MACA No. 2015 of 2016 & W.P.(C) No. 24123 of 2016, High Court of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM & THE HONOURABLE MRS. JUSTICE SHIRCY V. FRIDAY, THE 3RD DAY OF MARCH 2017/12TH PHALGUNA, 1938 MACA.No. 2015 of 2016 () ------------------------- AGAINST THE AWARD IN OPMV 661/2006 of MACT PALA DATED 08-03-2010 APPELLANT/ADDL. 4TH RESPONDENT : ---------------------------------- JACOB SEBASTIAN S/O. SEBASTIAN, KAPPIL HOUSE, VALLICHIRA P.O., VALLICHIRA KARA, KOTTAYAM DISTRICT. BY ADV. SRI.BABY THOMAS ## RESPONDENTS/CLAIMANTS/RESPONDENTS 1 TO 3: ------------------------------------------- 1. SUMATHY VISWAN KUNANIYIL HOUSE, VALLICHIRA P.O., KOTTAYAM DISTRICT. 2. SREEJA PRAMOD, KUNANIYIL HOUSE, VALLICHIRA P.O., KOTTAYAM DISTRICT. 3. VIMAL S/O. VISWANADHAPILLAI, KUNANIYIL HOUSE, VALLICHIRA, VALLICHIRA P.O., KOTTAYAM DISTRICT. 4. SUNNY V.M. S/O. MATHEW, VELIKKAKATHU HOUSE, PALA, KOTTAYAM DISTRICT. 5. THE MANAGER NATIONAL INSURANCE COMPANY LIMITED, PALA, KOTTAYAM DISTRICT. R5 BY ADV. SRI.P.G.GANAPPAN R BY SRI.M.A.GEORGE THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 03-03-2017, ALONG WITH WPC. 24123/2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **C.K. ABDUL REHIM & SHIRCY V.,JJ.** ## **==============================** ## **M.A.C.A. No. 2015 of 2016** ## **&** ## **W.P.(C) No. 24123 OF 2016** ## **==============================** ## **Dated this the 3[rd] day of March, 2017** ## **JUDGMENT** ## **C.K. Abdul Rehim, J.** The additional 4[th] respondent in O.P.(MV)No. 660/2006 and 661/2006 on the files of the Motor Accidents Claims Tribunal, Pala is the appellant in the above appeal and the petitioner in the above writ petition. The appeal is filed challenging the award in O.P.(MV) No.661/2006, whereas the writ petition is filed challenging the award in O.P.(MV) No.660/2006. The 5[th] respondent in the appeal, who is the 4[th] respondent in the writ petition, is the insurer of the vehicle involved in the accident, who was made liable to pay the compensation by virtue of the impugned Awards. The award in both the cases are challenged only to the limited MACA 2015/2016 & WPC 24123/2016 2 extent that the Tribunal had permitted recovery of the amount of compensation from the appellant/petitioner. 2. Heard; counsel for the appellant/petitioner as well as Standing Counsel appearing for the Insurance company. 3. The Insurance Company had set up a defence before the Tribunal that the ownership of the vehicle in question was transferred prior to insurance of the policy. In order to prove such contention, the appellant/petitioner herein was examined as RW1. He conceded that he had taken the policy in the name of the 2[nd] respondent, who is the registered owner, without revealing the fact of transfer of the vehicle. He further conceded that the vehicle was in his possession as on the date of the accident and he got the vehicle released from the police custody, on executing a 'kachit'. The Insurance Company had produced Ext.B1 agreement indicating the transfer of the vehicle by the registered owner to the appellant/petitioner herein, on 12.6.2004, i.e: prior to the date of the accident, which was on 6.02.2006. Based on the above facts, the Tribunal MACA 2015/2016 & WPC 24123/2016 3 observed that, neither the registered owner nor the transferee had taken any steps to transfer the registration of the vehicle into the name of the purchaser. Therefore it was observed that, the requisite procedure contemplated under Section 50 of the Motor Vehciles Act has not been complied with. Observing that the failure to comply with the mandatory requirement entails to penalty. The Tribunal found that, there is violation of the policy conditions and hence it is ordered that the Insurance Company is entitled to get the compensation amount reimbursed from the appellant/petitioner and the 2[nd] respondent (the registered owner). 4. Contention of the appellant/petitioner is that, even if there is a transfer of ownership of the vehicle without informing the same to the insurer and if the transferee avails a policy in the name of the registered owner, it cannot be considered as violation of any of the policy conditions. In this regard the appellant/petitioner had placed reliance on a decision of this court in **Sayed v. Gopalakrishnan and** MACA 2015/2016 & WPC 24123/2016 4 ## **Others [2016(2)KHC 351].** 5. While appreciating the above contention, we notice that the insurer had issued a policy with respect to the vehicle in question, in favour of the person who is holding the registered ownership of the vehicle. The policy was issued on a date after the alleged transfer of the vehicle. It cannot be contended that the registered owner had transferred the vehicle during pendency of the policy without due intimation, because the registered owner continues to be the insured. Since the liability against third parties stands covered by the terms of the policy and since the policy is issued in the name of the registered owner of the vehicle, it cannot be said that the insured had violated any of the conditions of the policy, which entitle the insurer to decline the liability with respect to third parties. The decision cited above will support the above said proposition. 6. In the above mentioned circumstances, we are of the considered opinion that the findings of the Tribunal to MACA 2015/2016 & WPC 24123/2016 5 the extent it permitted recovery of the amount of compensation from the appellant/petitioner and the 2[nd] respondent before the Tribunal, is illegal and unsustainable. In the result, both the appeal as well as the writ petition are hereby allowed. The impugned common Award in both the cases are hereby set aside, to the extent it permitted recovery of the amount of compensation by the Insurance Company from the appellant/petitioner and the 2[nd] respondent before the Tribunal. Sd/- ## **C.K. ABDUL REHIM** ## **JUDGE** Sd/- **SHIRCY V. JUDGE** **ks.** True copy P.s. to Judge MACA 2015/2016 & WPC 24123/2016 6 MACA 2015/2016 & WPC 24123/2016 7