IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.PADMANABHAN NAIR TUESDAY, THE 8TH JANUARY 2008 / 18TH POUSHA 1929 MFA.No. 1123 of 2001() ---------------------- OPMV.3219/1995 of MOTOR ACCIDENT CLAIMS TRIBUNAL, MUVATTUPUZHA .................... APPELLANT/PETITIONER: ------------------------------ CHINNAN, S/o. MANI, AGED 42 YEARS, MANGALASSERY HOUSE, KUZHAKOMBU KARA, KOOTHATTUKULAM. BY ADV. SRI.PEEYUS A.KOTTAM RESPONDENTS/ RESPONDENTS: ------------------------------------- 1. P.S.SHAJI, PALAMOOTTIL HOUSE, EDAVETTY.P.O. 2. THANKACHAN, S/o. ULAHANNAN, PARATHATTEL HOUSE, POOVAKULAM KARA, VALIYANOOR VILLAGE. 3. THE ORIENTAL INSURANCE COMPANY LTD., MUVATTUPUZHA. 4. MOLY CHERIAN, PATTEETHURA HOUSE, KOOTHATTUKULAM. R3 BY ADV. SRI.MATHEWS JACOB R2 & R4 BY ADV. SRI.P.V.GEORGE(PUTHIYIDAM) THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 08/01/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.PADMANABHAN NAIR,J ==================== M.F.A.No.1123 of 2001 ====================== Dated this the 8th day of January, 2008 JUDGMENT The claimant in O.P.(MV).3219/1995 on the file of Motor Accidents Claims Tribunal, Muvattupuzha, is the appellant. Appellant sustained injuries in a Motor vehicle accident on 2.1.1995. He filed a petition claiming compensation impleading the owner driver and insurer of the vehicle and also the registered owner. The registered owner and driver did not appear and contest. Insurer alone contested the case. It was contended that accident occurred when the driver attempted to save a cyclist who abruptly entered to the road from a pocket road. It was contended that there was no negligence on the part of the driver. The quantum of compensation claimed was denied. It was contended that the first respondent transfered the vehicle to one Moly Cheriyan on 14.3.1993 and suppressing that fact he obtained a policy in respect of the vehicle though he was not the owner of the vehicle. So there is wilful suppression of material facts. The Tribunal found that the accident occurred due to the negligence of the driver. It also found that appellant was M.F.A.1123/2001 2 entitled to get an amount of Rs.38,300/- as compensation. It was found that respondents 2 and 4 are liable to pay the compensation. The insured as well as the insurer were exonerated from the liability. Challenging that award this appeal was filed by the petitioner in the Original Petition. Initially the only claim in the appeal memorandum was inadequacy of the quantum of compensation. Subsequently the appeal memorandum was amended for enhancement of amount and for making the insurer also liable for the amount. 2. The finding of the Tribunal that the accident occurred due to the negligence of the second respondent has become final and conclusive. The appellant sustained accromb clavicular dislocation grade II. Though the appellant produced disability certificate showing 19% disability, the Doctor was not examined. The Tribunal rightly rejected Ext.A6. After taking into account all aspects the Tribunal awarded a compensation of Rs.38,300/-. Quantum of compensation awarded is reasonable and it does not call for any interference. 3. The next question arising for consideration is whether the Tribunal was justified in exonerating the insurer from paying the amount awarded. Admittedly the registered owner of the vehicle was first respondent. He sold the same to the additional M.F.A.1123/2001 3 4th respondent on 14.3.1993. The factum of transfer was intimated to the Transport Officer. Ext.B2 shows that the ownership of the vehicle was transferred to the 4th respondent and from 1993 onwards the 4th respondent's name was entered in the Registration Certificate as the registered owner of the vehicle. Even thereafter the third respondent insurer issued a policy in the name of the first respondent who was the previous registered owner. The Tribunal took a view that first respondent had no insurable interest of the vehicle and there is suppression of material facts. Ext.B1 policy shows that policy was issued in the name of first respondent from 8.6.1994 to 7.6.1995. The learned counsel appearing for the insurer had argued that suppressing the factum of transfer, a policy was obtained in the name of first respondent. The first respondent sold the vehicle on 14.3.1993. He had nothing to gain by getting insurance policy with effect from 8.6.1994 to 7.6.1995 in respect of the vehicle which he had sold to the 4th respondent on 14.3.1993. It cannot be disputed that for issuing or renewing insurance policy the owner of the vehicle has to produce the vehicle as well as the vehicle records. So in this case also the 4th respondent must have produced the R.C particulars and other records before the insurer for renewing the insurance certificate. It is to be noted M.F.A.1123/2001 4 that the factum of transfer can be seen from the RC book. So it is evidently clear that due to some over sight office of the insurance company while writing the name of the insured wrote the name of the first respondent instead of 4th respondent. That is a mistake committed by the Office of insurer. It is not a case of any suppression of any material facts. If a person obtains a policy describing the vehicle as a private vehicle and then use it as a public vehicle it will amounts to suppression of fact. But the change of ownership cannot be suppressed. Insurance company cannot issue an insurance policy without verifying the particulars of the vehicle. So this will not amount to suppression of material facts within the meaning of Section 149 of the Motor Vehicle Act. It is true that the first respondent has no insurable interest but since his name is written due to an inadvertent omission the real insurer who is the 4th respondent cannot be denied the benefits of the policy. But she also did not contest. She did not file any appeal. The appeal was filed by the claimant. The learned counsel for the insurer argued that the claimant cannot insist that insurer shall also be made liable. But once it is found that the vehicle is covered with a valid policy of insurance the insurer has to indemnify the insured in view of the statutory provisions contained in the Motor Vehicle Act. So the M.F.A.1123/2001 5 appellant can also insist that the insurer shall be directed to indemnify the insured. Hence the argument of the respondent insurer that the claimant cannot insist for an award against the insurer cannot be accepted. But there is another fact. As already stated this appeal was filed in the year 2001. The appellant amended the appeal only in the year 2007. The 4th respondent did not challenge the award. So I do not think it just and proper to saddle the insurer with the liability from the date of award in this appeal. That has to be paid by the 4th respondent at the rate of 9% per annum. In the result appeal is allowed in part. The claim for enhancement is denied. There will be a direction to the 3rd respondent insurer to deposit the amount awarded by the Tribunal with interest at 9% from the date of petition till the date of award. The 4th respondent is directed to deposit the interest at the rate of 9% on Rs.38,300 per annum from the date of the award till the date of deposit. K.PADMANABHAN NAIR, JUDGE dvs