IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 20TH AUGUST 2008 / 29TH SRAVANA 1930 MACA.No. 361 of 2006() ---------------------- OPMV.1293/1999 of MOTOR ACCIDENT CLAIMS TRIBUNAL, ATTINGAL .................... APPELLANT/IST RESPONDENT: ---------------------------------------------- AJESH.A.L, S/O.ASOKAN, KUZHIVILA VEEDU, HOUSE NO.VIII/181, PONGUMOODU, ULLOOR, MEDICAL COLLEGE.P.O, TRIVANDRUM-11. BY ADV. SRI.G.S.REGHUNATH RESPONDENTS: APPLICANT &RESPONDENTS 2 TO 4): ---------------------------------------------------------------------------------- 1. ANILKUMAR.K.G, S/O.E.KUNJUKRISHNAN, GOMATHY NIVAS, KOONTHALLOOR, CHIRAYINKIL.P.O, TRIVANDRUM DISTRICT. 2. BABU @ KOCHU BABU, S/O.GOPI, KAVUVILA VEEDU, KAVUVILA, KOONTHALLOOR, CHIRAYINKIL.P.O, TRIVANDRUM DISTRICT. 3. M/S.UNITED INDIA INSURANCE CO. LTD., DIVISIONAL OFFICE, C.W.C.BUILDING, L.M.S.COMPOUND, PALAYAM, THRIVANDRUM-33. 4. SHIYAS, SHIYAS BUILDING, MANANAKKU, PERUMKULAM.P.O, TRIVANDRUM. ADV. SRI.M.R.RAJESH FOR R2 SRI.S.MAMMU FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 20/08/208 ALONG WITH M.A.C.A.NO.636 OF 2006, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss M.N. KRISHNAN, J. = = = = = = = = = = = = = = M.A.C.A. NOs. 361 & 636 OF 2006 = = = = = = = = = = = = = = = Dated this the 20th day of August, 2008. J U D G M E N T These appeals are filed by the first respondent in the claim application against the award passed by the Motor Accidents Claims Tribunal, Attingal in O.P.(MV)Nos.1293/99 and 1282/99. It is the case of the claimants before the Tribunal that the petitioner in O.P.1293/99 was riding the scooter bearing Registration No.KL01/J-9377 with the petitioner in O.P.1282/99 as pillion rider along Valiyakada - Ayanthikadavu public road and when it reached near the place of accident a motor bike bearing Registration No.KL01/F-9164 driven by the 2nd respondent came from the opposite direction in a rash and negligent manner hit on the petitioner's scooter resulting in injuries to both of them. The first respondent namely the appellant herein filed a written statement contending that he is not the owner of the vehicle and he has sold it to the supplemental R4, Shiyas on 29.10.96. The 3rd respondent would contend there was a M.A.C.A.Nos. 361 & 636 OF 2006 -:2:- valid coverage but there was no driving licence for the rider of the motor bike and therefore it is not liable to be indemnified. Supplemental R4 did not enter appearance. The Tribunal considered the matter in detail passed an award directing the insurance company to deposit the amount and then further ordered that the amount so deposited can be recovered from respondents 1 and 2 in the claim petitions. Unfortunately, the Tribunal has not considered the question who was the owner in possession of the vehicle on the date of accident in spite of the specific contention of the first respondent that he had sold the vehicle to 4th respondent on 29.10.96. The accident had taken place on 23.6.99. Learned counsel for the appellant would contend Ext.B3 would reveal that R4 was the owner of the vehicle at the relevant time. So there is some force in the contention of the learned counsel for the appellant. But the vehicle stood registered in the name of the appellant and the policy was also in his name. So the contract of insurance was between the appellant and the insurance company. When it is so even if the vehicle is sold and another person is in possession M.A.C.A.Nos. 361 & 636 OF 2006 -:3:- the question whether the insurance company can recover such an amount from such person has come up for consideration before a Division Bench of this Court reported in Ashraf v. Fathima 2004 (2) KLT 598, where the Division Bench held as follows, “Here, the insurer is still the registered owner as admittedly, the appellant, the registered owner, did not invoke the matter of transfer to the insurance company and insurance is not transferred. The insurance company cannot recover it from the defacto owner because there is no contractual agreement between the defacto owner and the insurance company. The insurance company can recover it only from the insured.” 2. In the light of this pronouncement the registered owner in whose name the policy stood cannot escape from the liability of making the repayment to the insurance company when it is awarded on account of the breach of policy conditions. M.A.C.A.Nos. 361 & 636 OF 2006 -:4:- 3. The next question that may arise is, if it is proved that supplemental R4 is the owner of the vehicle on the date of accident what will be the compensation. The definition of owner u/s 2(30) would reveal that a person in possession of a vehicle in pursuance of an agreement is also an owner. U/s 19 of the Sale of Goods Act a sale is complete when there is transfer of possession coupled with divestiture of title and payment of consideration. It has been held in very many decisions that transfer of a registration certificate is a formality to be complied with under the provisions of the M.V.Act for statutory purpose. So if one is able to establish that he has sold the vehicle then he may get the right to get the amount which he reimbursed to the insurance company from the person to whom he has sold the vehicle. In order to adjudicate that point it has become necessary to find out who is the owner in possession of the vehicle at the date of the accident. Therefore, for the said purpose the matter requires reconsideration. Therefore the appeals are allowed to the limited extend as detailed below. M.A.C.A.Nos. 361 & 636 OF 2006 -:5:- (1) The appellant herein is permitted to adduce documentary as well as oral evidence in support of the sale of the bike in order to enable the Tribunal to find out who was the owner on the date of accident. (2) Since 4th respondent had chosen to remain exparte before the Tribunal, notice to him is dispensed with from this Court. The appellant is directed to take out notice to him in the correct address before the matter is proceeded further with from the Tribunal. (3) The junction of the claimant is not necessary for a proper disposal of the case as the insurance company has paid the amount. Parties are directed to appear before the Tribunal on 14.10.08. M.N. KRISHNAN, JUDGE. ul/-