IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 25TH NOVEMBER 2009 / 4TH AGRAHAYANA 1931 MACA.No. 2625 of 2008(D) ------------------------------------- (AGAINST THE AWARD DTD. 31/03/2008 IN O.P(MV).NO.1013/2003 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, PUNALUR) .................... APPELLANT/3RD RESPONDENT: ----------------------------------------------- UNITED INDIA INSURANCE COMPANY LTD., REP.BY ITS DEPUTY MANAGER, REGIONAL OFICE, SHARANYA, HOSPITAL ROAD, KOCHI-11. BY ADVS. MR. RAJAN.P. KALLIATH. SMT.RAJI .T BHASKAR. RESPONDENTS/PETITIONER & RESPONDENTS 1, 2, 4, 5 & ADDL.6TH RESPECTIVELY: ----------------------------------------------------------------------------------- 1. MINI JOSE, AGED ABOUT 26 YEARS, W/O. P.J. JOSEPH, BIJU BHAVAN, ELAVOOR, UTHUNGAN, CHERUVAKKAL, ELAMADU. 2. B.MURALEEDHARAN PILLAI, HOUSE NO.534/15 PERINADU, PERUMON P.O., KOLLAM. 3. KANNAN S., S/O.SIVADASAN CHETTI, DEVI NIVAS, EAST OUNNAMMOODU, VARKKALA. 4. SUJATHA, W/O.MOHANAN,VILAYIL VEEDU, KUTTICHIRA, T.K.M.C.KOLLAM. 5. THE DIVISIONAL MANAGER, NATIONAL INSURANCE CO.LTD.,HOSPITAL ROAD, KOLLAM. 6. MINI PRABHA, W/O.LALKUMAR, LAL BHAVAN, THAZHUTHALA, KOTTIYAM, KOLLAM DISTRICT. R5 BY ADV. MR.E.M.JOSEPH, R6 BY ADVS. DR.K.P.SATHEESAN, MR.K.K.GOPINATHAN NAIR, MR.M.R.JAYAPRASAD, MR.P.MOHANDAS (ERNAKULAM). THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 25/11/2009, ALONG WITH M.A.C.A. NO.2854/2008 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.A.C.A. NO. 2625/2008-D: ORDER ON I.A. NO. 3118/2008 IN M.A.C.A. NO. 2625/2008-D DISMISSED 25/11/2009. SD/- M.N.KRISHNAN, JUDGE. //TRUE COPY// P.S. TO JUDGE. Prv. M.N.KRISHNAN, J ===================== MACA Nos.2625, 2781,2782,2783,2854,2855,2856 2857,2858 & 2859 OF 2008 & WP(C)No.34337/2008 ===================== Dated this the 25th day of November 2009 JUDGMENT All these appeals and the writ petition are preferred by the United India Insurance Company challenging the finding of the Motor Accidents Claims Tribunal, Punalur on the question of its liability in O.P.(MV) Nos.1013/03,957/03,966/03,968/03,956/03,1012/03,1011/0357/04,1028/03, 1010/03 and in O.P.(MV)No.954,955,967,970,1009 & 1027/2003. The brief facts which requires consideration are as follows: The bus insured by the appellant belonged to one Muraleedharan Pillai. There was a policy taken by Muraleedharan Pillai on 10.4.2002 to 9.4.2003. It is the contention that the said Muraleedharan Pillai had transferred the vehicle to one Mini Prabha on 22.2.2003. It is submitted that this Muraleedharan Pillai submitted an application for renewal of the policy on 17.4.2003 and a policy was issued in the name of said Muraleedharan Pillai from 17.4.2003 to 16.4.2004. The accident had taken place on 16.7.2003. Learned counsel for the insurance company would contend that since the sale has been effected on 22.2.2003 and as Mini Prabha had become the owner in possession of the vehicle on MACA 2625/08 & con.cases -:2:- that day onwards, the proposal filed by the previous owner, viz., the Muraleedharan Pillai amounts to fraud and it was at a point of time when he does not have any right or possession over the vehicle and therefore the policy issued in his name would not cover the field and therefore the insurance company has to be exonerated from the liability. 2. On the other hand, the learned counsel for Mini Prabha would contend before me that though there was a sale the registration was transferred in the name of Mini Prabha only on 28.5.2003 and therefore at the time of applying for the issuance of a policy in the form of renewal, the registered owner continued to be Muraleedharan Pillai and therefore there was nothing wrong in taking the policy in the name of Muraleedharan Pillai. Since the fiction under Section 157 of the Motor Vehicles Act deals with the question of a deemed transfer and as the lady has become the owner, subsequently by change of registration, it is contended that there is a valid policy in existence and so the insurance company is bound to pay the amount. 3. Learned counsel for the insurance company would contend and argue that the endorsement and the evidence tendered in the case would indicate that there was transfer of permit as early as on 22.2.2003 and therefore the policy could not have been taken in the name of MACA 2625/08 & con.cases -:3:- Muraleedharan Pillai. Learned counsel for Mini Prabha had produced a notarized copy of the endorsement along with the counter affidavit filed by her on 15.10.2009 wherein there is an endorsement to the effect regarding the transfer of registration which bears the date 28.5.2003. Learned counsel would contend that in the light of this endorsement, it can be clearly seen that Sri.Muraleedharan Pillai continued to be the registered owner of the vehicle on the date of applying for the renewal of the policy on 17.4.2003 and when the vehicle is transferred subsequently by virtue of the fiction under Section 157(1)and (2) of the Motor Vehicles Act the policy is changed to the name of the Mini Prabha automatically and therefore there was a valid policy coverage and therefore the insurance company cannot get exonerated from the liability. Now unfortunately this Mini Prabha did not enter appearance and contested the case before the Tribunal. The crucial question regarding who was the registered owner on the date of submission for the proposal form has to be considered on the back drop of the materials available and evidence to be adduced in the matter. If a person continues to be a registered owner, ordinarily it is the registered owner's name that finds a place in the policy issued by the company. I am conscious of the fact that for sale of movable property under the provisions of the Sales of Goods Act handing over of possession coupled with the payment of consideration MACA 2625/08 & con.cases -:4:- will amount to divestiture of title and the sale is complete on the same. But the procedural formalities in order to make the records in tact are contemplated under the provisions of the Motor Vehicles Act, under Section 50 of the New Act and under Section 31 of the Old Act of 1939. It has been held in very many cases that transfer of registration is subsequent to the sale and the delay or something on that will not militate against the same if it is done. Under the provisions of the old Motor Vehicles Act, section 103A decisions are to the effect that when a policy is taken, there is privity of contract between the insurer and the insured and when a transfer is effected unless the insurance company agrees for the change the policy will not have validity in the case of a transferee and therefore third parties were affected under such circumstances. In order to over-come the said situation, the Legislature in its wisdom brought Section 157 of the Motor Vehicles Act wherein there is a deemed transfer the moment the sale is effected. A situation may arise where one has to decide whether there was a policy for the vehicle on the date of accident or not. Learned counsel for the insurance company views the matter in another angle and submits that if really the transfer is complete and the person has no right over the property at all, can a policy taken in his name suppressing the factum of a sale will cover the filed. The matter requires consideration in these cases for the MACA 2625/08 & con.cases -:5:- reason that the crucial date is regarding the transfer of registration for the reason that a registered owner by various provisions of the Act is always saddled with the liability so far as the vehicle stands in his name. I am also sorry to state in these type of cases that when a policy is renewed or a policy is issued, the persons issuing policy are also expected to look into at least the registration certificate so as to convince their conscience regarding the correctness of the policy which they are issuing. But, in very many cases we find it absent and I leave it there. Therefore the whole matter requires reconsideration on the following points. Therefore the awards under challenge are set aside and the matters are remitted back to the Tribunal for the following points to be considered:(1) Smt.Mini Prabha may be permitted to file a written statement and produce documents in support of her contentions.(2) The Tribunal is directed to arrive at a finding regarding the date of sale, date of change of registration, date of change of permit, etc. and then consider the question in the legal back drop of Section 157 of the Motor Vehicles Act regarding entitlement of the owner to get indemnified as well as the liability of the insurance company in such cases. Parties are directed to appear before the Tribunal on 21.12.2009. In all these cases the appellant is directed to take out notice to Sri.Muraleedharan Pillai and if the Tribunal feels that legal representatives MACA 2625/08 & con.cases -:6:- of Kannan has to be impleaded, direction may be given to the claimants to implead them. Since the rights of the claimants are also jeopardized the Tribunal shall endeavour its level best to dispose of the matter within 4 months from the date of first appearance of the parties. MACAs and the writ petition are disposed of accordingly. M.N.KRISHNAN, JUDGE Cdp/-