High Court of KeralaSingle Judge2011-01-21The liability portion of the Tribunal’s award i...

New India Assurance Company Ltd. v. Venugopal A., Binu K.T., Ayyappan

Case / Petition Number:MACA No. 1975 of 2010

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: M.N. Krishnan
Judgment Date: 2011-01-21
Court Decision / Holding: The liability portion of the Tribunal’s award is set aside; the matter is remitted to the Motor Accidents Claims Tribunal for fresh consideration after impleading Sudhish S/o Kochappu, with written statements and both documentary and oral evidence permitted. The parties are to appear on 25.2.2011. The decision effectively directs a rehearing to address the two core issues and the eligibility of the insured for reimbursement, in light of the cited authorities.
Final Disposition: The liability portion of the Tribunal’s award is set aside and remitted to the Tribunal for fresh adjudication after impleading the alleged owner, with opportunity to file written statements and to lead documentary and oral evidence; appearance fixed for 25.2.2011.

Parties to the Case

Appellants / Petitioners

New India Assurance Company Ltd., Perumbavoor Branch, rep by the Manager

Respondents

Venugopal A., S/o Ayyappan, Nandikattu House, Moolamattom, P.O., Moolamattom, PIN-685589;
Binu K.T., S/o Thankappan, Kalchira Veettil, Kulamavu Kara, Idukki Village, PIN-685601;
Ayyappan, S/o Subramanniyan Pillai, Palackal House, Karunapuram, Idukki, PIN-685552

Legal Representation & Advocates

Counsels for Petitioners

• Sri. Rajan P. Kaliath

Counsels for Respondents

• Sri. N.K. Shyju
• Sri. C.A. Joy
• Sri. Anil Kumar S.

Case Synopsis & Summary

This High Court of Kerala MACA appeal challenges a Motor Accidents Claims Tribunal award in O.P.(MV)340/06, ultimately remitting the matter for fresh decision. The Tribunal awarded Rs. 22,800 as compensation and directed reimbursement from the insurer, which the appellant insurer contests. The court focuses on two core issues raised on appeal: (i) whether absence of a badge on the auto-rickshaw driver constitutes breach of policy conditions, and (ii) who is liable where vehicle ownership is disputed in light of transfer of possession. Regarding licensing, the court reiterates that a public vehicle like an auto-rickshaw requires a duly authorised driving licence with a badge under S.3(1) of the Motor Vehicles Act, and rules that absence of a badge breaches the policy condition, relying on New India Assurance Co. Ltd. v. Roshanben Rahemansha Fakir (SC). Consequently, the insured would be liable to reimburse the insurer. On ownership, the court notes under S.2(30) of the MV Act that a person in possession may be treated as owner; mere non-transfer of registration is not vitiating, but impleading the alleged owner Sudhish S/o Kochappu is warranted for a full adjudication. The insurer’s position is further reinforced by Ashraf v. Fathima, limiting recovery to the insured. The High Court thus sets aside the liability portion of the Tribunal’s award and remits the case for re-hearing with written and oral evidence after impleading the alleged owner, directing appearance on 25.2.2011.

Provisions of Law Cited

Motor Vehicles Act, 1988, Section 3(1)Motor Vehicles Act, 1988, Section 2(30)

Legal Doctrines & Maxims

Absence of a badge constitutes breach of policy condition.
Under MV Act, possession may confer ownership (S.2(30)).
Contract of insurance is between insurer and insured; insurer can recover only from the insured.

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellant insurer contends two main points: (i) absence of a badge on the driver constitutes a breach of policy conditions because a badge is essential for driving a transport vehicle, and (ii) determination of liability when ownership transfer is involved, including the possibility of impleading Sudhish S/o Kochappu as a later owner. Relying on New India Assurance Co. Ltd. v. Roshanben Rahemansha Fakir, the insurer argues that non-possess of a valid driving licence breaches policy, obliging reimbursement. The court also considers that Section 2(30) of the MV Act recognizes possession as potentially constituting ownership, and that post-sale registration transfer can be a separate act. The insurer seeks opportunity to examine evidence of a valid licence on the date of the accident. The court directs remand for fresh consideration after impleading Sudhish, with both documentary and oral evidence, and cites Ashraf v. Fathima to emphasize the insurer–insured contract principle.

Contentions of Respondents

The document outlines the issues raised on appeal (badge breach and ownership/liability). It does not provide a detailed disclosure of the respondents’ specific arguments within the text; the core dispute centers on liability and the necessity to implead the owner for a proper adjudication, and on whether the Tribunal’s findings should stand in light of licensing, ownership, and reimbursement concerns.

Cited Precedents (2)

Case Name	Citation	Treatment	Explanation
New India Assurance Co. Ltd. v. Roshanben Rahemansha Fakir	2008 (8) SCC 253	Positive	Used to establish that lack of a valid driving licence for a transport vehicle constitutes a breach of policy; thereby the insured may be liable to reimburse the insurer.
Ashraf v. Fathima	2004 (2) KLT 598	Positive	Cited to support the principle that the contract of insurance is between the insurer and the insured, and the insurer’s remedy is against the insured.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE M.N.KRISHNAN** **FRIDAY, THE 21ST JANUARY 2011 / 1ST MAGHA 1932** **MACA.No. 1975 of 2010()** **------------------------------------** **OPMV.340/2006 of MOTOR ACCIDENT CLAIMS TRIBUNAL, THODUPUZHA** **....................** ## **APPELLANT/3RD RESPONDENT** ## **----------------------------------------------** **NEW INDIA ASSURANCE COMPANY LTD, PERUMBAVOOR BRANCH, REP BY THE MANAGER.** **BY ADV. SRI.RAJAN P.KALIYATH** ## **RESPONDENTS/CLAIMANT AND R1 AND 2.** **--------------------------------------------------------------** **1. VENUGOPAL. A, S/O.AYYAPPAN, NANDIKATTU HOUSE, MOOLAMATTOM. P.O, MOOLAMATTOM, PIN-685 589.** **2. BINU.K.T, S/O.THANKAPPAN, KALCHIRAVEETTIL, KULAMAVU KARA, IDUKKI VILLAGE, PIN-685 601.** **3. AYYAPPAN, S/O.SUBRAMANNIYAN PILLAI, PALACKAL HOUSE, KARUNAPURAM, IDUKKI, PIN-685 552.** **R2 BY ADV. SRI.N.K.SHYJU. R3 BY ADV. SRI.C.A. JOY,** **SRI. ANILKUMAR.S.** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 21/01/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **rs** ## **MACA.No. 1975 of 2010** ## **ORDER ON I.A.NO.2583/2010 IN MACA NO.1975/2010** ## **DISMISSED** **21/01/2011. SD/- M.N.KRISHNAN, JUDGE** **//TRUE COPY//** **P.A. TO JUDGE** **rs** **M.N. KRISHNAN, J.** **= = = = = = = = = = = = = = M.A.C.A. NO. 1975 OF 2010 = = = = = = = = = = = = = = = Dated this the 21[st] day of January, 2011.** **==> picture [128 x 15] intentionally omitted <==** This appeal is preferred against the award of the Motor Accidents Claims Tribunal, Thodupuzha in O.P.(MV)340/06. The claimant sustained injuries in a road accident and the Tribunal awarded a compensation of Rs.22,800/and directed it to reimburse from the insurance company. It is against that decision the insurance company has come up in appeal. 2. Heard the learned counsel for the appellant as well as the 3[rd] respondent, owner. The two points that emerge for consideration in the appeal are, one, regarding the question whether the absence of a badge would amount to a breach of policy condition and secondly, when there is a transfer of the vehicle, who is to be M.A.C.A. 1975 OF 2010 ## -:2:- affixed with the liability. 3. So far as the licence is concerned the vehicle involved in the accident is a passenger carrying auto rickshaw which comes under the definition of the word transport vehicle under the M.V.Act. S.3(1) of the M.V.Act very clearly states that a person should have a duly authorised licence to drive a vehicle which he is plying. There cannot be any dispute that in order to constitute a valid and proper driving licence to drive a public vehicle like an auto rickshaw it is necessary to have a licence and a badge. Or in otherwords, the badge is a due authorisation permitting the person to drive a public vehicle. Therefore the finding of the Tribunal that the absence of a badge does not militate against the driver cannot be upheld. The Hon'ble Supreme Court in the decision M.A.C.A. 1975 OF 2010 -:3:- reported in **New India Assurance Co. Ltd. v. Roshanben Rahemansha Fakir (2008 (3) TAC 20 (SC). 2008 (8) SCC 253** considered the question and held that when the driver of a vehicle is not possessing a valid driving licence to drive a transport vehicle there is breach of policy condition. So in the light of the said pronouncement it has to be held that the insured is bound to reimburse the amount in favour of the insurer. So the finding to the contra by the Tribunal is therefore set aside. 4. The next contention is regarding the ownership of the vehicle. Even the insurance company in their written statement has contended that the ownership of the vehicle was transferred to Sudhish S/o Kochappu prior to the accident. Under the provisions of the M.V.Act and especially u/s 2(30) a person in possession ## M.A.C.A. 1975 OF 2010 -:4:- can also be an owner of the vehicle. The sale being one under the provisions of the Sale of Goods Act parting with possession and receiving consideration amounts to divestiture of title. The Courts have very clearly held that the transfer of registration is a conduct subsequent to the sale and therefore the mere non-transfer cannot vitiate the same. So it is also a point that has to be considered by impleading the person who is alleged to be the owner of the vehicle. 5. Then comes the question of reimbursement. It has to be stated that by virtue of the decision of this Court reported in **Ashraf v. Fathima 2004 (2) KLT 598** since the contract of insurance is between the insurer and the insured the insurer can proceed only against the insured. Therefore that is also a matter ## M.A.C.A. 1975 OF 2010 ## -:5:- which requires consideration. If such is the contingency and there is a finding to the effect that Sudhish is the owner of the vehicle then the insured cannot be left without any remedy and there can be a direction for reimbursement of the amount by Sudhish to the insured. So all these points requires consideration after the impleadment of Sudhish S/o Kochappu. Since the dispute is only with respect to reimbursement the claimant need not be dragged on. The learned counsel for the appellant also prays for an opportunity to adduce evidence with regard to the existence of a valid driving licence as on the date of the accident, that also can be permitted. 6. Therefore the award under challenge so far as it relates to the liability part is set aside and the matter is remitted back to the M.A.C.A. 1975 OF 2010 ## -:6:- Tribunal with a direction to consider all the points that has been discussed in the previous paragraphs of the judgment after impleading Sudhish S/o Kochappu. The registered owner as well as this Sudhish be permitted to file written statement in support of their respective contentions and thereafter all be permitted to adduce both documentary as well as oral evidence in support of their respective contentions and then the matter be disposed of in accordance with law. Parties are directed to appear before the Tribunal on 25.2.2011. ## **M.N. KRISHNAN, JUDGE.** ul/-