IN THE HIGH COURT OF KERALA AT ERNAKULAM
MACA.No. 622 of 2009()
1. JOSHY JOHN, AGED ABOUT 40 YEARS,
... Petitioner
Vs
1. K.K.PURUSHOTHAMAN, AGED 54 YEARS,
... Respondent
2. UTHAM KUMAR.K.G., S/O.THARAKASHI,
3. NEW INDIA ASSURANCE CO.LTD.,
For Petitioner :SRI.M.K.DILEEPAN
For Respondent :SRI.P.G.GANAPPAN
The Hon'ble MR. Justice M.N.KRISHNAN
Dated :01/11/2010
O R D E R
M.N. KRISHNAN, J.
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M.A.C.A. NO. 622 OF 2009
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Dated this the 1st day of November, 2010.
J U D G M E N T
This appeal is preferred against the award of the
Motor Accidents Claims Tribunal, Pala in O.P.(MV)26/06.
The claimant, while travelling in an auto rickshaw has
sustained injuries in a road accident and he was
awarded a compensation of Rs.71,980/- and the
insurance company was directed to pay the amount and
get it reimbursed from respondents 1 and 2, namely the
owner and driver. It is challenging the reimbursement
from the driver, the driver has come up in appeal.
2. Heard the learned counsel for the appellant as
well as the insurance company. It is true that when an
accident took place on account of the rash and negligent
driving of the driver he is primarily liable and the owner
is vicariously liable for the acts of the driver and the
insurance company by virtue of the terms is bound to
M.A.C.A. 622 OF 2009
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indemnify the owner. Now the reimbursement is the
issue in this case only on account of the fact that the
vehicle did not have a valid permit and therefore there
had been breach of policy condition which enable the
insurance company to realise the amount from the
owner. Now the position is well settled in view of the
decision reported in Ashraf v. Fathima 2004 (2) KLT
598. There a question arose as to the right of
recovery so far as the insurance company is concerned.
This Court held that the privity of contract is in between
the insured and the insurer. Normally the policies are
issued only in the name of registered owner and
therefore the Court held that the insurance company
can recover the amount only from the registered owner
on account of the privity of contract. Now it is the
privity of contract that governs the field. When there is
a breach of policy condition namely non possession of a
valid permit it is a breach committed by the owner and
M.A.C.A. 622 OF 2009
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therefore the contract of insurance enables the insurer
to get the amount recovered from the insured for the
breach of policy conditions. Since the right to recover is
on account of the breach of policy condition, then, only
the insurer can be made liable. Therefore I modify the
award of the Tribunal and hold that the insurance
company is competent to recover the amount only from
the owner namely the 2nd respondent in the claim
petition and not against R1. The position would have
been different if the claimant was to proceed, for the
reason so far as the claim is concerned all are jointly
and severally liable. This is the position of law. With
this modification the appeal is disposed of.
M.N. KRISHNAN, JUDGE.
ul/-