K.KUNHIMUHAMMED v. The Manager, New India Assurance Company Ltd. & The Regional Transport Officer, Malappuram

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE S.SIRI JAGAN** ## **WEDNESDAY, THE 8TH DAY OF AUGUST 2012/17TH SRAVANA 1934** ## **WP(C).No. 22227 of 2007 (U)** **---------------------------** ## **PETITIONER(S):** **------------------------** **K.KUNHIMUHAMMED, AGED 45 YEARS, S/O. LATE PAREED HAJI, KURUNYAN MANZIL, PANAKKAD P.O., MALAPPURAM.** **BY ADVS.SRI.E.S.M.KABEER SRI.ABDUL MAJEED.N** ## **RESPONDENT(S):** - **----------------------------** ## **1. THE MANAGER,** **NEW INDIA ASSURANCE COMPANY LTD., PATHICHERIL GARDENS, CHANGAMPUZHA NAGAR P.O., NEAR MUNICIPAL OFFICE, KALAMASSERI, KOCHI.** ## **2. THE REGIONAL TRANSPORT OFFICER, MALAPPURAM.** **R1 BY ADVS.SRI.KKM.SHERIF** ## **SRI.A.A.ZIYAD RAHMAN R2 BY SR.GOVERNMENT PLEADER SRI.V. VIJULAL** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08-08-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Kss** ## **WPC.NO.22227/2007 U** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** - **P1: COPY OF THE R.C.BOOK ISSUED BY THE R.T.O., ERNAKULAM.** - **P2: COPY OF THE AGREEMENT OF SALE DATED 20/01/2006.** - **P3: COPY OF THE AGREEMENT FOR SALE DATED 10/02/2006.** - **P4: COPY OF THE AGREEMENT FOR SALE DATED 28/02/2006.** - **P5: COPY OF THE INTIMATION ISSUED BY THE 2ND RESPONDENT DATED 30/03/06.** - **P6: COPY OF THE F.I.R. DATED 16/032006 REGISTERED BY SUB INSPECTOR OF POLICE, MALAPPURAM.** - **P7: COPY OF THE REFERENCE NOTICE NO.30/07 SUBMITTED BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT, MALAPPURAM.** - **P8: COPY OF THE INSURANCE POLICY ISSUED BY THE 1ST RESPONDENT DATED 11/12/2005.** - **P9: COPY OF THE INTIMATION DATED 16/05/2007 ISSUED BY THE 1ST RESPONDENT TO THE PETITIONER.** - **P10: COPY OF THE COMPLAINT DATED 4/06/2007 BEFORE THE GRIEVANCE CELL OF THE 1ST RESPONDENT.** - **P11: COPY OF THE COMMUNICATION DATED 20/06/2007 ISSUED FROM THE GRIEVANCE CELL OF THE 1ST RESPONDENT.** **RESPONDENT'S EXHIBITS: N I L** **/TRUE COPY/** **Kss** **P.A.TO JUDGE** S.SIRI JAGAN, J. ================== W.P.(C).No. 22227 of 2007 ================== Dated this the 8[th] day of August, 2012 J U D G M E N T The petitioner purchased a Toyota Qualis Vehicle bearing registration No.KL-7-AC/974 on 28.2.2006, as per Ext.P4 sale agreement. The registered owner of the vehicle at the relevant time was one Smt.Bindu Abraham. She sold it to one Sri.Sunil, by Ext.P2 sale agreement. The said Sri.Sunil sold it to one Abdul Latheef, by Ext.P3 agreement. The said Sri.Abdul Latheef sold the same to the petitioner by Ext.P4. Ext.P4 is dated 28.2.2006. At the time of purchase, there was an insurance policy in respect of the vehicle with Smt.Bindu Abraham as the insured for the period from 11.12.2005 to 10.12.2006. The petitioner on purchase of the vehicle, by Ext.P4, applied to the concerned Regional Transport Officer for transfer of ownership of the vehicle in the registration certificate as well. But that application was returned to the petitioner, since the same was not accompanied by a clearance certificate from the concerned Regional Transport Office. While so, the vehicle was stolen on 16.3.2006. The petitioner lodged an FIR with the police. But, ultimately the Police referred the matter, by Ext.P7, as an undetectable case. The petitioner appears to have reported the w.p.c.22227/07 - : 2 :- theft of the vehicle to the insurance company, who, by Ext.P9 addressed to Smt.Bindu Abraham, told her that they are unable to entertain her claim for insurance amount since she had already transferred the vehicle. Thereafter, the petitioner filed a complaint before the Grievance Cell of the Insurance Company, by Ext.P10. That was rejected by Ext.P11. It is under the above circumstances, the petitioner has filed this writ petition seeking the following reliefs; - “i) to call for the records relating to Exhibits P1 to P11 and to issue a writ of certiorari quashing Exts.P9 and P11. - ii) to issue a writ of mandamus or any other writ or direction directing the 1[st] respondent to allow the claim of the petitioner since as on the date of the theft the vehicle is covered by Ext.P8 valid insurance policy - iii) to declare that Ext.P8 is applicable to the petitioner's vehicle and the petitioner is entitled to claim the compensation governed by the terms and conditions of the policy.” 2. The petitioner's contention is that by virtue of Section 157 of the Motor Vehicles Act, the certificate of insurance of a motor vehicle is automatically transferred to the purchaser along with the policy of insurance relating to the vehicle. Therefore, the policy, which was current at the relevant time, although in the name of the original owner, Smt.Bindu Abraham, gets transferred to the petitioner's name by operation of law and consequently, the petitioner is entitled to claim the sum assured w.p.c.22227/07 - : 3 :- in respect of the insurance policy, is the contention raised. 3. A counter affidavit has been filed by the 1[st] respondent taking the stand that Section 157 applies only to third party risks and not to other claims in respect of the vehicles. The learned Standing Counsel for the insurance company heavily relies on the decision of the Supreme Court in **Complete Insulations (P) Ltd. v. New India Assurance Co. Ltd.** , (1996) 1 SCC 221, in support of that contention. 4. In answer, the petitioner would contend that in a later decision of the Supreme Court, viz., **United India Insurance Co. Ltd., Simla v. Tilak Singh and Others** , 2006 (4) SCC 404, the Supreme Court has held that the explanation to Section 157 makes it clear that the deemed transfer under that Section shall include transfer of rights and liabilities of the said certificate of insurance and policy of insurance. Therefore, according to the petitioner, all rights and liabilities in respect of the policy and certificate of insurance, which was issued in favour of Smt.Bindu Abraham, stand transferred in favour of the petitioner by virtue of Section 157. 5. I have considered the rival contentions in detail. 6. Section 157 reads thus: w.p.c.22227/07 - : 4 :- “157. **Transfer of certificate of insurance** :--(1) Where a person in whose favour the certificate of insurance has been issued in accordance with the provisions of this Chapter transfers to another person the ownership of the motor vehicle in respect of which such insurance was taken together with the policy of insurance relating thereto, the certificate of insurance and the policy described in the certificate shall be deemed to have been transferred in favour of the person to whom the motor vehicle is transferred with effect from the date of its transfer. **Explanation** .- For the removal of doubts, it is hereby declared that such deemed transfer shall include transfer of rights and liabilities of the said certificate of insurance and policy of insurance. (2) The transferee shall apply within fourteen days from the date of transfer in the prescribed form to the insurer for making necessary changes in regard to the fact of transfer in the certificate of insurance and the policy described in the certificate in his favour and the insurer shall make the necessary changes in the certificate and the policy of insurance in regard to the transfer of insurance.” Section 157 is contained in Chapter XI of Motor Vehicles Act, which relates to insurance of motor vehicles against third party risks. In **Complete Insulations' case** (supra) the Supreme Court has held that the insured is not entitled to compensation from insurer for damages to the vehicle transferred to him in the absence of specific contract with the insurer covering risk or damage to the vehicle and insurer's liability under the Act extends only to risk or damage to property of third party, since the deeming provision provides for transfer of third party risks only. That decision is one in respect of a claim by a transferee of a vehicle without actually getting the insurance policy and w.p.c.22227/07 - : 5 :- certificate of insurance transferred in his name, which is squarely applicable to the facts of this case. On the other hand, the decision in **Tilak Singh's** case (supra) is in respect of a third party claim. It is settled law that a decision is an authority for what it actually decides. That decision relates to a claim in respect of third party risk. In view of the fact that **Complete Insulations' case** (supra) is on all fours with the facts of this case and **Tilak Singh's** case (supra) is in respect of third party risk only, I am bound by the decision in **Complete Solutions' case** (supra). This is all the more so since under sub section 2 of Section 157, the petitioner was bound to apply within 40 days from the date of transfer in the prescribed form to the insurance company for making necessary changes in respect of the transfer in the certificate of insurance and the policy described in the certificate, in his favour, which the petitioner has not cared to do. In the above circumstances, I do not find any merit in the contentions of the petitioner and accordingly, this writ petition is dismissed. sdk+ Sd/S.SIRI JAGAN, JUDGE ///True copy/// P.A. to Judge w.p.c.22227/07 - : 6 :-