OF THE
DECEASED APPELLANT AS PER ORDER DATED 2.11.2012 IN
IA NO.3042/2015)
BY ADV. SRI.JACOB P.ALEX
RESPONDENT/RESPONDENTS:
1 SAJI MATHEW S/O.MATHEW,
POOCHERIL HOUSE, ALUMTHURUTHY,,
VENGAL, THIRUVALLA, PATHANAMTHITTA.
2 V.P. JOHN S/O. PAULOSE
THAZHACHAYIL
ALUMTHURUTHY, VENGAL THIRUVALLA,
PATHANAMTHITTA.
3 THE DIVISIONAL MANAGER ORIENTAL
INSURANCE COMPANY LTD., THIRUVALLA,, PATHANAMTHITTA.
BY ADV. SRI.GEORGE CHERIAN THIRUVALLA
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON
05-03-2021, THE COURT ON 26-03-2021 DELIVERED THE FOLLOWING:
MACA.No.2221 OF 2008
2
JUDGMENT
Dated this the 26th day of March 2021
The original appellant was the petitioner in
OP(MV)No.1612 of 1999 on the file of the Motor
Accidents Claims Tribunal, Pathanamthitta. Pending the
appeal, the original appellant died and his legal
representatives have been impleaded as additional
appellants 2 and 3. The respondents in the appeal were
the respondents before the Tribunal. For the sake of
convenience, the parties are referred to as per their
status in the claim petition.
2. The petitioner filed the claim petition, inter alia,
pleading that on : 21.08.1998 while he was driving his
Car bearing registration No.KL 3/6001 along the
Chengannur-Thiruvalla MC Road, when he reached
Thukalasserry, a Jeep bearing registration No.KL 5/C
8587 (offending vehicle) driven by the 2 nd respondent in
a rash and negligent manner hit the Car of the
petitioner. The offending vehicle was owned by the 1 st
MACA.No.2221 OF 2008
respondent and insured with the 3 rd respondent. The
front portion of the Car was completely damaged and
the passengers in the Car including the petitioner
sustained grievous injuries. The passengers in the Car
had filed OP(MV)Nos.1638 of 1999 and 1912 of 1999
seeking compensation for the injuries sustained by
them.
3. The respondents 1 and 2 filed a joint written
statement contending that the accident occurred solely
due to the negligence on the part of the petitioner. The
compensation claimed was excessive and exorbitant.
4. The 3rd respondent filed a written statement,
inter alia, contending that the petitioner had not
approached the Tribunal with clean hands. Petitioner
had suppressed the material facts. The petitioner
deliberately not revealed that he had obtained an
amount of Rs.33,000/- as damages from the New India
Assurance Company Ltd., in full and final satisfaction of
the claim. Thus, the petitioner has no cause of action to
file a fresh petition seeking compensation from the 3 rd
MACA.No.2221 OF 2008
respondent, which would tantamount to unlawful
enrichment and multiple claims for the same cause of
action. Therefore, the claim petition be dismissed.
5. The three claim petitions were consolidated
and jointly tried.
6. The petitioner marked Exts.A1 to A13 in
evidence and the 3rd respondent produced Exts.B1 to B3
in evidence.
7. The Tribunal, after analysing the pleadings and
materials on record, by the impugned award dismissed
the claim petition holding that the petitioner was not
entitled to get damages from the 3rd respondent.
8. Being aggrieved by the impugned award, the
petitioner filed the appeal.
9. The question that emanates for consideration
in this appeal is whether the impugned award passed by
the Tribunal is justifiable or not?
10. It is pertinent to note that the petitioner had
insured his Car by a comprehensive policy with New
India Assurance Company Ltd., Changanassery Branch.
MACA.No.2221 OF 2008
After the Car got damaged, admittedly, the petitioner
approached the said Insurance Company and lodged a
claim. No where in the claim petition as the petitioner
pleaded about this aspect. It is the 3 rd respondent who
brought to the notice of the Tribunal, by producing
Exts.B1 to to B3, that the petitioner received an amount
of Rs.33,000/- as compensation towards the damages of
the Car that too on 23.11.1999, towards full and final
satisfaction of his claim and without any protest.
11. It is also to be noted that the petitioner had
only produced Ext.A8 series photostatcopies of the cash
bills to substantiate the alleged damages incurred by
him. He had not mounted the box and let in any oral
evidence to prove the assertions in the claim petition.
12. This Court, by its order dated 06.03.2020,
directed the learned counsel appearing for the
appellants to produce the copy of the survey report in
order to assess the quantum of damages allegedly
caused to the vehicle. However, the said report is also
not forthcoming.
MACA.No.2221 OF 2008
13. A Division Bench of this Court in Oommen
K.O. v Bajaj Alianz General Insurance Co. Ltd.
[2019(1) KHC 598] that the doctrine of accord and
satisfaction applies once an amount has been received
in full and final settlement of a claim and the claim
stands relinquished and the insured cannot claim further
from the insurer.
14. In the light of Exts.B1 to B3 and the law laid
down in Oommen K.O.(supra), I am of the definite
opinion that the petitioner is legally estopped from
raising a subsequent claim with respect to the damages
to his vehicle, that too without producing any material.
The Tribunal has rightly arrived at the conclusion that
the petitioner has miserably failed to prove the actual
damages sustained by him and that the petitioner is
estopped from raising a fresh claim on the very same
cause of action.
On an overall re-appreciation of the pleadings and
materials on record, I hold that there is no error in the
impugned award warranting interference by this Court in
MACA.No.2221 OF 2008
exercise of its appellate jurisdiction. The appeal is devoid
of any merit and is hence dismissed.
Sd/- C.S.DIAS,JUDGE
dlk 26.03.2021
