IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 28TH JANUARY 2009 / 8TH MAGHA 1930 MACA.No. 296 of 2007(G) -------------------------------- OPMV.26/2001 of MOTOR ACCIDENT CLAIMS TRIBUNAL, THALASSERY .................... APPELLANT(S): APPELLANT: -------------------------------- THE ORIENTAL INSURANCE CO.LTD., THALIPARAMBA, REPRESENTED BY ITS ADMINISTRATIVE OFFICER, REGIONAL OFFICE, ERNAKULAM NORTH, KOCHI-18. BY ADV. SRI.GEORGE CHERIAN (THIRUVALLA) RESPONDENT(S): CLAIMANT/RESPONDENTS: --------------------------------------------------- 1. SUNIL KUMAR, S/O.NARAYANA MARAR, LAKSHMI NIVAS, NEAR SHIVA TEMPLE, TALIPARAMBA. 2. SABU VARKI, S/O.VARKI, PALLIYATT HOUSE, P.O.POOLAKUTTY, THALASSERY. 3. GIREESHAN. M., S/O.KUMARAN, RAYAROTH HOUSE, P.O.MUNDERIMOTTA, KANNUR DISTRICT. ADV. SMT.K.K.CHANDRALEKHA FOR R.1 SRI.SUDHEESH THAROL FOR R.1 SRI.C.K.SREEJITH FOR R.3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 28/01/2009, ALONG WITH MACA NO. 299 OF 2007 MACA NO. 297 OF 2007 MACA NO. 298 OF 2007 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.N. KRISHNAN, J. = = = = = = = = = = = = = = M.A.C.A. NOs. 296, 297, 298 & 299 OF 2007 = = = = = = = = = = = = = = = Dated this the 28th day of January, 2009 J U D G M E N T These appeals are preferred against the awards of the Motor Accidents Claims Tribunal, Thalassery in O.P.(MV)Nos. 26/01, 1106/00, 229/01 and 107/01. The claimants in O.P. (MV) Nos.1106/00, 229/01 and 26/01 are the persons injured in the accident and the claimants in O.P.(MV) 107/01 are the legal representatives of deceased Narayana Marar who died in the accident. They were all travelling in a jeep which met with the accident. The Tribunal found that the driver of the jeep is negligent and awarded a compensation. The first respondent in O.P.(MV)1106/00 is the registered owner of the jeep, R2 is the agreement owner, R3 driver and R4 the insurance company. In the other cases this R1 Siyavudheen is not impleaded as a party. The Tribunal in paragraph 50 of the judgment held that the insurance policy was in the name of the 2nd respondent, the agreement M.A.C.A.s. 296, 297, 298 & 299 OF 2007 -:2:- owner. According to them the policy was secured by making misrepresentation or suppression of materials facts. The Tribunal did not accept it as such and the Tribunal ultimately held hat “Since the above vehicle has been insured with the 4th respondent at the time of accident, initially they are liable to make payment of compensation to the petitioner. It can be recouped from the respondents 1 and 2 later.” I am afraid that the Tribunal has missed the point. Now the tendency is that insurance companies are not even verifying the certificate before the issuance of policy. As held by the courts the transfer of registration is a procedural formality that follows after the sale of the vehicle and therefore a transfer of registration is not a condition precedent for a valid sale. Being a movable property the sale is governed by S.19 of the Sale of Goods Act and when a person transfers possession of the vehicle on receipt of consideration and gets divested of his right completely then it becomes a complete sale under the provisions of the Sale of Goods Act. So far as the Motor Vehicles' Act is concerned under Section 2(30) of the Motor Vehicles' Act a person in possession of the vehicle M.A.C.A.s. 296, 297, 298 & 299 OF 2007 -:3:- by virtue of an agreement is also an owner for the purpose of the Act. Therefore mere non-transfer of the name of registration does not ipso facto make the sale invalid. Therefore the mere non-transfer of registration shall not militate against a genuine claim. 2. Now, the question argued by the learned counsel for the insurance company is that the jeep was a private vehicle and only an Act only policy was issued for the jeep. When it is only an Act only policy as per the dictum laid down in Tilak Singh's case [United India Insurance Co. Ltd. v. Tilak Singh)2006 (2) KLT 884(SC) the status of the persons travelling in a jeep will be that of a gratuitous passenger not covered by the policy. So the question whether the policy issued takes in coverage of the persons will depend upon the terms and conditions of the policy. But unfortunately the matter is not at all looked into in that aspect and so it requires consideration at the hands of the Tribunal. The question of misrepresentation regarding issuance of a policy will not detains us long for the reason that he was the owner in possession of the vehicle as on the M.A.C.A.s. 296, 297, 298 & 299 OF 2007 -:4:- date of the accident. But the question whether such a policy cover the risk of passengers travelling in a jeep be considered by the Tribunal after permitting the parties to produce documentary as well as oral evidence in support of their respective contentions. These are cases where three vehicles had been involved in the case which requires deep consideration whether all of them or any of them are responsible for the accident. So I am inclined to grant an opportunity to prove the factum of negligence as well. It has to be also stated that if necessary the claimants may implead the owner and driver and insurance company of the other vehicles to find out whether the accident had taken place on account of the negligence of these persons as well. Therefore I set aside the awards under challenge and remit the case back to the Tribunal with a direction to the tribunal to consider the question of coverage of the persons travelling in the jeep on the basis of the terms and conditions of the policy. 3. Since it is not disputed that Sabu Varkey was the owner in possession of the vehicle on the date of accident M.A.C.A.s. 296, 297, 298 & 299 OF 2007 -:5:- and as there was a policy in his name further consideration by suppression of materials for the purpose of having a policy in the name of him need not be considered. 4. The claimants in the cases are permitted to implead necessary parties so as to arrive at a decision on whose negligence that the accident had taken place. For the said purpose if any amendment to the pleadings is necessary that also may be done. Thereafter all parties be permitted to adduce both documentary as well as oral evidence in support of their respective contentions and the matter be disposed of in accordance with law. Parties are directed to appear before the Tribunal on 11.3.09. The MACAs are disposed of accordingly. M.N. KRISHNAN, JUDGE. ul/-