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2002 Supreme(Ker) 645
Judges : G.SASIDHARAN,K.THANKAPPAN
K.Raghavan - Appellant
Versus
National Insurance Company Ltd. - Respondent
Case No : A.S.No.342 of 1992
Decided On : 10/23/2002
Advocates Appeared :
For the Petitioner: P.GopalakrishnanNair, K.G.Anil Babu, Advocates. For the Respondent: Lal George, Advocate.
Headnote:
Civil Procedure Code 1908 – Section 11 – Motor Vehicles Act – Section 96(4), 95(2), 149(5), 11 – A suit filed by Insurance Company for realisation of amount paid towards compensation to a person who suffered injuries in a road traffic accident in excess of limit to which Company is liable from owner of vehicle, was decreed by trial Court –Appellant raised contention before trial court that Insurance Company would have raised contention that liability of Company was to pay amount of compensation upto limit of and in so far as no such contention was raised claim now made by respondent Company for realisation of amount from appellant is barred by constructive res judicata – Trial court found that liability of appellant to pay excess amount paid by Insurance Company to claimant in Original Petition arises out of provisions of Motor Vehicles Act and that there can be no estoppel against statute – Held, liability of insurance company to satisfy judgment against persons insured in respect of third party risk is covered by S. 96 of Act – In above decision, Supreme Court said that even though it is found that insurance company as per terms of policy is liable only to extent of Rs. 50,000/- Court will be justified in directing he company to pay whole of awarded amount to claimants on basis of contractual obligations contained in clauses relating to liability of third parties and avoidance clause – There is no justification in rejecting right of Insurance Company to recover from insured excess amount paid in execution and discharge of award of Tribunal – There Supreme Court said that Insurance Company is liable to pay entire award amount to claimants and on making such payment Insurance Company can recover excess amount from insured – Appeal is Dismissed
Sasidharan, J.
A Suit filed by the Insurance Company for realization of the amount paid towards compensation to a person who suffered injuries in a road traffic accident in excess of the limit to which the Company is liable from the owner of the vehicle, was decreed by the trial court. In O.P.(M.V.) 329/1984 on the file of the Motor Accidents Claims Tribunal, Thiruvananthapuram an award was made directing that the Insurance Company had to pay the entire amount awarded as compensation even though the Company was liable as per the Policy for payment of only an amount up to Rs. 50,000/-. The appellant is the owner of the vehicle which was involved in the road traffic accident and the decree passed by the trial Court was for realization of the amount paid in excess of the liability of the Insurance Company from him. The appellant raised the contention before the trial court that the Insurance Company would have raised the contention that the liability of the Company was to pay the amount of compensation up to the limit of Rs. 50,000/- and in so far as no such contention was raised the claim now made by the respondent Company for realization of the amount from the appellant is barred by constructive res judicata. The trial Court found that the liability of the appellant to pay the excess amount paid by the Insurance Company to the claimant in the Original Petition arises out of the provisions of the Motor Vehicles Act and that there can be no estoppel against the statute. Relying on the decision of this Court in Kelappan v. Vijayan (1986 K.L.T.874) the learned Sub Judge found that there is no basis for the contention raised by the appellant that the claim of the respondent is barred by constructive res judicata.
2. Admittedly as per the terms and conditions of the policy, the respondent was liable to indemnify the insured, the appellant in a third party claim only to a maximum of Rs. 50,000/- under Sec. 95(2) of the Motor Vehicles Act. The liability of the Insurer is limited to Rs.50,000/-. The Motor Accidents Claims Tribunal made an award directing that the Insurance Company had to pay the entire amount awarded as compensation. The argument advanced by the learned counsel appearing for the appellant is that no appeal was filed against the award made by the Motor Accidents Claims Tribunal and it had become final and since the direction in the award which had become final is that the entire amount had to be paid by the Insurance Company it is not open to the Insurance Company to contend that the liability of the Company is only to a maximum of Rs. 50,000/-. The contention that the liability of the Company is only to a maximum of 50,000/- was not raised in the case which was pending on the file of the Motor Accidents Claims Tribunal and a decision on merits on that question was made. The submission is that such a contention is one which ought to have been raised by the respondent in the Original Petition on the file of the Motor Accidents Claims Tribunal and since such a contention was not there, the claim now made is barred by principles of res judicata.
3. The learned counsel appearing for the appellant relied on the decision in Oriental Insurance Co. Ltd. V. Gopalakrishnan Nair (2000 (1) K.L.T. 91) in which a Division Bench of this Court held that the principles of res judicata will apply when appeal is filed only against two awards whereas four claim petitions were disposed of by the Motor Accidents Claims Tribunal jointly and the finding of the Tribunal in the other two cases in which appeals have not been filed rejecting the contention of the Insurance Company regarding limited liability had become final. There four claim petitions for compensation under the Motor Vehicles Act were tried together and the claim of Insurance Company regarding limited liability was rejected. There was appeal only against two awards and the Division Bench of this Court held that in the other two cases in which appeals were not preferred cl
