IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 19TH NOVEMBER 2008 / 28TH KARTHIKA 1930 MFA.No. 110 of 2005() --------------------- WCC.38/2000 of W.C.C., KANNUR .................... APPELLANT(S): APPLICANT: --------------------------------------------- MURALIDHARAN, S/O. K.P. KUNHIKANNAN, PARAMBATH PUTHIYAPURAYIL HOUSE, RAMANTHALI, P.O. KARANTHADE, KANNUR DISTRICT. BY ADV. SRI.PROMY KAPRAKKATT SRI.SUNIL NAIR PALAKKAT SRI.K.N.ABHILASH SMT.P.K.BEENA SRI.PRAMOD KUMAR RESPONDENT(S): OPPOSITE PART NO.1 & OPPOSITE PARTY NO.2: ---------------------------------------------------------------------------------------------------- 1. E.M.P. MUHAMMAD SHARIF, S/O. U.K. ABDULLA, F.M.P. HOUSE, VADAKKUMBAD POST, RAMANTHALI, PAYYANNUR, KANNUR DISTRICT. 2. THE NATIONAL INSURANCE COMPANY LTD., P.B.NO.32, NEAR MUKUND HOSPITAL, PAYYANNUR, KANNUR DISTRICT. ADV. SRI.JOE KALLIATH FOR R2 THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 19/11/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss J.B.KOSHY & THOMAS P. JOSEPH, JJ. -------------------------------------- M.F.A.No.110 of 2005 ------------------------------------- Dated 19th November, 2008 JUDGMENT Koshy,J . Appellant/claimant sustained injuries in a motor accident during the course of employment on 26.3.98. He applied for compensation. At the time of the accident he was driving the autorickshaw bearing registration No.KL-13B 1150. He claimed compensation of Rs.1,50,000/= against the employer who was the registered owner of the autorickshaw as well as the insurance company which insured the autorickshaw. First opposite party, registered owner admitted employer-employee relationship, but, contended that the vehicle was duly insured. Second opposite party, National Insurance Company admitted coverage of insurance at the time of the accident, but, contended that possession of the vehicle was transferred before the accident even though agreement of transfer was made subsequent to the accident. That was made on the basis of Ext.R2 sale agreement and Ext.R4 kychit. Ext.R2 sale agreement is dated 24.4.1998, much after the accident and that agreement itself was entered into only for getting possession of the vehicle through kychit. That also is after the accident. When the first opposite party, registered owner of the vehicle admitted that he employed the claimant and he continued to be the registered owner, merely because of the kychit and agreement it cannot be stated MFA.110/2005 2 that he was not the employer of the claimant and another person named Satheeshan had employed him. It was held by the Supreme Court that transfer of ownership is not a ground for the insurance company to deny statutory liability under section 147 of the Motor Vehicles Act. (See Rikhi Ram and another v. Smt.Sukhrania and others (AIR 2003 SC 1446) and G.Govindan v. New India Assurance Co. Ltd. (AIR 1999 SC 1398)). Therefore, compensation is liable to be paid by the insurance company. However, the Commissioner has not found the loss of earning capacity and did not calculate compensation. In the above circumstances, we remand the matter for consideration of percentage of loss of earning capacity suffered by the claimant and also the amount of compensation payable. Both parties are allowed to adduce further evidence before the Commissioner on that aspect. Parties shall appear before the Commissioner on 12.1.2009. Since it is a case filed in 1998, the Commissioner is directed to dispose of the case as expeditiously as possible. J.B.KOSHY JUDGE THOMAS P. JOSEPH JUDGE tks