IN THE HIGH COURT OF KERALA AT ERNAKULAM
MACA.No. 1975 of 2010()
1. NEW INDIA ASSURANCE COMPANY LTD,
... Petitioner
Vs
1. VENUGOPALA,S/O.AYYAPPAN,NANDIKATTU
... Respondent
2. BINU.K.T,S/O.THANKAPPAN,KALCHIRAVEETTIL,
3. AYYAPPAN,S/O.SUBRAMANNIYAN PILLAI,
For Petitioner :SRI.RAJAN P.KALIYATH
For Respondent :SRI.N.K.SHYJU
The Hon'ble MR. Justice M.N.KRISHNAN
Dated :21/01/2011
O R D E R
M.N. KRISHNAN, J.
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M.A.C.A. NO. 1975 OF 2010
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Dated this the 21st day of January, 2011.
J U D G M E N T
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 3rd 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
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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
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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
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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
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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
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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/-