K RAGHAVAN Vs. NATIONAL INSURANCE COMPANY LTD

JUDGEMENT

(1.) A suit filed by the Insurance Company for realisation 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. (MV) 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 upto 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 realisation 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 upto 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 realisation 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 KLT 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 S.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 Rs. 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 not 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) KLT 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 claim of Insurance Company regarding limited liability was rejected and that will operate as res judicata. The above decision has no application to the facts of the present case since this is a case in which the respondent claims realisation of money from the appellant alleging that even though the respondent had to pay the entire amount awarded by the Motor Accidents Claims Tribunal it can realise from the appellant, the owner of the vehicle the amount paid in excess of the maximum liability as per the provisions of the statute. The case of the respondent is that even though there is an award passed by the Motor Accidents Claims Tribunal directing the respondent to pay the entire amount of compensation, by virtue of S.96(4) of the Motor Vehicles Act, 1939 and S.149(5) of the Motor Vehicles Act, 1988 the respondent has the right to claim the amount from the appellant.