National Insurance Company Ltd. v. Ratheesh S/o Sukumaran; T.M. Tomy; K.Suresh (MACA No. 2045 of 2013)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** # **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN THURSDAY, THE 18[TH] DAY OF NOVEMBER 2021 / 27TH KARTHIKA,** **1943** ## **MACA NO. 2045 OF 2013** **AGAINST THE AWARD IN OP(MV) 1124/2006 OF MOTOR ACCIDENTS** **CLAIMS TRIBUNAL, PERUMBAVOOR** **- APPELLANT : 3RD RESPONDENT IN OP(MV)NO.1124/2006** **THE NATIONAL INSURANCE COMPANY LTD., 2ND FLOOR, MULLAPPALLY BUILDINGS, A.M.ROAD, P.B.NO.24, PERUMBAVOOR, REPRESENTED BY ITS MANAGER, REGIONAL OFFICE, M.G.ROAD, ERNAKULAM.** **BY ADV. SRI.LAL GEORGE** **RESPONDENTS : PETITIONER AND RESPONDENTS 1 AND 2 - IN OP(MV)NO.1124/2006** |**1**|**RATHEESH, S/O.SUKUMARAN,**| |---|---| ||**KALANAKUDYIL HOUSE,**| ||**NORTH MAZHVANNOOR.P.O.,**| ||**AIRAPURAM, ERNAKULAM-683 541.**| |**2**|**T.M.TOMY, S/O.MATHEW,**| ||**THIRUTHANATHY HOUSE,**| ||**KURICHILAKODE, KODANADU,**| ||**PERUMBAVOOR-683 544.**| |**3**|**K.SURESH, S/O.KRISHNANKUTTY,**| ||**KIZHAKKE VARIKATTIL,**| ||**KAVITHA PADI, AIRAPURAM.P.O.,**| ||**PERUMBAVOOR-683 541.**| **BY ADV SRI.RAJESH VIJAYENDRAN FOR R2** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 18.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** M.A.C.A.No.2045 of 2013 ..2.. ## **M.A.C.A.No.2045 of 2013** ## **-------------------------------------------------------** ## **J U D G M E N T** Third respondent in O.P.(MV)No.1124 of 2006 on the file of the Motor Accidents Claims Tribunal, Perumbavoor is the appellant. The original petitioner and respondent Nos.1 and 2 (owner and driver) of the motorcycle bearing registration No.KL7/R-1659 are the respondents herein. 2. Heard the learned counsel on both sides. 3. Brief facts of the case are as follows:- The petitioner, who was riding as pillion of motorcycle bearing registration No.KL-7/R-1659, met with an accident in consequence of rash and negligent driving of the motorbike by the second respondent. 4. The original petitioner, who sustained injuries, approached the Tribunal and claimed compensation to the tune of Rs.1,50,000/-. M.A.C.A.No.2045 of 2013 ..3.. 5. R2, the driver of the motorcycle was set exparte by the Tribunal. 6. R1 filed written statement contending that the motor bike was owned by him till 18.05.2004 and thereafter, the same was sold to one Reneesh as per written agreement. Therefore, the ownership and possession of the vehicle was alleged to be at the hands of the above said Reneesh. 7. Third respondent, the appellant herein filed written statement admitting valid policy to the vehicle to cover the risk of third parties alone. At the same time, the insurer contested, categorising the policy as an act only policy, that the said policy did not cover the risk of a pillion rider/the petitioner. 8. The learned Tribunal jointly tried this case along with O.P.(MV) Nos.1023 of 2006 and 1353 of 2006 and thereafter, Rs.54,223/- was granted as compensation to the original petitioner with interest at the rate of 8%, fastening liability on respondents 1 to 3 with direction to the company to deposit the same. 9. While canvassing interference in the impugned M.A.C.A.No.2045 of 2013 ..4.. award, it is submitted by the learned counsel for the appellant, the insurance company that the contention raised by the insurance company in the written statement denying liability to the pillion rider had not been considered by the Tribunal or no issue framed in this regard. The learned counsel highlighted Ext.B1 policy with nomenclature 'liability only' policy, where no amount to cover the risk of a pillion rider, except the risk of third parties, was collected as premium. On a perusal of Ext.B1 policy, it appears that the policy is a statutory policy covering the risk of third parties alone and not covering the risk of a pillion rider. Thus, it is held that Ext.B1 is a statutory policy, which does not cover the risk of pillion rider i.e. the petitioner herein. 10. However, it is zealously argued by the learned counsel for the first respondent, the alleged RC owner of the vehicle, by asserting that the first respondent was not the owner of the vehicle and the vehicle was sold to one Reneesh as on 18.05.2004. He highlighted the evidence of the above said Reneesh, who was examined as RW2 before the Tribunal. The evidence of RW2 would show that he admitted that he had M.A.C.A.No.2045 of 2013 ..5.. purchased the vehicle on 18.05.2004, though the carbon copy of the sale agreement attempted to be marked through the witness was refused by the Tribunal since the same was a copy. It is true that despite specific contention in this regard, no impleadment was carried out insofar as the alleged transferee of the motorcycle. 11. On perusal of the evidence of RW2, the same would go to show that Reneesh admitted purchase of the motorcycle bearing registration No.KL-7/R-1659 on 18.05.2004. During cross-examination, he had given evidence that he did not possess any properties and he was aware about the procedure for transferring ownership but, he did not transfer the ownership so far. 12. In this context, it is necessary to refer three Bench decision of the Honourable Supreme Court reported in [(2018) 3 Supreme Court Cases 1], **Naveen Kumar v. Vijay Kumar and Others.** In the said decision, it has been categorically held that where a motor vehicle is subject to an agreement of hire purchase, lease or hypothecation, the person M.A.C.A.No.2045 of 2013 ..6.. in possession of the vehicle under that agreement is treated as the owner. In a situation such as the present where the registered owner has purported to transfer the vehicle but continues to be reflected in the records of the registering authority as the owner of the vehicle, he would not stand absolved the liability. Parliament has consciously introduced the definition of the expression 'owner' in S.2(30), making a departure from the provisions of S.2(19) in the earlier Act of 1939. The principle underlying the provisions of S.2(30) is that the victim of a motor accident or, in the case of a death, the legal heirs of the deceased victim should not be left in a state of uncertainty. A claimant for compensation ought not to be burdened with following a trail of successive transfers, which are not registered with the registering authority. To hold otherwise would be to defeat the salutary object and purpose of the Act. Hence, the interpretation to be placed must facilitate the fulfilment of the object of the law. In the present case, the first respondent was the 'owner' of the vehicle involved in the accident within the meaning of S.2(30). The liability to pay compensation stands M.A.C.A.No.2045 of 2013 ..7.. fastened upon him. Admittedly, the vehicle was uninsured. The High Court has proceeded upon a misconstruction of the judgments of this Court in Reshma and Purnya Kala Devi [(2015) 3 SCC 679] and [(2014) 14 SCC 142], the liability to pay compensation lies with the RC owner of the vehicle. The evidence available as that of RW2 read with the contention raised by the original owner, till the registered owner is the first respondent. Therefore, it is the duty of the first respondent to pay compensation to the petitioner. Coming to the liability insofar as act only policy is concerned, it has been consistently held that a pillion rider in a motorcycle is not covered by act only policy and last decision reported in [2021(4) KLT 413], **Oriental Insurance Company Limited v. Thilakan** is also on this point. 13. Over all discussion would persuade to meet to conclude that the Tribunal went wrong in fastening liability upon the insurance company without discussing the issue. Thus, the said finding is erroneous and requires interference. Accordingly, the award fastening liability upon the insurance company is set aside. M.A.C.A.No.2045 of 2013 ..8.. In the result, the appeal succeeds and it is accordingly allowed. The order of the Tribunal fastening liability on the insurer/appellant is set aside. It is specifically ordered that the registered owner of the motorbike is liable to compensate the petitioner in relation to the award passed by the Tribunal and the company has no liability to indemnify the insured or to pay compensation ordered by the Tribunal as per the impugned award. Thus, the company is fully exonerated from the liability. Sd/- ## **A.BADHARUDEEN, JUDGE** rkj