IN THE HIGH COURT OF KERALA AT ERNAKULAM
MACA.No. 55 of 2005(C)
1. JOY PAULOSE, KOLLARNALIYIL HOUSE,
... Petitioner
Vs
1. BIJOY GOPI, S/O. GOPI,
... Respondent
2. SIVAN, S/O. GOPALAN, NELLIKKATHADATHIL
3. PAULOSE K.V., S/O. VARGHESE,
4. THE MANAGER, ORIENTAL INSURANCE CO.LTD.,
For Petitioner :SRI.K.JAJU BABU
For Respondent :SRI.SUNU P.JOHN
The Hon'ble MR. Justice M.N.KRISHNAN
Dated :25/09/2008
O R D E R
M.N. KRISHNAN, J.
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M.A.C.A. NO. 55 OF 2005
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Dated this the 25th day of September, 2008.
J U D G M E N T
This appeal is preferred against the award of the Motor
Accidents Claims Tribunal, Muvattupuzha in O.P.(MV)900/01.
The claimant, a pillion rider sustained injuries in a road
accident while he was travelling as a pillion rider in a bike
driven by the first respondent in the claim petition. Due to
the negligence of the first respondent, the accident occurred.
The claimant has impleaded R2 as the owner R3 as the
insured and R4 as the insurance company. The insurance
company contended that there was no valid driving licence
for the first respondent and so there is breach of policy
condition. The Tribunal found that there was no licence and
directed the insurance company to pay the amount and later
recover it from the 3rd respondent, insured. The appeal is
preferred by the 3rd respondent in the claim petition
challenging the said finding. Learned counsel would contend
that even going by the averments in the petition the 3rd
M.A.C.A. 55 OF 2005
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respondent in the claim petition is only an insured whereas
the ownership of the vehicle is vested in the 2nd respondent.
Therefore he finds fault with he Tribunal for imposing the
liability to realise from the 3rd respondent. It is not known
that who was the registered owner of the vehicle at that
time. In the decision reported in Ashraf v. Fathima 2004
(2) KLT 598 the Division Bench of this Court had held that,
“Insurance company cannot recover it from
the defacto owner because there is no
contractual agreement between the defacto
owner and the insurance company. The
insurance company can recover it only from
the insured.”
Therefore being the insured the 3rd respondent in the claim
petition may not be able to escape from the liability but if he
is able to establish that the vehicle has been transferred and
2nd respondent is the owner in possession of the vehicle
certainly he will be entitled to get it recovered from the 2nd
respondent. Or in other words, there may be primary
liability cast on the 3rd respondent to pay the amount to the
M.A.C.A. 55 OF 2005
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insurance company and get it recovered from the 2nd
respondent by the execution of the same award. But for the
said purpose it has to be established that the 3rd respondent
in the claim petition has sold the vehicle to the 2nd
respondent therein. It is matter that requires consideration
by the Tribunal. Learned counsel for the appellant also
would contend that the rider did have a valid learner’s licence
on the date of accident and there was a person having
licence as a pillion rider at that time. It is also a matter that
can be considered by the Tribunal. If it is found that it is
also false then the Tribunal shall not hesitate to initiate
criminal proceedings against the persons who are producing
false copies. Therefore the award under challenge is set
aside so far as it relates to the liability of the insurance
company and the interse liability of respondents 2 and 3 in
the claim petition and the Tribunal shall give opportunity to
produce cogent documentary evidence in support of their
respective contentions especially after permitting
respondents 2 and 3 if they choose to do so to file written
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statement and then permit the insurance company to file
additional written statement, frame proper issues and then
dispose of the matter in accordance with law. Parties are
directed to appear before the Tribunal on 10.11.08.
The MACA is disposed of accordingly.
M.N. KRISHNAN, JUDGE.
ul/-