IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 6TH OCTOBER 2008 / 14TH ASWINA 1930 MACA.No. 447 of 2007(C) ---------------------- OPMV.260/1996 of MOTOR ACCIDENT CLAIMS TRIBUNAL, PALAKKAD .................... APPELLANT(S): /2ND RESPONDENT -------------------------------------- A.MUHAMMED KUTTY, S/O.KUNJU MUHAMMED, MENATTIL HOUSE, CHERIYAMUDAM, TIRUR, MALAPPURAM. BY ADV. SRI.S.MUHAMMED HANEEFF RESPONDENT(S): CLAIMANTS AND OTHER RESPONDENTS ---------------------------------------------- 1. Y.MOHAN, S/O.SREEDHARAN NAIR, 21/7544, AYODHYA NAGAR, NEAR MERCY COLLEGE, PALLIPURAM P.O., PALAKKAD P.O 2. ABDUL GAFOOR, S/O.ABDUL MUTHALEEF, PALLIPARAMBIL HOUSE, NELLIKKADU, MEPPARAMBU, PALAKKAD. 3. THE ORIENTAL INSURANCE CO.LTD., BRANCH OFFICE, THAZHEPALAM, TIRUR, MALAPPURAM DISTRICT. 4. SIVADASAN, S/O.RAMANKUTTY, THEKKE VEEDU, ODANNOOR, PARLI P.O., PALAKKAD. 5. C.S.BHAVADAS, S/O.C.V.SANKARAN, CHAREERIYAL HOUSE, MAMPARA P.O., PALAKKAD. 6. NEW INDIAN ASSURANCE CO.LTD., THANIKKAL BUILDING, OTTAPALAM. 7. SABEELA, D/O.SAINUDHEEN, THAYYIL HOUSE, PALAKKAD P.O. ADV. SRI.M.JACOB MURICKAN FOR R3 SRI.P.G.GANAPPAN FOR R.6 SRI.SAJEEV KUMAR K.GOPAL FOR R4 SRI.BINOY VASUDEVAN FOR R4 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 06/10/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON I.A.595 OF 2007 IN M.A.C.A. NO. 447 OF 2007 DISMISSED 6/10/08 SD/- M.N. KRISHNAN, JUDGE. [ True Copy ] P.A. TO JUDGE. M.N. KRISHNAN, J. = = = = = = = = = = = = = = M.A.C.A. NO. 447 OF 2007 = = = = = = = = = = = = = = = Dated this the 6th day of October, 2008. J U D G M E N T This appeal is preferred against the award of the Motor Accidents Claims Tribunal, Palakkad in O.P.(MV)260/96. The claimant sustained injuries in a road accident and the Tribunal found that the accident took place on account of the negligence of the first respondent in the claim petition and that the 2nd respondent is the owner and the 3rd respondent is the insurance company. It exonerated R4 to R6 from the liability. The Tribunal after a trial held that the accident had took place on account of the negligence of Abdul Gafoor, driver of auto rickshaw KL10 1772 and directed the 2nd respondent who is the appellant before this Court as vicariously liable for the act of him and directed the insurance company to pay the amount namely, the Oriental Insurance Company. Since the first respondent in the claim petition was found to have not possessing valid driving licence, right to recovery was granted in favour of 3rd respondent in the claim M.A.C.A. 447 OF 2007 -:2:- petition against 2nd respondent. It is against that decision the said R2 has come up in appeal. 2. Heard the learned counsel for the appellant as well as the insurance company. The contention of the appellant before this Court is that he has sold the vehicle and the vehicle at the time of the accident was owned and possessed by Sabeela who is impleaded as 7th respondent in the appeal but not made a party before the Tribunal. A perusal of the contention of the 3rd respondent insurance company in the claim petition also would reveal that the vehicle was insured with Sabeela and not in the name of 2nd respondent. If on the date of accident Sabeela is the registered owner and the policy stands in her name then the order of the Tribunal to get the amount reimbursed from 2nd respondent namely the appellant herein may not be correct. As per the decision of this Court reported in Ashraf v. Fathima 2004 (2) KLT 598 the contract of insurance is between the injured and the insured and a person in defacto possession cannot have the contract of insurance and that is also a point to be M.A.C.A. 447 OF 2007 -:3:- considered. In order to have a proper resolution of the dispute between the parties it is to be found who was the owner of the auto rickshaw bearing No.KL10 1772 on the date of the accident and in whose name it was insured on that date. Thereafter, the question of liability has to be determined. Since R7 herein is a necessary party she has to be impleaded before the lower Court to fix the liability. Therefore the award under challenge is set aside so far as it relates to the liability is concerned. The present appellant is directed to implead Sabeela as a necessary party before the Tribunal and after hearing Sabeela, the present appellant and the insurance company, the Tribunal has to decide who was the owner of the auto rickshaw on the date of the accident and in whose name the vehicle stood insured and thereafter if it is found that there is a breach of policy condition committed by the real owner, it shall pass orders accordingly. If it is found that there is a breach of policy condition the recovery right has to be granted to the insurance company against the person who is liable. The junction of the claimant need not be M.A.C.A. 447 OF 2007 -:4:- insisted for the disposal of the case. In case the present appellant does not take any steps to implead this Sabeela who is R7, whatever the liability as ordered by the Tribunal shall remain. Parties are directed to appear before the Tribunal on 25.11.08. The MACA is disposed of accordingly. M.N. KRISHNAN, JUDGE. ul/-