IN THE HIGH COURT OF KERALA AT ERNAKULAM
MACA.No. 964 of 2006()
1. THE ORIENTAL INSURANCE CO.LTD.,
... Petitioner
Vs
1. KURICHAN P.V. S/O.VARGHESE .P.P.
... Respondent
2. RAJAPAN, S/O.GOPALAN, KOMBAMTHANATHU
3. ROJI ABRAHAM, S/O.ABRAHAM,
For Petitioner :SRI.GEORGE CHERIAN (THIRUVALLA)
For Respondent :SRI.T.K.VIPINDAS
The Hon'ble MR. Justice M.N.KRISHNAN
Dated :29/07/2008
O R D E R
M.N.KRISHNAN, J.
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M.A.C.A. No. 964 OF 2006
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Dated this the 29th day of July, 2008
JUDGMENT
This appeal is preferred against the award passed by the Motor
Accident Claims Tribunal, Muvattupuzha, in OP(MV) 1717/02. The
claimant was awarded a compensation of Rs.23,000/- and the Insurance
Company was directed to deposit the amount within one month.
2. Learned counsel for the Insurance Company would contend
that having found that the driver did not have an effective valid driving
licence, the Tribunal should have atleast given a recovery right to the
Insurance Company. It is further contended that the appellant had made
an application to implead the registered owner of the vehicle as a
necessary party. It was dismissed by the Tribunal as per its order in IA
2202/05. Now the two question that arises for determination are as follows:
(i) Whether the Tribunal was right in dismissing the application
for impleadment of the registered owner.
(ii) Whether the Tribunal was right in not granting any order in
favour of the Insurance Company the right to recovery of the amount in the
light of the finding that there was no valid driving licence.
3. So far as the first point is concerned, a Division Bench of this
court in Ashraf v. Fathima [2004 (2) KLT 598] had held that there is a
contract of insurance only between the Insurance Company and the
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registered owner and as the policy stands in the name of the registered
owner, the Insurance Company is not entitled to realise the amount from a
person who is defacto in possession of the vehicle. So the junction of the
registered owner in whose name the insurance policy stands is a
necessary party and therefore the Tribunal was wrong in dismissing that
application.
4. So far as second point is concerned, it is true that when a
third party is injured in an accident in the light of the decision reported in
National Insurance Co. Ltd. v. Swaran Singh [2004 (1) KLT 781 (SC)]
the Insurance Company has to pay the amount. But, when they prove that
there was no effective valid driving licence and there is breach of policy
conditions, atleast the right to recover the amount has to be granted from
the person who is liable to do so. In a case of this nature, a twin question
that may arise in the light of the definition of the owner under the Motor
Vehicles Act. Under section 2(30) a person in possession of a vehicle by
virtue of an agreement is also an owner for the purpose of the Motor
Vehicles Act. At the same time, when the policy stands in the name of the
registered owner and as the contract of insurance is between the
registered owner and the Insurance Company, the Insurance Company
may only be able to realise the amount from the registered owner. When
such a situation arises, the Tribunal may have to find that the registered
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owner so as to reimburse the amount with a further liberty to the the
registered owner to realise that amount from the person who is the owner
in possession of the vehicle.
5. These are all matters which has not been considered at all by
the Tribunal. Therefore, the award under challenge is set aside so far as it
relates to the inter se liability between the Insurance Company and the
registered owner and driver. To that extent, the award is set aside and the
matter is remitted back to the Tribunal. The Tribunal is directed to permit
the Insurance Company to implead the registered owner of the vehicle and
also to permit all parties to produce both documentary and oral evidence in
support of their respective contentions and the Tribunal shall dispose of the
matter in accordance with law. Since the junction of driver is necessary,
the Insurance Company is also permitted to take out notice to the driver
after its appearance before the Tribunal so that all can be heard before a
final decision is taken in the matter.
Parties are directed to appear before the Tribunal on 3.9.08.
M.N.KRISHNAN, JUDGE
vps
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