Kerala High Court
United India Insurance Co.Ltd vs July on 7 June, 2013
Author: Babu Mathew P. Joseph
Bench: S.Siri Jagan, Babu Mathew P.Joseph
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE S.SIRI JAGAN
&
THE HONOURABLE MR. JUSTICE BABU MATHEW P.JOSEPH
FRIDAY, THE 7TH DAY OF JUNE 2013/17TH JYAISHTA 1935
MACA.No. 2641 of 2012 ()
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AGAINST THE AWARD IN O.P.(MV)No.78/2004 of MACT, THRISSUR.
APPELLANT/2ND RESPONDENT:
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UNITED INDIA INSURANCE CO.LTD.
BRANCH OFFICE THRISSUR, REP. BY THE DY.MANAGER
REGIONAL OFFICE, KOCHI.
BY ADV. SRI.RAJAN P.KALIYATH
RESPONDENTS/CLAIMANTS 2 TO 4 AND R1:
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1. JULY, AGED 36 YEARS
W/O.FRANCIS, NEELAMKAVIL, CHAKKALAKKAL HOUSE
POST VARADIYAM, THRISSUR DISTRICT-680585.
2. JEEJA , AGED 34 YEARS
W/O.FRANCIS, NEELAMKAVIL CHAKKALAKKAL HOUSE
CHERUVATHERY, POST PERINCHERRY, THRISSUR-680686.
3. JOSHY, AGED 30 YEARS
S/O.KOCHAPPU, NEELAMKAVILN CHAKKALAKKAL HOUSE
POST OLLUR, THRISSUR DISTRICT-680306.
4. C.K.BAIJU
S/O.KOCHAPPAN, NEELAMKAVILN CHAKKALAKKAL HOUSE
POST OLLUR, THRISSUR DISTRICT-680306.
R1 to R3 BY ADV. SRI.A.N.SANTHOSH
R4 BY ADV. SRI.T.C.SURESH MENON
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON
12.04.2013, THE COURT ON 07-06-2013 DELIVERED THE FOLLOWING:
C.R.
S. SIRI JAGAN
&
BABU MATHEW P. JOSEPH, JJ.
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M.A.C.A. No. 2641 of 2012
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Dated this the 7th day of June, 2013
JUDGMENT
Babu Mathew P. Joseph, J.
Whether the insurer is entitled to reimbursement by the insured of the amount deposited by them satisfying an award passed under Section 140 of the Motor Vehicles Act when the Motor Accidents Claims Tribunal ultimately finds that the claim is not covered by the Insurance Policy issued in respect of the vehicle involved in the motor accident, is the question raised in this appeal.
2. The brief facts necessary for the disposal of this appeal are stated as follows: Kochuthresia, the deceased in this case, was a pillion rider on a motor cycle driven by her son, the 4th respondent, on 21.11.2003. Due to rash and negligent driving of the motor cycle by the 4th respondent, Kochuthresia fell down on the road and was fatally injured. She succumbed to the injuries on the next day. Her husband, two daughters and son, as [MACA.2641/2012] 2 petitioners 1 to 4 respectively, filed O.P.(M.V.) No.78 of 2004 under Section 166 of the Motor Vehicles Act (for short, the Act) in the Motor Accidents Claims Tribunal, Thrissur (for short, the Tribunal) claiming compensation on account of her death, from the 4th respondent, the owner-cum-driver of the motor cycle, and the appellant, the insurer of that vehicle. They were respondents 1 and 2 respectively in the original petition. During the pendency of the original petition, the 1st petitioner expired. His children, namely, the petitioners 2 to 4 and the 4th respondent herein were recorded as his legal heirs. The respondents 1 to 3 in this appeal are the petitioners 2 to 4 in the original petition.
3. The learned Tribunal passed an order, on I.A.No.172 of 2004 filed in the original petition, on 8.10.2004 awarding a compensation of Rs.50,000/- to the claimants under Section 140 of the Act. The 4th respondent and the appellant were made liable for that amount. The appellant, being the insurer, was directed to deposit the same. Accordingly,the appellant deposited the said amount on 12.12.2005 and the claimants have realised their respective shares.
4.The learned Tribunal, after inquiry, found that the accident [MACA.2641/2012] 3 had occurred due to the rash and negligent driving of the motor cycle by the 4th respondent and that the claimants were entitled to Rs.2,02,000/- as compensation under various heads. The appellant contended before the Tribunal that the vehicle was covered only by an 'Act only Policy' which did not cover a pillion rider. The Insurance Policy was produced before the Tribunal and it was marked as Ext.B1. After considering Ext.B1, the learned Tribunal found that the risk of the deceased, being a pillion rider, was not covered by that Policy. Hence, the appellant was exonerated from liability to indemnify the owner and the entire liability to pay compensation to the claimants was fastened on the 4th respondent. The Tribunal did not pass any order directing the 4th respondent to reimburse Rs.50,000/- already deposited by the appellant based on the award under Section 140 of the Act. Therefore, the appellant has filed I.A.No.2545 of 2011 before the Tribunal for reviewing the award and directing the 4th respondent to deposit the amount paid by them. But, the Tribunal has dismissed that application. Aggrieved by the award and the order, the appellant has preferred this appeal.
5. Heard Shri. Rajan P. Kaliyath, the learned Standing [MACA.2641/2012] 4 Counsel appearing for the appellant, Shri. A.N. Santhosh, the learned counsel appearing for the respondents 1 to 3 and Shri. T.C. Suresh Menon, the learned counsel appearing for the 4th respondent.
6. During the course of arguments, a question as to whether this appeal has to be heard by a Division Bench or a Single Judge of this Court has come up for consideration. Therefore, we shall first consider that question. Section 3 of the Kerala High Court Act, 1958 (for short, the High Court Act) deals with the powers of Single Judge. Sub-sections (1) to (13) enumerate various matters on which a Single Judge can exercise the powers of the High Court. As far as the appeal on hand is concerned, Clause (b) of Sub-section (13) of Section 3 is relevant which reads as follows:
"(13) An appeal --
(a) xxxx xxxx xxxx xxxx
(b) from an original decree or order in any suit or other proceeding, where the amount or value of the subject matter of the suit or other proceeding does not exceed one lakh rupees;"
Therefore, an appeal from an original decree or order in any suit or other proceeding, where the amount or value of the subject matter of the suit or other proceeding does not exceed one lakh [MACA.2641/2012] 5 rupees can be heard by a Single Judge exercising the powers of the High Court. In this appeal, the valuation for the purpose of jurisdiction is shown as above rupees one lakh. The claimants in this case filed O.P.(MV) No.78 of 2004 before the Tribunal claiming a compensation of Rs.4,50,000/-. Therefore, treating the amount or value of the subject matter of O.P.(MV) No.78 of 2004 as Rs.4,50,000/-, the appellant has shown the valuation in this appeal as above rupees one lakh for the purpose of jurisdiction. But, as a matter of fact, the amount or value of the subject matter of this appeal is only Rs.50,000/- i.e., the amount deposited by the appellant on the basis of the award passed by the Tribunal under Section 140 of the Act.
7. A learned Single Judge of this Court in M.A.C.A.No.288 of 2004 has considered a similar question in the light of Clause (b) of Sub-section (13) of Section 3 of the High Court Act and in the light of Sub-section (2) of Section 173 of the Act. It was a case where the petitioner, an injured in a motor accident, preferred a claim for Rs.1,73,500/- before the Tribunal. The Tribunal passed an award allowing Rs.57,800/- and interest thereon and directed the insurer to pay the amount. The insurer challenged that award [MACA.2641/2012] 6 by filing the said appeal in this Court. On considering the scope of of Section 3(13)(b) of the High Court Act, the learned Single Judge observed as follows: There could be two appeals from the said judgment of the Tribunal. The claim was for an amount exceeding rupees one lakh and the award passed was only for an amount below rupees one lakh. Therefore, if the claimant files an appeal challenging the award claiming enhancement, the amount in dispute in that appeal will have to be treated as the amount claimed in the original petition. But, the award was challenged by the insurer and the challenge was only in respect of the amount awarded by the Tribunal. At that juncture, the learned Single Judge considered the impact of Sub-section (2) of Section 173 of the Act which reads as follows:
"173. Appeals.(1) xxxx xxxx xxxx (2) No appeal shall lie against any award of a Claims Tribunal if the amount in dispute in the appeal is less than ten thousand rupees."
On considering this provision, the learned Single Judge observed that there is a prohibition for admitting an appeal if the amount in dispute is below Rs.10,000/- which indicates that the appeal has to be admitted on the basis of the amount under dispute in [MACA.2641/2012] 7 the appeal. The learned Single Judge held that if the amount under dispute in the appeal is above Rs.10,000/- but below Rs.1,00,000/- the matter has to be decided by a Single Judge. So far as the respondent in the original petition is concerned, the subject matter in the appeal can only be the amount awarded. If the amount awarded is below Rs.1,00,000/-, the jurisdiction will be with the Single Judge. But, if the amount awarded exceeds Rs. 1,00,000/-, the jurisdiction will be with the Division Bench and hence, the appeal will lie only before the Division Bench. Therefore, finding that the subject matter of the appeal considered was only below Rs.1,00,000/-, the learned Single Judge held that the appeal would lie before the Single Judge.
8. We are unable to subscribe to the views expressed by the learned Single Judge in the order in M.A.C.A.No.288 of 2004 for various reasons. A Single Judge can exercise the powers of the High Court in respect of an appeal from an original decree or order in any suit or other proceeding, where the amount or value of the subject matter of the suit or other proceeding does not exceed one lakh rupees as provided under Section 3(13)(b) of the High Court Act. Clause (b), in clear terms, shows that the amount [MACA.2641/2012] 8 or value of the subject matter stipulated is the amount or value of the subject matter of the suit or other proceeding and not the amount or value of the subject matter of the appeal or other proceeding in the High Court. In other words, when an appeal is filed from an original decree or order in any suit or other proceeding, the amount or value of the subject matter of that suit or other proceeding shall be the criterion for deciding whether an appeal can be heard by a Single Judge or by a Division Bench. If the amount or value of the subject matter of the suit or other proceeding in which the original decree or order appealed against was passed does not exceed Rs.1,00,000/-, a Single Judge is empowered to hear the appeal as provided under Section 3 (13)
(b) of the High Court Act.
9. In construing Section 3(13)(b) of the High Court Act, Section 173(2) of the Act has no relevance. Section 173(2) only stipulates that no appeal shall lie against an award of the Tribunal if the amount in dispute in the appeal is less than Rs.10,000/-. This provision cannot aid the construction of Section 3(13)(b) of the High Court Act. A plain reading of Section 3 along with Sub- section (13) and its Clause (b) shows, in unambiguous terms, that [MACA.2641/2012] 9 an appeal from an original decree or order in any suit or other proceeding, where the amount or value of the subject matter of the suit or other proceeding does not exceed one lakh rupees, can be heard by a Single Judge. Therefore, where the amount or value of the subject matter of the suit or other proceeding is one lakh rupees or less, a Single Judge of this Court can hear the appeal exercising the powers of the High Court.
10. Another question arises here. A Tribunal, after holding an inquiry following the procedures prescribed, is making an award under Section 168. Therefore, the Tribunal is passing an award and not a decree under Section 168 of the Act. Rule 392 of the Kerala Motor Vehicles Rules, 1989 (for short, the Rules) prescribes that the Tribunal in passing orders, shall record concisely in a judgment, the findings on each of the issues framed and the reasons for such findings and make an award specifying the amount of compensation to be paid etc. Therefore, the findings of the Tribunal on each of the issues framed and the reasons for such findings are recorded in the judgment and the amount of compensation to be paid etc. are specified in the award. Section 173 of the Act provides that any person aggrieved [MACA.2641/2012] 10 by an award of a Tribunal may prefer an appeal to the High Court subject to the provisions of Sub-section (2). Therefore, going by these provisions, a Tribunal is passing an award which is appealable to the High Court.
11. Section 3(13)(b) of the Kerala High Court Act empowers a Single Judge of this Court to hear an appeal from an original decree or order in any suit or other proceeding. The proceeding before the Tribunal is not a suit. But, the proceeding before the Tribunal comes within the sweep of 'other proceeding'. An award passed by the Tribunal is not an original decree or order. Section 3(13)(b) of the High Court Act provides for an appeal from an original decree or order. The Act and the Rules do not contain a provision for treating an award passed by the Tribunal to be a decree for the purposes of an appeal under Section 173 of the Act. Of course, all the trappings of a civil case can be found in the procedures followed by a Tribunal. Section 169 of the Act prescribes the procedure and powers of the Tribunals. As per Section 169(2), the Tribunal shall have all the powers of a Civil Court for the purpose of taking evidence on oath and of enforcing the attendance of witnesses and of compelling the discovery and [MACA.2641/2012] 11 production of documents and material objects and for such other purposes as may be prescribed. Rule 395 of the Rules provides for the application of the Code of Civil Procedure in respect of certain cases. Rule 394 of the Rules provides that the Tribunal shall for the purpose of enforcement of its award, have all the powers of a Civil Court in the execution of a decree under the Code of Civil Procedure as if the award were a decree for payment of money passed by such Court in a civil suit. Therefore, Rule 394 deems an award passed by the Tribunal to be a decree for payment of money passed by a Civil Court and it can be executed as if the award is a decree of a Civil Court. It has become trite that the provisions of the Code of Civil Procedure can be invoked in respect of different matters by a Tribunal in the interests of justice if they are not prohibited by the Act.
12. The Motor Vehicles Act, 1988 is a special enactment. Section 173 of that Act provides for an appeal from an award passed by the Tribunal to the High Court. Rule 396 of the Rules stipulates that an appeal against the award of the Tribunal shall be preferred in the form of a memorandum stating concisely the grounds on which appeal is preferred. An appeal shall be [MACA.2641/2012] 12 accompanied by a copy of the judgment, the award appealed against and the fee prescribed. The Act and the Rules do not contain a provision insisting that the appeal should be heard by a Single Judge or a Division Bench. In the absence of any specific provision regarding the exercise of powers of the High Court while dealing with an appeal filed from an award of the Tribunal, Section 3(13)(b) assumes relevance and importance in dealing with such an appeal exercising the powers of the High Court.
13. A Division Bench of this Court in Velunni v. Vellakutty [1989(2) KLT 227], while dealing with the appeals filed from the award passed by the Tribunal, held as follows:
"S.110-D provides that any person aggrieved by an award of the tribunal may prefer an appeal to the High Court subject to the provisions of sub-section (2). Powers of the High Court in dealing with the appeal are not enumerated or restricted in any manner. Power is given to the High Court as such which has its own rules of procedure. The High Court when dealing with a regular appeal against a decree of a civil court can exercise the powers dealt with in the Code of Civil Procedure. The law is that where a statute provides right of appeal to an established court without anything indicating the manner in which appeal is to be disposed of, the right of appeal will carry with it the applicability of the rules of practice and procedure of [MACA.2641/2012] 13 that court with regard to its power to entertain an appeal filed, and its disposal, manner of exercise of that jurisdiction and the incidents thereof. See SriSailam Devasthanam v. Bhavani Pramilamma & others (AIR 1982 AP 297) and Sudhakaran & others v. Varghese and others (1983 ACJ 395). In South Asia Industries Pvt. Ltd. v. Sarup Singh(AIR 1965 SC 1442) the court observed that where a statute gives a right of appeal from an award of the tribunal or a court to the High Court without any limitation thereof, the appeal will be regulated by the provisions and procedures obtaining in the High Court. Therefore, the High Court in exercising its appellate power can certainly invoke the principles in the provisions in Order XLI of the Code of Civil Procedure."
Order XLI of the Code of Civil Procedure deals with appeals from original decrees. Rule 33 of Order XLI describes the powers of court of appeal. In the light of the law explained by the Division Bench of this Court in Velunni's case (supra), even though Order XLI of the Code of Civil Procedure is governing the appeals from original decrees, the High Court can invoke the principles in Order XLI while dealing with an appeal from an award of the Tribunal. In other words, an award of the Tribunal appealed against can be treated as a decree while exercising the appellate jurisdiction by the High Court. Therefore, for all the foregoing reasons, an award [MACA.2641/2012] 14 passed by the Tribunal under the Act can be treated as an original decree within the meaning of Section 3(13)(b) of the High Court Act. We have already found that the proceeding before the Tribunal comes within the meaning of 'other proceeding' in the said Clause (b). Therefore, Section 3(13)(b) can be applied in deciding whether a Single Judge or a Division Bench has to hear the appeal from an award of the Tribunal. Where the amount or value of the subject matter of the proceeding viz.,the original petition, before the Tribunal is one lakh rupees or less, a Single Judge of this Court can hear the appeal exercising the powers of the High Court.
14. A Full Bench of this Court in State of Kerala v. Kiriyan Varghese [2001(2) KLT 416 (FB)], inter alia, considered an argument that on a proper interpretation of Section 3(13)(b) of the High Court Act, there was no impediment in appeals arising from the special enactments being heard by a Single Judge subject to the valuation of the subject matter and all appeals under special enactments, unless the special enactment itself insists that the appeal should be heard by a Division Bench, can be heard and disposed of by a Single Judge if the valuation of the [MACA.2641/2012] 15 subject matter of the proceeding did not exceed one lakh rupees. The Full Bench, after considering the matter, held that an appeal, whether it be against a decree in a suit or a decree or order in a proceeding arising under a special enactment, can be heard by a Single Judge if the value of the subject matter does not exceed one lakh rupees and it need only be heard by a Division Bench if the value of the subject matter exceeds one lakh rupees. The same will be the position while entertaining an appeal from an order either under the Code of Civil Procedure or in a proceeding under any other enactment, subject of course to the specific exclusions contained in the special enactment and in Section 3 itself. It was further held that on a true construction of Section 3(13)(b) of the High Court Act all appeals arising under special enactments, unless otherwise provided for by the special enactment itself, could be heard by a Single Judge. The Motor Vehicles Act, 1988 being a special enactment, we derive support from the Full Bench decision that an appeal provided under Section 173 of the Act from an award of the Tribunal can be heard by a Single Judge of this Court provided the amount or value of the subject matter does not exceed one lakh rupees. [MACA.2641/2012] 16
15. We find that in M.A.C.A. No.288 of 2004, the learned Single Judge assumed that the words 'subject matter' appearing in Section 3(13)(b) of the Act means the subject matter of the appeal, namely, the amount disputed in the appeal. We are of opinion that the said Section does not admit of any such interpretation. The words of Section 3(13)(b) are very plain. A Single Judge is competent to hear an appeal against an original decree or order in any suit or other proceeding, where the value of the subject matter of the suit or other proceeding does not exceed one lakh rupees. Therefore, what is relevant for the purpose of deciding the pecuniary jurisdiction of the Single Judge is the value of the subject matter of the suit or other proceeding and not that of the appeal. Therefore, for deciding pecuniary jurisdiction in the High Court also what is relevant is the valuation in the suit or other proceeding. The amount in dispute in the appeal has no relevance to decide that dispute.
16. In the case on hand, the amount or value of the subject matter of the original petition before the Tribunal was Rs.4,50,000/-. Since this exceeds Rs. 1,00,000/-, this appeal cannot be heard by a Single Judge and it should be heard by a [MACA.2641/2012] 17 Division Bench. This appeal is filed only in respect of an amount of Rs.50,000/- deposited by the appellant on the basis of an order passed by the Tribunal under Section 140 of the Act. This fact does not have any relevance at all in finding whether this appeal shall be heard by a Single Judge or a Division Bench. In view of our findings in respect of the jurisdiction of the Single Judge and the Division Bench to hear the appeal from an award of the Tribunal, we overrule the decision of the learned Single Judge in M.A.C.A.No. 288 of 2004 as it is legally incorrect. Since this appeal has to be heard by a Division Bench in the light of the foregoing findings, we proceed to consider and dispose of the same.
17. Learned counsel appearing for the respondents contended that the award passed by the Tribunal under Section 140 of the Act was an appealable one. But, the appellant has not preferred an appeal against that award. Now, the right of the appellant to file appeal against that award remains barred by limitation. Therefore, according to them, this appeal filed by the appellant is not maintainable and hence, no reimbursement of the amount of Rs.50,000/- deposited by the appellant based on [MACA.2641/2012] 18 the award under Section 140 of the Act can be allowed. They have relied on the decision of the Honourable Supreme Court in Yallwwa v. National Insurance Co. Ltd. [2007(3) KLT 91 (SC)] in order to substantiate their contention that an award passed by the Tribunal under Section 140 of the Act is appealable under Section 173 of the Act. It is true that in the said decision, the Honourable Supreme Court held that an order of the Tribunal awarding compensation under Section 140 of the Act is appealable under Section 173 of the Act as it amounts to an award under Section 173 of the Act.
18. Learned counsel for the appellant, on the other hand, submitted that the fact that the award passed by the Tribunal under Section 140 of the Act was appealable is no ground for rejecting an appeal filed by the appellant against the final award passed by the Tribunal. The Tribunal ultimately found, after considering Ext.B1 Insurance Policy, that the risk of the deceased, being a pillion rider, was not covered by that Policy. Therefore, the appellant was exonerated and the entire liability to pay compensation to the claimants was fastened on the 4th respondent. But, in spite of the fact that the appellant specifically [MACA.2641/2012] 19 sought for directing the 4th respondent to reimburse Rs.50,000/- already deposited by the appellant based on the award under Section 140 of the Act, the Tribunal did not pass such an order in favour of the appellant. The appellant legitimately expected the Tribunal to pass such an order of reimbursement. But, the Tribunal failed to do so. Therefore, the appellant even filed I.A.No. 2545 of 2011 before the Tribunal for reviewing the award and directing the 4th respondent to deposit the amount paid by them under Section 140 of the Act. But, the Tribunal dismissed that application as well. By the final award and the order thus passed by the Tribunal, the appellant is aggrieved and hence, the appeal is maintainable under Section 173 of the Act, the learned counsel further submitted.
19. As per Section 173 of the Act, any person aggrieved by an award of a Tribunal may prefer an appeal to the High Court subject to the provisions of Sub-section (2). Therefore, whether the appellant herein is aggrieved by the award finally passed by the Tribunal under Section 168 of the Act is the crucial question to be answered. Rule 393 of the Rules stipulates that the Tribunal shall proceed to award a claim under Section 140 of the Act on [MACA.2641/2012] 20 the basis of the following:
(1) Registration Certificate of the motor vehicles involved in the accident;
(2) Insurance Certificate or policy relating to the insurance of the vehicle against Third party risks; (3) Copy of the First Information Report; (4) Post-mortem certificate or certificate of injury from the Medical Officer; and (5) The nature of treatment given by the Medical Officer, who has examined the victim.
Therefore, at the stage of considering and passing an award under Section 140, a Tribunal is not expected to inquire into all the matters which are required to be considered while passing an award under Section 168. Moreover, as provided under Section 141(2) of the Act, a claim for compensation under Section 140 in respect of death or permanent disablement of any person shall be disposed of as expeditiously as possible and where compensation is claimed in respect of such death or permanent disablement under Section 140 and also in pursuance of any right on the principle of fault, the claim for compensation under Section 140 shall be disposed of as aforesaid in the first place. Here, admittedly, and as could be seen from the award [MACA.2641/2012] 21 passed under Section 140 of the Act itself, the learned Tribunal, at that stage, has not considered the question whether the risk of the deceased was covered or not by Ext.B1 Insurance Policy. That question has been specifically considered and answered only in the award finally passed under Section 168 of the Act. Therefore, the fact that the appellant did not file an appeal against the award passed by the Tribunal under Section 140 of the Act directing the appellant to deposit the amount of Rs.50,000/- is no ground for finding that the appellant is not aggrieved by the award finally passed by the Tribunal under Section 168 of the Act. Going by the ruling of the Honourable Supreme Court in Yallwwa's case (supra), the appellant could have filed an appeal against the award passed by the Tribunal under Section 140 of the Act. In the light of the facts of the case on hand, it cannot be disputed that the appellant is aggrieved by the award finally passed by the Tribunal under Section 168 of the Act. Therefore, the appellant is entitled to prefer an appeal challenging that award. The fact that the appellant did not prefer an appeal against the award under Section 140 is no ground for preventing the appellant from filing an appeal after [MACA.2641/2012] 22 passing the award by the Tribunal under Section 168 as the appellant is aggrieved by that award. We find much force in the contentions raised by the learned counsel for the appellant in support of the maintainability of this appeal. For the foregoing reasons, we find that this appeal is maintainable.
20. In Yallwwa's case (supra), the Honourable Supreme Court was mainly considering the question of maintainability of an appeal against an award passed by the Tribunal under Section 140 of the Act. It was not a case where the question of reimbursement by the insured of the amount deposited by the insurer on the basis of an award passed by the Tribunal under Section 140 of the Act on finally finding by the Tribunal that the insurer was not liable to indemnify the insured was considered. Learned counsel for the appellant relied on a ruling of the Honourable Supreme Court in National Insurance Co. Ltd. v. Jethu Ram (1998 ACJ 921). It was a case involving similar questions involved in the case on hand. The only difference is that the Honourable Supreme Court was dealing with an appeal under the Motor Vehicles Act, 1939 and the present case is under the Motor Vehicles Act, 1988. After [MACA.2641/2012] 23 considering Sections 92A and 92B of the Motor Vehicles Act, 1939 which are similar to Sections 140 and 141 respectively of the Motor Vehicles Act, 1988 with certain variations, the Supreme Court held as follows:
"On a close scrutiny of the aforesaid provisions, we do not find anything contained therein which would suggest that the liability which accrues under the provisions of section 92-A has to be borne by the insurer even if it is ultimately held that under the policy of insurance the insurer is not liable to pay the compensation in question. In our considered opinion the Tribunal and the High Court have misread the aforesaid provisions of the Motor vehicles Act. In the aforesaid premises the impugned judgment of the Tribunal and the High Court cannot be sustained so far as it relates to the liability of the insurer arising under sections 92-A and 92-B of the Act. These appeals are allowed. The insurer having paid the amount under the aforesaid provisions is entitled to get it reimbursed from the owner."
This ruling of the Honourable Supreme Court squarely applies to the facts of this case. An amount of compensation deposited by the insurer of a motor vehicle on the basis of an award passed by the Tribunal under Section 140 of the Act without considering and answering the question as to whether the insurer is liable to [MACA.2641/2012] 24 indemnify the owner/insured or not under the Insurance Policy shall be reimbursed by the owner/insured to the insurer on the final finding by the Tribunal that the insurer is not liable to indemnify the owner/insured under that Policy. Therefore, the appellant is entitled to reimbursement by the 4th respondent of the amount of Rs.50,000/- deposited by them on the basis of the award passed by the Tribunal under Section 140 of the Act.
21. Before parting with the matter, we shall refer to one more aspect. The learned Tribunal found that the claimants were entitled to Rs.2,02,000/- as compensation under various heads. It is made clear in the award that this amount is inclusive of Rs.50,000/- paid under Section 140 of the Act. The liability of paying the entire amount so awarded was fastened on the 4th respondent, the owner-cum-driver of the vehicle. This clearly indicates that the liability of Rs.50,000/- awarded under Section 140 of the Act was also fastened on the 4th respondent. Therefore, necessarily, the Tribunal ought to have directed the 4th respondent to reimburse the amount of Rs.50,000/- to the appellant. But, mistakenly, that was not done in the award and I.A.No.2545 of 2011 filed by the appellant before the Tribunal for [MACA.2641/2012] 25 that purpose was also dismissed.
In the result, the 4th respondent is directed to deposit Rs.50,000/- in the Motor Accidents Claims Tribunal, Thrissur, within a period of 30 days from today, failing which the appellant will be entitled to recover the same with interest at the rate of 9% per annum from the date of filing of this appeal viz., 4.12.2012 till realisation. In the event of failure on the part of the 4th respondent to deposit the amount as directed, the appellant will be free to recover the same by way of execution proceedings before the Motor Accidents Claims Tribunal, Thrissur. This appeal is allowed modifying the award of the Tribunal as above.
Sd/-
S. SIRI JAGAN, JUDGE Sd/-
BABU MATHEW P. JOSEPH, JUDGE krs.
//True Copy // P.S. to Judge.