IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 20TH JANUARY 2011 / 30TH POUSHA 1932 MACA.No. 1623 of 2010() ----------------------- (OPMV.531/2008 of MOTOR ACCIDENT CLAIMS TRIBUNAL, PALA) .................... APPELLANT(S): 3RD RESPONDENT IN OP (MV) NO.531/08 ------------------------------------------------- NATIONAL INSURANCE COMPANY LTD, CHERUPUSHPAM BUILDINGS, PALAI, REPRESENTED BY ITS MANAGER, REGIONAL OFFICE, M.G.ROAD, ERNAKULAM. BY ADV. SRI.LAL GEORGE RESPONDENTS/CLAIMANT & RESPONDENTS 1, 2 4 & 5 ------------------------------------------------------------------------------ 1. VOTTU RAJA, S/O.NAGA THEVAR, THUKKAYAMMAN KOVILINU SAMEEPAM THAMASOM WARD NO.1, DOOR NO.52, C KAMBAM MUNICIPALITY, UTHAMAPURAM, KOMBAI ROAD, THENI DIST., TAMIL NADU AT 626 531 PRESENT RESIDING AT ADIMACKAL HOUSE, VELLIYEPPALLY KARA, MEENACHIL VILLAGE. 2. ABRAHAM @ REGI, S/O.PHILIPOSE, CHERUVAZHAKUNNEL HOUSE, VAKKAPUZHA BHAGOM, VAKKAPUZHA KARA, CHERTHALA VILLAGE. 686 575. 3. SHAJI B.NAIR, S/O.BALACHANDRAN NAIR K.S, KIZHAKEVAKAVAYALIL HOUSE, EDAMATTOM PALA 686 575. 4. RENJITH, S/O.NARAYANAN NAIR, KARUKAPALLIL HOUSE, CHERUVALLI VILLAGE, KANJIRAPPALLY TALUK. 686 508. 5. MALANADU MOTOR SALES & SERVICE PVT.LTD., CHELLAKADU KARA, PAZHAVANGADY VILLAGE, RANNY TALUK - 689 672. R3 ADV. SRI.BABY THOMAS SRI.GIGIMON ISSAC THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 20/01/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: MACA.No. 1623 of 2010() ---------------------------------- ORDER ON IA NO.2242/10 IN MACA NO.1623/10 DISMISSED 20.1.2011 Sd/- M.N.KRISHNAN , JUDGE / TRUE COPY / P.A. TO JUDGE vk M.N. KRISHNAN,J. ........................................... M.A.C.A.NO.1623 OF 2010 ............................................. Dated this the 20th day of January, 2011. J U D G M E N T This is an appeal preferred against the award of the Claims Tribunal, Pala in OP(MV)No.531/2008. The claimant sustained injuries in a road accident and the Tribunal has awarded him a compensation of `91,050/= and directed the insurance company to deposit the amount and get it reimbursed from the 1st respondent. It is against that decision, the insurance company has come up in appeal. 2. Heard the learned counsel for the insurance company as well as the 3rd respondent (registered owner). The contention of the insurance company is that though Section 157(1) of the Motor Vehicles Act provides deemed transfer of the certificate of insurance, it would only relate to the period mentioned in the policy and it cannot be stretched further and liability cannot be cast on the insurance company. It is further contended that if a sale had already taken place and possession has been given to another person : 2 : M.A.C.A.NO.1623 OF 2010 taking a policy in the name of the original registered owner is by suppressing material facts and therefore the said policy is vitiated by the provisions of the Contract Act. Therefore the insurance company would contend that it is not liable. 3. The facts of this case would show that the 4th respondent in the claim petition was given the vehicle by the 2nd respondent in the claim petition as early as in 2002 and this 4th respondent had executed an agreement in favour of the 5th respondent in the claim petition transferring the vehicle in favour of the 5th respondent. The Tribunal would observe that by virtue of Ext.B3 the vehicle after the accident had been released in favour of the first respondent. On that basis alone the Tribunal had arrived at a decision that the 1st respondent is the owner of the vehicle. So far as transfer or sale of the vehicle is concerned, since it is a sale coming under the provisions of the Sales of Goods Act, handing over of possession on receipt of consideration would amount to divestiture of title and change of registration is a subsequent event that has to take place after the same. So, mere non transfer of the rank in the registration : 3 : M.A.C.A.NO.1623 OF 2010 certificate does not amount to invalidate the same. One cannot understand from the award in what capacity it has been fixed that 1st respondent is the owner. The court has to enter into a definite finding on the facts of the case that who was the owner in possession of the vehicle on the date of the accident. I am conscious of the fact that Section 2(30) of the Motor Vehicles Act envisages the situation where a person in possession can also considered to be the owner of the vehicle. So a definite finding in that regard has to be arrived and thereafter the legal question raised by the insurance company has also to be considered. The legal question raised is that by virtue of the provisions under Section 157(1) of the Motor Vehicles Act deemed transfer of the policy is available only during the currency of the policy. Here sale is effected by the second respondent in the claim petition in favour of the 4th respondent therein in the year 2002. Subsequently it is alleged that the vehicle had been transferred in favour of the 5th respondent. So it is only after 2 or 3 transfers, even if it is proved, the 1st respondent becomes the owner in possession of the vehicle. Whether in : 4 : M.A.C.A.NO.1623 OF 2010 such a situation a policy taken in the name of the original registered owner amounts to suppression of material facts is a question that has to be decided. Further it has also to be stated that if all those propositions have to be answered in favour of the persons relating to liability of a registered owner, then what will be the direction to be given will depend upon applicability of the decision of this Court reported in Ashraf v. Fathima (2004(2) KLT 598). So the matter requires total reconsideration. 4. Therefore, the award under challenge is set aside and the matter is remitted back to the Tribunal with a specific direction to consider all the points discussed in the previous paragraphs of the judgment. For the said purpose, parties are permitted to produce 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 28.2.2011. If any amount is in court deposit, let it remain in deposit and disburse it in accordance with the final decision. The Tribunal has to also consider the impact of : 5 : M.A.C.A.NO.1623 OF 2010 the decision reported in Pushpa v. Shakuntla (AIR 2005 Himachal Pradesh 4). Disposed of accordingly. M.N. KRISHNAN, JUDGE. cl : 6 : M.A.C.A.NO.1623 OF 2010