IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MRS. JUSTICE K.HEMA TUESDAY, THE 29TH JANUARY 2008 / 9TH MAGHA 1929 MFA.No. 928 of 2000(C) --------------------------------- O.P.(MV).NO.2051/1995 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, MUVATTUPUZHA .................... APPELLANT/ ADDL.4TH RESPONDENT: --------------------------------------------------------- THOMAS PHILIP, AGED 42, S/O. THOMAS POTHEN, KURIYADITHARA HOUSE, PARIYARAM.P.O, KOTTAYAM. BY ADV. SRI.VARGHESE C.KURIAKOSE. RESPONDENTS/ PETITIONER AND RESPONDENTS 1,2,3, 5 AND 6: ---------------------------------------------------------------------------------------------- 1. MOHAN DAVID, AGED 38, S/O. DAVID, MANNIL KOONJIKKAL HOUSE, VAKAYAR, KONNI. 2. C.K. JOSEPH, CHETTICHERIL HOUSE, GANDHI NAGAR.P.O., KOTTAYAM. 3. JOSE, S/O. JOSEPH, NELLIKKAL HOUSE, KONGANDOORKARA, AYARKUNNAM VILLAGE. 4. NATIONAL INSURANCE COMPANY LTD., CHANGANASSERY, REPRESENTED BY MTPCO, VETTIKKATTIL BUILDINGS, COCHIN-16. 5. M/S. PLAZA HIRE PURCHASE CO. LTD., KOTTAYAM. M.F.A. NO. 928/2000: 6. XAVIER THOMAS, THENKUMPILLIL HOUSE, KURUPAMTHARA, MANJOOR. BY ADV. SRI.PIRAPPANCODE V.S.SUDHIR - R6, SRI.SAJU JOHN - R2, SRI.JOE KALLIATH - R4, SRI.MATHEW JOHN - R5, SRI.BABY THOMAS. THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 29/01/2008 ALONG WITH M.F.A NOS.1105/2001 & 478/2001, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON C.M.P. NO. 9648/2001 IN M.F.A. NO. 928/2000 DISMISSED SD/- J.B.KOSHY, JUDGE, 29/01/2008. SD/- K. HEMA, JUDGE. //TRUE COPY// prv. J.B.KOSHY & K.HEMA, JJ. ------------------------------- M.F.A.NOS.928 OF 2000, 478 & 1105 OF 2001 () ----------------------------------- Dated this the 29th day of January, 2008 J U D G M E N T KOSHY,J. In all these cases claims were filed contending that the claimants were injured due to the negligent driving of the 2nd respondent (3rd respondent in the appeal) driver of the bus which was insured by the 3rd respondent National Insurance company. Tribunal found that accident occurred due to the negligent driving of the bus insured by the Insurance company. It was also found that the bus was under hire purchase agreement with 5th respondent. It has come out in evidence that it is that finance company which takes insurance coverage for the vehicle on the name of the hirer. Originally vehicle was purchased in the name of the 1st respondent. Thereafter the vehicle was transferred to 4th respondent (appellant in this case). Before the date of accident, that is, on 10.4.1994, M.F.A.NOS.928 OF 2000, 478 & 1105 OF 2001 () 2 registration was not changed making appellant as the hirer and registered owner. But real owner was the hire purchase company which advance the money and that remains to be the real owner till the instalment is closed. It was taking the insurance policy. The vehicle was transferred only on 4.3.1994 by the 4th respondent and insurance was also taken in the name of the appellant and on the next month, that is, on 10.4.1994, the accident occurred before the endorsements were make in the R.C.Book. But Insurance company insure the vehicle in the name of real hirer (transferee). Even though 4th respondent contended that he again transferred to 6th respondent, that was not accepted by the tribunal. There is no evidence to show that it was transferred to 6th respondent. 6th respondent is neither the owner nor the hirer of the vehicle and third party can proceed against the real owner. Third party liability is a statutory liability. At the time of the accident, vehicle was validly insured by the 3rd respondent Insurance company. Tribunal has exonerated Insurance company because here as the name of the insured was mentioned as M.F.A.NOS.928 OF 2000, 478 & 1105 OF 2001 () 3 C.K.Joseph, 1st respondent but the real owner cum driver was the 4th respondent (appellant) in whose name insurance was taken. But his name was not shown in the R.C.Book as the owner. Hence appellant has no insurable interest, and therefore, there is no valid insurance policy. But the fact that finance company has taken the insurance and company continued to be the real owner though owner at the time of accident is the hirer appellant. Transfer of the vehicle to the appellant before the accident is admitted. Transfer is complete as soon as delivery is effected after payment of money. In the facts and circumstances of the case also before the date of the accident it was transferred but there was some delay in alleging the R.C.particulars. After transfer of the vehicle to the appellant insurance was taken in the name of the appellant. It cannot be stated that appellant had no insurable interest. In this connection we refer to the decision of the Supreme Court in Vasantha Viswananthan v. V.K.Elayalwar and others (AIR 2001 SC 3367) wherein it was held that transfer of the vehicle is complete when possession is given and delivery is M.F.A.NOS.928 OF 2000, 478 & 1105 OF 2001 () 4 effected as per contract and date of registration is not the date of transfer. Therefore, there was valid insurance coverage at the time of accident. In the above circumstances, we are of the view that Insurance company is liable to deposit the amount due to third party which is a statutory liability as the vehicle was insured. Supreme Court in Rikhi ram and another v. Smt. Sukhrania and others (AIR 2003 SC 1446) held that after transfer of ownership of the vehicle by the insured also, Insurance company is liable to pay compensation if the vehicle is insured at the relevant time. In G. Govindan v. New India Assurance Co. Ltd. (AIR 1999 SC 1398) Supreme Court held that legal representatives of the victim cannot be denied the compensation by the insurer on the ground that the policy was not transferred in the name of the transferee. When claim was raised by Ext.B3 letter dated 8.12.1994, the insurance policy was cancelled. But subsequent cancellation of the policy is not a ground for denying the insurance as it is not disputed that on the relevant date, the vehicle was duly insured by the third respondent. Cancellation of policy was M.F.A.NOS.928 OF 2000, 478 & 1105 OF 2001 () 5 made after the accident only when claim was raised (See New India Assurance Co. Ltd. v. Rula and others (AIR 2000 SC 1082). Delay in change of the name of the hirer in the registration book is not the cause of the accident. In the above circumstances, we are of the opinion that the 3rd respondent Insurance company (R4 in appeal) is liable to pay compensation but we note that tribunal has awarded 12% interest on the compensation amount. We are of the opinion that considering the rate of interest on the date of passing of the award, that is, December 1999, interest is modified from 9% to 12% from the date of accident till the date of deposit. Appeals are allowed to the above extent. J.B.KOSHY, JUDGE K.HEMA, JUDGE prp J.B.KOSHY & K.HEMA, JJ. -------------------------------------------------------- M.F.A.NOS.928 OF 2000, 478 & 1105 OF 2001 () --------------------------------------------------------- J U D G M E N T --------------------------------------------------------- 29th January, 2008