IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 25TH JANUARY 2011 / 5TH MAGHA 1932 MACA.NO. 2656 OF 2009(E) ------------------------------ (AGAINST THE AWARD IN O.P.(MV) 663/06 ON THE FILE OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, PALA) ........................... APPELLANT(S): 2ND RESPONDENT: ----------------------------------------- S.K.PREMARAJ, S/O. LATE K.KRISHNANKUTTY MENON AGED 38 YEARS, HINDU BY FAITH AND RELIGION LAWYER BY PROFESSION, PERMANENTLYRESIDING AT KRISHNA P.O. KARANTHUR, KOZHIKODE-673571 AND NOW R ESIDING AT C-7, SRI HARI APARTMENTS P.O.FORT TRIPUNITHURA ERNAKULAM-682301. BY ADV. SRI.C.S.MANU RESPONDENT(S): PETITIONER & RESPONDENT NO.S 1,3, 4 ----------------------------------------------------------------------- 1. SHEBBA SUKUMARAN, D/O.SUKUMARAN AGED 34 YEARS, RESIDING AT KUZHIKANDATHIL HOUSE P.O. MONIPALLY, KURIYANAD VILLAGE. 2. ROY CHACKO, FATHERS NAME AND AGE NOT KNOWN TO THE APPELLANT RESIDING AT KOLLATEAL HOUSE, P.O. ONAKKOOR, ONAKKOOR KARA, MUVATTUPUZHA TALUK, ERNAKULAM-686664. 3. THE NEW INDIA ASSURANCE CO. LTD., MUVTTUPUZHA BRANCH REPRESENTED BY THE DIVISIONAL MANAGER, KOTTAYAM. 4. K.M.PAULOSE, S/O. CHACKO, AGED 47 YEARS, RESIDING AT KOLLATEAL HOUSE, P.O.ONAKKOOR, ONAKKOOR KARA, MUVATTUPUZHA TALUK, ERNAKULAM PIN-686664. ADV. SMT.A.SREEKALA FOR R3 R2, R4 BY SUMEY CHANDRAN THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 25/01/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.N. KRISHNAN, J. = = = = = = = = = = = = = = M.A.C.A. NO. 2656 OF 2009 = = = = = = = = = = = = = = = Dated this the 25th day of January, 2011. J U D G M E N T This appeal is preferred against the award of the Motor Accidents Claims Tribunal, Pala in O.P.(MV)663/06. The Tribunal awarded a compensation of Rs.33,800/- and directed the insurance company to pay the amount and held that the insurance company can recover it from respondents 1, 2 and 4 in the claim petition. Respondent 1 is the driver, respondent 2 is the original owner and 4th respondent is the admitted owner in possession of the vehicle on the date of accident. 2. Now the appeal is preferred by the original owner namely registered owner for a direction not to recover it from him. Now the M.A.C.A. 2656 OF 2009 -:2:- peculiar facts and circumstances of the case would show that the vehicle was transferred by the 2nd respondent namely appellant in favour of the 4th respondent about 1½ years prior to the accident. It appears that the registration certificate has not been transferred. But it has to be stated since it is a sale coming under the Sale of Goods Act, handing over of possession coupled with receipt of consideration completes the sale and there is divestiture of title. Therefore R4 has become the owner of the property. Further the definition of the old Act u/s 2(30) of the M.V.Act also include the person who is in possession of the vehicle. Therefore it can be very safely held that R4 in the claim petition was the owner at the time of the accident. M.A.C.A. 2656 OF 2009 -:3:- 3. Now the next question is regarding the correctness of the policy. It is true that S.157 of the M.V.Act envisages a situation of a deemed transfer of the policy. S.157(2) reads that communication has to be done within 14 days. Now extending the benefit to the maximum, one can hold that the deemed continuance of the policy can continue till the expiry of the policy which was issued at the time of sale. Therefore if that is a situation one can hold that the insurance company will be liable. Now admittedly the accident had taken place 18 months after the sale and after the expiry of the policy which was in existence at the time of the sale. The new policy is also taken in the name of the original registered owner suppressing the factum of sale in favour of the 4th respondent. The appellant would contend M.A.C.A. 2656 OF 2009 -:4:- that this had been done behind his back and as not being an owner who had nothing to do with the vehicle he cannot be saddled with the liability. It is true that the contract of insurance is between the insurer and the insured. But when the insured is not the owner of the vehicle and a policy is taken in his name suppressing the sale it amounts to playing over the insurance company. In such a situation the insurance company really cannot be saddled with the liability at all. But so far as this case is concerned much water has flown and the insurance company has deposited the amount and it is withdrawn by the claimant and therefore it may be an uphill task for them to receive the amount from the claimant. So only possibility is that since the 4th respondent in the claim petition who had materially suppressed the M.A.C.A. 2656 OF 2009 -:5:- factum of transfer and had obtained a policy in the name of the original owner has to be directed to reimburse that amount to the insurance company. Therefore I exonerate R2, the appellant and also there cannot be any realisation against the driver. The insurance company is entitled to proceed against the 4th respondent in the claim petition who was the owner of the vehicle at the time of the accident to realise the amount from him for the reason that he had materially suppressed the factum and obtained a policy. So by virtue of that conduct the 4th respondent in the claim petition is made liable for reimbursement to the insurance company. In the result the appeal is allowed and the order of the Tribunal is modified and respondents 1 and 2 in the claim petition are M.A.C.A. 2656 OF 2009 -:6:- exonerated from the liability and the insurance company is given the liberty to realise the amount from the 4th respondent in the claim petition. M.N. KRISHNAN, JUDGE. ul/-