IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN MONDAY, THE 26TH MAY 2008 / 5TH JYAISHTA 1930 MFA.No. 1157 of 2000 ------------------------------ OPMV.653/1998 of MOTOR ACCIDENT CLAIMS TRIBUNAL, KASARAGOD .................................... APPELLANT/IST RESPONDENT ------------------------------------------- YOGEESHA K.K., S/O. RAMACHANDRA K.K., HOUSE NO. 1/106, POST CHARLA, KULOOR VILLAGE, VIA MAJESHWAR, KASARAGOD TALUK. BY ADV. SRI.P.SHRIHARI SMT. P.VANI RESPONDENTS/PETITIONERS ------------------------------------------- 1. RAMAYYA SHETTY, S/O. AITHAPPA SHETTY, KANGUME HOUSE, MAJIBAIL VILLAGE & POST, KASARAGOD TALUK. 2. DIVAKARA SHETTY, S/O. RAMAYYA SHETTY, KANGUME HOUSE, MAJIBAIL VILLAGE & POST, KASARAGOD TALUK. 3. UNITED INDIA INSURANCE CO. LTD., MG ROAD, KASARAGOD – 671 121, REP. BY BRANCH MANAGER. BY ADV. SMT.T.C.SOWMIAVATHY FOR R3 SRI.SURESH KUMAR KODOTH FOR R1 THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 26/05/2008,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON CMP NO. 6645/2000 IN M.F.A NO. 1157/2000 D. DISMISSED 26/05/2008. SD/- J.B.KOSHY, JUDGE. SD/- P.N.RAVINDRAN, JUDGE. True copy Tga J.B.KOSHY & P.N.RAVINDRAN, JJ. ------------------------------- M.F.A.NO.1157 OF 2000 () ----------------------------------- Dated this the 26th day of May, 2008 J U D G M E N T KOSHY,J. Appellant was the 1st respondent before the Motor Accidents Claims Tribunal, Kasaragod in O.P.(MV). No.653/1998. According to the 1st respondent in the appeal (claimant), he sustained injuries while travelling in an autorickshaw when the auto hit against a cow and capsized. Tribunal found that accident occurred due to the negligent driving of the 2nd respondent. Despite receipt of notice by respondents 1 and 2, owner and driver of the autorickshaw, they did not enter appearance. Insurance company admitted the coverage of insurance but contended that there was no valid driving licence for the 2nd respondent. Nobody was examined. Documents were marked. Ext.A5 is the driving licence particulars of the 2nd respondent issued by the R.T.O., Kasaragod. According to the appellant in the appeal (1st respondent), he sold the vehicle to one Vasantha Poojari prior to the date of accident and when notice was received, he MFA.1157/2000 2 informed the said Poojari to defend the matter and that is why he did not enter appearance in the court. The tribunal found that there was valid licence but badge was not produced and tribunal has directed Insurance company to deposit the amount awarded and release the amount from the appellant, the registered owner of the offending vehicle. It is contended that he was not the owner at the time of the accident. But the Apex Court in Dr.T.V.Jose v. Chacko P.M. @ Thankachan and others (AIR 2001 SC 3939) held that registered owner is liable to pay the compensation to 3rd parties notwithstanding the sale. Therefore, even if there was a transfer, if he was a registered owner, he is liable. In any event, appellant did not take any steps to implead the alleged transferee, despite receipt of notice. 2. When the coverage was admitted by the Insurance company, question is whether there is any violation of policy conditions. The claimant has produced evidence to show that driver was having a valid driving licence. No evidence was adduced by the Insurance company to show that he was not having a badge. He was not charge sheeted for driving an auto without valid driving licence or without a badge and only MFA.1157/2000 3 a documentary evidence was adduced. Driver was ex parte. Insurance company did not adduce any evidence to show that driver was not having a badge at the time of accident or alleged absence of the badge was the cause of accident or insured was guilty of negligence. From the evidence it cannot be stated that 2nd respondent was not having a badge and 2nd respondent was declared ex parte. In this connection we also refer to the decision of the three member Bench of the Supreme Court in National Insurance company Ltd. v. Swaran Singh (AIR 2004 SC 1531) (See paragraph 105, Sub paragraphs (iii), (iv) and (vi) of the above judgment). Since violation of policy conditions was not proved by the Insurance company, we are of the view that Insurance company is liable to deposit the amount and insured is entitled to be indemnified by the Insurance company. Therefore, direction of the tribunal to recover the compensation amount from the appellant is set aside. Appeal is allowed to the above extent. J.B.KOSHY, JUDGE P.N.RAVINDRAN, JUDGE prp J.B.KOSHY & P.N.RAVINDRAN, JJ. -------------------------------------------------------- M.F.A.NO.1157 OF 2000 () --------------------------------------------------------- J U D G M E N T --------------------------------------------------------- 26th May, 2008