The Oriental Insurance Co. Ltd. v. Vijesh, K.T. Abdulla Haji, Nadichi

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MRS. JUSTICE MARY JOSEPH MONDAY, THE 11TH DAY OF JANUARY 2016/21ST POUSHA, 1937 MACA.No. 2241 of 2011 ( ) -------------------------AGAINST THE AWARD IN OP(MV)No.661/2005 of M.A.C.T., MANJERI DATED 18-05-2011 APPELLANT/3[rd] RESPONDENT: -------------------------------- THE ORIENTAL INSURANCE CO. LTD. METRO PALACE, GROUND FLOOR, OPP. NORTH RAILWAY STATION, ERNAKULAM, REPRESENTED BY ITS DULY AUTHORIZED OFFICER. BY ADV. SRI.V.P.K.PANICKER RESPONDENTS/RESPONDENTS 1 & 2 & PETITIONER: --------------------------------------------------------- 1. VIJESH, S/O.VASU, KARUTHEDATHCHALIL HOUSE, CHITTARIPILAKKAL P.O., MAVOOR, KOZHIKODE DISTRICT-673661. 2. K.T.ABDULLA HAJI, S/O.KAMMU HAJI, PUTHENKKUDI CHALIL HOUSE, PARAMMAL, P.O.MAVOOR, KOZHIKODE DISTRICT-673661. 3. NADICHI, W/O.LATE MAYYAN, PARECHALIL HOUSE, P.O.KAVANOOR, ERNAD TALUK, MALAPPURAM DISTRICT-673664. R2 BY ADV. SRI.K.M.FIROZ R2 BY ADV. SMT.M.SHAJNA R3 BY ADV. SRI.SAJU J.VALLYARA THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 11-01-2016, ALONG WITH CO. 19/2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MACA.No. 2241 of 2011 ## APPENDIX ## APPELLANT'S EXHIBITS: NIL RESPONDENTS' EXHIBITS:- ANNEXURE A1: DRIVING LICENSE PARTICULARS OF THE PRADEEP KUMAR ISSUED BY THE MOTOR VEHICLES DEPARTMENT. ANNEXURE A2: A TRUE COPYU OF THE APPLICATION DATED 7.10.2004 CLAIMING INSURANCE FOR THE DAMAGE CAUSED TO THE STAGE CARRIAGE VEHICLE HAVING REGISTRATION NUMBER KL `11 C 8289. ANNEXURE A3: A TRUE COPY OF THE LETTER ISSUED BY THE OWNER OF THE WORKSHOP TO THE DIVISIONAL MANAGER OF THE APPELLANT INSURANCE COMPANY ACKNOWLEDGING THE RECEIPT OF THE WHOLE AMOUNT FROM THE INSURANCE COMPANY. // TRUE COPY // TKS P.S. TO JUDGE ## **C.T.RAVIKUMAR & MARY JOSEPH, JJ.** ---------------------------------- M.A.C.A.No.2241 of 2011 & Cross Objection No.19 of 2012 ----------------------------------Dated 11[th] January, 2016 ## **JUDGMENT** ## **Ravikumar, J.** The captioned appeal has been preferred by the insurer, the third respondent in O.P.(M.V)No.661 of 2005 on the files of the Motor Accidents Claims Tribunal, Manjeri against the award dated 18.5.2011, thereon. The 2[nd] respondent therein who is the owner of the vehicle involved in the accident filed the captioned Cross Objection in the said appeal. Respondents 1 and 3 herein were respectively the driver and the claimant in the claim petition. 2. In the claim petition it is alleged that the third respondent/claimant sustained injuries when motor vehicle bearing Reg.No.KL 11C 8289 driven by the first respondent knocked her down while she was walking alongside the road near Areecode Bus Stand, on 2.10.2004 at about 8.30 A.M. Her right forearm was crushed and amputated in the accident. It is in the said circumstances that the claim petition was filed alleging rash and negligent driving of the M.A.C.A.No.2241/2011 & 2 C.O.No.19/2012 aforesaid vehicle by the first respondent and taking up necessary contentions to saddle the second respondent vicariously liable and the appellant with liability to indemnify the second respondent. The first respondent remained _ex parte_ before the Tribunal. Though notice was issued to the first respondent in this proceedings also he did not care to appear and contest the matter. Before the Tribunal the second respondent and the appellant/third respondent filed separate written statements. The claimant got examined herself as PW1 and got marked Exts.A1 to A11(dt). Ext.X1 is a third party document and on the side of the appellant/third respondent therein Exts.B1 and B1(a) were got marked. The respondents therein did not adduce any oral evidence. After a careful scanning of the evidence on record and appreciating the arguments advanced by both sides the Tribunal arrived at the finding that the accident in question occurred due to the rash and negligent driving of the driver of the offending vehicle viz., the first respondent. The Tribunal also found that the first respondent had no driving licence at the time of the accident. At the same time, it was found that since the appellant/third respondent admitted the insurance coverage for the offending vehicle at the time of the accident the appellant/3[rd] respondent got liability to compensate the claimant. It was further found that the the appellant/third respondent could not claim reimbursement as they had not produced the policy to prove the M.A.C.A.No.2241/2011 & 3 C.O.No.19/2012 violation of the conditions thereunder. In the said circumstances, the impugned award was passed to the effect that the third respondent/the claimant is entitled to get an amount of 3,37,906/- with interest at₹ the rate of 9% per annum from the date of petition till realisation. The captioned appeal has been preferred by the insurer feeling aggrieved by the award to the extent it declined the right to recover the amount from the second respondent/the owner of the offending vehicle after satisfying the award. 3. Along with the appeal the appellant has produced certified copy of policy No.25605/2004 of the offending vehicle, the existence of which was specifically admitted in its written statement filed before the Tribunal. Vide separate order, we have allowed the application in the said circumstance as also in view of the fact that for coming into a correct conclusion insurance policy containing full terms and conditions is highly required and the same was marked as Ext. B1(b). Essentially, the same was produced by the appellant to show that it contained a specific condition that the person driving the vehicle in question must possess an effective driving licence at the time of the accident and he should be a person not disqualified from holding or obtaining such a licence. In the light of the specific finding of the Tribunal that the first respondent was not having a valid driving licence M.A.C.A.No.2241/2011 & 4 C.O.No.19/2012 at the time of the accident and the clause referred above contained in Ext.B1(b) the appellant is entitled to avoid the liability in terms of the provisions under sub-section (2) of Section 149 of the Motor Vehicles Act, 1988 (for short `the Act') and therefore, they are entitled to recover the amount, in such circumstances, in terms of the provisions under Section 149(4) of the Act, it is contended. 4. Cross Objection has been filed in the appeal by the second respondent, the owner of the offending vehicle contending that the first respondent was not the driver of the vehicle in question at the time of the accident. Along with the Cross Objection I.A.No.1702 of 2015 has been filed by the second respondent with the prayer to receive Annexures A1 to A3 as additional evidence. Annexure-A1 is the driving licence of one Pradeep Kumar. Annexure-A2 is the copy of application dated 7.10.2004 submitted by the second respondent claiming insurance for the damage caused to the vehicle in question and Anneuxre-A3 is a copy of the letter issued by the owner of the workshop to the Divisional Manager of the appellant insurance company acknowledging receipt of the entire amount towards the repairing charges from the Insurance Company. Vide separate orders, after hearing both sides, the said documents were also admitted in evidence and they were marked respectively as Exts.B2(a), B2(b) and B2(c). M.A.C.A.No.2241/2011 & C.O.No.19/2012 5 5. We have heard the learned counsel appearing for the appellant, the learned counsel appearing for the second respondent who filed the Cross Objection and also the learned counsel for the third respondent, the claimant. 6. The learned counsel for the appellant contended that the appeal carries no challenge against the quantum of compensation awarded by the Tribunal and it carries challenge only to the extent whereby the Tribunal declined to grant the right to recover the amount awarded from the owner/the second respondent, in terms of the provisions under sub-section (4) of Section 149 of the Act. The learned counsel contended that a bare perusal of the impugned award would reveal that the factum of admission of the insurance coverage of the offending vehicle at the time of accident by the appellant was taken note of by the Tribunal and contended that the Tribunal had also taken note of the fact that Ext.B1 charge framed against the first respondent would reveal that the first respondent had no driving licence at the time of the accident. It is the further contention that despite taking note of those crucial aspects the right to recover the awarded amount from the second respondent was denied solely because the appellant had failed to produce the policy to establish that there was violation of the M.A.C.A.No.2241/2011 & 6 C.O.No.19/2012 condition. In Ext.B1(b) a specific clause has been incorporated as hereunder:- “Any person including insured: Provided that a person driving holds an effective driving licence at the time of the accident and is not disqualified from holding or obtaining such a license. Provided also that a person holding an effective learner's licence may also drive the vehicle and that such a person satisfies the requirements of Rule 3 of the Central Motor Vehicle ” Rules, 1989. It is evident that the Tribunal based on Ext.B1 charge arrived at the finding that the first respondent who was driving the vehicle in question, at the time of the accident, had no driving licence. It is further contended that though notice was served on the first respondent by the Tribunal as also by this Court he had not cared to enter appearance and resist the case. In this context, it is also to be noted that the appellant herein had taken up a contention before the Tribunal in its written statement that the first respondent was not holding a valid driving licence at the time of accident and at any rate, respondents 1 and 2 have to be called upon to produce the driving licence, if any. The learned counsel further contended that in the written statement filed on behalf of the second respondent/the owner of the offending vehicle the only contention taken up was that the vehicle in question was not being M.A.C.A.No.2241/2011 & C.O.No.19/2012 7 driven by the first respondent Vijesh whereas it was driven by one Pradeepan. In this context, it is to be noted further that in the written statement the second respondent has also taken up a specific contention that documents revealing the other aspects are available with the said respondent. Despite such specific averments evidently, no document was produced by the second respondent before the Tribunal. In the said circumstances, it is contended that in the absence of any evidence whatsoever to show that the first respondent was having a valid driving licence at the relevant point of time or to the effect that he was not the driver of the vehicle at the relevant point of time, in view of Ext.B1 the 2[nd] respondent cannot wriggle out of the liability of granting permission to drive the vehicle by a person having a valid driving licence. Consequently, it is contended that the disinclination from the part of the Tribunal in granting liberty to the appellant to recover the awarded amount from the second respondent is liable to be interfered with and set right. Per contra, the learned counsel for the second respondent who filed the Cross Objection contended that in the written statement filed before the Tribunal it has been specifically stated that the vehicle in question was not being driven by the first respondent Vijesh at the time of the accident. In the context of the contention it is only relevant to extract the following specific pleading taken up by the second respondent in the written statement filed before the Tribunal:- M.A.C.A.No.2241/2011 & C.O.No.19/2012 8 “4. The vehicle involved in the accident is insured with the 3[rd] respondent and if any compensation is awarded to the petitioner is payable or receivable from the 3[rd] respondent. In this circumstances the respondent No.2 is not at all liable to pay any compensation to the applicant as fabulously claimed. More over the respondent No.1 Mr.Vijesh S/o. Vasu has (sic., was) not a driver in my vehicle. Mr.Pradeepan is the driver of the vehicle alleged incident. I have sufficient document to prove my case. This respondent is right to reserve to file additional written statement.” Certain aspects have to be taken note of in the light of the said specific pleadings taken up by the second respondent in the written statement. Though he had refuted the fact that the vehicle in question was driven at the time of accident by Vijesh, S/o.Vasu and also claimed that in fact, it was being driven at the relevant point of time by one Pradeepan he had not even cared to give the whereabouts and the details of the said Pradeepan except referring the mere name of that person. That apart, it is evident that he has specifically stated that he had sufficient document to prove such a case. However, no document whatsoever was produced either to show that Vijesh was not the driver who had driven the vehicle at the relevant point of time or that it was Pradeepan who had driven the vehicle at the relevant point of time. True that, in this appeal Exts.B2(a) to B2(c) were produced by the second M.A.C.A.No.2241/2011 & 9 C.O.No.19/2012 respondent. A perusal of the contentions in the Cross Objection and also the submissions of the learned counsel for the second respondent would reveal that the contention of the second respondent in that regard rests on a fact which is revealed from Ext.B2(b). It would reveal that in the application which was submitted before the appellant insurance company a column is provided for entering the name and address of the driver and further that the second respondent had filled up the said column by incorporating the name of one Pradeep Kumar and his address. The contention is that the said application was processed and the appellant company paid the compensation for the damage caused to the vehicle in question. The learned counsel appearing for the appellant contended that in fact, as against the statement in the written statement that the vehicle in question was driven by one Pradeepan, in Ext.B2(b) one Pradeep Kumar was shown as the person who had driven the vehicle at the relevant point of time. It is also contended that Ext.B2(b) application was processed and the compensation for the damage caused to the stage carriage vehicle involved in this case viz., KL 11C 8289 was granted by the Insurance Company. The appellant would further contend that Ext.B2(c) would reveal that the cost of repair was given to the owner of the workshop by the Divisional Manager of the appellant insurance company. It is contended by the learned counsel for the second respondent that in the M.A.C.A.No.2241/2011 & C.O.No.19/2012 10 light of the indisputable fact that based on the application the damage caused to the vehicle in question was given by the insurance company, the appellant cannot dispute the fact that it was being driven by Pradeep Kumar at the relevant point of time. We are afraid, the said contention cannot be upheld. Firstly, it is to be noted that in a case of damage caused to a vehicle which was insured with a company the prime consideration and the factor to be taken into account is whether the vehicle in question insured with the company had sustained any damage. Nothing on record to show that a roaming enquiry which is binding on the insurance company was taken in respect of the identity of the person who was driving the vehicle during the relevant point of time. We are of the considered view that Ext.B2(b) would only go to show that pursuant to the accident the second respondent submitted an application for insurance claim before the appellant company for the damage caused to the vehicle in question and having satisfied with the fact that damage had been caused to the said vehicle it was granted by the company. The mere fact that in the application the name of the driver was given as Pradeep Kumar cannot be a reason for this Court to take that the second respondent, who is bound to establish the pleadings taken in the written statement so as to make the appellant to indemnify the compensation, succeeded in proving that the vehicle in question was not being driven by Vijesh and that it was being driven by M.A.C.A.No.2241/2011 & 11 C.O.No.19/2012 one Pradeepan as claimed thereunder and that the said person was having a valid driving licence at the relevant point of time. In this context, it is also relevant to note that in the written statement the name of the driver was given as Pradeepan without further details whereas in Ext.B2(b) the name of the driver was shown as one Pradeep Kumar. In the context of the rival contentions it is apposite to refer to a Division Bench decision of this Court in **New India Assurance Co. Ltd.** v. **Pazhaniammal (2011 (3) KLT 648)** wherein this Court held that as a general rule it could safely be accepted that production of the police charge sheet would be _prima facie_ sufficient evidence of negligence for the purpose of a claim under Section 166 of the motor vehicles Act. It is further held thus:- “A system cannot feed itself on a regular diet of distrust of the police. _Prima facie,_ charge sheet filed by a police officer after due investigation can be accepted as evidence of negligence against the indictee. If any one of the parties do not accept such charge sheet, the burden must be on such party to adduce oral evidence. If oral evidence is adduced by any party, in a case where charge sheet is filed, the Tribunal should give further opportunity to others to adduce oral evidence and in such a case the charge sheet will pale into insignificance and the dispute will have to be decided on the basis of the evidence. In all other cases such charge sheet can be reckoned as sufficient evidence of negligence in a claim under S.166 of the Motor Vehicles Act. We mean to say that on production of such charge sheet the shifting of burden must taken place.” M.A.C.A.No.2241/2011 & C.O.No.19/2012 12 In this case, evidently, the appellant insurance company produced Ext.B1 which is the copy of the charge. Ext.B1 indisputably reveals the fact that the vehicle in question was being driven by the first respondent Vijesh at the time of the accident. The second respondent cannot feign ignorance about such crucial aspects. In fact, a bare perusal of the written statement filed by the second respondent before the Tribunal itself would go to show that the second respondent was fully aware of the fact that going by the contentions in the claim petition the vehicle in question was being driven by the first respondent. It was in the said circumstances that he took up the contention that Vijesh/the first respondent was not the driver in his vehicle and that Mr.Pradeepan was the driver of the vehicle at the relevant point of time. Further more, he had specifically stated in the written statement that he got sufficient document to prove his case in that regard. Despite such circumstances, the second respondent had not even cared to mount the box to give evidence in tune with his pleadings in the written statement or even to produce the documents which were allegedly possessed by him to prove his case. As held hereinbefore, mere production of Ext. B2(b) cannot be treated as a successful discharge of the said liability by the second respondent. Though the learned counsel appearing for the second respondent vehemently argued for remanding the matter we are M.A.C.A.No.2241/2011 & 13 C.O.No.19/2012 of the considered view that a remand of the matter cannot be granted for the mere asking as it can be ordered only on specific sustainable reasons. It is to be noted that we have already accepted and admitted the documents produced by the second respondent. In the light of the decision in **Pazhaniammal's** case (supra) on production of a charge sheet the burden must shift. In the contextual situation Sections 103 and 106 of the Evidence Act also assume relevance. They read thus:- “ **103. Burden of proving fact to be proved to make evidence admissible.** - The burden of proving any fact necessary to be proved in order to enable any person to give evidence of any other fact is on the person who wishes to give such evidence. **106. Burden of proving fact especially within knowledge** .- When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.” Going by the said provisions when any fact is especially within the knowledge of any person the burden of proving that fact is upon him. In this case, Ext.B1 reveals that on investigation a charge was laid against the first respondent by the Police raising accusation for having driven such stage carriage without any valid driving licence and for such other offences. By producing the same virtually, the appellant had discharged its burden in the light of the specific condition contained in M.A.C.A.No.2241/2011 & C.O.No.19/2012 14 Ext.B1(b). In this context, it is also to be noted that after scanning the evidence the Tribunal had definitely come to the conclusion in the light of Ext.B1 that the appellant/3[rd] respondent had succeeded in proving that the first respondent was not having a valid driving licence at the time of accident. It is to be noted that Ext.B2(b) is an application submitted by the second respondent claiming compensation for the damage caused to the vehicle in question. This would reveal the fact that the accident in question had taken place. The mere fact that in such an application he has entered the name of one Pradeep Kumar as the driver by itself cannot be taken as an evidence sufficient to disprove what is evident from Ext.B1. In other words, relying on Ext.B2(b) the second respondent cannot be heard to contend that it was one Pradeep Kumar who was driving the vehicle at the relevant point of time. In this context, another aspect also has to be taken note of. In the written statement filed before the Tribunal the case of the second respondent was that one Pradeepan was the driver but, such a statement was made without giving the details of the person so referred therein. In such circumstances, we are of the view that in the light of Ext.B1 and in the light of the decision of the Division Bench in **Pazhaniammal's** case (supra) the Tribunal was right in holding that at the time of accident the offending vehicle was being driven by Vijesh and that the accident had occurred due to the rashness and negligence of the said Vijesh, the first M.A.C.A.No.2241/2011 & 15 C.O.No.19/2012 respondent. We have found that the second respondent who had taken up a specific contention that the said vehicle was not being driven at the relevant point of time by Vijesh had failed to prove the said fact. It is also to be noted that Vijesh has not come forward either before the Tribunal or before this Court contending that he was not the driver of the vehicle at the relevant point of time or, at least to contend that he was having a valid driving licence. Add to it, it is to be noted that the specific case of the second respondent is that the vehicle was being driven not by Vijesh but by Pradeepan. However, the second respondent had failed to establish the said fact. In such circumstances, we do not find any reason to disagree with the finding of the Tribunal arrived at based on Ext.B1 that Vijesh, the first respondent was not having any valid driving licence at the time of the accident. In fact, a perusal of the impugned award would reveal that even after holding as aforesaid the prayer of the appellant to grant liberty to recover the amount of compensation after indemnifying the second respondent in terms of the provisions under sub-section (4) of Section 149 of the Act was declined by the Tribunal solely because the appellant had failed to produce the policy. The policy in question has been produced in this appeal and we have already admitted the same in evidence and marked it as Ext.B1(b). As noticed hereinbefore, Ext.B1(b) contains a specific clause to the effect that the person driving the vehicle in question must M.A.C.A.No.2241/2011 & 16 C.O.No.19/2012 be a person holding a valid driving licence. The learned counsel appearing for the second respondent attempted to canvass the position that in the light of the decision of the Hon'ble Apex Court in **National Insurance Co. Ltd.** v. **Swaran Singh (2004 (1) KLT 781 (SC)** even if the driver of a vehicle which met with an accident was not holding a driving licence so long as the said vehicle was insured with a company the said company cannot wriggle out of the liability to indemnify the owner of the vehicle and the insurance company cannot thereafter seek for recovery of the amount awarded unless the insurance company establishes a conscious breach of condition from the part of the owner of the vehicle. We have already found that the evidence on record would reveal that the vehicle in question was driven by Vijesh. Ext.B1 would reveal that he was not having a valid licence. Though the appellant discharged its burden by producing Ext.B1(b) the appellant had failed to produce any document to compel this Court to arrive at any contra finding than that of what is available in terms of Ext.B1. Relying on the decision of a Division Bench of this Court in **Raveendran V.R.** v. **M.Sarojini and Others (2010 (1) KHC 726)** the learned counsel for the second respondent contended that the second respondent got no vicarious liability if the tort feaser is not acting under the authority of the owner. Evidently, the attempt on the part of the second respondent is to show that if the tort feaser is not acting under M.A.C.A.No.2241/2011 & C.O.No.19/2012 17 the authority of the owner the owner has no vicarious liability. In the light of the specific pleading taken up by the second respondent in the written statement we are at a loss to understand how the second respondent could rely on the said judgment. There is absolutely no case for the second respondent that the vehicle in question was being driven by Vijesh at the relevant point of time and that he was not acting under his authority. More over, the specific case discernible from the statements in the written statement is that Vijesh was not the driver engaged by him and in fact, it was driven by one Pradeepan. Again, as against the said pleading taken up in the written statement a perusal of Ext.B2(b) which is nothing but an application, would reveal that the second respondent has entered the name of one Pradeep Kumar as the driver. In such circumstances, we have no hesitation to hold that **Raveendran's** case (supra) has no relevance in the facts and circumstances of this case. The contention taken up in the light of the decision in **Swaran Singh's** case (supra) also cannot be upheld. If the driver of the vehicle did not hold a valid driving licence the insurer is entitled to succeed in his defence and to avoid liability. True that, in the said decision it is held that, in such circumstances, it is also to be proved that the vehicle in question was consciously be allowed to drive by such a person by the owner of the vehicle. In this case, the specific case of the second respondent is that the vehicle in question was not M.A.C.A.No.2241/2011 & 18 C.O.No.19/2012 driven by Vijesh but by one Pradeep Kumar. But, when the evidence on record would reveal that it was one Vijesh who was driving the vehicle and in the absence of any specific pleading in the written statement that the said Vijesh was driving the vehicle without the consent of the second respondent the appellant herein cannot be called upon to prove that the vehicle in question was being consciously driven by Vijesh against the directions of the second respondent. In other words, when the second respondent did not have a case that the vehicle in question was being driven by Vijesh asking the appellant to establish such a fact which was not at all the case of the second respondent is not required. It is also to be noted that in the Cross Objection the second respondent has taken up a contention as hereunder:- “B) The Tribunal erred in concluding that the alleged accident occurred due to the negligence on the part of the third respondent herein. The reason stated by the Tribunal for arriving at such a conclusion in paragraph 7 of the award is unsustainable. It is submitted that the claimant is estopped from claiming that the third respondent was responsible for the accident more so in the light of the stand taken by the claimant in the ” criminal case. (emphasis added) After scanning the said contentions taken up in ground (B) we are constrained to say that the the second respondent has not laid any M.A.C.A.No.2241/2011 & C.O.No.19/2012 19 foundation of such contention. There is absolute absence of any material before this Court to the effect that the third respondent/the claimant had taken up a contention in any proceeding to the effect that the vehicle in question was not being driven by Vijesh but, it was driven by some other person. In the absence of any material the said contention has to pale into insignificance. 7. The long and short of the above discussion is that in the light of the specific condition incorporated in Ext.B1(b) and taking into account the specific finding arrived at by the Tribunal that Vijesh, the first respondent was not having a valid driving licence and also taking into account the fact that it was the non-production of the policy that constrained the Triunal to decline the prayer of the appellant to grant the liberty to recover the amount of compensation and above all, in terms of sub-section (4) of Section 149 of the Act we are inclined to allow this appeal. The appellant has successfully proved the breach of the terms and conditions of policy in this case and the appellant is therefore, entitled to recover the compensation awarded, from the insured. In the said circumstances, the appeal is allowed. The finding of the Tribunal that the appellant/third respondent is not entitled to claim reimbursement is vacated. It is held that the appellant/third respondent is entitled to recover the entire amount awarded by the M.A.C.A.No.2241/2011 & 20 C.O.No.19/2012 Tribunal from the 2[nd] respondent in terms of Section 149(4) of the Act without taking recourse to any separate proceedings for recovery of the amount. In the light of the judgment in the appeal the Cross Objection is dismissed. Sd/- **C.T.RAVIKUMAR** **Judge** Sd/- **MARY JOSEPH Judge** TKS