IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 1ST NOVEMBER 2010 / 10TH KARTHIKA 1932 MACA.No. 622 of 2009(F) ---------------------- OPMV.26/2006 of MOTOR ACCIDENT CLAIMS TRIBUNAL, PALA .................... APPELLANT(S): 1ST RESPONDENT: --------------------------------------- JOSHY JOHN, AGED ABOUT 40 YEARS, S/O.JOHN, UPPUMAKKAL HOUSE, KIZHATHIRI KARA, KURINJI CHURCH BHAGOM, RAMAPURAM VILLAGE. BY ADV. SRI.M.K.DILEEPAN SRI.DEEPAK T.NEDUNGADAN SMT.P.SUMITHRA RESPONDENT(S)/CLAIM PETITIONER & RESPONDENTS 2 AND 3: --------------------------------------------------------------------- 1. K.K.PURUSHOTHAMAN, AGED 54 YEARS, S/O.KUNJAN, KOTTAPPADATHU HOUSE, PIZHAKU P.O., MANNATHOOR. 2. UTHAM KUMAR.K.G., S/O.THARAKASHI, G.H.MALANKARA QUARTERS, MUTTAMBALAM P.O., KOTTAYAM. 3. NEW INDIA ASSURANCE CO.LTD., REP.BY ITS BRANCH MANAGER, ETTUMANOOR BRANCH, ETTUMANNOOR, KOTTAYAM DISTRICT. ADV. SRI.P.G.GANAPPAN FOR R3 SRI.K.A.RASHEED FOR R1 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 01/11/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.N. KRISHNAN, J. = = = = = = = = = = = = = = M.A.C.A. NO. 622 OF 2009 = = = = = = = = = = = = = = = 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 -:2:- 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 -:3:- 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/-