IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 18TH JUNE 2008 / 28TH JYAISHTA 1930 MACA.No. 1540 of 2005(D) ------------------------------------- O.P(MV).NO.1275/2001 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, MUVATTUPUZHA .................... APPELLANT/1ST RESPONDENT: ---------------------------------------------- SURESHKUMAR, S/O.KUTTAPPAN, MANNARKANDATHIL HOUSE, KEZHOOR P.O., VAIKOM, KOTTAYAM. BY ADV. SRI.S.SUBHASH CHAND, ADV. SRI.M.P.MARY. RESPONDENTS/PETITIONER,RESPONDETS 2, 3 & ADDL. 4TH RESPONDENT: -------------------------------------------------------------------------------------------------------------- 1. SABU GEORGE PANICKER, KARAKUNNATHU HOUSE, KUNNACKAL P.O., MUVATTUPUZHA. 2. SANTHOSH, S/O.MATHAI, KOCHAPPILLIL HOUSE, MANEED VILLAGE, EZHAKARANADU KARA. 3. M/S.NATIONNAL INSURACE CO. LTD., MEDICAL MISSION JUNCTION, KOZHENCHERRY. 4. T.K.REJI, THONDUNGAL HOUSE,(7/484) PUTHENCRUZ. BY ADV. SRI.K.V.SABU - R2, ADV. SRI.LAL GEORGE - R3. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 18/06/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.N. KRISHNAN, J. = = = = = = = = = = = = = = M.A.C.A. NO. 1540 OF 2005 = = = = = = = = = = = = = = = Dated this the 18th day of June, 2008. J U D G M E N T This appeal is preferred against the award of the Motor Accidents Claims Tribunal, Muvattupuzha in O.P.(MV) 1275/01. This appeal is preferred by the first respondent in the claim petition against the award of the Tribunal whereby it directed the first respondent to reimburse the amount paid by the insurance company. So far as the claim amount and the satisfaction of the award with respect to the claimant is concerned are all over. Now the interse dispute is between the insurance company and the owners of the vehicle. 2. The question that arises for determination in this case are twin fold namely who is the owner of the vehicle and whether the owner is bound to reimburse the amount for violation of the policy conditions. It cannot be disputed that the policy of the vehicle involved in the accident stands in the name of the first respondent, namely, the appellant. A perusal of the definition of owner under the Motor Vehicle's M.A.C.A. 1540 OF 2005 -:2:- Act will indicate that a person in possession also can be the owner under the Act. It has been held by this Court in very many decisions, so far as a transfer of a vehicle is concerned it is governed under the provisions of Sale of Goods Act and when there is handing over of possession and divestiture of title by paying the consideration, the transfer is complete. The Court also held that Sec. 31 of the old Motor Vehicle's Act 1939 is only a further procedural formality to be complied with so as to cover the field under the provisions of the Motor Vehicle's Act. Since the policy is in the name of the appellant I feel it may not be correct at this stage to reopen the whole thing to find out and therefore I confirm the finding of the Tribunal with respect to the ownership of the vehicle by the first respondent. 3. Then the next is the question of reimbursement. Learned counsel for the insurance company very strongly contends before me that there is no plea to the effect that there is compliance of the policy conditions so as to make the company liable to indemnify the insured under the M.A.C.A. 1540 OF 2005 -:3:- provisions of the Motor Vehicles Act. Regarding compensation, being a beneficial legislation, when the insurance company wants to get rid of the liability on the ground of violation of policy conditions, the duty is always cast upon that company to establish that fact. The question of adducing evidence, weighing the evidence and then deciding the matter on the preponderance of probabilities will arise only at the next stage. When there is a violation in the sense that a vehicle had been authorized to be driven by a person who did not have a valid driving licence it does not ipso facto exonerate the insurer from indemnifying the insured in the light of the dictum laid down in National Insurance Co. Ltd. v. Swaran Singh (2004 (1) KLT 781). In paragraph 102 (iii) and (vi) of the said decision the position to be followed in such cases are reiterated. It is stated therein that mere absence of a licence or a fake licence is not sufficient but it must be proved that it was done by the owner conscious of that factor. In paragraph (vi) the Apex Court held that the absence of a driving licence M.A.C.A. 1540 OF 2005 -:4:- must be proved as fundamental to the character which caused the accident. Even in the decision reported in National insurance Co. Ltd. v. Kusum Rai (2006 (2) KLT 300), the Apex Court has reiterated the factum of consciously giving the vehicle to a driver who did not have a valid driving licence. There are large number of decisions covering this field and therefore the Tribunal has to consider this in the light of the decision in Swaran Singh's case and also explained in so many other decisions of the Apex Court. In order to arrive at a decision the parties shall be permitted to adduce evidence and if necessary, amend the pleadings for a proper decision. Therefore the MACA is partly allowed and the matter is remitted back to the Tribunal for consideration of the limited question regarding the liability of the first respondent to reimburse the amount to the insurance company which had arisen on account of the alleged absence of a valid driving licence. For the said purpose, parties are permitted, if necessary, to amend the pleadings and adduce both documentary and oral evidence in M.A.C.A. 1540 OF 2005 -:5:- support of their respective contentions and the Tribunal is directed to decide the matter in accordance with the decision of the Apex Court in Swaran Singh's case and also explained in other cases of the Apex Court. Parties are directed to appear before the Tribunal on 25.7.08. M.N. KRISHNAN, JUDGE. ul/-