IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 31ST JULY 2008 / 9TH SRAVANA 1930 MACA.No. 1682 of 2006(D) ------------------------------------- O.P.M.V.NO.1441/1999 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, PERUMBAVOOR. .................... APPELLANT/ (2ND RESPONDETS IN O.P. M.V. NO. 1441/1999): ---------------------------------------------------------------------------------------- ELDHO M.K., S/O.KURIAN, MARANGADAN HOUSE, ALLAPRA BHAGAM, VENGOLA KARA, VENGOLA VILLAGE, PERUMBAVOOR. BY ADV. SRI.C.J.JOY, ADV. SRI.V.J.JAMES, ADV. SRI.K.K.VIVEKANANDAN. RESPONDENTS/ (PETITIONER AND RESPONDENTS 1,3,4,5,6 AND 7 IN O.P.M.V. NO.1441/1999: ---------------------------------------------------------------------------------------------------- 1. PADMINI, AGED 36 YEARS, W/O.NARAYANAN, KANJIRAKKADAN HOUSE, ALLAPRA, SOUTH COLONY, VENGOLA KARA, VENGOLA VILLAGE. 2. SHAJI, S/O.REGHU, KUNNAMPURATH, KAIPATOOR KARA, KALADY VILLAGE. 3. NATIONAL INSURANCE CO. LTD., BRANCH OFFICE, MULLAPPILLY BUILDING, A.M.ROAD, PERUMBAVOOR. 4. SANTHOSH, S/O.RAMAKRISHNAN, ELLIKKAKKUDY HOUSE, KAVUMPURAM BHAGAM, KOOVAPPADY VILLAGE. 5. P.G.THANKAMMA, W/O.THANKACHAN ACHARI, CHUNDAKKATHIL HOUSE, ATHIRAMPUZHA VILLAGE. M.A.C.A. NO. 1682/2006-D: 6. NATIONAL INSURANCE CO. LTD., BRANCH OFFICE, A.M.ROAD, PERUMBAVOOR. 7. NAUSHAD, S/O.SAIDU PILLA, EDAPPARA HOUSE, PEZHAKKAPPILLY KARA, MUVATTUPUZHA. ADV. SRI.GEORGE SEBASTIAN FOR R7. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 31/07/2008,ALONG WITH M.A.C.A. NO. 1683/ 2006 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. M.N.KRISHNAN, J ===================== MACA Nos.1682 & 1683 OF 2006 ===================== Dated this the 31st day of July 2008 JUDGMENT These appeals are preferred against the award of the Motor Accidents Claims Tribunal, Perumbavoor in O.P.(MV)Nos.1441/1999 & 73/2000. A brief reference of the facts would reveal that the petitioner in O.P.(MV) No.73 of 2000 while riding a motor cycle KRO-9700 met with an accident on account of a collision between the bike and an autorickshaw bearing No.KL-7Q-4078. In the accident, the claimant and a passenger in the auto sustained injuries and it is the passenger in the auto who has filed O.P.(MV) No.1441/99. In O.P.(MV)No.1441/1999, respondents 1 to 3 therein were shown as the driver, owner and insurer of the auto and the 7th respondent was impleaded as the owner in possession. Respondents 4 to 6 were the rider of the bike, its owner and the insurance company. In the other O.P filed by the rider of the bike only three respondents were impleaded, i.e. R1 to R3 in the other O.P. 2. The Tribunal on a consideration of the materials arrived at a decision that the auto driver was responsible for the accident. It did not find MACA 1682 & 1683/2006 -:2:- in favour of R7 regarding transfer in O.P.(MV)No.1441/1999 and it did not consider it properly also. The Tribunal also found that there was a breach of policy condition on account of the fact that the driver of the auto did not have valid driving license. So, in both the cases, respondents 1 to 3 were made liable to pay the amount and the right of recovery was given to the insurance company from the registered owner of the auto. Dissatisfied with that decision, the registered owner of the auto has preferred both these appeals. 3. It is contended by him that by virtue of a sale, the auto has been transferred in favour of the 7th respondent in O.P.(MV)No.1441 of 1999 as early as on 11.7.1997. Since the accident had taken place on 25.7.1999, he is not the owner of the vehicle and the ownership according to him was with the 7th respondent. Unfortunately, the 7th respondent did not contest the case before the Tribunal. Learned counsel appearing for him before this Court would submit that he was the owner in possession only for two days and thereafter he had transferred it in favour of one Sunil. It is also submitted by him that he was never the registered owner. 4. First, I will consider the liability of the registered owner with respect to the insurance company. A Division Bench of this Court in the decision reported in Ashraf v. Fathima(2004(2) KLT 598) held that “the MACA 1682 & 1683/2006 -:3:- insurance company cannot recover it from the de facto owner because there is no contractual agreement between the de facto owner and the insurance company. The insurance company can recover it only from the insured”. So, in the light of this decision, the right of recovery so far as it is concerned, the insurance company can only do it against the registered owner, who is the policy holder and therefore the said finding cannot be disturbed. 5. Then the larger question arises who is the owner of the vehicle on the date of the accident. Under Section 2(30) of the Motor Vehicles Act an owner includes a person who is in possession of the vehicle on the basis of an agreement. Therefore if there had been a transfer then that person will be the de facto owner. This Court has held that the transfer of a registration certificate is not a sin qua non for a sale of the vehicle and it only follows after the sale is effected. Under Section 19 of the Sale of Goods Act, the divestiture title coupled with payment of consideration and transfer of possession would complete a sale and such a sale will attract Section 2(30) of the Motor Vehicles Act. Therefore it is a matter which requires consideration. 6. Learned counsel for the appellant had brought to my notice Ext.B1 which would indicate according to him that a case registered against the MACA 1682 & 1683/2006 -:4:- registered owner for permitting a driver without a valid license to drive the vehicle ended in acquittal on the ground that he was not the owner of the vehicle on the relevant date of accident. But who is the owner on the date of accident requires consideration and even if the registered owner is bound to pay the amount to the insurance company on account of the insurance contract he may be entitled to recover that amount from the person who is the owner in possession of the vehicle on the date of accident. Now a situation has arisen to find out whether the 7th respondent in the claim petition was the owner or whether there had been subsequent transfer and who was the person in possession as owner on the date of accident. Therefore, I set aside the common award passed in the above cases and direct the Tribunal to dispose of the cases as follows:(1) The appellant herein is directed to implead the 7th respondent as a party in O.P.(MV) No.73 of 2000 also. (2) The 7th respondent can file a written statement in both the cases regarding the stand taken by him. (3)If there is an allegation that he had transferred the vehicle to anybody those persons also may be impleaded so as to arrive at a decision that who was the person in possession as owner of the vehicle on the date of accident. All the parties can be permitted to produce documentary as well as oral evidence in support of their respective contentions and the court can enter into a finding after MACA 1682 & 1683/2006 -:5:- framing appropriate issues who was the person in possession on the date of accident.(4) On such a finding, the Tribunal, if finds that the present appellant is not the owner of the vehicle on the date of accident, he may be given right of reimbursement. The question of recovery in favour of the appellant would arise only when he pays off the amount to the insurance company under the award passed by the Tribunal. Parties are directed to appear before the Tribunal on 4.9.2008. MACAs are disposed of as above. M.N.KRISHNAN, JUDGE Cdp/-