T.V. Kurian v United India Insurance Company Ltd & Lisumon James

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE S.SIRI JAGAN** **WEDNESDAY, THE 1ST DECEMBER 2010 / 10TH AGRAHAYANA 1932** ## **WP(C).No. 21242 of 2008(D)** **---------------------------------------OPMV.33/1996 of MOTOR ACCIDENT CLAIMS TRIBUNAL, MUVATTUPUZHA** **....................** ## **PETITIONER(S):** **----------------------** **T.V.KURIAN, S/O.MATHAI VARKEY, THEKKEMAROTTITHALACKAL HOUSE, THIRUMARADI.** **BY ADVS. SRI.GIGIMON ISSAC SRI.GEORGE SEBASTIAN** ## **RESPONDENT(S):** **-------------------------** **1. UNITED INDIA INSURANCE COMPANY LTD. BRANCH OFFICE, MUVATTUPUZHA.** **2. LISUMON JAMES, S/O.DEVASSIA CHACKO, KARIMBANAYIL HOUSE, NEYYASSERY (P.O) THODUPUZHA.** **R1 BY ADV.SRI.THOMAS MATHEW NELLIMOOTTIL R2 BY ADV. SRI.P.RAMAKRISHNAN** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 01/12/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **sts** ## **WP(C) NO. 21242/2008** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** - **P1 COPY OF THE R.C. PARTICULARS OF THE VEHICLE BEARING NO. KBE 7256 ISSUED FROM JOINT REGIONAL TRANSPORT OFFICE, THODUPUZHA.** - **P2 COPY OF THE JUDGMENT DATED 07/01/04 IN MFA 459/1999 OF THIS HON'BLE COURT.** - **P3 COPY OF THE ORDER DATED 19/07/06 IN RP 286/06 MFA 459/1999 OF THIS HON'BLE COURT.** - **P4 COPY OF THE ORDER DATED 2/02/08 IN E.P.22/06 IN OP(M.V)33/96 OF MACT, MUVATTUPUZHA.** ## **RESPONDENT'S EXHIBITS:** ## **NIL** ## **/TRUE COPY/** ## **P.A.TO.JUDGE** **sts** S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= W.P(C) No. 21242 of 2008 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= Dated this, the 1[st] day of December, 2010. **==> picture [102 x 12] intentionally omitted <==** The petitioner was the owner of an autorickshaw. He transferred the same to the 2[nd] respondent and the registration of the autorickshaw was also transferred in the name of the 2[nd] respondent with effect from 4.5.1995. On 16.7.1995, the autorickshaw was involved in an accident, in which one Sri. M.K. Raveendran was injured. The said Sri. M.K. Raveendran filed O.P (MV) No. 33/1996 before the MACT, Muvattupuzha, claiming compensation for the injuries suffered by him in the accident. In that O.P, both the petitioner as well as the 2[nd] respondent were impleaded as respondents apart from the 1[st] respondent insurance company with whom the petitioner had insured the vehicle when he was the owner of the vehicle, the period of which insurance spilled over beyond the date of the accident. Neither the petitioner nor the the 2[nd] respondent took the trouble to intimate the 1[st] respondent about the transfer of the vehicle. The 2[nd] respondent did not bother to insure the vehicle against third party risk, although the same was mandatory under the Motor Vehicles Act. In the award, the Tribunal came to the finding that the said Sri. M.K. Raveendran is entitled to compensation for the injuries suffered by him on account of the accident caused by the negligence of the driver of the vehicle. The Tribunal passed an award against all the respondents directing payment of compensation to the injured. The Insurance Company challenged that award in M.F.A.No. 459/1999 disclaiming liability to pay the award amount, on the ground that the driver did not have a valid licence at the time of the accident, in which a Division Bench of this Court passed Ext. P2 judgment, which reads thus: “Appellant is the Insurance Company. Compensation of Rs.23,750/- was awarded to the claimant in O.P.(MV) No. 33/96 on the file of the Motor Accidents Claims Tribunal, Muvattupuzha. W.P.C. No. 21242/08 ## -: 2 :- The Tribunal found that the accident occurred due to the negligence of the 2[nd] respondent driver of the autorickshaw insured by the appellant. He was charge-sheeted for driving the autorickshaw without driving licence as can be seen from Ext. A3 charge-sheet. The 2[nd] respondent was called upon to produce his driving licence as per I.A.No. 420/98. Even though notice was accepted, driving licence was not produced. Therefore, admittedly the vehicle was driven without valid driving licence. The Apex Court has held that even if there is no driving licence, liability to third party cannot be avoided by the Insurance Company. Therefore, Insurance Company is liable to deposit the amount awarded. Since there is violation of policy condition as the driver was not having valid licence to drive the vehicle at the time of the accident, Insurance Company is allowed to recover the amount from the insured. The entire amount with interest should be deposited by the Insurance Company. The appellant Insurance Company is free to recover the amount from the insured as the driver of the autorickshaw was not holding a valid driving licence at the time of the accident.” In that judgment, this Court did not specify as to who is the insured from whom the Insurance Company can recover the amount. The petitioner herein filed a review petition, which was disposed of by Ext. P3 order, which reads as follows: “Motor Accidents Claims Tribunal awarded a compensation of Rs. 23,750/- and also directed respondents 1 to 4 including the petitioner in this review petition to pay the amount. Review petitioner did not file any appeal. Insurance Company filed appeal. We have in the appellate judgment which was dictated in the open court in the presence of the advocate directed that since there is valid insurance, Insurance Company should deposit the amount of compensation and the insurance Company can recover the same from the insured as there was violation of policy condition. We have not stated who is the insured. According to the petitioner, he transferred the vehicle to the fourth respondent and registered owner at the time of accident was the fourth respondent and, therefore, fourth respondent is the insured. That is a matter to be considered by the execution court. There is no point to review. The review petition is dismissed with the above observation.” Subsequently, the Insurance Company filed an execution petition before the Tribunal against the petitioner alone. In that execution petition, the petitioner took the contention that by virtue of the W.P.C. No. 21242/08 -: 3 :- deeming provision in Section 157 of the Motor Vehicles Act, the petitioner is not the insured and therefore he is not liable to pay the amount to the Insurance Company. Rejecting that contention, by Ext. P4 order, the Tribunal held that the petitioner is the insured and overruled the objection filed by the petitioner in that regard. The petitioner is challenging Ext. P4 order of the Tribunal in the E.P in this writ petition. 2. The contention of the petitioner is that the petitioner, admittedly, was not the registered owner of the vehicle on the date of the accident. Therefore, by virtue of the deeming provision in Section 157(1) of the Motor Vehicles Act, the insurance of the vehicle also stands transferred to the registered owner of the vehicle and therefore only the registered owner can be made liable to make good the compensation amount to the Insurance Company on account of the violation of the policy condition. 3. Both the Insurance Company and the 2[nd] respondent support Ext. P4. According to them, Section 157 has been enacted only to protect the interest of the third party and not the owner of the vehicle or the insured. According to them, Section 157 can be invoked only for the benefit of the third party and no right emanates from it in favour of the registered owner or the insured as per the insurance policy. The 2[nd] respondent relies on the decision of the Supreme Court in **Complete Insulations (P) Ltd** . v. **New India Assurance Co. Ltd.** , 1996 ACJ 65 for the proposition that the legal fiction under Section 157 is limited to third party risks and the transferee of the vehicle is not a third party qua the vehicle. 4. I have considered the rival contentions in detail. 5. Admittedly, as on the date of the accident, the petitioner was not the registered owner of the vehicle and the driver who was driving the vehicle causing the accident by his negligence was not W.P.C. No. 21242/08 -: 4 :- employed by him. Admittedly, the 2[nd] respondent was the registered owner of the vehicle and for the act of the driver of the vehicle employed by him, he only was vicariously liable to the person who was injured in the accident caused on account of the negligence of the driver of the vehicle. As such, here, the petitioner is a stranger to the accident. By no stretch of imagination, could the petitioner have been made liable to pay compensation in respect of the accident caused by the driver of the 2[nd] respondent by negligently driving the vehicle owned by the 2[nd] respondent. That being so, it is a travesty of justice to make the petitioner liable for making good the compensation paid to the injured by the Insurance Company on the ground of violation of the policy conditions, I am of opinion that an interpretation contrary to the same would be against all canons of justice and fair play. In Ext. P4 order, the Tribunal held that since the petitioner had not informed the Insurance Company about the transfer of the vehicle, the petitioner becomes liable. I do not think that that view is correct. The liability to pay compensation for injuries caused in a motor accident is tortious in nature. The petitioner can be made liable only vicariously. Vicarious liability would arise only if the petitioner was the owner of the vehicle and the driver of the vehicle was his employee. In this case, on the date of the accident, the petitioner was neither the owner of the vehicle nor the employer of the driver, who caused the accident by his negligence. Therefore, simply because the petitioner failed to inform the Insurance Company about the transfer of the vehicle, he does not become liable to make good the compensation amount paid to the insurance Company. I am of opinion that the judgment of the Supreme Court in **Complete Insulations' case** (supra) does not lay down any contrary proposition of law. Simply because the deeming provision in Section 157 is limited in application in favour of a third party only and the transferee of the W.P.C. No. 21242/08 -: 5 :- vehicle is not a third party qua the vehicle, a person who has nothing to do with the vehicle or the accident as on the date of the accident, does not become liable to make good the compensation amount to the Insurance Company on the ground of violation of policy condition. In this case, insofar as the petitioner cannot be made liable in tort for the injuries suffered by the victim of the accident on account of the negligence of the employee of the 2[nd] respondent, for disclaiming liability, he does not need to take advantage of either the insurance policy or the deeming provision of Section 157. In fact, it is not the petitioner who seeks indemnification under the insurance policy. If anybody needed to seek such indemnification, it is only the 2[nd] respondent. Therefore, if at all anybody needs to take advantage of the policy or the deeming provision under Section 157, it is only the 2[nd] respondent. The insurance company can at the best recover the amount paid by them only from the persons on whom the tortious liability lies for the accident, insofar as they have only satisfied the liability of the persons responsible for the accident. In fact, the Insurance Company can now recover the compensation paid by them to the claimant from the tortfeasor, only if they contend that by virtue of the deeming provision of Section 157, the policy stands transferred to the present owner and since the present owner violated the policy condition, he is liable to make good the amount paid by the Insurance Company to the victim of the accident caused by the tortfeasors. That being so, I am of opinion that by no stretch of imagination can the petitioner be mulcted with the liability to make good the compensation amount paid by the Insurance Company to the injured, on the ground of violation of the policy conditions. Therefore, Ext. P4 holding that the petitioner is the insured who is liable to make good the compensation amount paid by the Insurance Company to the injured, back to the Insurance Company, W.P.C. No. 21242/08 -: 6 :- is quashed. It is up to the Insurance Company to take appropriate steps to recover the amount paid by them from any other person who is liable to pay the amount. The right in that regard is left open to be agitated by them again before the Tribunal appropriately. The writ petition is allowed as above. Sd/- S. Siri Jagan, Judge. Tds/