IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN FRIDAY, THE 15TH JANUARY 2010 / 25TH POUSHA 1931 MACA.No. 2391 of 2009() --------------------------------- OPMV.1279/2007 of MOTOR ACCIDENT CLAIMS TRIBUNAL, KOLLAM .................... APPELLANT(S): 1ST RESPONDENT IN THE OP ----------------------- GOPALAKRISHNA PILLAI, S/O. PACHAN PILLAI KOTTAMOOLA, EAST TO 'SAHRUDAYA LIBRARY', KOTTAPURAM, PARAVOOR, KOLLAM DISTRICT-691 301. BY ADV. MR.B.MOHANLAL RESPONDENT(S): APPLICANT & 2ND RESPONDENT AND TRANSFEREE --------------------------- 1. MR.BABU, THAILETHU MALAYIL VEEDU, KADASSANADU MURI, KADAMANKULAM, PALAMEL VILLAGE, MAVELIKKARA TALUK, ALAPPUZHA DISTRICT. 2. THE DIVISIONAL MANAGER, M/S.NEW INDIA INSURANCE COMPANY LTD., DIVISIONAL OFFICE, KOLLAM. 3. MR.SAGAR LAL, S/O. KRISHNANKUTTY PILLAI, K.S.BHAVAN, NEDUNGOLAM, CHATHANNOOR, KOLLAM DISTRICT. R1 BY ADVS. MR.K.SIJU, MR.PRATHEESH.P. R2 BY MR.P.MURALEEDHARAN THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 15/01/2010, ALONG WITH MACA. NO.3101 OF 2009 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON IA. NO.2802/2009 IN MACA. NO.2391/2009 DISMISSED 15/01/2010 SD/- M.N.KRISHNAN, JUDGE TRUE COPY P.A. TO JUDGE tss M.N. KRISHNAN, J. ........................................... M.A.C.A.NOS.2391 & 3101 OF 2009 ............................................. Dated this the 15th day of January, 2010. J U D G M E N T MACA 2391/2009 is filed by the first respondent in the original petition against its liability to pay the amount and the other appeal is filed by the claimant regarding the liability as well as the quantum. The principal questions for consideration in these appeals are regarding the liability of the insurance company. The vehicle involved in the accident is a Maruthi Omini Van. It is the contention of the appellant/first respondent in the original petition that he had transferred the vehicle by virtue of Ext.B4 agreement and therefore he is not liable to pay the compensation. The insurance company would contend that the policy was issued to the vehicle which was registered as a private car and really the permit would go to show that it has been used as a tourist car (a public passenger carrying vehicle). Therefore, it is submitted that when the policy is taken as a vehicle running as a private car and it is used as a public transport vehicle then it is by suppression of the material : 2 : M.A.C.A.NOS.2391 & 3101 OF 2009 facts the policy is taken and therefore the insurance company is not liable to pay the amount. Unfortunately this matter has not been very elaborately dealt with by the learned Tribunal. The points that may arise really for determination are (1) who was the owner of the vehicle on the date of the accident,(2) whether the policy has been taken by suppressing the material fact and whether it was being used as a tourist taxi, (3) if it is so, whether it will amount to breach of the policy conditions and is it void? If one is said to have established regarding the suppression of material facts and taking out of the policy, the policy will not have validity and the insurance company may not be liable at all. If such a situation arises, the next question will be who is the owner of the vehicle on the date of the accident. Under the provisions of the Motor Vehicles Act a person in possession can also be the owner and further it is also very clear that transfer of registration is only a condition subsequent to the same for the reason that when a vehicle is sold by receiving consideration, possession is handed over, then there is an absolute divestiture of title which would make the person : 3 : M.A.C.A.NOS.2391 & 3101 OF 2009 who has so purchased as an owner of the vehicle. 2. Therefore, these are all matters which requires consideration after impleading the person who has been impleaded as the third respondent in these appeals. The question whether the driver did have a valid driving licence or not also can be considered. Since the matter has to go back, I direct the Tribunal to reconsider the question of adequacy of the compensation also. 3. Therefore the award under challenge is set aside and the matter is remitted back to the Tribunal with a direction to permit the appellant in MACA.No.2391/2009 to move an application for impleadment of his transferee and thereafter permit all concerned to produce documentary as well as oral evidence in support of their respective contentions and if necessary to raise additional pleadings as well and thereafter dispose of the matter in accordance with law. The parties are directed to appear before the Tribunal on 22.02.2010. M.N. KRISHNAN, JUDGE. cl