The Oriental Insurance Company ... vs Ramesh P.K
2021 Latest Caselaw 23290 Ker

        IN THE HIGH COURT OF KERALA AT ERNAKULAM
                               PRESENT
        THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
THURSDAY, THE 25TH DAY OF NOVEMBER 2021 / 4TH AGRAHAYANA,
                                1943
                     MACA NO. 2465 OF 2012
AGAINST THE AWARD IN OP(MV) 2220/2008 OF MOTOR ACCIDENTS
                  CLAIMS TRIBUNAL, ERNAKULAM
APPELLANT : 3RD RESPONDENT

            THE ORIENTAL INSURANCE COMPANY LIMITED,
            COCHIN NOW REPRESENTED BY ITS ASSISTANT
            MANAGER, REGIONAL OFFICE,
            METRO PALACE, KOCHI-18.
            BY ADVS.
            SRI.MATHEWS JACOB, SR.STANDING COUNSEL
            SRI.P.JACOB MATHEW, STANDING COUNSEL


RESPONDENT    :   PETITIONER

            RAMESH P.K., S/O.KRISHNAN,
            PAZHAYAPURACKAL, SP PURAM COLONY,
            PALLURUTHY.P.O., PIN-682006.
            BY ADVS.
            SRI.K.JANARDHANAN
            SMT.P.C.JEEVA
            SRI.K.J.MANU RAJ



     THIS    MOTOR   ACCIDENT     CLAIMS   APPEAL   HAVING   BEEN
FINALLY HEARD ON 25.11.2021, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
 M.A.C.A.No.2465 of 2012             ..2..




                                                             "C.R."

                     M.A.C.A.No.2465 of 2012
            ----------------------------------------------------


                           JUDGMENT

Third respondent in O.P.(MV)No.2220 of 2008 on

the file of the Motor Accidents Claims Tribunal, Ernakulam is

the appellant herein. The petitioner is arrayed as the

respondent herein.

2. The pivotal question that requires answer in

this appeal is; whether an insured can claim the amount paid

by one insurer to the insured under a contract of indemnity

from another insurer to whom also liability to indemnify the

same insured subsists under another contract of indemnity?

3. The dispute in this appeal confines to grant

of Rs.56,475/- under the head 'medical expenses' by the

Tribunal after holding that the said amount was reimbursed

by the petitioner under a mediclaim policy. The Tribunal M.A.C.A.No.2465 of 2012 ..3..

relied on decision reported in [2011 (2) KLT 20], National

Insurance Co.Ltd v. Bijumon rendered by this Court to

grant the said sum as compensation since the said decision

settled such a ratio. However, in a subsequent ruling

reported in [2015(5) KHC 327 : 2015(4) KLT 442], National

Insurance Company Ltd. v. Akber Badsha and others,

a Division Bench of this Court overruled the said decision

and categorically held that the very purpose of insurance is

to see that un-anticipated risk is covered to the extent

necessary, lest there should be any loss to the party

concerned because of the unforeseen contingency which

occurred during the policy period. As it stands so, if a party

sustains damage in respect of a vehicle or was made to

spend a certain amount for availing treatment in connection

with the injuries and if the said amount is satisfied by the

insurer under a separate policy issued in this regard

(ofcourse based on premium collected separately for the

sum assured) the same is liable to be reckoned for fixing the M.A.C.A.No.2465 of 2012 ..4..

quantum of compensation payable under the M.V.Act and if

only a finding is rendered that loss is still there, could it be

compensated to the requisite extent. To put it more clear, if

the party has obtained only a lesser amount under the

'Mediclaim policy' taken by him (paying premium

separately), the balance amount, if any, could very well be

claimed in the claim petition to be preferred before the

Tribunal with reference to the statutory coverage.

4. It is, in this context, the principle of

subrogation required to be discussed. Subrogation literally

means 'the act of substituting of one creditor for another'.

5. Black's Law Dictionary defines subrogation

as under;

The substitution of one party for another whose debt the party pays, entitling the paying party to rights, remedies, or securities that would otherwise belong to the debtor. For example, a surety who has paid a debt is, by subrogation, entitled to any security for the debt held by the creditor and the benefit of any judgment the creditor has against the debtor, and may proceed against the debtor as the creditor would.

M.A.C.A.No.2465 of 2012 ..5..

Subrogation most commonly arises in relation to insurance policies. 2. The equitable remedy by which such a substitution takes place. 3. The principle under which an insurer that has paid a loss under an insurance policy is entitled to all the rights and remedies belonging to the insured against a third party with respect to any loss covered by the policy.

6. P. Ramanatha Aiyar's Major Law Lexicon,

defines subrogation as;

Substitution of another person in the place of a creditor, so the person in whose favour it is exercised succeeds to the rights of the creditor in relation to the debt. The doctrine is one of equity and benevolence, and like contribution and other similar equitable rights was adopted from the civil law, and its basis is doing complete, essential, and perfect justice between all the parties without regard to form, and its object is the prevention of injustice. The right does not rest on contract or privity, but upon principles of natural equity, and does not depend upon the act of the creditor, but may be independent of him and also of the debtor.

7. In fact, the principle of subrogation is

incorporated under Section 69 of the Indian Contract Act, M.A.C.A.No.2465 of 2012 ..6..

1972 and it provides that any person who is interested in the

payment of money which another is bound by law to pay,

and who therefore pays it, is entitled to be reimbursed by

the other person. Section 92 of the Transfer of Property Act

also recognises the principle of subrogation. In the

constitution Bench decision reported in [(2010) 4 SCC 114],

Economic Transport Organisation v. Charan Spinning

Mills (P) Ltd. and another, the Apex Court held that law

of insurance recognises an equitable corollary of the

principle of indemnity that when the insurer had indemnified

the assured/insured, the rights and remedies of the

assured/insured against the wrong doer stand transferred to

and vested in the insurer. Here, medical bills to the tune of

Rs.56,475/- was given by the insurer, under a mediclaim

policy, to the insured and thereafter, in this proceedings,

another insurer also was directed to pay the said sum so as

to get unlawful enrichment to the petitioner herein. To put it

otherwise, when the insurer under a mediclaim policy M.A.C.A.No.2465 of 2012 ..7..

discharged liability in terms of the contract of indemnity, the

insurer who issued mediclaim policy is subrogated in the

place of the insured and therefore, the insured cannot claim

the said amount again from another insurer. By applying the

principle of subrogation, the law emerges is that when the

petitioner was given amount covered by medical bills under

a mediclaim policy by one insurer, the said insurer got

subrogated in the place of the petitioner. Therefore, the

petitioner cannot claim the amount again from another

insurer to embark upon the legal right of the earlier insurer

to get the same reimbursed. In view of the settled law as

discussed, grant of Rs.56,475/- as per award dated

29.02.2012 by the learned Tribunal is patently illegal and

therefore, the said award to that extent is liable to be set

aside.

In the result, this appeal is allowed and grant of

Rs.56,475/- impugned herein is set aside. Consequently, it is

held that the petitioner is entitled to get Rs.75,722/-

 M.A.C.A.No.2465 of 2012             ..8..




(Rs.1,32,197-56,475=75,722/-)(Rupees                 Seventy         Five

Thousand      Seven       Hundred     and   Twenty     Two   only)    as

compensation along with the same rate of interest granted

by the Tribunal.

Sd/-

A.BADHARUDEEN, JUDGE rkj