IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN FRIDAY, THE 21ST JANUARY 2011 / 1ST MAGHA 1932 MACA.No. 1975 of 2010() ------------------------------------ OPMV.340/2006 of MOTOR ACCIDENT CLAIMS TRIBUNAL, THODUPUZHA .................... APPELLANT/3RD RESPONDENT ---------------------------------------------- NEW INDIA ASSURANCE COMPANY LTD, PERUMBAVOOR BRANCH, REP BY THE MANAGER. BY ADV. SRI.RAJAN P.KALIYATH RESPONDENTS/CLAIMANT AND R1 AND 2. -------------------------------------------------------------- 1. VENUGOPAL. A, S/O.AYYAPPAN, NANDIKATTU HOUSE, MOOLAMATTOM. P.O, MOOLAMATTOM, PIN-685 589. 2. BINU.K.T, S/O.THANKAPPAN, KALCHIRAVEETTIL, KULAMAVU KARA, IDUKKI VILLAGE, PIN-685 601. 3. AYYAPPAN, S/O.SUBRAMANNIYAN PILLAI, PALACKAL HOUSE, KARUNAPURAM, IDUKKI, PIN-685 552. R2 BY ADV. SRI.N.K.SHYJU. R3 BY ADV. SRI.C.A. JOY, SRI. ANILKUMAR.S. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 21/01/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs MACA.No. 1975 of 2010 ORDER ON I.A.NO.2583/2010 IN MACA NO.1975/2010 DISMISSED 21/01/2011. SD/- M.N.KRISHNAN, JUDGE //TRUE COPY// P.A. TO JUDGE rs M.N. KRISHNAN, J. = = = = = = = = = = = = = = M.A.C.A. NO. 1975 OF 2010 = = = = = = = = = = = = = = = Dated this the 21st 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, Thodupuzha in O.P.(MV)340/06. The claimant sustained injuries in a road accident and the Tribunal awarded a compensation of Rs.22,800/- and directed it to reimburse from the insurance company. It is against that decision the insurance company has come up in appeal. 2. Heard the learned counsel for the appellant as well as the 3rd respondent, owner. The two points that emerge for consideration in the appeal are, one, regarding the question whether the absence of a badge would amount to a breach of policy condition and secondly, when there is a transfer of the vehicle, who is to be M.A.C.A. 1975 OF 2010 -:2:- affixed with the liability. 3. So far as the licence is concerned the vehicle involved in the accident is a passenger carrying auto rickshaw which comes under the definition of the word transport vehicle under the M.V.Act. S.3(1) of the M.V.Act very clearly states that a person should have a duly authorised licence to drive a vehicle which he is plying. There cannot be any dispute that in order to constitute a valid and proper driving licence to drive a public vehicle like an auto rickshaw it is necessary to have a licence and a badge. Or in otherwords, the badge is a due authorisation permitting the person to drive a public vehicle. Therefore the finding of the Tribunal that the absence of a badge does not militate against the driver cannot be upheld. The Hon'ble Supreme Court in the decision M.A.C.A. 1975 OF 2010 -:3:- reported in New India Assurance Co. Ltd. v. Roshanben Rahemansha Fakir (2008 (3) TAC 20 (SC). 2008 (8) SCC 253 considered the question and held that when the driver of a vehicle is not possessing a valid driving licence to drive a transport vehicle there is breach of policy condition. So in the light of the said pronouncement it has to be held that the insured is bound to reimburse the amount in favour of the insurer. So the finding to the contra by the Tribunal is therefore set aside. 4. The next contention is regarding the ownership of the vehicle. Even the insurance company in their written statement has contended that the ownership of the vehicle was transferred to Sudhish S/o Kochappu prior to the accident. Under the provisions of the M.V.Act and especially u/s 2(30) a person in possession M.A.C.A. 1975 OF 2010 -:4:- can also be an owner of the vehicle. The sale being one under the provisions of the Sale of Goods Act parting with possession and receiving consideration amounts to divestiture of title. The Courts have very clearly held that the transfer of registration is a conduct subsequent to the sale and therefore the mere non-transfer cannot vitiate the same. So it is also a point that has to be considered by impleading the person who is alleged to be the owner of the vehicle. 5. Then comes the question of reimbursement. It has to be stated that by virtue of the decision of this Court reported in Ashraf v. Fathima 2004 (2) KLT 598 since the contract of insurance is between the insurer and the insured the insurer can proceed only against the insured. Therefore that is also a matter M.A.C.A. 1975 OF 2010 -:5:- which requires consideration. If such is the contingency and there is a finding to the effect that Sudhish is the owner of the vehicle then the insured cannot be left without any remedy and there can be a direction for reimbursement of the amount by Sudhish to the insured. So all these points requires consideration after the impleadment of Sudhish S/o Kochappu. Since the dispute is only with respect to reimbursement the claimant need not be dragged on. The learned counsel for the appellant also prays for an opportunity to adduce evidence with regard to the existence of a valid driving licence as on the date of the accident, that also can be permitted. 6. Therefore the award under challenge so far as it relates to the liability part is set aside and the matter is remitted back to the M.A.C.A. 1975 OF 2010 -:6:- Tribunal with a direction to consider all the points that has been discussed in the previous paragraphs of the judgment after impleading Sudhish S/o Kochappu. The registered owner as well as this Sudhish be permitted to file written statement in support of their respective contentions and thereafter all be permitted to adduce both documentary as well as oral evidence in support of their respective contentions and then the matter be disposed of in accordance with law. Parties are directed to appear before the Tribunal on 25.2.2011. M.N. KRISHNAN, JUDGE. ul/-