Antony vs V.K.Suresh
2022 Latest Caselaw 6251 Ker

           IN THE HIGH COURT OF KERALA AT ERNAKULAM

                           PRESENT
          THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
 FRIDAY, THE 3RD DAY OF JUNE 2022 / 13TH JYAISHTA, 1944
                     MACA NO. 848 OF 2012
AGAINST THE AWARD DATED 25.10.2011 IN OP(MV)NO.1825/2005
        OF MOTOR ACCIDENT CLAIMS TRIBUNAL, PERUMBAVOOR
APPELLANT/PETITIONER :
         ANTONY,
         S/O.THOMAS,
         THEKKEKKARA HOUSE,
         VAPPALASSERY, ANGAMALY.
           BY ADVS.
           SRI.ANIL S.RAJ
           SMT.K.N.RAJANI
           SRI.RADHIKA RAJASEKHARAN P.
           SMT.ANILA PETER
           SRI.SAJEN THAMPAN
           SRI.CAESAR V PILLA

RESPONDENTS/RESPONDENTS 1 TO 3 & ADDITIONAL 4TH
RESPONDENT :

    1      V.K.SURESH,
           VAZHAYIL HOUSE, VAIKARA P.O.,
           PERUMBAVOOR-683 545.
    2      THE NEW INDIA ASSURANCE COMPANY LIMITED,
           PERUMBAVOOR-683 545.
    3      THE NEW INDIA ASSURANCE COMPANY LIMITED,
           SM SHOPPING COMPLEX, ALUVA ROAD,
           ANGAMALY-686 001.
    4      SREENIVASAN,
           S/O.THEVAN, NEELAMVELI VEETTIL,
           MENOTHPARA BHAGAM, VAIKKARA,
           ASAMANNOOR-686 001.
           BY ADV.SMT.P.K.SANTHAMMA

        THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP
FOR ADMISSION ON 03.06.2022, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
 MACA No.848 of 2012
                                     ..2..




                                                                  "C.R."


                          A.BADHARUDEEN, J.

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                         MACA No.848 of 2012
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            Dated this the 3rd day of June, 2022


                            JUDGMENT

The appellant, who is the petitioner in O.P.

(MV)No.1825 of 2005 on the file of the Motor Accidents

Claims Tribunal, Perumbavoor, has preferred this appeal and

he assails award dated 25.10.2011 in the above case.

Respondents herein are the respondents before the Tribunal.

2. Heard the learned counsel for the

appellant/petitioner as well as the learned counsel appearing

for the insurance company.

3. The appellant, who sustained damages to his MACA No.848 of 2012 ..3..

car bearing registration No.KL-7/AK-5683 and personal

injuries in a motor accident occurred on 02.04.2005 at about

1.30 p.m. moved two separate applications before the

Tribunal claiming compensation for the same.

4. The specific case put up by the appellant

before the Tribunal in this matter is that, while he was

driving his car bearing registration No.KL-7/AK-5683 through

Aluva-Munnar road, a mini lorry driven by the fourth

respondent in a rash and negligent manner hit against the

car driven by the appellant and in consequence thereof, the

appellant sustained personal injuries and also sustained

damages to his car. The specific contention put up by the

appellant before the Tribunal is that since he had obtained

Rs.3,36,651/- from the second respondent, the insurer of his

own car, he is entitled to get the balance amount of

Rs.1,84,015/- from the third respondent who is the insurer of MACA No.848 of 2012 ..4..

the mini lorry, since he sustained a total loss of

Rs.5,20,666/-.

5. The third respondent resisted the contention

on the ground that the appellant could not claim the amount

already received again and therefore, the claim could not be

adjudged in favour of the appellant.

6. The learned Tribunal jointly tried O.P.

(MV)No.1825 of 2005 (the case on hand) and connected O.P.

(MV)No.1824 of 2005 (personal injury case) relying on

Exts.A1 to A7 marked on the side of the petitioner and

Ext.B1 placed by the respondents. Ext.X1 also was relied on

by the Tribunal.

7. After appraising the evidence, the learned

Tribunal dismissed O.P.(MV)No.1825 of 2005 while allowing

O.P.(MV)No.1824 of 2005.

8. It is argued by the learned counsel for the MACA No.848 of 2012 ..5..

appellant that since the appellant sustained a total loss of

Rs.5,20,666/-, adjusting the amount already received, the

remaining amount of Rs.1,84,015/- is liable to be paid by the

third respondent, who is the insurer of the mini lorry involved

in the accident, since the driver of the said lorry contributed

the accident.

9. Negativing this contention, the learned

counsel for the insurance company, the third respondent

would submit that, acting on the policy issued in relation to

the vehicle owned by the appellant, covering total damages,

the second respondent assessed the total damages to the

vehicle to the tune of Rs.3,36,651/- after reducing the

depreciation value on the basis of valuators report.

Therefore, the appellant is not entitled to get any amount as

claimed and the verdict of the Tribunal in this regard is

perfectly in order and the same does not require any MACA No.848 of 2012 ..6..

interference.

10. While addressing the point in dispute, the

relevant question is; can a claimant who was compensated

by his own insurer is entitled to get any compensation again

for the very same damages from the owner or insurer of the

offending vehicle?

11. It is relevant to note that while dismissing the

claim put up by the appellant, the learned Tribunal relied on

two decisions of this Court. The first decision is one reported

in [2005(2) KLT 259], Jacob Joseph v. Devassy and

another decision reported in [2009 ACJ 326], National

Insurance Company Ltd. v. M.S.Mohan and Others.

            12. In    Jacob    Joseph's    case,   this   Court

considered the claim put up by the claimant, when           the

elephant belonged to the claimant sustained injuries. In the

said case, applying the principles of subrogation, this Court MACA No.848 of 2012 ..7..

negatived the contention of the appellant. In this

connection, it is relevant to refer five Bench decision of the

Apex Court reported in [2002 KHC 127], New India

Assurance Company Ltd. v. Jaya. In the said decision,

the larger Bench considered the liability of the insurance

company in tune with Section 95(2) of the Motor Vehicles

Act, 1939 and it was held that liability of the insurance

company is limited and lesser than the statutory liability

under Section 95(2) and in case, an insurance policy will not

take any higher liability by accepting a higher premium, such

higher liability cannot be given.

13. In the decision reported in [2008(2) KLT 613],

National Insurance Company Ltd. v. M.S.Mohan and

Others relied on by the Tribunal, this Court categorically held

that when the claimant was compensated by his own insurer

after executing full and final discharge voucher, he is not MACA No.848 of 2012 ..8..

entitled to get any compensation again for the very same

damages from the owner or insurer of the offending vehicle.

14. In this case, the crucial question of law

involved is nothing but law of subrogation. Before discussing

the law of subrogation, it is an undisputed fact that though

the appellant claimed Rs.5,20,666/- as total compensation

for the damages for his car, his own insurer, acting on the

policy issued to cover the damages of the car, assessed the

same at Rs.3,36,651/- and the said amount was given to the

appellant. As per Ext.X1 survey report obtained in the

present case, the total amount assessed by the valuator is

Rs.2,99,800/-, which is less than the amount already

obtained by the appellant from his own insurer. Thus, it

appears that the second respondent assessed the total

amount entitled by the appellant at Rs.3,36,651/- and as per

Ext.X1 report, the assessment was Rs.2,99,800/- which is MACA No.848 of 2012 ..9..

less than the amount assessed by the insurer of the

appellant.

15. 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'.

16. 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. 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.

MACA No.848 of 2012 ..10..

17. 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.

18. In fact, the principle of subrogation is

incorporated under Section 69 of the Indian Contract Act, 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 MACA No.848 of 2012 ..11..

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. To put it

otherwise, when the insurer under a policy discharged liability

in terms of the contract of indemnity, the insurer who issued

policy is subrogated in the place of the insured or stepped into

the shoes of the insured and therefore, the insured cannot

claim the said amount again from another insurer.

19. In the case on hand, the appellant already

received compensation entitled on account of damages

sustained to his car and therefore, the appellant could not

claim anything more than the amount what has been

assessed and given by his own insurer. MACA No.848 of 2012 ..12..

20. In view of the matter, the third respondent

subrogated into the shoes of the appellant and therefore, the

amount, if any, paid by the third respondent can be realised

by the second respondent from the third respondent applying

the principle of subrogation and therefore, the appellant is

not entitled to get anything as claimed.

21. In view of the above discussion, I have no

hesitation to hold that the Tribunal rightly dismissed the

claim put up by the petitioner and the same is liable to be

confirmed.

In the result, the appeal fails and it is accordingly

dismissed. Considering the facts and circumstances of the

case, both parties are directed to suffer their respective

costs.

Sd/-

A.BADHARUDEEN, JUDGE rkj